Hazard Mitigation Grant Program (HMGP); Program Administration by States, 13970-13975 [2014-05437]

Download as PDF tkelley on DSK3SPTVN1PROD with PROPOSALS 13970 Federal Register / Vol. 79, No. 48 / Wednesday, March 12, 2014 / Proposed Rules section 8(d) rulemaking at this time. First, EPA consulted with OSHA and determined that in many circumstances, a number of the records requested by the petitioners do not actually need to be maintained by employers under OSHA’s construction standard for lead. For example, most building owners and property managers are not required to keep the requested records because the routine maintenance activities commonly performed by their employees are not subject to OSHA’s construction standard for lead. Second, construction employers performing renovation work involving lead-based paint may not need to keep all of the records in question if their employees are not exposed above the standard’s permissible exposure limit (PEL) or action level. Third, in OSHA’s experience, employers that do not comply with the PEL are unlikely to comply with the standard’s recordkeeping requirements, further lessening the amount of responsive information available. Thus, based on consultations with OSHA, EPA believes the amount and type of information the Agency could realistically expect to receive under a reporting rule would be significantly limited. EPA also has reservations regarding the potential for this information to inform the P&CB rulemaking analysis. For example, as indicated by OSHA, air sampling records are most commonly found in the form of a simple report indicating whether samples are above or below an applicable permissible exposure limit. Information contextualizing this exposure data is not likely to be ascertainable from employers’ OSHA records. Without such contextual information, these records would be of limited utility to EPA in modeling exposure and identifying and evaluating hazards in P&CBs. Based on the expected limitations in the availability and utility of the records to EPA’s analysis of lead-based paint hazards created by renovations in P&CBs, EPA does not believe that the expenditures of time and resources inherent in proposing and finalizing a TSCA section 8(d) rule are justified. Nonetheless, EPA will seek to obtain this type of information in a more targeted, efficient, and less burdensome manner. Specifically, EPA is already working with OSHA to determine the availability of lead sampling and exposure data in OSHA enforcement records. Pursuant to its authority under TSCA, EPA will also issue information request letters to a smaller, targeted group of entities. This approach will allow EPA to collect and assess the VerDate Mar<15>2010 17:07 Mar 11, 2014 Jkt 232001 utility of available OSHA records identified by the petitioners, as well as collect other, potentially relevant information, without being limited in scope to ‘‘health and safety studies’’ under TSCA section 8(d). Finally, in addition to previous and ongoing efforts to obtain additional data and information on lead and renovations in P&CBs from industry, the general public, and other Federal agencies, EPA is preparing to conduct an industry survey to collect various types of information from the public and commercial building industry (Ref. 8). This survey, ‘‘Survey of the Public and Commercial Building Industry,’’ is specifically designed to target additional information EPA expects may be useful to the P&CB analysis (Ref. 8). 2010 at EPA–HQ–OPPT–2010–0173– 0073. 7. Commercial Properties Coalition comment posted April 3, 2013 at EPA– HQ–OPPT–2010–0173–0154. 8. EPA. Agency Information Collection Activities; Proposed Collection; Comment Request; Notice. Federal Register (78 FR 73520, December 6, 2013) (FRL–9902–85) V. References BILLING CODE 6560–50–P As indicated under ADDRESSES, a docket has been established for this document under docket ID number EPA–HQ–OPPT–2013–0815. The following is a listing of the documents that are specifically referenced in this action. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT. 1. National Center for Healthy Housing, International Union of Painters & Allied Trades, Lead and Environmental Hazards Association, National Association of Lead and Healthy Homes Grantees. Citizen Petition to EPA Regarding OSHA Exposure Assessments in Renovations of Public and Commercial Buildings. October 31, 2013. Available at: http:// www.epa.gov/opptintr/chemtest/pubs/ Section_21_on_PnCBs_Resubmit_ 10.31.2013.pdf. 2. National Apartment Association comment posted July 11, 2013 at EPA– HQ–OPPT–2010–0173–0186. 3. Independent Electrical Contractors comment posted June 3, 2013 at EPA– HQ–OPPT–2010–0173–0176. 4. Associated General Contractors of New York State comment posted on April 30, 2013 at EPA–HQ–OPPT–2010– 0173–0161. 5. National Institute of Building Sciences comment posted on April 3, 2013 at EPA–HQ–OPPT–2010–0173– 0153. 6. National Roofing Contractors Association comment posted July 12, PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 List of Subjects in 40 CFR Chapter I Environmental protection, Lead, OSHA, Public and commercial buildings, Renovation. Dated: February 7, 2014. Wendy C. Hamnett, Director, Office of Pollution Prevention and Toxics. [FR Doc. 2014–05392 Filed 3–11–14; 8:45 am] DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 206 [Docket ID: FEMA–2014–0013] RIN 1660–AA80 Hazard Mitigation Grant Program (HMGP); Program Administration by States Federal Emergency Management Agency, DHS. ACTION: Advance notice of proposed rulemaking. AGENCY: The Federal Emergency Management Agency (FEMA) is seeking public comment on implementing a provision of the Robert T. Stafford Disaster Relief and Emergency Assistance Act regarding State administration of the Hazard Mitigation Grant Program (HMGP). The provision directs FEMA to establish criteria to delegate authority to States to administer HMGP. FEMA is seeking input from the public to help inform the development of this new method of program delivery. DATES: Written comments must be submitted on or before May 12, 2014. ADDRESSES: mailto: You may submit comments, identified by Docket ID: FEMA–2014–0013, by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Mail/Hand Delivery/Courier: Office of Chief Counsel, Federal Emergency SUMMARY: E:\FR\FM\12MRP1.SGM 12MRP1 Federal Register / Vol. 79, No. 48 / Wednesday, March 12, 2014 / Proposed Rules Management Agency, 500 C Street SW., Washington, DC 20472–3100. To avoid duplication, please use only one of these methods. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For instructions on submitting comments, see the Public Participation portion of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: Cecelia Rosenberg, Federal Insurance and Mitigation Administration, DHS/ FEMA, 1800 South Bell Street, Arlington, VA 20598–3015. Phone: (202) 646–3321. Email: Cecelia.Rosenberg@ fema.dhs.gov. SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the advance notice of proposed rulemaking (ANPRM). FEMA specifically invites comments that relate to the economic, environmental, or federalism effects that might result from implementation of any final rule stemming from this ANPRM. Comments most helpful to FEMA will address one or more of the questions identified in this notice, and will include as much explanation of the commenter’s views as possible. All comments received will be posted, without change, to http:// www.regulations.gov and will include any personal information you have provided. If you submit a comment, please include the Docket ID for this rulemaking, FEMA–2014–0013. A. Privacy Act Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual who submitted the comment (or signed the comment, if submitted on behalf of an association, business, labor union, etc.). For more information, you may want to review the Federal Docket Management System system of records notice published in the Federal Register on March 24, 2005 (70 FR 15086). tkelley on DSK3SPTVN1PROD with PROPOSALS B. Submission of Sensitive Information Do not submit comments that include trade secrets, or confidential commercial or financial information to the public regulatory docket. Please submit such comments separately from other comments on the rule. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address VerDate Mar<15>2010 17:07 Mar 11, 2014 Jkt 232001 specified in the ADDRESSES section of this ANPRM. If FEMA receives a request to examine or copy this information, FEMA will treat it as any other request under the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Department of Homeland Security’s FOIA regulation found in 6 Code of Federal Regulations (CFR) part 5 and FEMA’s regulations found in 44 CFR part 5. II. Background A. General Description of the Hazard Mitigation Grant Program The Hazard Mitigation Grant Program (HMGP or Program) provides grants to States, Indian Tribal governments, and U.S. Territories (all of which are collectively called ‘‘State’’ or ‘‘States’’ in this notice) to implement long-term hazard mitigation measures after a major disaster declaration. The HMGP is intended to reduce the loss of life and property resulting from natural hazards and to help States implement mitigation measures during recovery from a disaster. The HMGP is authorized by Section 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 U.S.C. 5170c. States wishing to participate in the program must request an HMGP grant as part of their request for disaster assistance. See 44 CFR 206.36(c)(4), 206.40(a), and 206.432. HMGP funds may be used for mitigation planning and mitigation projects that will reduce or eliminate damage, loss, or suffering from future disasters. Projects must contribute to a long-term solution to an existing or anticipated hazard. For example, elevation of a home to reduce the risk of flood damages is considered hazard mitigation, but buying sandbags and pumps to fight the flood is not. In addition, a project’s anticipated benefits must be equal to or more than the cost of implementing the project, which is demonstrated through a benefit cost analysis that compares the cost of the project to the benefits anticipated to occur over the lifetime of the project. Funds may be used to protect either public or private property. In the postdisaster context, the quicker the program is implemented, the more effectively it aids individuals and communities in their recovery efforts. Both at the time of the request for assistance and at the time FEMA