2011-25102. Disaster Assistance; Hazard Mitigation Grant Program

AGENCY:

Federal Emergency Management Agency, DHS.

ACTION:

Proposed rule; withdrawal.

SUMMARY:

On May 1, 1998, the Federal Emergency Management Agency (FEMA) published a Notice of Proposed Rulemaking (NPRM) to revise the categories of projects eligible for funding under the Hazard Mitigation Grant Program (HMGP). The NPRM proposed to define eligible mitigation activities under the HMGP to include minor flood control projects that do not duplicate the efforts and authorities of other Federal agencies. It proposed to include vegetation management programs for wildfire hazard mitigation and erosion hazard mitigation in the list of eligible activities; it proposed to remove development or improvement of warning systems from the list of eligible project types; and modified language relating to general, allowable open space, recreational, and wetlands management uses. FEMA is withdrawing the NPRM so that relevant issues involved in the NPRM may be further considered and because portions of it are redundant or outdated.

DATES:

The Notice of Proposed Rulemaking published on May 1, 1998 (63 FR 24143), is withdrawn as of October 3, 2011.

ADDRESSES:

The Notice of Proposed Rulemaking and this withdrawal notice may be found under Docket ID: FEMA-2011-0004 and are available online by going to http://www.regulations.gov,, inserting FEMA-2011-0004 in the “Keyword” box, and then clicking “Search.” The Docket is also available for inspection or copying at FEMA, 500 C Street, SW., Room 840, Washington, DC 20472.

FOR FURTHER INFORMATION CONTACT:

Cecelia Rosenberg, Federal Insurance and Mitigation, DHS/FEMA, 1800 South Bell Street, Arlington, VA 20598-3015. Phone: [phone]. Facsimile: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

Authorized by section 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5170c, the Hazard Mitigation Grant Program (HMGP) provides States, Tribes, and local governments financial assistance to implement measures that permanently reduce or eliminate future damages and losses from natural hazards.

The HMGP regulations at 44 CFR part 206, subpart N, address the eligibility of multi-hazard mitigation projects through a list of general eligibility criteria: a project must be cost-effective, be environmentally sound, must address a repetitive problem, and must contribute to a long-term solution. Further, HMGP funds cannot be used to fund projects that are available under other Federal authorities. The regulations also provide a list of eligible types of projects. The project-type listing is not all-inclusive. FEMA published a Notice of Proposed Rulemaking (NPRM) (63 FR 24143, May 1, 1998) proposing the following revisions to the HMGP regulations.

Minor Flood Control Projects

Under the NPRM, minor flood control projects that do not duplicate the flood prevention activities of other Federal agencies would be eligible for HMGP funding. Major flood control projects, such as dikes, levees, dams, channelization, channel widening, stream realignment, seawalls, groins, and jetties, would be distinguished from minor flood control activities. Typically, funding for major flood control projects would fall under the water resources design and construction authorities of the U.S. Army Corps of Engineers and the Natural Resources Conservation Service of the U.S. Department of Agriculture.

Wildfire and Erosion

Under the NPRM, vegetation management related to wildfire and erosion hazard mitigation measures would be eligible for HMGP funding. This would reflect FEMA's multi-hazard HMGP objectives and priorities authorized by section 404 of the Stafford Act.

Warning Systems

The NPRM sought to minimize an emphasis on warning systems by removing them from the list of eligible projects. This was due to benefit/cost considerations. The benefits of some hazard mitigation project types can be difficult to show using FEMA's conventional benefit/cost calculation methodology. Because of this in certain circumstances FEMA will allow applicants to demonstrate project cost-effectiveness using means other than the conventional benefit/cost methodology. The NPRM proposed to remove warning systems from the example list of eligible project types because the project type does not lend itself to use of the conventional benefit/cost methodology.

Allowable Open Space Uses

The NPRM proposed a revision to the list of allowable open space uses for previously funded and acquired open space land by replacing the word “previous” (which was actually a typo in the regulation that should have been “pervious”) with the more widely familiar term of permeable.

II. Summary of Comments

FEMA received 12 comments on the NPRM from State and local governments. Several commenters had reservations about the NPRM's possible effects on the eligibility of certain flood control projects because these projects were viewed as good hazard mitigation activities that should be funded by FEMA. Some commenters expressed concern regarding the term “minor flood control” and the criteria used to define it. Two commenters were concerned that major flood control projects may become ineligible due to concerns of duplicating other Federal assistance, and were concerned about the applicability of this rationale to the practice of partnering with other Federal agencies. One commenter urged FEMA to recognize the importance of allowing HMGP funding to be used for mitigation activities related to facilities that would be regarded as major structural flood control facilities.

One commenter expressed support for the wildfire and erosion vegetation management provisions in the NPRM, and was concerned that vegetation management activities were not extended to other project types. Another commenter expressed concern that wildfire and erosion vegetation provisions may conflict with other pre-existing regulatory requirements.

Two commenters expressed dissatisfaction with the NPRM's removal of warning systems from the list of “traditionally” eligible HMGP activities.

One commenter requested consideration of allowable open space activities beyond the scope of the NPRM.

III. Reason for Withdrawal

FEMA is withdrawing the NPRM so that relevant issues involved in the NPRM may be further considered and because portions of it are redundant. The definition of minor flood control projects is being examined in greater detail relative to the HMGP eligibility criteria of the regulations at 44 CFR 206.434(c). Further, the distinction that minor flood control projects not duplicate the activities of other Federal agencies is redundant because the existing program regulations, at 44 CFR 206.434(f), clearly state that HMGP funds cannot be used as a substitute or replacement to fund projects or programs that are available under other Federal authorities. Therefore, to state the requirement again is redundant, and to highlight it for minor flood control projects over other project types may lead to some confusion regarding its applicability to all project types.

FEMA considers the other provisions of the NPRM to be outdated. Eligibility considerations of vegetation management are addressed through FEMA's existing HMGP regulations identifying general eligibility considerations, and there is no significant benefit derived from listing them specifically. Removing warning systems from the list of eligible projects could create the impression that they are not eligible for funding.

The remaining proposed revision, to replace the word “previous” (a typo for “pervious”) with “permeable” is not sufficient reason for continuing the NPRM as the original word and the word proposed to replace it mean essentially the same thing.

IV. Conclusion

FEMA is withdrawing the May 1, 1998 NPRM for the reasons stated in this notice.

W. Craig Fugate,

Administrator, Federal Emergency Management Agency.