04-9985. Disaster Assistance Definitions; Statutory Change

AGENCY:

Federal Emergency Management Agency (FEMA), Emergency Preparedness and Response Directorate, Department of Homeland Security.

ACTION:

Interim final rule.

SUMMARY:

FEMA is publishing an interim final rule to amend the definitions of “Local government,” “State,” and “United States” as set forth in 44 CFR 206.2 to coincide with those definitions established by the Robert T. Stafford Disaster Relief and Emergency Assistance Act. This rule takes effect immediately, but before publishing a final rule on this subject, FEMA requests and invites comments from all interested or affected parties.

EFFECTIVE DATE:

Effective May 3, 2004. FEMA invites comments on this interim final rule, which should be received by FEMA on or before July 2, 2004.

ADDRESSES:

Please send any comments to the Rules Docket Clerk, Office of the General Counsel, Federal Emergency Management Agency, 500 C Street, SW., Room 840, Washington, DC 20472, (facsimile) 202-646-4536, or (email) [e-mail].

FOR FURTHER INFORMATION CONTACT:

Michael S. Herman, Office of the General Counsel, Federal Emergency Management Agency, 500 C Street, SW., Room 840, Washington, DC 20472, (facsimile) 202-646-4536, or (email) [e-mail].

SUPPLEMENTARY INFORMATION:

The Disaster Mitigation Act of 2000, Public Law 106-390, 114 Statutes at Large 1552 et seq. was enacted on October 30, 2000, and amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5204c (the Stafford Act). Among these changes were the definitions of “Local government” in 42 U.S.C. 5122(6), “State” in 42 U.S.C. 5122(4), and “United States” in 42 U.S.C. 5122(3). Corresponding definitions of these terms can be found in 44 CFR 206.2(a). FEMA is issuing this interim final rule to amend the definitions of “Local government,” “State,” and “United States” found in 44 CFR 206.2(a) so that these definitions match the statutory authority.

The definition of “Local government” is amended for clarification, and among other changes, includes: a county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government. FEMA believes that this definition codifies the agencies' interpretation of the previous definition of local government, except for a council of government, which was added by statute.

The definition of “State” is changed to delete reference to the Trust Territory of the Pacific Islands, the Federated States of Micronesia, and the Republic of the Marshall Islands. The definition of “State” is now 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.

The definition of “United States” has been changed to correct the name of the Commonwealth of the Northern Mariana Islands and to delete reference to the Trust Territory of the Pacific Islands. The defintion of the “United States” is now the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

National Environmental Policy Act

This interim final rule falls within the 44 CFR 10.8(d)(2)(ii) exclusion category, which addresses the preparation, revision, and adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusions. This interim final rule qualifies for this exclusion, and no other extraordinary circumstances have been identified; therefore, this interim final rule will not require the preparation of an environmental assessment or an environmental impact statement as defined by the National Environmental Policy Act.

Executive Order 12866—Regulatory Planning and Review

FEMA has prepared and reviewed this rule under the provisions of Executive Order 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, Oct. 4, 1993, a significant regulatory action is subject to the Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in th[e] Executive [O]rder.

The purpose of this rule is to amend the definitions of “Local government,” “State,” and “United States” in FEMA's regulations to make those definitions consistent with statutory definitions in the Stafford Act as amended. Therefore, this rule is neither a significant regulatory action, nor an economically significant rule under the Executive Order. OMB has not reviewed this rule under the principles of Executive Order 12866.

Paperwork Reduction Act of 1995

This interim final rule does not contain a collection of information and therefore is not subject to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Executive Order 13132—Federalism

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria to which agencies must adhere in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on 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 reviewed this rule under Executive Order 13132 and concludes that the rule does not have federalism implications as defined by the Executive Order. The rule does not significantly affect the rights, roles, and responsibilities of States. It involves no preemption of State law, and does not limit State policymaking discretion. The rule merely amends the definitions of “Local government,” “State,” and “United States” in our regulations to make those definitions consistent with those terms' statutory definitions in the Stafford Act as amended.

Administrative Procedure Act Statement

In general, under the Administrative Procedure Act, 5 U.S.C. 533 and 44 CFR 1.12, FEMA publishes a rule for public comment before issuing a final rule. However, the Administrative Procedure Act provides an exception to that general rule where the agency finds the procedures for comment and response contrary to the public interest for good cause.

The public benefit of this rule is to establish consistency between the definitions of “Local government,” “State,” and “United States” as set forth in 44 CFR 206.2 and the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 U.S.C. 5121-5204c. We are making our regulations consistent with the law so that readers of the regulations are not misinformed as to the eligibility of states and local governments for disaster assistance.

Therefore, FEMA believes it is contrary to the public interest to delay the benefits of this rule. In accordance with the Administrative Procedure Act, 5 U.S.C. 553 (d)(3), FEMA finds that there is good cause for the interim final rule to take effect immediately upon publication in the Federal Register in order to coincide with the Stafford Act, as amended.

In addition, FEMA believes that under the circumstances, delaying the effective date of this rule until after a comment period would not further the public interest.

For the reasons above, FEMA believes there is good cause to immediately issue an interim final rule.

Congressional Review of Agency Rulemaking

The Administrator of the Office of Information and Regulatory Affairs of OMB has not designated this interim final rule as a “major rule” as that term is defined by the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801 et seq. Pursuant to section 5 U.S.C. 808(2) of the Congressional Review of Agency Rulemaking Act, the Department nonetheless finds that “good cause” exists for establishing an effective date for this rule upon publication because delay would be impracticable. The public benefit of this rule is to establish consistency between the definitions of “Local government,” “State,” and “United States” as set forth in 44 CFR 206.2 and the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 U.S.C. 5121-5204c.

Accordingly, this interim final rule is effective on May 3, 2004.

List of Subjects in 44 CFR Part 206

• Administrative practice and procedure
• Community facilities
• Disaster assistance
• Grant programs
• Loan programs
• Reporting and record-keeping requirements

Accordingly, FEMA amends 44 CFR part 206 as follows:

PART 206—FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR AFTER NOVEMBER 23, 1988

1. The authority citation for Part 206 continues to read:

Authority: Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of 1978, 43 FR 41943; 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214.

2. Amend § 206.2 by revising paragraphs (a)(16), (a)(22), and (a)(26) to read as follows:

§ 206.2

Definitions.

(a) * * *

(16) Local government:

(i) A county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government;

(ii) An Indian tribe or authorized tribal organization, or Alaska Native village or organization; and

(iii) A rural community, unincorporated town or village, or other public entity, for which an application for assistance is made by a State or political subdivision of a State.

* * * * *

(22) State: 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.

* * * * *

(26) United States: The 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

* * * * *

Dated: April 27, 2004.

Michael D. Brown,

Under Secretary, Emergency Preparedness and Response, Department of Homeland Security.