obligates funds to the State, the State must have a FEMA-approved State Mitigation Plan. Section 322 of the Stafford Act, 42 U.S.C. 5165(a). As part of the State planning process, States identify and rank mitigation activities PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 13971 that the State will support if funding is available. HMGP project applications, known as subapplications, are developed and submitted to the State by State agencies, local jurisdictions, Indian Tribal governments, and private non-profit organizations. Section 322 of the Stafford Act, 42 U.S.C. 5165(b) requires local or Tribal governments to each have a mitigation plan as a condition of receiving HMGP funding. Proposed projects must be consistent with the goals and objectives of the State Mitigation Plan and relevant Local or Tribal Mitigation Plan. The projects selected must also meet minimum criteria identified in 44 CFR part 206. The criteria are designed to ensure that cost-effective and beneficial projects are selected for funding. To properly manage its HMGP grant, the State is required by 44 CFR 206.437 to prepare an Administrative Plan, which is different than a State Mitigation Plan. The Administrative Plan details the State’s HMGP processes and procedures. It governs program operations and describes how the State will ensure that proposed projects meet all regulatory criteria. Among other requirements, the Administrative Plan must identify the general staffing and resource needs to manage the HMGP; provide details on how the State will seek, review, and select applications for projects; describe how the State will forward selected applications to FEMA; and describe how the State will manage projects approved by FEMA. The Stafford Act sets forth criteria to calculate the amount of funding available for the HMGP under any particular declaration for disaster assistance. FEMA may provide a State with an HMGP grant that is an amount up to 15 percent of the estimated total disaster grants awarded by FEMA for the major disaster. States may qualify for a larger percentage if they have an Enhanced State Mitigation Plan. 42 U.S.C. 5170c. In addition to meeting the State Mitigation Plan requirements, the Enhanced plan must demonstrate, among other factors, that the State is committed to a comprehensive mitigation program, that the State uses available mitigation funding effectively, and that it is capable of managing the increased funding. For a declared disaster, FEMA can fund up to 75 percent of eligible costs for FEMA-approved projects. The State must provide a 25 percent match, which can be cash, in-kind, or fashioned from a combination of cash and in-kind sources. The State generally sets its own deadline for subapplication submittal, but all subapplications must be submitted by the State to FEMA within E:\FR\FM\12MRP1.SGM 12MRP1 tkelley on DSK3SPTVN1PROD with PROPOSALS 13972 Federal Register / Vol. 79, No. 48 / Wednesday, March 12, 2014 / Proposed Rules 12 months from the date of disaster declaration. 44 CFR 206.436(d). After a disaster, the State is encouraged to coordinate HMGP activities with recovery and reconstruction efforts so that States can maximize mitigation opportunities. Upon Presidential approval of a State’s request for disaster assistance and upon signing of a FEMA/State HMGP grant management agreement, the State becomes a grantee and is responsible for providing and managing subgrants from the overall grant award to eligible entities. The State establishes funding priorities and criteria for selecting proposed mitigation activities, solicits program interest, and helps subapplicants determine eligibility and develop their subapplications. Eligible subapplicants include State agencies, local governments, Indian Tribal Governments, and some private not-forprofit organizations (all of which are also known as ‘‘program participants’’). The State, as grantee, establishes deadlines for submission of those subapplications, and selects and forwards subapplications to FEMA for final project eligibility review. FEMA reviews the entire subapplication, with an emphasis on technical feasibility— whether the project will substantially reduce the risk of future damage—as well as engineering and costeffectiveness. Concurrently, FEMA reviews the subapplication to ensure that it contains all required information regarding potential impacts to environmental and historic resources, and that FEMA has the necessary information to fulfill its environmental planning and historic preservation (EHP) review responsibilities. Prior to making funding decisions for the HMGP, FEMA is required by law to evaluate the impacts of the proposed mitigation action on the quality of the human environment. The EHP requirements include compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and Section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. 470 et seq., and the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq. Other requirements contained in Executive Orders ensure that FEMA evaluates and avoids adverse impacts to floodplains and wetlands, and avoids adverse and disproportionate environmental impacts on low-income and minority populations. Executive Order (EO) 11988 Floodplain Management, EO 11990 Protection of Wetlands, and EO 12898 Environmental Justice for Low Income and Minority Populations. If a subapplication is approved by FEMA, funds are obligated to the State VerDate Mar<15>2010 17:07 Mar 11, 2014 Jkt 232001 as part of the overall grant. The State then disburses the funding to the successful subapplicant who becomes the subgrantee. The State must ensure that subgrantees adhere to all programmatic, administrative and audit requirements. The State does this by monitoring and evaluating compliance with programmatic requirements and monitoring the progress of completing funded projects. The State submits quarterly reports to FEMA indicating the status and completion date for each approved project. The State must ensure project completion and closeout, or settlement, of all the financial obligations related to the subgrant. In addition, the State evaluates the effectiveness of completed projects as part of their mitigation planning processes. States perform all of these functions in a managerial role as they do not make the final eligibility and funding decisions. Those decisions fall within FEMA’s purview, as the overall administrator of the grant. B. Early Steps Towards Delegation—The Managing State Concept In 1998, FEMA introduced the Managing State Concept (MSC) for implementation of the HMGP in selected States. Thirteen States that wished to assume a greater role in the application review and approval process participated in the MSC. No Indian Tribal governments or Territories participated in the MSC. The MSC was seen as a means to enhance FEMA-State collaborative partnerships, and an opportunity to provide States with an increased level of flexibility in program management. The MSC was also aimed at streamlining the implementation of the HMGP, which is a significant consideration for program delivery in the aftermath of a disaster; and facilitates incorporating mitigation into the recovery process. FEMA first initiated the MSC through the use of three individual FEMA-State operational agreements. The first agreement was entered into in May 1998 with Florida. In August 1998, North Dakota and Ohio signed agreements. Each agreement was formalized through a Memorandum of Understanding (MOU) specifically tailored to each State. During implementation of the MSC, FEMA conducted partnership evaluations to review the MSC’s progress. These evaluations included State staffs, FEMA program and financial specialists, attorneys, and Inspector General auditors. Based on these evaluations, in March of 2000 FEMA expanded the MSC to other PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 interested States. Fundamental elements from the three initial agreements served as the basis for agreements with the new States. These fundamentals included negotiating Managing State roles based on a State’s capabilities and continuing partnership evaluations as an essential element. Ultimately, ten additional States were selected for participation. Significantly, under the MSC, FEMA retained program administration responsibilities including final approval of subapplications and environmental reviews. The MSC consisted of agreements to implement processes that would expedite program delivery, but FEMA still retained sole authority to administer the program. Eventually, States stopped participating in the program for various reasons, and FEMA effectively dissolved the MSC with the publication of the 2010 Hazard Mitigation Assistance Unified Guidance. C. Next Steps Toward Delegation— Program Administration by States On October 30, 2000, Congress passed the Disaster Mitigation Act of 2000, Public Law 106–390, 114 Stat. 1552 (Oct. 30, 2000). The Act amended Section 404 of the Stafford Act by adding statutory authority for HMGP ‘‘Program Administration by the States’’ (PAS), including Indian Tribal governments and Territories. The amendment contained many provisions similar to the MSC but with several significant changes. Specifically, the amendments to Section 404 of the Stafford Act direct FEMA to delegate program administration responsibilities to eligible, interested States. The amendments require the President to establish criteria for the approval of requests. The criteria, which must be developed in consultation with States and local governments, must require, at a minimum, that the State have an approved State Hazard Mitigation Plan, demonstrated ability to manage the HMGP, and demonstrated commitment to mitigation activities. Finally, the amendments provide FEMA with the authority to withdraw delegated program responsibilities if the State is not administering the program in a satisfactory manner. These PAS provisions provide FEMA with a statutory mandate to advance beyond the former MSC and fully develop State administration of the HMGP. Since passage of the Disaster Mitigation Act, FEMA did not implement PAS because it was implementing the MSC. After the MSC was terminated, one State expressed interest in PAS participation. That State submitted an application to FEMA, but E:\FR\FM\12MRP1.SGM 12MRP1 tkelley on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 48 / Wednesday, March 12, 2014 / Proposed Rules criteria had not been developed for that method of program delivery so the application