Rule2024-17909
Hazard Mitigation Grant Program Application Period Extension
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 15, 2024
Effective
August 15, 2024
Issuing agencies
Homeland Security DepartmentFederal Emergency Management Agency
Abstract
The Federal Emergency Management Agency (FEMA) is revising its regulations to extend the Hazard Mitigation Grant Program's application period. This revision will allow FEMA to approve additional projects and offer applicants additional time for project approvals meant to address the effects of climate change and other unmet community mitigation needs.
Full Text
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<title>Federal Register, Volume 89 Issue 158 (Thursday, August 15, 2024)</title>
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[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66241-66254]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17909]
[[Page 66241]]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2024-0024]
RIN 1660-AB15
Hazard Mitigation Grant Program Application Period Extension
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
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SUMMARY: The Federal Emergency Management Agency (FEMA) is revising its
regulations to extend the Hazard Mitigation Grant Program's application
period. This revision will allow FEMA to approve additional projects
and offer applicants additional time for project approvals meant to
address the effects of climate change and other unmet community
mitigation needs.
DATES: This rule is effective August 15, 2024.
ADDRESSES: The docket for this rulemaking is available for inspection
using the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and
can be viewed by following that website's instructions.
FOR FURTHER INFORMATION CONTACT: Howard Stronach, Mitigation
Directorate, Hazard Mitigation Assistance Division, FEMA, 400 C St. SW,
Washington, DC 20472, (202) 646-3683, <a href="/cdn-cgi/l/email-protection#99fffcf4f8b4f1f4f8b4feecf0fdfcd9fffcf4f8b7fdf1eab7fef6ef"><span class="__cf_email__" data-cfemail="3f595a525e1257525e12584a565b5a7f595a525e115b574c11585049">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
1. Legal and Factual Background
FEMA's Hazard Mitigation Grant Program
FEMA is responsible for administering and coordinating the Federal
Government's response to disasters pursuant to the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (``Stafford Act'').\1\
There are two types of disaster declarations provided for in the
Stafford Act: emergency declarations \2\ and major disaster
declarations.\3\ Following a major disaster declaration, FEMA may
provide several different types of discretionary assistance to
applicants such as funding under its Hazard Mitigation Grant Program
(HMGP) which is authorized under Section 404 of the Stafford Act. 42
U.S.C. 5170c; 44 CFR 206.40.
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\1\ Robert T. Stafford Disaster Relief and Emergency Assistance
Act, Public Law 93-288 (1974) (codified as amended at 42 U.S.C. 5121
et. seq.) (``Stafford Act'').
\2\ Stafford Act, supra note 1, section 501 (codified as amended
at 42 U.S.C. 5191(a)); see also Stafford Act, supra note 1, section
102 (codified as amended at 42 U.S.C. 5122) which defines
``emergency'' as ``any occasion or instance for which, in the
determination of the President, Federal assistance is needed to
supplement State and local efforts and capabilities to save lives
and to protect property and public health and safety, or to lessen
or avert the threat of a catastrophe in any part of the United
States.''
\3\ 42 U.S.C. 5170; 5122 (defining ``major disaster'' as ``any
natural catastrophe (including any hurricane, tornado, storm, high
water, wind-driven water, tidal wave, tsunami, earthquake, volcanic
eruption, landslide, mudslide, snowstorm, or drought), or,
regardless of cause, any fire, flood, or explosion, in any part of
the United States, which in the determination of the President
causes damage of sufficient severity and magnitude to warrant major
disaster assistance under this Act to supplement the efforts and
available resources of States, local governments, and disaster
relief organizations in alleviating the damage, loss, hardship, or
suffering caused thereby.'').
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HMGP ``ensures that State, local, Tribal and territorial
governments have the financial opportunity to plan for and implement
mitigation measures that reduce the risk of loss of life and property
from future natural disasters during the reconstruction process
following a disaster.'' \4\ HMGP funding is time-limited; ``the award
period of performance for HMGP begins with the opening of the
application period and ends no later than 48 months from the close of
the application period.'' Id.
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\4\ Federal Emergency Management Agency, Hazard Mitigation
Assistance Program and Policy Guide (``HMAPPG''), Part 10.A.4, p.
28, March 20, 2023, available at <a href="https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf">https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf</a> (last
accessed on August 1, 2024).
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Under HMGP, FEMA ``may contribute up to 75% of the cost of hazard
mitigation measures which the President has determined are cost-
effective and which substantially reduce the risk of future damage,
hardship, loss, or suffering in any area affected by a major
disaster.'' \5\ States (which includes Territories) \6\ and Indian
Tribal Governments are eligible applicants for HMGP funding, and upon
award, will become recipients.\7\ State agencies, local governments,
private nonprofit organizations, and Indian Tribal Governments \8\ are
eligible subapplicants for HMGP who, and, upon subaward, will become
subrecipients.\9\
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\5\ Stafford Act, supra note 1, section 404 (codified as amended
at 42 U.S.C. 5170c(a)); the statute caps the maximum amount of
financial assistance that FEMA may provide for hazard mitigation,
providing that the total of contributions ``shall not exceed 15
percent for amounts not more than $2,000,000,000, 10 percent for
amounts of more than $2,000,000,000 and not more than
$10,000,000,000, and 7.5 percent on amounts of more than
$10,000,000,000 and not more than $35,000,000,000'' of the estimated
aggregate amount of grants to be made under the disaster
declaration.
\6\ ``State'' means any State of the United States, the District
of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern Mariana Islands. 42 U.S.C.
5122(4).
\7\ 44 CFR 206.431 at definitions of ``Applicant'' and
``Recipient''
\8\ Indian Tribal Governments have the option to apply as an
applicant or a subapplicant. 44 CFR 206.431 at definition of
``Indian Tribal Government.'' An Indian Tribal Government acting as
recipient will assume the responsibilities of a State, as described
in 44 CFR part 206, subpart N, for the purposes of administering the
grant. 44 CFR 206.431 at definition of ``Recipient.''
\9\ 44 CFR 206.431 at definition of ``Subrecipient.''
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The HMGP lists all relevant program definitions at 44 CFR 206.431.
In HMGP, a ``grant application'' is a request to FEMA for HMGP funding
by a State or Tribal Government that will act as a recipient. 44 CFR
206.431. The ``subaward application'' is the request to the recipient
for HMGP funding by the eligible subrecipient. 44 CFR 206.431; 44 CFR
206.436(a). The ``grant award'' is the total Federal and non-federal
contributions to complete the approved scope of work.\10\ The
``subaward'' means an award provided by a pass-through entity to a
subrecipient for the subrecipient to carry out as part of the Federal
award. 44 CFR 206.431; 44 CFR 206.436(a). The ``recipient'' is the
State or Indian Tribal Government that receives a Federal award
directly from FEMA.\11\
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\10\ Id. at definition of ``Grant award.''
\11\ 44 CFR 206.431 at definition of ``Recipient.''
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Hazard Mitigation Grant Program Application Procedures
HMGP applicants follow the procedures set forth at Sec. 206.436.
Upon identification of mitigation measures, the applicant submits an
HMGP application to the FEMA Regional Administrator. The HMGP
application includes a comprehensive narrative identifying intended
mitigation projects, State or local contacts, project locations,
description and cost estimates, an analysis of the cost-effectiveness
of the mitigation measures, work schedules, justification for
selection, relevant project management information and subrecipients.
See 44 CFR 206.436(c). Applications for HMGP serve to identify the
specific mitigation measures for which HMGP funding is requested.
Applicants must submit all local HMGP applications (also known as
subaward applications or subapplications) and funding requests to the
FEMA Regional Administrator within 12 months of the date of the
disaster declaration.\12\ Under Sec. 206.436(e), however, applicants/
recipients may request that the Regional Administrator extend the
application time limit by additional 30-to-90-day
[[Page 66242]]
increments, not to exceed a total of 180 days.
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\12\ See 44 CFR 206.436.
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The amount of HMGP funding available to the applicant is based on
the estimated total Federal assistance for the major disaster
declaration, subject to the sliding scale formula that FEMA provides
for disaster recovery. 44 CFR 206.432(b). FEMA establishes the amount
of funding available for HMGP for each disaster \13\ (called the HMGP
``ceiling'') at 12 months after the date of the disaster declaration
(called the HMGP ``lock-in'').\14\ FEMA provides two point-in-time
estimates prior to the 12-month lock-in (at 35 days and 6 months) so
that the applicant has some approximation of funding availability for
each disaster in order to solicit and select among subapplications for
mitigation projects. Id. When major fluctuations of projected disaster
costs occur, FEMA, at the request of the applicant, may conduct an
additional review after the 12-month lock-in. If the resulting review
shows that the amount of funds available for HMGP is different than
previously calculated, the final lock-in amount will be adjusted
accordingly. Id.
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\13\ The maximum amount of financial assistance that FEMA may
provide for HMGP is based on the amount of the grants FEMA projects
it will provide under the major disaster declaration. Specifically,
the amount of contributions ``shall not exceed 15 percent for
amounts not more than $2,000,000,000, 10 percent for amounts of more
than $2,000,000,000 and not more than $10,000,000,000, and 7.5
percent on amounts of more than $10,000,000,000 and not more than
$35,333,000,000'' of the estimated aggregate amount of grants to be
made under the disaster declaration. 42 U.S.C. 5170c(a).
