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 Tuesday,February 26, 2002
Part III
Federal Emergency Management Agency 
44 CFR Parts 201 and 206Hazard Mitigation Planning and Hazard Mitigation Grant Program; Interim Final Rule
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8844
Federal Register
/Vol. 67, No. 38/Tuesday, February 26, 2002/Rules and Regulations
FEDERAL EMERGENCYMANAGEMENT AGENCY44 CFR Parts 201 and 206
RIN 3067–AD22
Hazard Mitigation Planning and HazardMitigation Grant Program
AGENCY
:
Federal EmergencyManagement Agency.
ACTION
:
Interim final rule.
SUMMARY
:
This rule addresses Statemitigation planning, identifies newlocal mitigation planning requirements,authorizes Hazard Mitigation GrantProgram (HMGP) funds for planningactivities, and increases the amount of HMGP funds available to States thatdevelop a comprehensive, enhancedmitigation plan. This rule also requiresthat repairs or construction funded by adisaster loan or grant must be carriedout in accordance with applicablestandards and says that FEMA mayrequire safe land use and constructionpractices as a condition of granteesreceiving disaster assistance under theStafford Act.
DATES
:
Effective Date:
February 26,2002.
Comment Date:
We will acceptwritten comments through April 29,2002.
ADDRESSES
:
Please send writtencomments to the Rules Docket Clerk,Office of the General Counsel, FederalEmergency Management Agency, 500 CStreet, SW., room 840, Washington, DC20472, (facsimile) 202–646–4536, or(email)
rules@fema.gov.
FOR FURTHER INFORMATION CONTACT
:
Margaret E. Lawless, Federal Insuranceand Mitigation Administration, FederalEmergency Management Agency, 500 CStreet, SW., Washington, DC, 20472,202–646–3027, (facsimile) 202–646–3104, or (email)
margaret.lawless@fema.gov.
SUPPLEMENTARY INFORMATION
:
Introduction
Throughout the preamble and the rulethe terms ‘‘we’’, ‘‘our’’ and ‘‘us’’ refer toFEMA.Section 322 of the Robert T. StaffordDisaster Relief and EmergencyAssistance Act (Stafford Act or the Act),42 U.S.C. 5165, enacted under §104 theDisaster Mitigation Act of 2000, (DMA2000) P.L. 106–390, provides new andrevitalized approaches to mitigationplanning. This section: (1) Continuesthe requirement for a Standard StateMitigation plan as a condition of disaster assistance; (2) provides forStates to receive an increasedpercentage of HMGP funds (from 15 to20 percent of the total estimated eligibleFederal assistance) if, at the time of thedeclaration of a major disaster, theyhave in effect a FEMA-approvedEnhanced State Mitigation Plan thatmeets the factors listed in this rule; (3)establishes a new requirement for localmitigation plans; and (4) authorizes upto 7 percent of the HMGP fundsavailable to a State to be used fordevelopment of State, tribal, and localmitigation plans. We will give Indiantribal governments the opportunity tofulfill the requirements of §322 either asa grantee or a subgrantee. An Indiantribal government may choose to applyfor HMGP funding directly to us andwould then serve as a grantee, meetingthe State level responsibilities, or it mayapply through the State, meeting thelocal government or subgranteeresponsibilities.Section 322, in concert with othersections of the Act, provides asignificant opportunity to reduce theNation’s disaster losses throughmitigation planning. In addition,implementation of planned, pre-identified, cost-effective mitigationmeasures will streamline the disasterrecovery process. The Act provides aframework for linking pre- and post-disaster mitigation planning andinitiatives with public and privateinterests to ensure an integrated,comprehensive approach to disaster lossreduction. The language in the Act,taken as a whole, emphasizes theimportance of strong State and localplanning processes and comprehensiveprogram management at the State level.The new planning criteria also supportState administration of the HMGP, andcontemplate a significant Statecommitment to mitigation activities,comprehensive State mitigationplanning, and strong programmanagement.The planning process also provides alink between State and local mitigationprograms. Both State level and localplans should address strategies forincorporating post-disaster earlymitigation implementation strategiesand sustainable recovery actions. Wealso recognize that governments areinvolved in a range of planningactivities and that mitigation plans may be linked to or reference hazardousmaterials and other non-natural hazardplans. Improved mitigation planningwill result in a better understanding of risks and vulnerabilities, as well as toexpedite implementation of measuresand activities to reduce those risks, bothpre- and post-disaster.Section 409 of the Stafford Act, 42U.S.C. 5176, which required mitigationplans and the use of minimum codesand standards, was repealed by theDMA 2000. These issues are nowaddressed in two separate sections of the law: mitigation planning is insection 322 of the Act, and minimumcodes and standards are in section 323of the Act. We previously implementedsection 409 through 44 CFR Part 206,Subpart M. Since current law nowdistinguishes the planning from thecodes and standards in separatesections, we will address them indifferent sections of the CFR. Weaddress the new planning regulations inPart 201 to reflect the broader relevanceof planning to all FEMA mitigationprograms, while the minimumstandards remain in Part 206, FederalDisaster Assistance, Subpart M. Theregulations implementing the HazardMitigation Grant Program are in Part206, Subpart N. This rule also containschanges to Subpart N, to reflect the newplanning criteria identified in section322 of the Act.The administration is consideringchanges to FEMA’s mitigation programsin the President’s Budget for FY 2003.However, States and localities stillwould be required to have plans ineffect, which meet the minimumrequirements under this rule, as acondition of receiving mitigationassistance after November 1, 2003.