could not be adequately reviewed. In January of 2013, the President signed into law the Sandy Recovery Improvement Act of 2013 (SRIA), Public Law 113–2, 127 Stat. 4 (Jan. 29, 2013). SRIA amended Section 404(c) of the Stafford Act, adding a provision allowing FEMA to carry out a pilot program for PAS if FEMA determines it is necessary to expeditiously implement PAS and until such time as the Administrator promulgates regulations to implement PAS. Consistent with the SRIA mandate, FEMA is currently carrying out a pilot program for PAS. Concurrently and consistent with the authority under the Stafford Act to promulgate program implementation regulations, FEMA is publishing this ANPRM and requesting the public’s input on a number of general PASrelated concepts to develop a comprehensive program and implementing regulations. SRIA’s amendment to Section 404(c) applies to all major disasters or emergencies declared on or after SRIA’s enactment date, January 29, 2013, and for major disasters or declarations for which the application period for processing requests for HMGP funding is still open as of SRIA’s enactment date. Under the PAS pilot, FEMA delegates certain program responsibilities to the State. Participation in the program is voluntary and States can select the grants management activities they would like to perform. To participate in the program, States must have an approved State Mitigation Plan, demonstrated ability to manage the HMGP, and demonstrated commitment to mitigation activities. To determine whether a State has a ‘‘demonstrated ability to manage the HMGP’’ FEMA reviews HMGP grants activity within the past four quarters from the date of the State’s request. FEMA’s review for State demonstrated ability to manage HMGP includes reviewing documentation to determine the following: • Whether in the past the State has submitted (and FEMA has approved) the State HMGP Administrative Plan within 90 days of the disaster declaration date; • Whether the State has submitted applications in an electronic data system such as FEMA’s National Emergency Management Information System (NEMIS) or has completed a FEMA data collection form and application review checklist (or beginning in FY13, the Eligibility and Completeness checklist); VerDate Mar<15>2010 17:07 Mar 11, 2014 Jkt 232001 • Whether the State has submitted an Eligibility and Completeness checklist for all applications; • Whether the State has provided requested information to FEMA for an application, enabling FEMA to approve the application within 60 days of subgrant application submittal for at least 75% or more of the applications (depending on the number of applications submitted); Whether 100% of the applications can be approved by FEMA within 90 days of application; • Whether within the past five years from the date of application submittal, State staff have completed FEMA sponsored trainings (for instance, on Hazard Mitigation Assistance, Benefit Cost Analysis, Environment and Historic Preservation and Mitigation Planning); • If the State has submitted a request to extend the application period, whether the request was submitted 30 days before the end of the application period; and • If the State submitted a request to extend the period of performance, whether the request was submitted at least 60 days before the end of the application period and/or period of performance. A State must meet additional requirements before FEMA will delegate responsibility for specific activities. Depending on the nature of the requested delegation, FEMA’s review may include determining the following: • Whether past quarterly progress and financial reports are complete and were submitted on time; • Whether past extension requests were supported by information in quarterly progress reports; • Whether subgrant close-out and financial reconciliation were completed within six months of work completed; • Whether grant program and financial close-out activities were completed within 90 days of the end of the period of performance; • Whether there were no drawdowns requested or performed after the liquidation period has ended; • Whether financial procedures and systems meet FEMA grants management standards; • Whether there are any major findings on the last single audit obtained by the State related to Hazard Mitigation Assistance activities; and • Whether all local hazard mitigation plans submitted to FEMA in the past four quarters are at least ‘‘approvable pending adoption.’’ Under the pilot, applicants are required to use FEMA forms or documentation agreed upon by FEMA for application completeness review, PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 13973 benefit cost analysis, progress reporting, and financial reporting. To document a State’s ‘‘Demonstrated Commitment to Mitigation Activities,’’ FEMA requires States to provide documentation of existing processes and activities in the following categories: (1) State management of a mitigation, hazard safety, and/or insurance program; (2) planning capability and authority to support risk reduction in the planning processes of local communities (e.g., statewide building codes); (3) State provision of resources and funding to support mitigation activities within local communities; and (4) State commitment to floodplain management. If the State PAS application is approved, the State enters into an operational agreement with FEMA and updates the Administrative Plan to document how the State will implement the HMGP with reduced oversight from FEMA. As part of the rulemaking process, FEMA will use insight gained from implementing the pilot to draft program regulations. D. Developing PAS Regulations To successfully implement PAS, FEMA must determine how the program will operate, and how available resources can facilitate program performance. FEMA performs numerous and varied responsibilities in the administration of the HMGP. These include keeping States informed of the anticipated amount of available funding, reviewing subapplications selected by a State, and deciding if the subapplication proposals meet program requirements and merit funding. As part of this process, FEMA conducts detailed reviews of project information, examines the schedule, scope of work, engineering and technical feasibility, and cost-effectiveness, and performs environmental analyses. All of these reviews can affect a project’s scope of work, budget, and delivery. Following an award of subgrant funding to the State, FEMA provides additional technical assistance and monitors quarterly reports to ensure subgrants are implemented as planned and on schedule. To develop PAS, FEMA is exploring the extent to which its determinations regarding cost-effectiveness, technical feasibility and engineering, and final eligibility and funding can be made at the State level. FEMA is also exploring whether there are EHP responsibilities that FEMA may legally delegate to the States under applicable Federal law, and that the grantee or subgrantee would be interested in assuming. Consistent with Federal EHP laws, E:\FR\FM\12MRP1.SGM 12MRP1 13974 Federal Register / Vol. 79, No. 48 / Wednesday, March 12, 2014 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS including NEPA, the NHPA, the ESA, as well as EOs 11988 (Floodplain Management) and 11990 (Protection of Wetlands), FEMA has final review and approval authority on the environmental impact of a proposed Federal action or undertaking. Only FEMA can perform certain EHP responsibilities, such as formal consultation with the U.S. Fish and Wildlife Service (USFWS) under Section 7 of the ESA, or preparing an environmental impact statement under NEPA. However, FEMA may delegate EHP responsibilities related to preparation for environmental review to the States. Those responsibilities include providing enough background information to assess the environmental impact of the Federal action on historic properties, endangered and threatened species, critical habitats, wetlands, floodplains, and on low income and minority populations. The responsibilities could also include initiating communication with appropriate Federal agencies, such as the USFWS, or United States Army Corps of Engineers (USACE), and with State regulatory agencies including the State or Tribal Historic Preservation Office for the purposes of allowing those agencies to identify any potential impacts from the project, and to allow FEMA to prepare the required documentation on project impacts and decisions. PAS eligibility criteria may consider the quality of State planning activities (administrative and mitigation planning), the availability of State financial resources for program administration, and a State’s ability to perform all grant objectives in a timely manner. The PAS program will continue to support HMGP principles of fairness and transparency, and incorporate long term recovery. FEMA will provide appropriate guidance tools, and include standards for meeting and maintaining PAS status, and processing appeals. In summary, to participate in PAS a State should demonstrate an expanded ability to manage the Program to ensure that they will be able to successfully assume Federal-level responsibilities. III. Questions for Commenters FEMA welcomes public comment on all aspects of PAS, but would derive particular benefit from commenters addressing one or more of the following questions: 1. Criteria for PAS Designation: FEMA seeks input on how to assess the State’s ability to manage the HMGP throughout the program lifecycle. What approval criteria and documentation should FEMA consider when reviewing State VerDate Mar<15>2010 17:07 Mar 11, 2014 Jkt 232001 requests for PAS designation? What metrics should be used? How should these be measured? How far back should past performance be measured (the last four quarters, 3 years, 5 years)? Possible considerations are: a. The extent of technical and organizational resources committed to the program, such as whether staff have completed FEMA Hazard Mitigation Assistance-related trainings; b. Ability to prepare and approve cost effective applications and to adhere to technical and program requirements; ability to use anticipated benefits or losses avoided in ranking projects for funding; ability to calculate actual losses avoided as a result of completed mitigation activities; c. Ability to submit complete and eligible subapplications, prepared by the State or local communities, within 12 months of the disaster declaration date and any additional extensions (for example, whether FEMA needs to request additional information to complete subapplication reviews, and if the State uses the minimum application review checklist to validate that subapplications are complete); d. Ability to perform EHP responsibilities that can be delegated to States by FEMA under applicable Federal laws; e. Past experience in assisting and monitoring local governments in developing and completing mitigation activities (whether there is a monitoring and auditing process in place, and whether quarterly reports are submitted to FEMA on time); f. Ability to maintain sound financial management (no major findings in audit reports); g. Ability to complete the grant in the regulatory timeframe (for instance, closeout activities are completed 90 days after the end of the period of performance, extension requests are supported by information in quarterly reports, and no more than two sixmonth extensions are required); h. Ability to close out the subgrants and the grant within the existing programmatic timeframe (i.e., whether subgrant activities are closed out within 90 days after the activities have been completed); i. Ability to manage other FEMA grants especially when the State has no recent experience with HMGP (evaluating past performance using data from Flood Mitigation Assistance Grants, Pre-Disaster Mitigation Grants, or other FEMA grants). 