\14\ Federal Emergency Management Agency, Hazard Mitigation
Assistance Program and Policy Guide (``HMAPPG''), Part 10.A.4, pp.
199-200, March 20, 2023, available at <a href="https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf">https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf</a>
(last accessed on August 1, 2024).
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2. Public Support & Need for Rule Change
FEMA stakeholders have identified the length of the application
period and the inability to re-open the application period once it has
closed as barriers to applying for assistance under HMGP.\15\
Specifically, State, local, Tribal, and territorial (SLTT) stakeholders
have indicated they would benefit from additional time to develop
quality applications and identified lack of resources, staff, and
technical expertise necessary to prepare quality applications in a
timely manner, resource challenges in trying to apply for assistance
while also managing the response and recovery from a major disaster,
failing to have a set HMGP ceiling established until the 12-month mark
when the applications are due, and cumulative disasters as
circumstances that further exacerbate the challenges to applying for
assistance. Id.
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\15\ See, e.g., <a href="http://www.regulations.gov">www.regulations.gov</a>, Docket ID FEMA-2022-0023 at
FEMA-2022-0023-0014 (comment from Texas Division of Emergency
Management suggesting that FEMA remove the statutory requirement
that FEMA will only consider an extension to the application
deadline if the applicant's inability to meet the deadline must have
resulted from the event leading to the major disaster declaration.
TDEM notes ``[t]here are many legitimate extenuating circumstances
that could lead a state to miss an application deadline that aren't
directly caused by the declared disaster.''); at FEMA-2022-0023-0032
(comment from Iowa Homeland Security and Emergency Management noting
more time might be necessary for projects if a State experiences
back to back disaster declarations); at FEMA-2022-0023-0034 (comment
from the City of New Orleans argues that not allowing applicants to
submit projects after the application period closes creates a strain
on applicants to have ready to go project ideas in the near-term
recovery period); at FEMA-2022-0023-0038 (comment from New York
State Hazard Mitigation arguing that FEMA should be incorporating
flexibility into the application process, particularly when FEMA
and/or other disasters are the sole reasons for not being able to
meet the 12 month deadline, noting that ``[i]n a perfect world, a 12
month application period seems more than sufficient, but taking into
account impacts from one disaster occurring while dealing with
another disaster and adding 2 more disasters within the 12 month
period plus annual FEMA competitive programs that all impact the
same groups makes this an impossibility.''); at FEMA-2022-0023-0053)
(comment from Louisiana Governor's Office of Homeland Security and
Emergency Preparedness arguing that a State/jurisdiction can face
significant challenges when back to back events occur, stating it is
it is ``unrealistic to assume that the impacts from one event are
not compounded by each subsequent event, affecting overlapping
regions of the State, and further stressing State and local
capacity'' and further stating that ``FEMA should provide
flexibility to extend and in some cases re-open an application
period when a lock-in recalculation is made, especially when that
recalculation comes at the end of the application period, and
especially when the increase is substantial'' because applicants
need sufficient time to develop and submit quality applications.)
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Among the feedback received, SLTT entities indicated a need for
allowing FEMA to extend or reopen the application period after it
closes when disaster assistance recalculations potentially result in
increased lock-in ceilings.\16\ Between October 1, 2019, and January 1,
2023, applicants submitted 75 requests, out of a total of 171
applications, for extensions beyond the 180 days Regional
Administrators are permitted to authorize. Based on analysis of
historical data from FEMA's NEMIS database,\17\ from 2013-2022, 26.0
percent of applicants submit their applications within 12 months or
less, 16.0 percent of applicants request extensions and submit their
applications between 12-15 months, 31.3 percent of applicants request
extensions and submit their applications between 15-18 months, and 26.7
percent of applicants are unable to complete their applications within
the 18 months allowable under the regulations.
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\16\ See Docket ID FEMA-2022-0025 (containing comments from the
Ohio Emergency Management Mitigation Branch, ``. . . [w]hat is the
purpose of re-calculating the ceiling amount after the application
period has closed if FEMA cannot extend the application period and
make the funds available to states and communities?''; see also,
FEMA-2022-0023-0038 (containing comments from the New York State
Hazard Mitigation that FEMA should incorporate flexibility in its
lock in ceiling process).
\17\ The National Emergency Management Information System
(NEMIS) is a FEMA-wide system that allows FEMA and its partners to
carry out emergency management missions for the United States, its
Territories, and its Tribal Agencies.
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FEMA has statutory authority to waive administrative conditions
that would prevent applicants from receiving assistance if the
inability to meet such conditions is the result of the major disaster.
See 42 U.S.C. 5141. FEMA has used this authority to grant extensions
beyond 18 months to those applicants who can demonstrate they are
unable to meet the deadline as a result of the major disaster. From
2013-2022, for disasters that required extensions beyond the
regulatorily-provided 18 months, the average amount of additional time
approved by FEMA is approximately 11.6 months; however, this amount
includes several major disasters with extraordinary circumstances that
require significantly more time to address than typical disasters. The
median amount of additional time, which provides a more realistic
snapshot, is approximately 6.1 months.
FEMA establishes the amount of funding available for HMGP for each
disaster at 12 months after the date of the disaster declaration. 42
U.S.C. 5170c(a). The 12-month application deadline currently in
regulation does not provide sufficient time for applicants to submit
their applications. In light of the public participation referenced
throughout \18\ and resultant
[[Page 66243]]
data analytics research discussed in Regulatory Analysis ``B. Executive
Orders 12866, `Regulatory Planning and Review' and 13563, `Improving
Regulation and Regulatory Review,' '' FEMA now moves to address these
identified challenges.
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\18\ See, e.g., <a href="http://www.regulations.gov">www.regulations.gov</a>, Docket ID FEMA-2022-0023 at
FEMA-2022-0023-0014 (comment from Texas Division of Emergency
Management suggesting that FEMA remove the statutory requirement
that FEMA will only consider an extension to the application
deadline if the applicant's inability to meet the deadline must have
resulted from the event leading to the major disaster declaration.
TDEM notes ``[t]here are many legitimate extenuating circumstances
that could lead a state to miss an application deadline that aren't
directly caused by the declared disaster.''); at FEMA-2022-0023-0032
(comment from Iowa Homeland Security and Emergency Management noting
more time might be necessary for projects if a State experiences
back to back disaster declarations); at FEMA-2022-0023-0034 (comment
from the City of New Orleans argues that not allowing applicants to
submit projects after the application period closes creates a strain
on applicants to have ready to go project ideas in the near-term
recovery period); at FEMA-2022-0023-0038 (comment from New York
State Hazard Mitigation arguing that FEMA should be incorporating
flexibility into the application process, particularly when FEMA
and/or other disasters are the sole reasons for not being able to
meet the 12 month deadline, noting that ``[i]n a perfect world, a 12
month application period seems more than sufficient, but taking into
account impacts from one disaster occurring while dealing with
another disaster and adding 2 more disasters within the 12 month
period plus annual FEMA competitive programs that all impact the
same groups makes this an impossibility.''); at FEMA-2022-0023-0053)
(comment from Louisiana Governor's Office of Homeland Security and
Emergency Preparedness arguing that a State/jurisdiction can face
significant challenges when back to back events occur, stating it is
it is ``unrealistic to assume that the impacts from one event are
not compounded by each subsequent event, affecting overlapping
regions of the State, and further stressing State and local
capacity'' and further stating that ``FEMA should provide
flexibility to extend and in some cases re-open an application
period when a lock-in recalculation is made, especially when that
recalculation comes at the end of the application period, and
especially when the increase is substantial'' because applicants
need sufficient time to develop and submit quality applications.)
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3. Discussion of Rule Change
FEMA is amending Sec. 206.436 to extend the HMGP's application
period and reopen the registration period under limited circumstances.
FEMA is revising Sec. 206.436(d), ``Application submission time
limit,'' to extend the initial deadline for applicants to submit local
HMGP applications and funding requests from 12 months to 15 months from
the date of disaster declaration. FEMA's historical data shows that 42
percent of applicants are able to submit applications within 15 months
(26.0 percent who are able to meet the current 12-month deadline + 16
percent who are able to request an extension and submit by the 15-month
extended deadline). FEMA's historical data also shows that setting the
initial deadline at 18 months will increase this number by 31.3
percent. FEMA is extending the initial deadline to 15 months instead of
18 months (or longer) to ensure that it is setting an achievable
deadline while still maintaining its commitment to timely and effective
grants management. The additional 3 months also provides applicants
time to receive the 12-month lock in amount and make educated
adjustments to the amount of funding they are applying for. This would
lessen the administrative burden placed on HMGP recipients and FEMA as
it would require fewer application extension requests and responses.
FEMA is making several revisions to Sec. 206.436(e),
``Extensions.'' Currently, Sec. 206.436(e) provides that an applicant
may, with justification, request that the Regional Administrator extend
the application time limit by 30 to 90 day increments, not to exceed a
total of 180 days. FEMA is revising Sec. 206.436(e) by adding
introductory text to state that upon receiving a written request from
the applicant, FEMA may extend the application submission timeline as
described in new paragraphs (e)(1) and (2). New paragraph (e)(1)
retains the language currently in paragraph (e), except that FEMA is
increasing 90 days to 120 days and increasing 180 days to 240 days.
FEMA is also changing the word ``recipient'' to ``applicant'' in the
last sentence for accuracy, as ``applicant'' is an entity applying to
FEMA for funding; it is only upon award that the applicant becomes the
recipient.