Implementation Strategy.
States musthave an approved hazard mitigationplan in order to receive Stafford Actassistance, excluding assistanceprovided pursuant to emergencyprovisions. These regulations providecriteria for the new two-tiered Statemitigation plan process: Standard StateMitigation Plans, which allow a State toreceive HMGP funding based on 15percent of the total estimated eligibleStafford Act disaster assistance, andEnhanced State Mitigation Plans, whichallow a State to receive HMGP funds based on 20 percent of the totalestimated eligible Stafford Act disasterassistance. Enhanced State MitigationPlans must demonstrate that the Statehas developed a comprehensivemitigation program, that it effectivelyuses available mitigation funding, andthat it is capable of managing theincreased funding. All State MitigationsPlans must be reviewed, revised, and re-approved by FEMA every three years.An important requirement of thelegislation is that we must approve acompleted enhanced plan
before
adisaster declaration, in order for theState to be eligible for the increasedfunding.We will no longer require States torevise their mitigation plan after everydisaster declaration, as under former
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Federal Register
/Vol. 67, No. 38/Tuesday, February 26, 2002/Rules and Regulations
section 409 of the Act, 42 U.S.C. 5176.We recommend, however, that Statesconsider revising their plan if a disasteror other circumstances significantlyaffect its mitigation priorities. Stateswith existing mitigation plans, approvedunder former section 409, will continueto be eligible for the 15 percent HMGPfunding until November 1, 2003, whenall State mitigation plans must meet therequirements of these regulations. If State plans are not revised andapproved to meet the Standard StateMitigation Plan requirements by thattime, they will be ineligible for StaffordAct assistance, excluding emergencyassistance.Indian tribal governments may chooseto apply directly to us for HMGPfunding, and would therefore beresponsible for having an approvedState level mitigation plan, and wouldact as the grantee. If an Indian tribalgovernment chooses to apply for HMGPgrants through the State, they would beresponsible for having an approvedlocal level mitigation plan, and wouldserve as a subgrantee accountable to theState as grantee.This rule also establishes localplanning criteria so that thesejurisdictions can actively begin thehazard mitigation planning process.This requirement is to encourage thedevelopment of comprehensivemitigation plans before disaster events.Section 322 requires local governmentsto have an approved local mitigationplan to be eligible to receive an HMGPproject grant; however, this requirementwill not fully take effect until November1, 2003. FEMA Regional Directors maygrant an exception to this requirementin extenuating circumstances. UntilNovember 1, 2003, local governmentswill be able to receive HMGP projectgrant funds and may prepare amitigation plan concurrently withimplementation of their project grant.We anticipate that the PredisasterMitigation program authorized bysection 203 of the Act, 42 U.S.C. 5133,will also support this local mitigationplanning by making funds available forthe development of comprehensive localmitigation plans. Managing States thatwe approve under new criteriaestablished under section 404 of theAct, 42 U.S.C. 5170c(c), as amended bysection 204 of DMA 2000 will haveapproval authority for local mitigationplans. This provision does not apply toStates that we approved under theManaging State program in effect beforeenactment of DMA 2000.Our goal is for State and localgovernments to develop comprehensiveand integrated plans that arecoordinated through appropriate State,local, and regional agencies, as well asnon-governmental interest groups. Tothe extent feasible and practicable, wewould also like to consolidate theplanning requirements for differentFEMA mitigation programs. This willensure that one local plan will meet theminimum requirements for all of thedifferent FEMA mitigation programs,such as the Flood Mitigation AssistanceProgram (authorized by sections 553and 554 of the National Flood InsuranceReform Act of 1994, 42 U.S.C. 4104cand 42 U.S.C. 4104d), the CommunityRating System (authorized by section541 of the National Flood InsuranceReform