2. Enhanced State or Tribal Mitigation Plan: What should the relationship be, if any, between having a FEMAapproved Enhanced Mitigation Plan and PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 receiving a PAS designation? Questions include the following: a. Should PAS approval be required before FEMA approves an Enhanced Plan? b. Should a FEMA-approved Enhanced Plan be required for PAS designation? c. Should an Enhanced Plan have no relationship to PAS designation? d. Should there be another relationship between the two? e. If Enhanced Plans are not required, how should States document losses avoided for completed mitigation projects? 3. Commitment to Mitigation: FEMA seeks input on how to assess the State’s demonstration of commitment to mitigation. Possible examples of commitment to mitigation include State management of mitigation, hazard safety or insurance programs, statewide planning or building code authorities, State resources that are dedicated to support mitigation activities in local communities, and demonstrated State commitment to floodplain management. What documentation should FEMA consider in reviewing a State’s request and granting a PAS designation? 4. Model Federal Performance Measures: What performance measures from other State-administered Federal programs could be considered or incorporated in PAS designation requests? 5. Administrative Planning: FEMA’s program regulations at 44 CFR 206.437 and the State Administrative Plan set out minimum criteria. What additional elements, if any, should FEMA consider requiring in Administrative Plans for States with PAS designation? 6. Decision Making Processes: When States have an expanded role in application approval, how can States demonstrate impartial and consistent selection and management of applications when they are also eligible to be program participants and submit and manage their own subapplications (independent panels, blind applications, cost benefit ratio or other means)? What decision making documentation should FEMA consider? 7. Interaction: FEMA seeks input on the level and type of coordination necessary between eligible applicants and the public where the State has an expanded role in administering HMGP. What should be the level of interaction between FEMA, the State, local governments, and other program participants regarding day-to-day program administration (e.g., solicitation of applications, progress reporting, record-keeping, and closeout)? E:\FR\FM\12MRP1.SGM 12MRP1 tkelley on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 48 / Wednesday, March 12, 2014 / Proposed Rules 8. Factors Affecting Delegation: Should PAS designation include limits or factors (such as the magnitude of the declared disaster or the number of open events) that would affect the level of State responsibility granted by FEMA? If so, what should these limits or factors be? 9. EHP Requirements and Responsibilities Under PAS: FEMA seeks input from States and other stakeholders as to which EHP responsibilities should be delegated to States under applicable Federal law. For instance: a. Should States be able to initiate communication with appropriate agencies such as the USFWS, USACE, or State regulatory agencies (for instance, the State or Tribal Historic Preservation Office) for the purposes of identifying potential project environmental impacts or other considerations within these agencies’ jurisdiction? b. Should States be delegated the responsibility to collect information necessary for performing categorical exclusions and the eight-step floodplain or wetland analyses? c. Could the States, rather than FEMA, engage other Federal agencies to streamline unified review where possible? d. What abilities and resources are needed to assume these types of responsibilities? e. What guidance from FEMA would States need to assume these or other similar EHP responsibilities? f. What methods or processes from other Federal programs should be considered? g. Are there existing State processes that perform a similar function? 10. Performance Evaluation: FEMA seeks input on criteria to assess performance of those States that receive PAS designations (e.g., grants management, technical and engineering feasibility, cost effectiveness, plan requirements, and EHP responsibilities and requirements): a. What elements/metrics should be used in this assessment? b. How frequently should FEMA assess a State’s performance under PAS (quarterly, annually, 3 years, 5 years, or other)? c. What measures should FEMA use to address or correct deficiencies in performance? d. What level of monitoring or oversight should FEMA use to assess compliance with Federal EHP requirements? 11. Program Evaluation: How could the analysis of program benefits (economic, environmental, public health and safety, equity) justifying VerDate Mar<15>2010 17:07 Mar 11, 2014 Jkt 232001 program costs be an indicator of state performance? 12. Significant Non-compliance: FEMA seeks input on what would constitute a significant non-compliance deficiency warranting temporary withdrawal or full termination of PAS designation. Areas of concern include subgrant eligibility determinations, cost effectiveness reviews, grant management, plan requirements, and EHP responsibilities and requirements. Under what circumstances should failure to meet requirements and responsibilities established by FEMA result in removal of a PAS designation? What criteria should FEMA consider using for PAS reinstatement? What other remedies should FEMA consider if a PAS jurisdiction fails to comply with Program requirements? 13. Electronic Systems: What, if any, are the States’ concerns regarding the use of existing FEMA grant reporting and management electronic systems (such as NEMIS) when mandated for PAS participation? 14. Participation: What factors could FEMA consider and use to facilitate and encourage State participation in PAS? 15. Tribal Considerations: What factors should FEMA consider and use to encourage Tribal participation in PAS? What are the potential challenges for Tribes in applying for and maintaining PAS designation? 16. Challenges and Resources: What are the potential challenges for States in maintaining PAS designation (such as keeping key personnel, covering multiple disaster and recovery needs, or liability concerns)? What resources do States need to successfully implement PAS (management cost support, training, guidance, job-aids, or other resources)? 17. Program Participants Impacts: How would program participants be impacted when their State administers HMGP under a PAS designation? What are the potential benefits (increased access to funding, decreased duplication, faster obligation of funding, or other benefits)? What are the potential costs (e.g., increased time and paperwork, longer obligation timeframes)? 18. State Impacts: How would States be impacted by administering HMGP under a PAS designation? What are the potential benefits? What are the potential costs? 19. State Interest: For FEMA’s State, Indian Tribal government and Territory stakeholders: Would your State or Tribe consider applying for the PAS option for your next disaster declaration? 20. Overall Effect: Do you think PAS would be beneficial in streamlining the PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 13975 provision of funding under the HMGP? Do you think PAS would be beneficial in implementing more effective hazard mitigation projects? If so, how? IV. Conclusion Comments most helpful to FEMA will address one or more of the questions identified above, and will include a detailed explanation of the commenter’s views. FEMA also invites comments that relate to the economic, environmental, or federalism effects that commenters believe might result from any PAS program implementation model. All comments received will be considered by FEMA in designing future PAS program implementation regulations. Dated: March 6, 2014. W. Craig Fugate, Administrator, Federal Emergency Management Agency. [FR Doc. 2014–05437 Filed 3–11–14; 8:45 am] BILLING CODE 9110–13–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 0, 4, and 12 [PS Docket Nos. 13–75 and 11–60; Report No. 3001] Petition for Reconsideration of Action in Rulemaking Proceeding Federal Communications Commission. ACTION: Petition for reconsideration. AGENCY: In this document, a Motion for Clarification or, In the Alternative, Petition for Partial Reconsideration (Petition) has been filed in the Commission’s Rulemaking proceeding by Intrado, Inc., on behalf of itself and its affiliate, Intrado Communications, Inc. SUMMARY: Oppositions to the Petition must be filed on or before March 27, 2014. Replies to an opposition must be filed on or before April 7, 2014. ADDRESSES: Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Eric P. Schmidt, Attorney Advisor, Public Safety and Homeland Security Bureau, (202) 418–1214 or eric.schmidt@fcc.gov<mailto:eric. schmidt@fcc.gov.> DATES: This is a summary of Commission’s document, Report No. 3001, released February 27, 2014. The full text of Report No. 3001 is available for viewing and copying in SUPPLEMENTARY INFORMATION: E:\FR\FM\12MRP1.SGM 12MRP1