New paragraph (e)(2) provides that FEMA will only consider requests
for extensions beyond 240 days for extenuating circumstances outside of
the applicant's control. Such requests must be submitted to the
Regional Administrator and must include justification. FEMA is adding
new paragraph (e)(2) because it understands that extenuating
circumstances outside of the applicant's control might prevent the
applicant from submitting its application within the 240-day timeframe.
FEMA is therefore allowing requests for extensions as a matter of
fairness but is requiring such extensions to be coordinated between the
FEMA region and FEMA Headquarters and requiring justification to ensure
that no application period is extended indefinitely. As described in
FEMA's Hazard Mitigation Assistance Program and Policy Guide, a
recipient's extension request must (1) describe the extenuating
circumstances that prevent the recipient from meeting that application
period deadline, (2) document how the recipient implemented HMGP
consistent with its Administrative Plan, (3) provide an implementation
strategy and goals to use any remaining assistance (including an
assessment of the additional time requested and an updated
Administrative Plan), and (4) identify any technical assistance that
can assist in addressing resource gaps and/or is needed to successfully
implement the program.\19\
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\19\ HMAPPG, Part 10.A.10, p. 208-209, Mar. 20, 2023, available
at <a href="https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf">https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf</a> (last accessed on August 1, 2024).
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As noted throughout, FEMA stakeholders have identified the length
of the application period and the inability to reopen the application
period once it has closed as barriers to applying for assistance under
HMGP. They have indicated that additional time to develop applications
would allow them to not only submit more applications, but better, more
complete applications as well.\20\ In response, FEMA is adding a new
paragraph (f) to allow FEMA to reopen application periods on a limited
basis. This paragraph, entitled ``Reopening of application period,''
provides that FEMA's Assistant Administrator for the Mitigation
Directorate may reopen a closed application period for up to 180 days
under two circumstances. (FEMA is limiting its ability to reopen a
closed application period to 180 days to ensure this remains a limited
authority). The first circumstance, addressed in paragraph (f)(1),
``Recalculation of assistance,'' will allow FEMA to reopen a closed
application period if FEMA approves a recalculation of assistance under
Sec. 206.432 and an applicant requests to reopen the application
period within 60 days of FEMA's recalculation approval.
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\20\ See Docket ID: FEMA-2022-0023-0034 (comment from the City
of New Orleans argues that not allowing applicants to submit
projects after the application period closes creates a strain on
applicants to have ready to go project ideas in the near-term
recovery period).
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As stated above, the amount of available HMGP funding is based on a
percentage of the estimated total Federal assistance for each disaster
declaration. 42 U.S.C. 5170c; 44 CFR 206.432(b). FEMA establishes the
HMGP lock-in 12 months after the disaster declaration. Id. In
circumstances when a major disaster results in significant fluctuations
of projected or actual costs, FEMA, at the recipient's request, may
change the ``lock-in'' amount if the projections or actuals used to
determine it were inaccurate enough that the change would be material.
Id. However, FEMA currently cannot reopen the application period after
it has closed even if there has been an increase to the ceiling amount
of assistance. Id. This causes issues for applicants because ``lock-
in'' recalculations can greatly increase the amount of additional HMGP
funding but often occur close to the end of, or even outside of, the
application period, leaving applicants without additional time to apply
for that extra funding.
FEMA is adding new paragraph (f)(1) to allow FEMA to reopen a
closed application period to address this issue.
[[Page 66244]]
FEMA is requiring applicants to submit such requests within 60 days of
FEMA's recalculation to ensure that submissions are timely and to
prevent an applicant from requesting a reopening after an extended
period of time has passed. The second circumstance, addressed in
paragraph (f)(2), ``Appeal,'' will allow FEMA to reopen a closed
application period if FEMA grants an appeal under Sec. 206.440 for an
application extension denial after an application period is closed.
Currently, if FEMA grants an appeal for an application extension
denial, FEMA lacks the authority to reopen the application period for
that applicant. This results in an inequitable scenario where the
applicant wins its appeal but is deprived of a ``remedy,'' which
effectively renders the appeal meaningless. Allowing FEMA to reopen the
application period for an applicant whose appeal it has granted would
enable FEMA to provide all applicants a more effective and equitable
appeals process.
FEMA will redesignate current paragraph (f), ``FEMA approval,'' as
paragraph (g). In new paragraph (g), FEMA will make nonsubstantive
revisions such as changing the word ``State'' to ``applicant'' for
greater accuracy, as well as minor grammatical edits to incorporate the
active voice. Lastly, FEMA will redesignate current paragraph (g),
``Indian Tribal recipients,'' as paragraph (h).
4. Regulatory Analysis
A. Administrative Procedure Act
The Administrative Procedure Act (APA) generally requires agencies
to publish a notice of proposed rulemaking in the Federal Register and
provide interested persons the opportunity to submit comments. See 5
U.S.C. 553(b) and (c). The APA provides an exception to this prior
notice and comment requirement for matters relating to public property,
loans, grants, benefits, or contracts. 5 U.S.C. 553(a)(2).
FEMA's HMGP program is a grant program through which FEMA obligates
funding to State, local, Tribal, and territorial governments, as well
as eligible private nonprofit organizations, for post-disaster hazard
mitigation measures that reduce the risk of, or increase resilience to,
future damage, hardship, loss or suffering in any area affected by a
major disaster, or any area affected by a fire for which assistance was
provided under section 420 of the Stafford Act. Because this rule
relates to FEMA's obligation of grant funding under the HMGP program,
it is exempt from notice and comment rulemaking under the APA. In
addition to the grants exemption previously noted, this rulemaking
serves to increase flexibility in the administration of this mitigation
grant program.
While FEMA asserts this rule is exempt from notice and comment
procedures, the agency acknowledges its general policy to provide for
public participation in rulemaking.\21\ FEMA has retained its
discretion to depart from this policy as circumstances warrant. 44 CFR
1.3(c). Extending the HMGP application period warrants such a departure
from notice and comment rulemaking, because the effort is a result of
public comment. FEMA has already received comments from numerous
stakeholders in response to a publication of the Hazard Mitigation
Assistance (HMA) Program and Policy Guide for public comment \22\
expressing concern regarding the challenges they encounter in meeting
the current HMGP deadlines \23\ and supporting the regulatory changes
in this rulemaking. This rule does not impose any additional
requirements on applicants; rather, in response to public comment
requesting additional flexibilities in the HMGP,\24\ it increases
flexibility for applicants by allowing more opportunities for them to
develop and improve their grant applications to address the effects of
climate change and other unmet mitigation needs.
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\21\ 44 CFR 1.3(a). Until recently, FEMA waived the exemption
afforded to grant programs under the APA and treated its programs as
if they were subject to traditional notice and comment requirements.
On March 3, 2022, FEMA published a final rule clarifying its
position regarding notice and comment rulemaking for its grant
programs. See 87 FR 11971, Mar. 3, 2022. FEMA determined that
removal of the waiver of the exemption streamlined the regulations
and ensured that the agency retained the flexibility to utilize a
range of public engagement options in advance of rulemaking where
appropriate. FEMA noted that it would retain its general policy in
favor of public participation in rulemaking but would retain
discretion to depart from this policy as circumstances warrant.
\22\ 87 FR 52016; HMAPPG, available at <a href="https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf">https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf</a> (last accessed on August 1,2024).
\23\ See, e.g., <a href="http://www.regulations.gov">www.regulations.gov</a>, Docket ID FEMA-2022-0023 at
FEMA-2022-0023-0014 (comment from Texas Division of Emergency
Management suggesting that FEMA remove the statutory requirement
that FEMA will only consider an extension to the application
deadline if the applicant's inability to meet the deadline must have
resulted from the event leading to the major disaster declaration.
TDEM notes ``[t]here are many legitimate extenuating circumstances
that could lead a state to miss an application deadline that aren't
directly caused by the declared disaster.''); at FEMA-2022-0023-0032
(comment from Iowa Homeland Security and Emergency Management noting
more time might be necessary for projects if a State experiences
back to back disaster declarations); at FEMA-2022-0023-0034 (comment
from the City of New Orleans argues that not allowing applicants to
submit projects after the application period closes creates a strain
on applicants to have ready to go project ideas in the near-term
recovery period); at FEMA-2022-0023-0038 (comment from New York
State Hazard Mitigation arguing that FEMA should be incorporating
flexibility into the application process, particularly when FEMA
and/or other disasters are the sole reasons for not being able to
meet the 12 month deadline, noting that ``[i]n a perfect world, a 12
month application period seems more than sufficient, but taking into
account impacts from one disaster occurring while dealing with
another disaster and adding 2 more disasters within the 12 month
period plus annual FEMA competitive programs that all impact the
same groups makes this an impossibility.''); at FEMA-2022-0023-0053)
(comment from Louisiana Governor's Office of Homeland Security and
Emergency Preparedness arguing that a State/jurisdiction can face
significant challenges when back to back events occur, stating it is
it is ``unrealistic to assume that the impacts from one event are
not compounded by each subsequent event, affecting overlapping
regions of the State, and further stressing State and local
capacity'' and further stating that ``FEMA should provide
flexibility to extend and in some cases re-open an application
period when a lock-in recalculation is made, especially when that
recalculation comes at the end of the application period, and
especially when the increase is substantial'' because applicants
need sufficient time to develop and submit quality applications.)