Act of 1994, 42 U.S.C. 4022), thePre-Disaster Mitigation Program(authorized by section 203 of theStafford Act), the Hazard MitigationGrant Program (authorized by section404 of the Stafford Act), and themitigation activities that are based uponthe provisions of section 323 andsubsections 406(b) and (e) of theStafford Act. The mitigation plans mayalso serve to integrate documents andplans produced under other emergencymanagement programs. State level plansshould identify overall goals andpriorities, incorporating the morespecific local risk assessments, whenavailable, and including projectsidentified through the local planningprocess.Under section 322(d), up to 7 percentof the available HMGP funds may now be used for planning, and we encourageStates to use these funds for local plandevelopment. In a memorandum toFEMA Regional Directors datedDecember 21, 2000, we announced thatthis provision of section 322 waseffective for disasters declared on orafter October 30, 2000, the date onwhich the Disaster Mitigation Act of 2000 became law. Regional Directors areencouraging States to make these fundsimmediately available to local andIndian tribal governments, although thefunds can be used for plan developmentand review at the State level as well.As discussed earlier in thisSupplementary Information, subsection323(a) of the Stafford Act, 42 U.S.C.5166(a), requires as a precondition toreceiving disaster assistance under theAct that State and local governments, aswell as eligible private nonprofitentities, must agree to carry out repairand reconstruction activities
‘‘
inaccordance with applicable standards of safety, decency, and sanitation and inconformity with applicable codes,specifications, and standards.
’’
Inaddition, that subsection authorizes thePresident (FEMA, by virtue of ExecutiveOrder 12148, as amended) to
‘‘
requiresafe land use and construction practices,after adequate consultation withappropriate State and local officials
’’
inthe course of the use of Federal disasterassistance by eligible applicants torepair and restore disaster-damagedfacilities.At the same time that we implementthe planning mandates of section 322 of the Stafford Act, we are alsoimplementing the Minimum Standardsfor Public and Private Structuresprovision of section 323 of the Act. Thisrule appears at Subpart M of Part 206 of Title 44 of the Code of FederalRegulations. As mentioned earlier, thesection 322 planning regulations are inPart 201, while Part 206, Subpart Mincludes only the minimum codes andstandards regulations mandated in
§
323. The rule to implement
§
323 of the Act reinforces the link between pre-disaster planning, building andconstruction standards, and post-disaster reconstruction efforts.We encourage comments on thisinterim final rule, and we will makeevery effort to involve all interestedparties prior to the development of theFinal Rule.
Justification for Interim Final Rule
In general, FEMA publishes a rule forpublic comment before issuing a finalrule, under the AdministrativeProcedure Act, 5 U.S.C. 533 and 44 CFR1.12. The Administrative Procedure Act,however, provides an exception fromthat general rule where the agency forgood cause finds the procedures forcomment and response contrary topublic interest. Section 322 of theStafford Act allows States to receiveincreased post-disaster grant funding forprojects designed to reduce futuredisaster losses. States will only beeligible for these increased funds if theyhave a FEMA-approved Enhanced StateMitigation Plan.This interim final rule provides thecriteria for development and approval of these plans, as well as criteria for localmitigation plans required by thislegislation. In order for State and localgovernments to be positioned to receivethese mitigation funds as soon aspossible, these regulations must be ineffect. The public benefit of this rulewill be to assist States and communitiesassess their risks and identify activitiesto strengthen the larger community andthe built environment in order to become less susceptible to disasters.Planning serves as the vital foundationto saving lives and protectingproperties, having integrated plans inplace can serve to both streamlinerecovery efforts and lessen potentialfuture damages. Therefore, we believe itis contrary to the public interest to delay
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