Agencies

[Federal Register Volume 79, Number 48 (Wednesday, March 12, 2014)]
[Proposed Rules]
[Pages 13970-13975]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05437]


=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID: FEMA-2014-0013]
RIN 1660-AA80


Hazard Mitigation Grant Program (HMGP); Program Administration by 
States

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Advance notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Emergency Management Agency (FEMA) is seeking 
public comment on implementing a provision of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act regarding State 
administration of the Hazard Mitigation Grant Program (HMGP). The 
provision directs FEMA to establish criteria to delegate authority to 
States to administer HMGP. FEMA is seeking input from the public to 
help inform the development of this new method of program delivery.

DATES: Written comments must be submitted on or before May 12, 2014.

ADDRESSES: mailto: You may submit comments, identified by Docket ID: 
FEMA-2014-0013, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail/Hand Delivery/Courier: Office of Chief Counsel, 
Federal Emergency

[[Page 13971]]

Management Agency, 500 C Street SW., Washington, DC 20472-3100.
    To avoid duplication, please use only one of these methods. All 
comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For 
instructions on submitting comments, see the Public Participation 
portion of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Cecelia Rosenberg, Federal Insurance 
and Mitigation Administration, DHS/FEMA, 1800 South Bell Street, 
Arlington, VA 20598-3015. Phone: (202) 646-3321. Email: 
Cecelia.Rosenberg@fema.dhs.gov.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
advance notice of proposed rulemaking (ANPRM). FEMA specifically 
invites comments that relate to the economic, environmental, or 
federalism effects that might result from implementation of any final 
rule stemming from this ANPRM. Comments most helpful to FEMA will 
address one or more of the questions identified in this notice, and 
will include as much explanation of the commenter's views as possible. 
All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have 
provided. If you submit a comment, please include the Docket ID for 
this rulemaking, FEMA-2014-0013.

A. Privacy Act

    Please be aware that anyone is able to search the electronic form 
of all comments received into any of our dockets by the name of the 
individual who submitted the comment (or signed the comment, if 
submitted on behalf of an association, business, labor union, etc.). 
For more information, you may want to review the Federal Docket 
Management System system of records notice published in the Federal 
Register on March 24, 2005 (70 FR 15086).

 B. Submission of Sensitive Information

    Do not submit comments that include trade secrets, or confidential 
commercial or financial information to the public regulatory docket. 
Please submit such comments separately from other comments on the rule. 
Comments containing this type of information should be appropriately 
marked as containing such information and submitted by mail to the 
address specified in the ADDRESSES section of this ANPRM. If FEMA 
receives a request to examine or copy this information, FEMA will treat 
it as any other request under the Freedom of Information Act (FOIA), 5 
U.S.C. 552, and the Department of Homeland Security's FOIA regulation 
found in 6 Code of Federal Regulations (CFR) part 5 and FEMA's 
regulations found in 44 CFR part 5.