\24\ Id.
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[[Page 66245]]
Finally, FEMA asserts this rule provides necessary relief for the
public that should not be delayed. Delayed effective dates are provided
to give the public a reasonable time to prepare to comply with a rule.
The APA generally requires that substantive rules incorporate a 30-day
delayed effective date. 5 U.S.C. 553(d). However, the APA
simultaneously provides an exception to the 30-day delayed effective
date for rules which grant or recognize an exemption or relieve a
restriction.\25\ 5 U.S.C. 553(d)(1). This rule relieves a restriction
on the amount of time HMGP applicants have to develop and submit
mitigation project applications and is a result of public comment.
---------------------------------------------------------------------------
\25\ See Indep. U.S. Tanker Owners Comm. v. Skinner, 884 F.2d
587, 591 (D.C. Cir. 1989) (holding where rule relieves restriction,
agency need not make explicit claim in published rule of its right
to waive 30-day waiting period).
---------------------------------------------------------------------------
In response to a March 2023 update to and publication of the Hazard
Mitigation Policy and Program Guide,\26\ FEMA received comments from
Iowa Homeland Security and Emergency Management,\27\ the Texas Division
of Emergency Management,\28\ New York State Hazard Mitigation,\29\ the
Louisiana Governor's Office of Homeland Security and Emergency
Preparedness,\30\ and the City of New Orleans,\31\ all calling for
additional time and flexibilities in the HMGP application process. In
response to this feedback, FEMA ran a query of HMGP disaster
application duration periods and found a need to extend the HMGP
application period. This discussion is found in the regulatory analysis
section below. This final rule will allow applicants and subapplicants
more time to develop and submit additional mitigation project
applications to address climate change and other unmet mitigation
needs, relieving the restriction from which public commenters requested
relief.
---------------------------------------------------------------------------
\26\ 87 FR 52016; HMAPPG, available at <a href="https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf">https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf</a> (last accessed on August 1, 2024).
\27\ FEMA-2022-0023-0032.
\28\ FEMA-2022-0023-0014.
\29\ FEMA-2022-0023-0038.
\30\ FEMA-2022-0023-0053.
\31\ FEMA-2022-0023-0034.
---------------------------------------------------------------------------
B. Executive Orders 12866, ``Regulatory Planning and Review'' and
13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 (``Regulatory Planning and Review'') as
amended by Executive Order 14094 (Modernizing Regulatory Analysis), and
13563 (Improving Regulation and Regulatory Review) direct agencies to
assess the costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility.
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866, as amended by Executive Order 14094. Accordingly, OMB has
not reviewed this regulatory action.
The following paragraphs explain the need for the updated
regulation, the affected population, and the benefits.
Need for Updated Regulation
Through HMGP, FEMA provides financial assistance to States,
Territorial, and Tribal governments and thereafter funds may be
distributed to local authorities or certain private nonprofit
organizations for post disaster hazard mitigation measures that reduce
the risk of, or increase resilience to, future damage, hardship, loss
or suffering in any area affected by a major disaster. FEMA's current
12-month HMGP application deadline in regulation does not provide
sufficient time for applicants to submit their applications resulting
in frequent requests for application period extensions. Additionally,
FEMA currently lacks the ability to re-open closed HMGP application
periods when additional funding becomes available after the period
closes or when an applicant's extension appeal is granted by FEMA. In
these cases, FEMA's inability to re-open application periods prevents
HMGP funds from helping communities rebuild in a way that mitigates
future disaster losses.
To assess the need for changes to the existing application period
authorities, FEMA ran a query of application period durations for the
689 disasters declared during the 10-year period from 2013 to 2022. It
found that:
<bullet> Only 26 percent of applicants (179 of 689) were able to
submit all subapplications within the base 12-month application period;
<bullet> 16 percent of applicants (111 of 689) were able to submit
their applications after 12 months and within 15 months;
<bullet> 31.3 percent of applicants (215 of 689) were able to
submit their applications after 15 months and within 18 months, only
requiring an extension from the Regional Administrator; and,
<bullet> 26.7 percent (184 of 689 applicants) needed extensions
beyond 18 months from FEMA Headquarters to be able to submit all
subapplications. Currently, the only existing extension authority from
Headquarters to issue application extensions is Section 301 of the
Stafford Act.
During this 10-year period, the average amount of additional time
approved by FEMA beyond the regulatorily provided 18 months is
approximately 11.6 months, which was heavily influenced by several
major disasters with extraordinary circumstances, including major
disaster Hurricanes Harvey, Irma, and Maria in 2017. The median amount
of additional time was 6.1 months. This data shows that the current
application period extension allowances are not enough for many
applicants.
The Figure 1 graph shows application period extension length by
disaster over the 10-year period analyzed. The dark portion of the x-
axis labeled ``Regional Extension'' shows disasters where the recipient
requested an extension from the Regional Administrator and the light
portion of the x-axis labeled ``Headquarters Extension'' shows
extension requests from Headquarters. FEMA excluded approximately 70
major disasters with extensions cumulatively greater than 460 days from
the graph below because including these outliers would affect the scale
and make it difficult to display the plateaus at 90 days (representing
a total application period of 15 months) and 180 days (representing a
total application period of 18 months).\32\ There are also smaller
plateaus at 270 and 365 days (representing application periods of 21
and 24 months, respectively) due to Headquarters extensions. These
plateaus show the amount of time frequently requested by HMGP
recipients and granted by FEMA. FEMA is using this information to
update Sec. 206.436(d)-(e) by:
---------------------------------------------------------------------------
\32\ FEMA excluded 70 major disasters with extensions
cumulatively greater than 460 days. These data outliers had
extraordinary circumstances that required significantly more time to
address and therefore do not represent typical disasters.
---------------------------------------------------------------------------
<bullet> Increasing the base application period by 3 months: from
12 to 15 months. This would decrease the percentage of recipients that
require a Regional or Headquarters extension by 16 percent (111 of
689).
<bullet> Lengthening the Regional Administrator extension authority
from 180 days (6 months) to 240 days (8 months). This would decrease
the percentage of recipients that require Headquarters extensions by
10.7 percent
[[Page 66246]]
(from 26.7 percent to 16 percent of disaster application periods). Only
16 percent would require an extension beyond what the Regional
Administrator could grant.
[GRAPHIC] [TIFF OMITTED] TR15AU24.021
The additional 3 months gained from changing the application period
from 12 to 15 months will give HMGP recipients time to receive the 12-
month lock-in from FEMA and make educated adjustments to the amount of
funding they have applied for. This would lessen the administrative
burden placed on HMGP recipients and FEMA as it would require fewer
application extension requests and responses.
The 15-month application period allows FEMA to balance the need to
provide assistance quickly with ensuring appropriate oversight of
application periods that exceed this period. FEMA Headquarters will
retain the ability to issue consistent determinations on additional
application period requests for major disasters with extraordinary
circumstances. It ensures that recipients have adequate time to submit
applications while simultaneously obligating funds at an acceptable
rate.
Affected Population
HMGP funding is available, when authorized under a Presidential
major disaster declaration, in the areas identified by the requesting
State Governor or Chief Executive of an eligible Tribe. The level of
HMGP funding available for a given disaster is based on a percentage of
the estimated total Federal assistance available under the Stafford
Act, excluding administrative costs, for each Presidential major
disaster declaration. This rule will extend the HMGP application
deadline for States, Territories, and the District of Columbia as well
as 565 Federally-recognized Tribes. HMGP applications are made by
States or Tribes on behalf of subapplicants that include local
government agencies and eligible private nonprofit organizations.
From 2013 to 2022, FEMA's HMGP approved an average of 69
applications per year and approved an average of $859,779 in Federal
funding per applicant. <SUP>33 34</SUP> Of these projects, FEMA found
43 Tribal projects, or an average of 4 per year. However, FEMA's
database does not indicate whether these were submitted directly by an
eligible Tribe, or through a State with the Tribe as a subrecipient.
---------------------------------------------------------------------------
\33\ FEMA adjusted approved funding amounts by the Consumer
Price Index for All Urban Consumers to 2022 dollars. Available at
<a href="https://data.bls.gov/timeseries/CUUR0000SA0&years_option=specific_years&from_year=2013&to_year=2022&periods_option=specific_periods&periods=M13&annualAveragesRequested=true">https://data.bls.gov/timeseries/CUUR0000SA0&years_option=specific_years&from_year=2013&to_year=2022&periods_option=specific_periods&periods=M13&annualAveragesRequested=true</a> (Last accessed on August 1, 2024).
\34\ Data for projects that, as of the date of this analysis,
are still pending or under review where the Federal Share Obligated
is not listed, as well as denied applications, were exclded from the
average.
---------------------------------------------------------------------------
Baseline
Following Office of Management and Budget (OMB) Circular A-4
guidance, FEMA assessed impacts of this rule against a no-action
baseline. The no-action baseline is what the world would look like
without this rule. Accordingly, measuring the rule against a no-action
baseline shows the effects of the rule as compared to current FEMA
practice (i.e., compared to Sec. 206.436 and the HMA Program and
Policy Guide,\35\ which reflect FEMA's current practice).
---------------------------------------------------------------------------
\35\ HMAPPG, Part 6.C.1., p. 131, available at <a href="https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf">https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf</a> (last accessed on August 1, 2024).
