2010-1401. Emergency Restoration Plan (ERP)

AGENCY:

Rural Utilities Service, USDA.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Rural Utilities Service (RUS) is proposing to amend the requirements established for Emergency Restoration Plans (ERPs), currently mandated for all borrowers, to include compliance with the requirements established by the Federal Emergency Management Agency (FEMA) for public assistance grant eligibility in the event of a declared disaster. This amendment will ensure that RUS borrower's maintain their eligibility for financial aid from FEMA in the event they incur costs for disaster related system repair and restoration by including FEMA requirements in their ERPs.

DATES:

Written comments must be received by RUS no later than March 29, 2010.

ADDRESSES:

Submit comments by either of the following methods: Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the lower “Search Regulations and Federal Actions” box, select “Rural Utilities Service” from the agency dropdown menu, then click on “Submit.” In the Docket ID column, select RUS-09-Electric-0003 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link.

Postal Mail/Commercial Delivery: Please send your comments addressed to Michele L. Brooks, Director, Program Development and Regulatory Analysis, USDA-Rural Utilities Service, 1400 Independence Avenue, SW., Stop 1522, Room 5159, Washington, DC 20250-1522. Please state that your comment refers to Docket No. RUS-09-Agency-0003.

Other Information: Additional information about Rural Development and its programs is available on the Internet at http://www.rurdev.usda.gov/​index.html.

FOR FURTHER INFORMATION CONTACT:

Donald Junta, USDA-Rural Utilities Service, 1400 Independence Avenue, SW., Stop 1569, Washington, DC 20250-1569, telephone [phone] or e-mail to [e-mail].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

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

Catalog of Federal Domestic Assistance

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

Executive Order 12372

This proposed rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034).

Information Collection and Recordkeeping Requirements

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

National Environmental Policy Act Certification

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

Regulatory Flexibility Act Certification

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

Unfunded Mandates

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

Executive Order 12988

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

Background

The Agency published a final rule on October 12, 2004, at 69 FR 60541 requiring all borrowers to maintain an Emergency Response Plan (ERP) that details how the borrower will restore its system in the event of a system-wide outage resulting from a major natural or manmade disaster or other causes. This ERP requirement was not entirely new to the borrowers, as RUS had recommended similar “plans” in the past. However, the need for an ERP requirement at that time was catalyzed by increased sensitivities relating to homeland security. It has subsequently come to the Agency's attention that audits by FEMA performed in recent years for FEMA's public assistance grant program have shown that our borrowers have not always followed the policies and procedures set forth by FEMA for disaster related repairs and restoration. FEMA recently created a draft document titled “FEMA Disaster Assistance Fact Sheet 9580.6 (Electric Utility Repair (Public and Private Nonprofit)). This document contains sections on contracting, conductor replacement, hazard mitigation, and repair of collateral damage that outline FEMA requirements in these areas. When FEMA denies grant relief there is an adverse impact on the financial health of RUS borrowers and increased costs to the rural ratepayer. Accordingly, the Agency proposes to amend the ERP regulatory requirements to add that the ERP reflect compliance with all requirements imposed by FEMA for reimbursement of the cost of repairs and restoration of the borrower's electric system incurred as the result of a declared disaster.

List of Subjects

• Electric power; Loan program—energy; Reporting and recordkeeping requirements; Rural areas

For reasons set forth in the preamble, the Agency proposes to amend 7 CFR, Chapter XVII, part 1730 as follows:

PART 1730—ELECTRIC SYSTEM OPERATIONS AND MAINTENANCE

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

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

2. Amend § 1730.28 by adding a new paragraph (k) to read as follows:

§ 1730.28

Emergency Restoration Plan (ERP).

* * * * *

(k) The ERP must comply with all requirements imposed by FEMA for reimbursement by FEMA of repairs and restoration of electrical systems in cases where the service territory falls within a declared disaster area.

Dated: January 15, 2010.

Jonathan Adelstein,

Administrator, Rural Utilities Service.