II. Background

A. General Description of the Hazard Mitigation Grant Program

    The Hazard Mitigation Grant Program (HMGP or Program) provides 
grants to States, Indian Tribal governments, and U.S. Territories (all 
of which are collectively called ``State'' or ``States'' in this 
notice) to implement long-term hazard mitigation measures after a major 
disaster declaration. The HMGP is intended to reduce the loss of life 
and property resulting from natural hazards and to help States 
implement mitigation measures during recovery from a disaster. The HMGP 
is authorized by Section 404 of the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act (the Stafford Act), 42 U.S.C. 5170c. 
States wishing to participate in the program must request an HMGP grant 
as part of their request for disaster assistance. See 44 CFR 
206.36(c)(4), 206.40(a), and 206.432.
    HMGP funds may be used for mitigation planning and mitigation 
projects that will reduce or eliminate damage, loss, or suffering from 
future disasters. Projects must contribute to a long-term solution to 
an existing or anticipated hazard. For example, elevation of a home to 
reduce the risk of flood damages is considered hazard mitigation, but 
buying sandbags and pumps to fight the flood is not. In addition, a 
project's anticipated benefits must be equal to or more than the cost 
of implementing the project, which is demonstrated through a benefit 
cost analysis that compares the cost of the project to the benefits 
anticipated to occur over the lifetime of the project. Funds may be 
used to protect either public or private property. In the post-disaster 
context, the quicker the program is implemented, the more effectively 
it aids individuals and communities in their recovery efforts.
    Both at the time of the request for assistance and at the time FEMA 
obligates funds to the State, the State must have a FEMA-approved State 
Mitigation Plan. Section 322 of the Stafford Act, 42 U.S.C. 5165(a). As 
part of the State planning process, States identify and rank mitigation 
activities that the State will support if funding is available. HMGP 
project applications, known as subapplications, are developed and 
submitted to the State by State agencies, local jurisdictions, Indian 
Tribal governments, and private non-profit organizations. Section 322 
of the Stafford Act, 42 U.S.C. 5165(b) requires local or Tribal 
governments to each have a mitigation plan as a condition of receiving 
HMGP funding. Proposed projects must be consistent with the goals and 
objectives of the State Mitigation Plan and relevant Local or Tribal 
Mitigation Plan. The projects selected must also meet minimum criteria 
identified in 44 CFR part 206. The criteria are designed to ensure that 
cost-effective and beneficial projects are selected for funding.
    To properly manage its HMGP grant, the State is required by 44 CFR 
206.437 to prepare an Administrative Plan, which is different than a 
State Mitigation Plan. The Administrative Plan details the State's HMGP 
processes and procedures. It governs program operations and describes 
how the State will ensure that proposed projects meet all regulatory 
criteria. Among other requirements, the Administrative Plan must 
identify the general staffing and resource needs to manage the HMGP; 
provide details on how the State will seek, review, and select 
applications for projects; describe how the State will forward selected 
applications to FEMA; and describe how the State will manage projects 
approved by FEMA.
    The Stafford Act sets forth criteria to calculate the amount of 
funding available for the HMGP under any particular declaration for 
disaster assistance. FEMA may provide a State with an HMGP grant that 
is an amount up to 15 percent of the estimated total disaster grants 
awarded by FEMA for the major disaster. States may qualify for a larger 
percentage if they have an Enhanced State Mitigation Plan. 42 U.S.C. 
5170c. In addition to meeting the State Mitigation Plan requirements, 
the Enhanced plan must demonstrate, among other factors, that the State 
is committed to a comprehensive mitigation program, that the State uses 
available mitigation funding effectively, and that it is capable of 
managing the increased funding.
    For a declared disaster, FEMA can fund up to 75 percent of eligible 
costs for FEMA-approved projects. The State must provide a 25 percent 
match, which can be cash, in-kind, or fashioned from a combination of 
cash and in-kind sources. The State generally sets its own deadline for 
subapplication submittal, but all subapplications must be submitted by 
the State to FEMA within

[[Page 13972]]

12 months from the date of disaster declaration. 44 CFR 206.436(d). 
After a disaster, the State is encouraged to coordinate HMGP activities 
with recovery and reconstruction efforts so that States can maximize 
mitigation opportunities.
    Upon Presidential approval of a State's request for disaster 
assistance and upon signing of a FEMA/State HMGP grant management 
agreement, the State becomes a grantee and is responsible for providing 
and managing subgrants from the overall grant award to eligible 
entities. The State establishes funding priorities and criteria for 
selecting proposed mitigation activities, solicits program interest, 
and helps subapplicants determine eligibility and develop their 
subapplications. Eligible subapplicants include State agencies, local 
governments, Indian Tribal Governments, and some private not-for-profit 
organizations (all of which are also known as ``program 
participants''). The State, as grantee, establishes deadlines for 
submission of those subapplications, and selects and forwards 
subapplications to FEMA for final project eligibility review. FEMA 
reviews the entire subapplication, with an emphasis on technical 
feasibility--whether the project will substantially reduce the risk of 
future damage--as well as engineering and cost-effectiveness. 
Concurrently, FEMA reviews the subapplication to ensure that it 
contains all required information regarding potential impacts to 
environmental and historic resources, and that FEMA has the necessary 
information to fulfill its environmental planning and historic 
preservation (EHP) review responsibilities.
    Prior to making funding decisions for the HMGP, FEMA is required by 
law to evaluate the impacts of the proposed mitigation action on the 
quality of the human environment. The EHP requirements include 
compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 
4321 et seq., and Section 106 of the National Historic Preservation Act 
(NHPA), 16 U.S.C. 470 et seq., and the Endangered Species Act (ESA), 16 
U.S.C. 1531 et seq. Other requirements contained in Executive Orders 
ensure that FEMA evaluates and avoids adverse impacts to floodplains 
and wetlands, and avoids adverse and disproportionate environmental 
impacts on low-income and minority populations. Executive Order (EO) 
11988 Floodplain Management, EO 11990 Protection of Wetlands, and EO 
12898 Environmental Justice for Low Income and Minority Populations.
    If a subapplication is approved by FEMA, funds are obligated to the 
State as part of the overall grant. The State then disburses the 
funding to the successful subapplicant who becomes the subgrantee. The 
State must ensure that subgrantees adhere to all programmatic, 
administrative and audit requirements. The State does this by 
monitoring and evaluating compliance with programmatic requirements and 
monitoring the progress of completing funded projects. The State 
submits quarterly reports to FEMA indicating the status and completion 
date for each approved project. The State must ensure project 
completion and closeout, or settlement, of all the financial 
obligations related to the subgrant. In addition, the State evaluates 
the effectiveness of completed projects as part of their mitigation 
planning processes.
    States perform all of these functions in a managerial role as they 
do not make the final eligibility and funding decisions. Those 
decisions fall within FEMA's purview, as the overall administrator of 
the grant.

B. Early Steps Towards Delegation--The Managing State Concept

    In 1998, FEMA introduced the Managing State Concept (MSC) for 
implementation of the HMGP in selected States. Thirteen States that 
wished to assume a greater role in the application review and approval 
process participated in the MSC. No Indian Tribal governments or 
Territories participated in the MSC. The MSC was seen as a means to 
enhance FEMA-State collaborative partnerships, and an opportunity to 
provide States with an increased level of flexibility in program 
management. The MSC was also aimed at streamlining the implementation 
of the HMGP, which is a significant consideration for program delivery 
in the aftermath of a disaster; and facilitates incorporating 
mitigation into the recovery process.
    FEMA first initiated the MSC through the use of three individual 
FEMA-State operational agreements. The first agreement was entered into 
in May 1998 with Florida. In August 1998, North Dakota and Ohio signed 
agreements. Each agreement was formalized through a Memorandum of 
Understanding (MOU) specifically tailored to each State.
    During implementation of the MSC, FEMA conducted partnership 
evaluations to review the MSC's progress. These evaluations included 
State staffs, FEMA program and financial specialists, attorneys, and 
Inspector General auditors. Based on these evaluations, in March of 
2000 FEMA expanded the MSC to other interested States. Fundamental 
elements from the three initial agreements served as the basis for 
agreements with the new States. These fundamentals included negotiating 
Managing State roles based on a State's capabilities and continuing 
partnership evaluations as an essential element. Ultimately, ten 
additional States were selected for participation.
    Significantly, under the MSC, FEMA retained program administration 
responsibilities including final approval of subapplications and 
environmental reviews. The MSC consisted of agreements to implement 
processes that would expedite program delivery, but FEMA still retained 
sole authority to administer the program. Eventually, States stopped 
participating in the program for various reasons, and FEMA effectively 
dissolved the MSC with the publication of the 2010 Hazard Mitigation 
Assistance Unified Guidance.