---------------------------------------------------------------------------
FEMA conducted a 10-year retrospective analysis of available HMGP
data from 2013 to 2022, the most recent representative disaster period
with complete data at the time of this analysis, to estimate how the
rule will impact major disaster declaration costs, benefits, and
transfers over a 10-year period. FEMA recognizes a future 10-
[[Page 66247]]
year period could vary from the 2013 to 2022 period. However, this is
the best estimate given the data available and the unpredictability of
the number, size, and cost of future HMGP awards.
FEMA is making the following changes in this rule: (1) Extending
the initial deadline for States to submit local HMGP applications and
funding requests from 12 months to 15 months from the date of disaster
declaration; (2) increasing application period extensions from
increments of an additional 90 days to 120-day increments and
increasing the total limit from 180 days to 240 days; (3) allowing FEMA
to consider application period extension requests beyond 240 days for
extenuating circumstances outside of the applicant's control; (4)
enabling the reopening of a closed application period if FEMA approves
a recalculation of HMGP assistance funding and the applicant requests
to reopen the application period within 60 days of FEMA's recalculation
approval; and (5) enabling the reopening of a closed application period
if FEMA grants an appeal for an application period extension denial
after an application period is closed.
For this analysis, FEMA looked at approved HMGP applications and
the timelines in which they were submitted. FEMA looked at application
deadlines that were extended by FEMA Regional Administrators as well as
extensions approved by FEMA Headquarters. For all disasters declared
between January 1, 2013, and December 31, 2022 the average application
period was 19.3 months.\36\
---------------------------------------------------------------------------
\36\ Data was pulled from FEMA's NEMIS database. Data is entered
manually by FEMA employees processing these applications and is
subject to data entry and incomplete or missing data fields. FEMA
excluded Disaster numbers 4241, 4140, 4214, and 4163 from this
average as that data is unreliable. Including these disasters will
have increased the average to 19.64 months.
---------------------------------------------------------------------------
Currently, the Regional Administrator can issue an extension of 6
months to each disaster's application period. Disasters that require
application submission time in excess of 18 months (12-month
application period + 6-month regional extension) can be extended by
FEMA Headquarters. The average Headquarters extension required is 11.6
months. FEMA found that 510 out of the 689 disasters declared in the
10-year period, or 74 percent, needed an extension from a FEMA Regional
Administrator (over 12 months), and 184 out of the 510 disasters
requiring an extension from FEMA, or 36 percent, also needed an
extension from FEMA Headquarters (over 18 months). Changing the
standard length of the application period from 12 months to 15 months
and changing the Regional Administrator's extension authority from 6
months to 8 months will allow the regions to completely handle
disasters with application periods under 23 months. This represents 579
out of 689 disasters declared in the 10-year period, or 84 percent.
FEMA estimates that with this rule, an average of 110 disasters per
year, or 16 percent of disasters annually, will require an extension
from FEMA Headquarters.
FEMA does not have historical data for reopening the application
period. FEMA does not currently have the regulatory authority to reopen
application periods. However, FEMA does know of two requests over the
past 5 years to reopen the application period, both of which were
denied.
Costs
The primary costs associated with this rule are familiarization
costs for States, Territories, the District of Columbia, and Tribes
after this rule is finalized. FEMA assumes that Tribal Governments will
only need to understand this process when a disaster is declared in
their territory, so rather than estimating familiarization costs for
all 565 Tribes, FEMA assumes only 4 per year--the average number of
Tribal projects per year from 2013 to 2022--will need to read and
understand this rule. FEMA estimates that in the first year, 60
applicants will read this rule, followed by an average of 4 applicants
in subsequent years.
Based on a benchmark reading level of 250 words per minute for most
adults,\37\ FEMA estimates that for each applicant two Emergency
Management Directors per State, with a fully-loaded wage rate of $55.78
\38\ ($34.86 x 1.6) \39\ will spend 0.7 hours (approximately 9,000
words / 250 words per minute / 60 minutes) to read and understand this
rule. This will lead to familiarization costs of $4,686 for the first
year ($55.78 per hour x 0.7 hours x 120 employees). Subsequent years
will have familiarization costs of $312 ($55.78 per hour \40\ x 0.7
hours x 8 employees).
---------------------------------------------------------------------------
\37\ <a href="http://HealthGuidance.org">HealthGuidance.org</a>, What Is the Average Reading Speed and
the Best Rate of Reading? (April 22, 2024), available at <a href="https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html">https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html</a> ExecuRead, Speed Reading
Facts, <a href="https://secure.execuread.com/facts/">https://secure.execuread.com/facts/</a> (last accessed on August
1, 2024).
\38\ Bureau of Labor Statistics, May 2022 National Industry-
Specific Occupational Employment and Wage Estimates, NAICS 999200
State Government excluding schools and hospitals, SOC 11-9161
Emergency Management Directors mean hourly wage $34.86. Available at
<a href="https://www.bls.gov/oes/2022/may/naics4_999200.htm#11-0000">https://www.bls.gov/oes/2022/may/naics4_999200.htm#11-0000</a>. (last
accessed on August 1, 2024).
\39\ FEMA uses a benefits multiplier of 1.61 to calculate fully
loaded wage rates. The benefits multiplier accounts for costs to the
employer beyond wages, such as paid leave, health insurance,
retirement, and other benefits. Bureau of Labor Statistics, Employer
Costs for Employee Compensation, Table 1. ``Employer costs For
Employee Compensation by ownership,'' March 2023. Available at
<a href="http://www.bls.gov/news.release/archives/ecec_06162023.pdf">http://www.bls.gov/news.release/archives/ecec_06162023.pdf</a>. (last
accessed on August 1, 2024). The benefits multiplier is calculated
by dividing total compensation for State and local government
workers of $58.08 by Wages and salaries for State and local
government workers of $35.89 per hour yielding a benefits multiplier
of approximately 1.6 ($58.08 / $35.89).
\40\ Occupational Employment Statistics do not include Tribal
Governments in their estimates, so FEMA used the wage rate for State
Government employees.
---------------------------------------------------------------------------
FEMA estimates the 10-year annualized familiarization costs for
this rule to be $810 at 7 percent and $894 at 3 percent. See Table 1.
Table 1--10-Year Familiarization Costs, Discounted and Annualized
[$2023]
----------------------------------------------------------------------------------------------------------------
Year Undiscounted 3 Percent 7 Percent
----------------------------------------------------------------------------------------------------------------
1............................................................... $4,686 $4,550 $4,379
2............................................................... 312 294 273
3............................................................... 312 286 255
4............................................................... 312 277 238
5............................................................... 312 269 222
6............................................................... 312 261 208
7............................................................... 312 254 194
8............................................................... 312 246 182
9............................................................... 312 239 170
[[Page 66248]]
10.............................................................. 312 232 159
-----------------------------------------------
Total....................................................... 7,494 6,908 6,280
Annualized.................................................. .............. 810 894
----------------------------------------------------------------------------------------------------------------
FEMA cannot predict whether applicants will spend additional time
on their grant applications as a result of the extension. However, FEMA
expects extending the application period by 3 months for HMGP
assistance will not increase costs to HMGP applicants or to FEMA.
Applicants will have more knowledge about the amount of money they will
have to spend at 15 months because the ``lock-in'' generally occurs at
12 months; the extension allows for 3 months of additional time, post-
disaster, to recover and identify areas for improved resiliency in
their communities. FEMA expects the additional time will help
applicants ensure application information is accurate and includes
necessary mitigation projects. The ability to reopen the application
period is not allowed under current regulations, so this will add
additional costs to FEMA and applicants. An applicant will have to
dedicate time to request the reopening, and FEMA will have to review
and approve or deny the reopening based on statutory authority to do
so. However, since this has not been done before, FEMA does not have
historical data to estimate the time and staffing requirements to
reopen an application period.
Benefits
This rule will reduce the application burden for applicants and
FEMA by extending application deadlines to a more reasonable timeframe.
These timeframes will allow applicants to collect information and
submit the application to the FEMA Region and receive approval without
the additional steps involved in requesting extensions from FEMA
Regional Administrators and FEMA Headquarters. Additionally, this rule
will decrease the burden on FEMA of processing application extension
requests.
FEMA estimated cost savings to the Federal Government by
multiplying the reduction of work hours for FEMA staff to review and
process the extension request by the hourly-loaded wage rates. HMGP
regional staff estimate a time burden between 3-5 hours per extension
request, which includes multiple levels of review. FEMA used an average
estimate of 3.5 hours for a Regional Office review and 4 hours for a
Headquarters review. FEMA used Step 5 of the General Schedule to
account for the average experience level of Federal employees, and
added a 23.25 percent average locality multiplier to account for
average locality pay across the United States \41\ to the 2023 General
Schedule (Base) \42\ pay, as well as a 1.45 percent benefits
multiplier.\43\ For example, a GS-12 Step 5 working in a Regional
Office would have an estimated hourly compensation of $69.00 (base wage
of $38.61 x 1.2325 average locality adjustment x 1.45 wage multiplier).
Table 2 shows the breakdown of time and wages for FEMA staff to review
and approve extension requests.
---------------------------------------------------------------------------
\41\ FEMA averaged the locality adjustment for all localities
across the U.S. Available at <a href="https://www.federalpay.org/gs/locality">https://www.federalpay.org/gs/locality</a>
(last accessed on August 1, 2024).