C. Next Steps Toward Delegation--Program Administration by States

    On October 30, 2000, Congress passed the Disaster Mitigation Act of 
2000, Public Law 106-390, 114 Stat. 1552 (Oct. 30, 2000). The Act 
amended Section 404 of the Stafford Act by adding statutory authority 
for HMGP ``Program Administration by the States'' (PAS), including 
Indian Tribal governments and Territories. The amendment contained many 
provisions similar to the MSC but with several significant changes.
    Specifically, the amendments to Section 404 of the Stafford Act 
direct FEMA to delegate program administration responsibilities to 
eligible, interested States. The amendments require the President to 
establish criteria for the approval of requests. The criteria, which 
must be developed in consultation with States and local governments, 
must require, at a minimum, that the State have an approved State 
Hazard Mitigation Plan, demonstrated ability to manage the HMGP, and 
demonstrated commitment to mitigation activities. Finally, the 
amendments provide FEMA with the authority to withdraw delegated 
program responsibilities if the State is not administering the program 
in a satisfactory manner. These PAS provisions provide FEMA with a 
statutory mandate to advance beyond the former MSC and fully develop 
State administration of the HMGP.
    Since passage of the Disaster Mitigation Act, FEMA did not 
implement PAS because it was implementing the MSC. After the MSC was 
terminated, one State expressed interest in PAS participation. That 
State submitted an application to FEMA, but

[[Page 13973]]

criteria had not been developed for that method of program delivery so 
the application could not be adequately reviewed.
    In January of 2013, the President signed into law the Sandy 
Recovery Improvement Act of 2013 (SRIA), Public Law 113-2, 127 Stat. 4 
(Jan. 29, 2013). SRIA amended Section 404(c) of the Stafford Act, 
adding a provision allowing FEMA to carry out a pilot program for PAS 
if FEMA determines it is necessary to expeditiously implement PAS and 
until such time as the Administrator promulgates regulations to 
implement PAS. Consistent with the SRIA mandate, FEMA is currently 
carrying out a pilot program for PAS.
    Concurrently and consistent with the authority under the Stafford 
Act to promulgate program implementation regulations, FEMA is 
publishing this ANPRM and requesting the public's input on a number of 
general PAS-related concepts to develop a comprehensive program and 
implementing regulations.
    SRIA's amendment to Section 404(c) applies to all major disasters 
or emergencies declared on or after SRIA's enactment date, January 29, 
2013, and for major disasters or declarations for which the application 
period for processing requests for HMGP funding is still open as of 
SRIA's enactment date. Under the PAS pilot, FEMA delegates certain 
program responsibilities to the State. Participation in the program is 
voluntary and States can select the grants management activities they 
would like to perform. To participate in the program, States must have 
an approved State Mitigation Plan, demonstrated ability to manage the 
HMGP, and demonstrated commitment to mitigation activities.
    To determine whether a State has a ``demonstrated ability to manage 
the HMGP'' FEMA reviews HMGP grants activity within the past four 
quarters from the date of the State's request. FEMA's review for State 
demonstrated ability to manage HMGP includes reviewing documentation to 
determine the following:
     Whether in the past the State has submitted (and FEMA has 
approved) the State HMGP Administrative Plan within 90 days of the 
disaster declaration date;
     Whether the State has submitted applications in an 
electronic data system such as FEMA's National Emergency Management 
Information System (NEMIS) or has completed a FEMA data collection form 
and application review checklist (or beginning in FY13, the Eligibility 
and Completeness checklist);
     Whether the State has submitted an Eligibility and 
Completeness checklist for all applications;
     Whether the State has provided requested information to 
FEMA for an application, enabling FEMA to approve the application 
within 60 days of subgrant application submittal for at least 75% or 
more of the applications (depending on the number of applications 
submitted); Whether 100% of the applications can be approved by FEMA 
within 90 days of application;
     Whether within the past five years from the date of 
application submittal, State staff have completed FEMA sponsored 
trainings (for instance, on Hazard Mitigation Assistance, Benefit Cost 
Analysis, Environment and Historic Preservation and Mitigation 
Planning);
     If the State has submitted a request to extend the 
application period, whether the request was submitted 30 days before 
the end of the application period; and
     If the State submitted a request to extend the period of 
performance, whether the request was submitted at least 60 days before 
the end of the application period and/or period of performance.
    A State must meet additional requirements before FEMA will delegate 
responsibility for specific activities. Depending on the nature of the 
requested delegation, FEMA's review may include determining the 
following:
     Whether past quarterly progress and financial reports are 
complete and were submitted on time;
     Whether past extension requests were supported by 
information in quarterly progress reports;
     Whether subgrant close-out and financial reconciliation 
were completed within six months of work completed;
     Whether grant program and financial close-out activities 
were completed within 90 days of the end of the period of performance;
     Whether there were no drawdowns requested or performed 
after the liquidation period has ended;
     Whether financial procedures and systems meet FEMA grants 
management standards;
     Whether there are any major findings on the last single 
audit obtained by the State related to Hazard Mitigation Assistance 
activities; and
     Whether all local hazard mitigation plans submitted to 
FEMA in the past four quarters are at least ``approvable pending 
adoption.''
    Under the pilot, applicants are required to use FEMA forms or 
documentation agreed upon by FEMA for application completeness review, 
benefit cost analysis, progress reporting, and financial reporting.
    To document a State's ``Demonstrated Commitment to Mitigation 
Activities,'' FEMA requires States to provide documentation of existing 
processes and activities in the following categories: (1) State 
management of a mitigation, hazard safety, and/or insurance program; 
(2) planning capability and authority to support risk reduction in the 
planning processes of local communities (e.g., statewide building 
codes); (3) State provision of resources and funding to support 
mitigation activities within local communities; and (4) State 
commitment to floodplain management.
    If the State PAS application is approved, the State enters into an 
operational agreement with FEMA and updates the Administrative Plan to 
document how the State will implement the HMGP with reduced oversight 
from FEMA. As part of the rulemaking process, FEMA will use insight 
gained from implementing the pilot to draft program regulations.

D. Developing PAS Regulations

    To successfully implement PAS, FEMA must determine how the program 
will operate, and how available resources can facilitate program 
performance. FEMA performs numerous and varied responsibilities in the 
administration of the HMGP. These include keeping States informed of 
the anticipated amount of available funding, reviewing subapplications 
selected by a State, and deciding if the subapplication proposals meet 
program requirements and merit funding. As part of this process, FEMA 
conducts detailed reviews of project information, examines the 
schedule, scope of work, engineering and technical feasibility, and 
cost-effectiveness, and performs environmental analyses. All of these 
reviews can affect a project's scope of work, budget, and delivery. 
Following an award of subgrant funding to the State, FEMA provides 
additional technical assistance and monitors quarterly reports to 
ensure subgrants are implemented as planned and on schedule.
    To develop PAS, FEMA is exploring the extent to which its 
determinations regarding cost-effectiveness, technical feasibility and 
engineering, and final eligibility and funding can be made at the State 
level. FEMA is also exploring whether there are EHP responsibilities 
that FEMA may legally delegate to the States under applicable Federal 
law, and that the grantee or subgrantee would be interested in 
assuming. Consistent with Federal EHP laws,