\42\ 2023 General Schedule Pay Table (Base), available at
<a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/pdf/GS_h.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/pdf/GS_h.pdf</a>. (last accessed on August 1,
2024).
\43\ FEMA uses a benefits multiplier of 1.45 to calculate fully
loaded wage rates. The benefits multiplier accounts for costs to the
employer for benefits, such as paid leave, health insurance,
retirement, and other benefits. Bureau of Labor Statistics, Employer
Costs for Employee Compensation, Table 1.``Employer costs For
Employee Compensation by ownership,'' March 2023. Available at
<a href="http://www.bls.gov/news.release/archives/ecec_06162023.pdf">http://www.bls.gov/news.release/archives/ecec_06162023.pdf</a> (last
accessed on August 1, 2024).
The benefits multiplier is calculated by dividing total
compensation for civilian workers of $43.07 by Wages and salaries
for civilian workers of $29.70 per hour yielding a benefits
multiplier of approximately 1.45 ($43.07 / $29.70).
Table 2--Review of HMGP Extension Requests (2023$)
----------------------------------------------------------------------------------------------------------------
Total
Type Grade level Hours Fully-loaded opportunity
wage rate \44\ cost savings
----------------------------------------------------------------------------------------------------------------
Regional Extension *.................. 12...................... 2.5 $69.00 $172.50
14...................... 0.5 96.95 48.48
15...................... 0.25 114.05 28.51
[dagger] SES............ 0.25 123.09 30.77
-------------------------------------------------------------------------
Total per Request................. ........................ .............. .............. 280.26
----------------------------------------------------------------------------------------------------------------
HQ Extension [supcaret]............... 12...................... 2.5 74.17 185.42
14...................... 0.5 104.23 52.11
15...................... 0.25 122.60 30.65
13 (Legal Review)....... 0.5 88.20 44.10
SES..................... 0.25 123.09 30.77
-------------------------------------------------------------------------
Total per Request................. ........................ .............. .............. 343.05
----------------------------------------------------------------------------------------------------------------
* Office of Personnel Management 2023 Pay and Leave Table (Base Schedule with 23.25% increase for average
locality differential). Available at <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/GS_h.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/GS_h.pdf</a>. (Wage rates multiplied by 1.2325) (last accessed on August 1, 2024).
[[Page 66249]]
[dagger] Senior Executive Service January 2023 Pay and Leave. Available at <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/exec/html/ES.aspx">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/exec/html/ES.aspx</a>. (last accessed on August 1,
2024). FEMA used the midpoint of the salary rage ($141,022 to $212,100) of $176,561 and applied a multiplier
of 1.45 to obtain yearly compensation of $256,013. Yearly salary was divided by 2,080 to estimate hourly
compensation of $123.09.
[supcaret] Office of Personnel Management 2023 Pay and Leave Tables for the Washington-Baltimore-Arlington, DC-
MD-VA-WV-PA locality. Available at <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf</a> (last accessed on August 1, 2024).
FEMA estimates that this rule will reduce the number of extension
requests by 6.9 per year for the Regional Administrators and 7.4 per
year for FEMA Headquarters. This will lead to a cost reduction of
$1,934 (6.9 requests x $280.26) per year for Regional extensions and
$2,539 (7.4 requests x $343.05) per year for Headquarters extensions.
---------------------------------------------------------------------------
\44\ FEMA uses a benefits multiplier of 1.45 to calculate fully-
loaded wage rates. The benefits multiplier accounts for costs to the
employer for benefits, such as paid leave, health insurance,
retirement, and other benefits. Bureau of Labor Statistics, Employer
Costs for Employee Compensation, Table 1.``Employer costs For
Employee Compensation by ownership,'' March 2023. Available at
<a href="http://www.bls.gov/news.release/archives/ecec_06162023.pdf">http://www.bls.gov/news.release/archives/ecec_06162023.pdf</a> (last
accessed on August 1, 2024).
The benefits multiplier is calculated by dividing total
compensation for civilian workers of $43.07 by Wages and salaries
for civilian workers of $29.70 per hour yielding a benefits
multiplier of approximately 1.45 ($43.07 / $29.70).
---------------------------------------------------------------------------
FEMA estimated the cost savings to applicants of this rule by
multiplying the reduction of work hours for an applicant to compile
information and submit the extension request by the annual number of
extension requests and by the appropriate wage rate. HMGP regional
staff estimate the time burden for applicants to be 3-5 hours for each
extension request; FEMA used the average estimate of 4 hours. FEMA
estimates the average number of extension requests to be 14.3 (6.9
Regional + 7.4 Headquarters) per year, and the fully-loaded \45\ hourly
wage rate for a State Government Emergency Management Director to be
$55.78.\46\ FEMA estimates applicant cost savings of $223.12 ($55.78 x
4) per extension request and a total cost savings to applicants of
$3,191 ($223.12 x 14.3 requests).
---------------------------------------------------------------------------
\45\ Fully-loaded wage rates include other benefits, we are
using a factor of 1.61 to calculate fully loaded wage rates. The
unloaded wage rate does not account for costs to the employer for
benefits, such as paid leave, health insurance, retirement, and
other benefits. Bureau of Labor Statistics. Employer Costs for
Employee Compensation, Table 1. ``Employer costs For Employee
Compensation by ownership,'' March 2023. Retrieved from <a href="http://www.bls.gov/news.release/archives/ecec_06162023.pdf">http://www.bls.gov/news.release/archives/ecec_06162023.pdf</a> (last accessed
on August 1, 2024).
The wage multiplier is calculated by dividing total compensation
for State and local government workers of $58.08 by Wages and
salaries for State and local government workers of $35.89 per hour
yielding a benefits multiplier of approximately 1.61 ($58.08 /
$35.89).
\46\ Bureau of Labor Statistics. Occupational Employment Survey
May 2022, SOC 11-9161 Emergency Management Directors: State
Government mean hourly wage $34.86. Available at <a href="https://www.bls.gov/oes/2022/may/naics4_999200.htm#11-0000">https://www.bls.gov/oes/2022/may/naics4_999200.htm#11-0000</a> (last accessed on
August 1, 2024).
---------------------------------------------------------------------------
The total quantified cost savings from this rule are $4,473 ($1,934
+ 2,539) in cost savings to FEMA and $3,191 in cost savings to HMGP
applicants totaling $7,664 in cost savings per year. FEMA was unable to
estimate the benefits from reopening the application period due to a
lack of historical data. FEMA expects that additional cost savings will
exist by diminishing the need to reopen the application period for
numerous applications but cannot quantify those cost savings.
Transfer Payments
FEMA is not able to estimate the impacts on transfer payments of
this rule. FEMA expects no changes in the number of HMGP grants
approved, or the amount of funding obligated as total HMGP funding is
limited by a ``lock-in,'' which acts as a ceiling for assistance
available to a recipient, including its subrecipients. The level of
HMGP assistance available for a given disaster is based on a percentage
of the estimated total Federal assistance under the Stafford Act,
excluding administrative costs for each major disaster declaration.\47\
However, FEMA is unable to estimate if the changes will affect the
amount of funding that is obligated but unused by applicants. Between
2013 and 2022 approximately 18.22 percent of HMGP funds were returned
to the Disaster Relief fund due to a number of factors, including
insufficient time for recipients to submit applications. This amount
also includes withdrawn applications, ineligible applications, or
applications found to not be cost-effective by FEMA. Because
application time constraints were only one factor in the amount of HMGP
funds not expended, FEMA is unable to estimate the amount of transfers
that can be expected from this rule.
---------------------------------------------------------------------------
\47\ HMAPPG, Part 10.A.4.p.199, available at <a href="https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf">https://www.fema.gov/sites/default/files/documents/fema_hma-program-policy-guide_032023.pdf</a> (last accessed on August 1, 2024).
---------------------------------------------------------------------------
Alternatives Considered
FEMA considered extending the application period to 18 months
instead of 15 months, with no changes to the Regional Administrator's
ability to extend. While the average application period duration
including extensions is approximately 19 months. Major disasters with
extraordinary circumstances, which are far less common than typical
disasters, raised the average significantly. FEMA chose to increase the
application period to 15 months to balance the need to provide
assistance quickly while ensuring appropriate oversight for more
complex disasters. In addition, requesting additional time for Regional
Administrators to authorize (i.e., two 120-day extensions instead of
two 90-day extensions) will address most outliers that need to extend
beyond 15 months.
Conclusion
FEMA believes this rule is necessary due to historical timeframes
for HMGP applications exceeding what is currently allowed by
regulation. Under current practice, the majority of HMGP applications
must be extended by FEMA regions and FEMA Headquarters. This creates an
unnecessary burden to both FEMA and HMGP applicants that increases the
costs of submitting these applications as well as project delays under
the current process for requesting extension. The extensions provided
by this rule will result in cost savings to both FEMA and HMGP
applicants, as well as streamline the process for a substantial number
of applicants who will no longer be required to navigate a cumbersome
process of requesting extensions through the Regional Administrator and
FEMA Headquarters. The cost savings associated with this final rule
show why extending the HMGP application period will be beneficial.
Additionally, this rule will allow FEMA more flexibility to reopen HMGP
application periods when needed and to reopen application periods if an
applicant successfully appeals a denial. This rule will ensure HMGP
funds are more efficiently allocated.
[[Page 66250]]
Table 3--OMB Circular A-4 Accounting Statement (2023$)
------------------------------------------------------------------------
3 Percent discount 7 Percent discount
Category rate rate
------------------------------------------------------------------------
BENEFITS:
Annualized Monetized........ $7,664............ $7,664
---------------------------------------
Qualitative (unquantified) <bullet> More likely to use available
benefits. HMGP funds due to greater likelihood
of grant approvals
---------------------------------------
COSTS:
---------------------------------------
Annualized Monetized........ $810.............. $894
---------------------------------------
Qualitative (unquantified) N/A
costs.
---------------------------------------
TRANSFERS:
---------------------------------------
Annualized Monetized........ $0................ $0
---------------------------------------
Qualitative (unquantified) <bullet> Increased number of approved
Transfers. HMGP grants up to the maximum
available funding per declared
disaster
---------------------------------------
From/To..................... FEMA to HMGP recipients and
subrecipients
---------------------------------------
Effects on State, local, and/ <bullet> Extends the HMGP application
or Tribal governments. deadline for States, Territories, and
the District of Columbia as well as
565 Federally recognized Tribes
---------------------------------------
Effects on small businesses. <bullet> Not estimated
---------------------------------------
Effects on wages............ None
---------------------------------------
Effects on growth........... None
------------------------------------------------------------------------
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), and
section 213(a) of the Small Business Regulatory Enforcement Fairness
Act of 1996, Pub. L. 104-121, 110 Stat. 847, 858-9 (Mar. 29, 1996) (5
U.S.C. 601 note) require that special consideration be given to the
effects of regulations on small entities. The RFA applies only when an
agency is ``required by section 553 . . . to publish general notice of
proposed rulemaking for any proposed rule.'' \48\ An RFA analysis is
not required for this rulemaking because FEMA is not required to
publish a notice of proposed rulemaking.
---------------------------------------------------------------------------
\48\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504,
1531-1536, 1571, pertains to any rulemaking which is likely to result
in the promulgation of any rule that includes a Federal mandate that
may result in the expenditure by State, local, and Tribal governments,
in the aggregate, or by the private sector, of $100 million (adjusted
annually for inflation) or more in any one year. If the rulemaking
includes a Federal mandate, the Act requires an agency to prepare an
assessment of the anticipated costs and benefits of the Federal
mandate. The Act also pertains to any regulatory requirements that
might significantly or uniquely affect small governments. Before
establishing any such requirements, an agency must develop a plan
allowing for input from the affected governments regarding the
requirements.
FEMA has determined that this rulemaking will not result in the
expenditure by State, local, and Tribal governments, in the aggregate,
nor by the private sector, of $100,000,000 or more in any one year as a
result of a Federal mandate, and it will not significantly or uniquely
affect small governments. Therefore, no actions are deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Additionally, regulations are only reviewable under UMRA when an
agency has published a notice of proposed rulemaking as defined by 5
U.S.C. 553(b). See 2 U.S.C. 658(10); 5 U.S.C. 601(2). FEMA is not
required to publish a notice of proposed rulemaking; thus, this rule is
exempt from UMRA's requirements pertaining to the preparation of a
written statement.
E. Paperwork Reduction Act of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), Public
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.),
FEMA may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless FEMA obtains approval
from the Office of Management and Budget (OMB) for the collection and
the collection displays a valid OMB control number. This rule contains
collections of information that are subject to review by OMB. The
information collections included in this rule are approved by OMB under
control number 1660-0076 (Hazard Mitigation Grant Program Application
and Reporting).
This rulemaking calls for no new collections of information under
the PRA. This rule includes information currently collected by FEMA and
approved in OMB information collection 1660-0076. The changes in this
rulemaking do not change the forms, the substance of the forms, or the
number of applicants who would submit the forms to FEMA. No additional
documentation will be required as State, local and Tribal governments
already submit extension requests. However, FEMA estimates additional
flexibilities of this rule will result in a minor cost savings for SLTT
applicants of $3,191 ($223.12 x 14.3 extension requests) per year.
F. Privacy Act/E-Government Act
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a proposed regulation will result
in a system of records. A ``record'' is any item, collection, or
grouping of information
[[Page 66251]]
about an individual that is maintained by an agency, including, but not
limited to, their education, financial transactions, medical history,
and criminal or employment history and that contains their name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph. See 5
U.S.C. 552a(a)(4). A ``system of records'' is a group of records under
the control of an agency from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. An agency cannot
disclose any record which is contained in a system of records except by
following specific procedures.
The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires
specific procedures when an agency takes action to develop or procure
information technology that collects, maintains, or disseminates
information that is in an identifiable form. This Act also applies when
an agency initiates a new collection of information that will be
collected, maintained, or disseminated using information technology if
it includes any information in an identifiable form permitting the
physical or online contacting of a specific individual.
A Privacy Threshold Analysis was completed August 3, 2023. FEMA's
OMB information collection 1660-0076 is a privacy-sensitive collection,
requiring PIA coverage and coverage is provided under DHS/FEMA/PIA-006
National Emergency Management Information System Mitigation (MT)
Electronic Grants (eGrants) System, which covers PII that may be
included in grant applications made by states or local communities.\49\
The rule, once enacted, will not change the forms, the substance of the
forms, or the number of applicants who would submit to FEMA's OMB
information collection 1660-0076. The rule will not change the PII data
elements or the amount of PII collected by FEMA. The rule will not
require additional collection of information beyond what is already
documented within the 1660-0076 Hazard Mitigation Grant Program
Application and Reporting Collection PTA. SORN coverage is provided
under DHS/FEMA-009 Hazard Mitigation, which covers PII collected from
individual property owners and/or occupants whose properties are
identified in applications for public assistance, hazard mitigation
assistance, and other disaster-related assistance or who have been
identified by FEMA as candidates for such assistance.\50\
---------------------------------------------------------------------------
\49\ Additional PIA coverage is provided under DHS/FEMA/PIA-031
Authentication and Provisioning Services, which covers PII that APS
collects, uses, maintains, and retrieves about employees,
contractors, members of the public; and Federal, State, local, and
Tribal government officials; and under DHS/FEMA/PIA-026 Operational
Data Store and Enterprise Data Warehouse, which covers PII related
to the production of agency reports for internal use as well as for
external stakeholders via those systems.
\50\ Additional SORN coverage is provided under DHS/ALL-004
GITAARS SORN, which covers user information collected to grant
access to IT systems.
---------------------------------------------------------------------------
G. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' 65 FR 67249 (Nov. 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
incurred by the Indian Tribal Government in complying with the
regulation are provided by the Federal Government or the agency
consults with Tribal officials. Nor, to the extent practicable by law,
may an agency promulgate a regulation that has Tribal implications and
preempts Tribal law, unless the agency consults with Tribal officials.
This rule involves no policies that have Tribal implications under
Executive Order 13175. Although Indian Tribal Governments are
potentially eligible applicants under HMGP, FEMA has determined this
rulemaking would not have substantial negative direct effects on
citizens of Tribal Nations, on the relationship between the Federal
Government and Indian Tribes, or the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
There is no substantial direct compliance cost associated with this
rule. The HMGP program is a voluntary program that provides funding to
applicants, including Tribal governments, for eligible mitigation
planning and projects that reduce disaster losses and protect life and
property from future disaster damages. An Indian Tribal Government may
participate as either an applicant/recipient or a subapplicant/
subrecipient. FEMA does not expect the regulatory changes in this rule
to disproportionately affect Indian Tribal Governments acting as
applicants.
H. Executive Order 13132, ``Federalism''
Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 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 determined that this rulemaking does not have a
substantial direct effect 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, and
therefore does not have federalism implications as defined by the
Executive Order. FEMA has determined that this rule does not
significantly affect the rights, roles, and responsibilities of States,
and involves no preemption of State law nor does it limit State
policymaking discretion. This rulemaking amends regulations governing
voluntary grant programs that may be used by State, local and Tribal
governments to fund eligible mitigation activities that reduce disaster
losses and protect life and property from future disaster damages.
States are not required to seek grant funding, and this rulemaking does
not limit their policymaking discretion.
I. Executive Order 11988, ``Floodplain Management''
Executive Order 11988, 42 FR 26951 (May 25, 1977), as amended by
Executive Order 13690, ``Establishing a Federal Flood Risk Management
Standard (FFRMS) and a Process for Further Soliciting and Considering
Stakeholder Input,'' (80 FR 6425, Feb. 4, 2015) and Executive Order
14030, ``Climate-Related Financial Risk,'' (86 FR 27967, May 25, 2021),
requires each Federal agency to provide leadership and take action to
reduce the risk of flood loss, to minimize the impact of floods on
human safety, health and
[[Page 66252]]
welfare, and to restore and preserve the natural and beneficial values
served by floodplains in carrying out its responsibilities for (1)
acquiring, managing, and disposing of Federal lands and facilities; (2)
providing Federally undertaken, financed, or assisted construction and
improvements; and (3) conducting Federal activities and programs
affecting land use, including but not limited to water and related land
resources planning, regulating, and licensing activities. In carrying
out these responsibilities, each agency must evaluate the potential
effects of any actions it may take in a floodplain; ensure that its
planning programs and budget requests reflect consideration of flood
hazards and floodplain management; and prescribe procedures to
implement the policies and requirements of the Executive Order.
Before promulgating any regulation, an agency must determine
whether the proposed regulations will affect a floodplain(s), and if
so, the agency must consider alternatives to avoid adverse effects and
incompatible development in the floodplain(s). If the head of the
agency finds that the only practicable alternative consistent with the
law and with the policy set forth in Executive Order 11988 is to
promulgate a regulation that affects a floodplain(s), the agency must,
prior to promulgating the regulation, design or modify the regulation
to minimize potential harm to or within the floodplain, consistent with
the agency's floodplain management regulations. It must also prepare
and circulate a notice containing an explanation of why the action is
proposed to be located in the floodplain.
The purpose of this rule is to extend the HMGP application period
to allow applicants additional time to submit projects to address the
effects of climate change and other unmet mitigation needs in
communities. In accordance with 44 CFR part 9, ``Floodplain Management
and Protection of Wetlands,'' FEMA determines that the changes in this
rule do not meet the definition of an action that would require
analysis under the 8-step decision-making process.
J. Executive Order 11990, ``Protection of Wetlands''
Executive Order 11990, ``Protection of Wetlands,'' 42 FR 26961 (May
24, 1977) sets forth that each agency must provide leadership and take
action to minimize the destruction, loss, or degradation of wetlands,
and to preserve and enhance the natural and beneficial values of
wetlands in carrying out the agency's responsibilities. These
responsibilities include (1) acquiring, managing, and disposing of
Federal lands and facilities; and (2) providing Federally undertaken,
financed, or assisted construction and improvements; and (3) conducting
Federal activities and programs affecting land use, including but not
limited to water and related land resources planning, regulating, and
licensing activities. Each agency, to the extent permitted by law, must
avoid undertaking or providing assistance for new construction located
in wetlands unless the head of the agency finds (1) that there is no
practicable alternative to such construction, and (2) that the proposed
action includes all practicable measures to minimize harm to wetlands
which may result from such use. In making this finding, the head of the
agency may take into account economic, environmental and other
pertinent factors.
In carrying out the activities described in Executive Order 11990,
each agency must consider factors relevant to a proposal's effect on
the survival and quality of the wetlands. These include public health,
safety, and welfare, including water supply, quality, recharge and
discharge; pollution; flood and storm hazards; sediment and erosion;
maintenance of natural systems, including conservation and long-term
productivity of existing flora and fauna, species and habitat diversity
and stability, hydrologic utility, fish, wildlife, timber, and food and
fiber resources. They also include other uses of wetlands in the public
interest, including recreational, scientific, and cultural uses. The
purpose of this rule is to extend the HMGP application period to allow
applicants additional time to submit projects to address the effects of
climate change and other unmet mitigation needs in communities. In
accordance with 44 CFR part 9, ``Floodplain Management and Protection
of Wetlands,'' FEMA determines that the changes in this rule do not
meet the definition of an action that would require analysis under the
8-step decision-making process.
K. National Environmental Policy Act of 1969 (NEPA)
Section 102 of the National Environmental Policy Act of 1969
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
et seq.), as amended, requires Federal agencies to evaluate the impacts
of a proposed major Federal action that may significantly affect the
quality of the human environment, consider alternatives to the proposed
action, provide public notice and opportunity to comment, and properly
document its analysis. DHS and its component agencies analyze proposed
actions to determine whether NEPA applies to them and, if so, what
level of documentation and analysis is required. 40 CFR 1501.3.
DHS Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-
001-01, Rev. 01 (Instruction Manual) establish the policies and
procedures DHS and its component agencies use to comply with NEPA and
the Council on Environmental Quality (CEQ) regulations for implementing
the procedural requirements of NEPA codified at 40 CFR parts 1500
through 1508. The CEQ regulations allow Federal agencies to establish,
in their NEPA implementing procedures, with CEQ review and concurrence,
categories of actions (``categorical exclusions'') that experience has
shown normally do not, individually or in the aggregate, have a
significant effect on the human environment and, therefore, do not
require preparation of an environmental assessment or environmental
impact statement. 40 CFR 1501.4, 1507.3(c)(8), 1508.1(e). The
Instruction Manual, Appendix A, lists the DHS categorical exclusions.
Under DHS NEPA implementing procedures, for an action to be
categorically excluded it must satisfy each of the following
conditions: (1) the entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect. Instruction Manual,
section V.B.(2)(a-c).
This rule revises regulations at 44 CFR 206.436 to allow FEMA to
extend the Hazard Mitigation Grant Program's application time period
and reopen it in limited circumstances. The revised regulations will
remove barriers to allow additional applications by State, local,
Tribal and territorial governments to be considered. These changes are
strictly administrative and will not result in any change in
environmental effect in the current regulations. Therefore, it clearly
fits within categorical exclusion A3 in Appendix A of the Instruction
Manual.
The rule meets the second condition that it is not a piece of a
larger action. The regulatory application period that is being altered
in this rulemaking only applies to HMGP and will not affect any other
FEMA programs. The rule also meets the third condition because no
extraordinary circumstances exist. Accordingly, this rule is
categorically excluded and no further NEPA analysis or documentation is
required.
[[Page 66253]]
L. Endangered Species Act
Section (7)(a)(2) of the Endangered Species Act mandates that each
Federal agency shall, in consultation with and with the assistance of
the National Marine Fisheries (NMFS) or United States Fish and Wildlife
(USFWS), collectively known as the ``Services,'' insure that any action
authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of habitat of such species which is determined by the Services after
consultation to be critical.
To comply with Section 7(a)(2) of the ESA, for any action that FEMA
proposes to carry out, fund, or authorize, FEMA must determine if its
action may affect a listed species or its critical habitat. If the
action may affect species or its critical habitat, then FEMA must make
one of the following determinations with respect to the effect of the
proposed action on listed species and critical habitat: (1) no effect
(NE); (2) may affect but is not likely to adversely affect (NLAA); or
(3) may affect and is likely to adversely affect (LAA).
This rule has been evaluated by FEMA and due to the administrative
nature, FEMA has determined the rule does not have the potential to
affect federally-listed species or designated critical habitat. As
such, a ``No Effect'' determination has been made for these activities.
Per the ESA regulations, notification to, and consultation with, the
U.S. Fish and Wildlife Service and/or the National Marine Fisheries
Service are not required for activities with a ``No Effect''
determination. 50 CFR 402.
M. National Historic Preservation Act of 1966
The National Historic Preservation Act (NHPA) (54 U.S.C. 300101,
formerly 16 U.S.C. 470) was enacted in 1966, with various amendments
throughout the years. Section 106 of the NHPA (54 U.S.C. 306108)
requires Federal agencies to take into account the effect of their
undertakings on any historic property. It mandates a consultation
process in the early stages of project planning and must be completed
prior to the approval of expenditure of any Federal funds for the
undertaking. Subpart B of 36 CFR part 800 lays out a four-step Section
106 process to fulfill this obligation: (1) initiate the process
(800.3); (2) identify historic properties (800.4); (3) assess adverse
effects (800.5); and (4) resolve adverse effects (800.6).
Pursuant to section 106 of the NHPA and its implementing
regulations at 36 CFR part 800, FEMA has determined that this rule does
not have the potential to cause effects to historic properties and in
accordance with 36 CFR 800.3(a)(1), and FEMA has no further obligations
under section 106.
N. 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 final rule to the Congress and to GAO pursuant
to the CRA. The rule is not a ``major rule'' within the meaning of the
CRA. It will not have an annual effect on the economy of $100,000,000
or more; 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; and 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 in domestic and export markets.
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.
For the reasons set forth in the preamble, the Federal Emergency
Management Agency amends part 206 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 5207; Homeland Security Act
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security
Delegation 9001.1; sec. 1105, Pub. L. 113-2, 127 Stat. 43 (42 U.S.C.
5189a note).
0
2. Amend Sec. 206.436 by:
0
a. In paragraph (d), removing the number ``12'' and adding in its place
the number ``15'';
0
b. Revising paragraph (e);
0
c. Redesignating paragraphs (f) and (g) as paragraphs (g) and (h);
0
d. Adding new paragraph (f); and
0
e. Revising newly redesignated paragraph (g).
The revisions and addition read as follows:
Sec. 206.436 Application procedures.
* * * * *
(e) Extensions. Upon written request from the applicant, FEMA may
extend the application submission timeline as follows:
(1) The State may request the Regional Administrator to extend the
application time limit by 30 to 120 day increments, not to exceed a
total of 240 days. The applicant must include a justification in its
request.
(2) FEMA will only consider requests for extensions beyond 240 days
for extenuating circumstances outside of the applicant's control. Such
requests must be submitted to the Regional Administrator and must
include justification. The Regional Administrator, in coordination with
FEMA's Assistant Administrator for the Mitigation Directorate, may
extend the application time limit for a reasonable amount of time based
upon the extenuating circumstances.
(f) Reopening of application period. FEMA's Assistant Administrator
for the Mitigation Directorate may reopen a closed application period
for up to 180 days in the following circumstances:
(1) Recalculation of assistance. If FEMA approves a recalculation
of assistance under Sec. 206.432 and an applicant requests to reopen
the application period within 60 days of FEMA's recalculation approval.
(2) Appeal. If FEMA grants an appeal under Sec. 206.440 for an
application extension denial after an application period is closed.
(g) FEMA approval. The applicant must submit its application and
supplement(s) to the FEMA Regional Administrator for approval. FEMA has
[[Page 66254]]
final approval authority for funding of all projects.
* * * * *
Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2024-17909 Filed 8-14-24; 8:45 am]
BILLING CODE 9111-BW-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.