[[Page 13974]]

including NEPA, the NHPA, the ESA, as well as EOs 11988 (Floodplain 
Management) and 11990 (Protection of Wetlands), FEMA has final review 
and approval authority on the environmental impact of a proposed 
Federal action or undertaking. Only FEMA can perform certain EHP 
responsibilities, such as formal consultation with the U.S. Fish and 
Wildlife Service (USFWS) under Section 7 of the ESA, or preparing an 
environmental impact statement under NEPA. However, FEMA may delegate 
EHP responsibilities related to preparation for environmental review to 
the States. Those responsibilities include providing enough background 
information to assess the environmental impact of the Federal action on 
historic properties, endangered and threatened species, critical 
habitats, wetlands, floodplains, and on low income and minority 
populations. The responsibilities could also include initiating 
communication with appropriate Federal agencies, such as the USFWS, or 
United States Army Corps of Engineers (USACE), and with State 
regulatory agencies including the State or Tribal Historic Preservation 
Office for the purposes of allowing those agencies to identify any 
potential impacts from the project, and to allow FEMA to prepare the 
required documentation on project impacts and decisions.
    PAS eligibility criteria may consider the quality of State planning 
activities (administrative and mitigation planning), the availability 
of State financial resources for program administration, and a State's 
ability to perform all grant objectives in a timely manner. The PAS 
program will continue to support HMGP principles of fairness and 
transparency, and incorporate long term recovery. FEMA will provide 
appropriate guidance tools, and include standards for meeting and 
maintaining PAS status, and processing appeals. In summary, to 
participate in PAS a State should demonstrate an expanded ability to 
manage the Program to ensure that they will be able to successfully 
assume Federal-level responsibilities.

III. Questions for Commenters

    FEMA welcomes public comment on all aspects of PAS, but would 
derive particular benefit from commenters addressing one or more of the 
following questions:
    1. Criteria for PAS Designation: FEMA seeks input on how to assess 
the State's ability to manage the HMGP throughout the program 
lifecycle. What approval criteria and documentation should FEMA 
consider when reviewing State requests for PAS designation? What 
metrics should be used? How should these be measured? How far back 
should past performance be measured (the last four quarters, 3 years, 5 
years)? Possible considerations are:
    a. The extent of technical and organizational resources committed 
to the program, such as whether staff have completed FEMA Hazard 
Mitigation Assistance-related trainings;
    b. Ability to prepare and approve cost effective applications and 
to adhere to technical and program requirements; ability to use 
anticipated benefits or losses avoided in ranking projects for funding; 
ability to calculate actual losses avoided as a result of completed 
mitigation activities;
    c. Ability to submit complete and eligible subapplications, 
prepared by the State or local communities, within 12 months of the 
disaster declaration date and any additional extensions (for example, 
whether FEMA needs to request additional information to complete 
subapplication reviews, and if the State uses the minimum application 
review checklist to validate that subapplications are complete);
    d. Ability to perform EHP responsibilities that can be delegated to 
States by FEMA under applicable Federal laws;
    e. Past experience in assisting and monitoring local governments in 
developing and completing mitigation activities (whether there is a 
monitoring and auditing process in place, and whether quarterly reports 
are submitted to FEMA on time);
    f. Ability to maintain sound financial management (no major 
findings in audit reports);
    g. Ability to complete the grant in the regulatory timeframe (for 
instance, closeout activities are completed 90 days after the end of 
the period of performance, extension requests are supported by 
information in quarterly reports, and no more than two six-month 
extensions are required);
    h. Ability to close out the subgrants and the grant within the 
existing programmatic timeframe (i.e., whether subgrant activities are 
closed out within 90 days after the activities have been completed);
    i. Ability to manage other FEMA grants especially when the State 
has no recent experience with HMGP (evaluating past performance using 
data from Flood Mitigation Assistance Grants, Pre-Disaster Mitigation 
Grants, or other FEMA grants).
    2. Enhanced State or Tribal Mitigation Plan: What should the 
relationship be, if any, between having a FEMA-approved Enhanced 
Mitigation Plan and receiving a PAS designation? Questions include the 
following:
    a. Should PAS approval be required before FEMA approves an Enhanced 
Plan?
    b. Should a FEMA-approved Enhanced Plan be required for PAS 
designation?
    c. Should an Enhanced Plan have no relationship to PAS designation?
    d. Should there be another relationship between the two?
    e. If Enhanced Plans are not required, how should States document 
losses avoided for completed mitigation projects?
    3. Commitment to Mitigation: FEMA seeks input on how to assess the 
State's demonstration of commitment to mitigation. Possible examples of 
commitment to mitigation include State management of mitigation, hazard 
safety or insurance programs, statewide planning or building code 
authorities, State resources that are dedicated to support mitigation 
activities in local communities, and demonstrated State commitment to 
floodplain management. What documentation should FEMA consider in 
reviewing a State's request and granting a PAS designation?
    4. Model Federal Performance Measures: What performance measures 
from other State-administered Federal programs could be considered or 
incorporated in PAS designation requests?
    5. Administrative Planning: FEMA's program regulations at 44 CFR 
206.437 and the State Administrative Plan set out minimum criteria. 
What additional elements, if any, should FEMA consider requiring in 
Administrative Plans for States with PAS designation?
    6. Decision Making Processes: When States have an expanded role in 
application approval, how can States demonstrate impartial and 
consistent selection and management of applications when they are also 
eligible to be program participants and submit and manage their own 
subapplications (independent panels, blind applications, cost benefit 
ratio or other means)? What decision making documentation should FEMA 
consider?
    7. Interaction: FEMA seeks input on the level and type of 
coordination necessary between eligible applicants and the public where 
the State has an expanded role in administering HMGP. What should be 
the level of interaction between FEMA, the State, local governments, 
and other program participants regarding day-to-day program 
administration (e.g., solicitation of applications, progress reporting, 
record-keeping, and closeout)?

[[Page 13975]]

    8. Factors Affecting Delegation: Should PAS designation include 
limits or factors (such as the magnitude of the declared disaster or 
the number of open events) that would affect the level of State 
responsibility granted by FEMA? If so, what should these limits or 
factors be?
    9. EHP Requirements and Responsibilities Under PAS: FEMA seeks 
input from States and other stakeholders as to which EHP 
responsibilities should be delegated to States under applicable Federal 
law. For instance:
    a. Should States be able to initiate communication with appropriate 
agencies such as the USFWS, USACE, or State regulatory agencies (for 
instance, the State or Tribal Historic Preservation Office) for the 
purposes of identifying potential project environmental impacts or 
other considerations within these agencies' jurisdiction?
    b. Should States be delegated the responsibility to collect 
information necessary for performing categorical exclusions and the 
eight-step floodplain or wetland analyses?
    c. Could the States, rather than FEMA, engage other Federal 
agencies to streamline unified review where possible?
    d. What abilities and resources are needed to assume these types of 
responsibilities?
    e. What guidance from FEMA would States need to assume these or 
other similar EHP responsibilities?
    f. What methods or processes from other Federal programs should be 
considered?
    g. Are there existing State processes that perform a similar 
function?
    10. Performance Evaluation: FEMA seeks input on criteria to assess 
performance of those States that receive PAS designations (e.g., grants 
management, technical and engineering feasibility, cost effectiveness, 
plan requirements, and EHP responsibilities and requirements):
    a. What elements/metrics should be used in this assessment?
    b. How frequently should FEMA assess a State's performance under 
PAS (quarterly, annually, 3 years, 5 years, or other)?
    c. What measures should FEMA use to address or correct deficiencies 
in performance?
    d. What level of monitoring or oversight should FEMA use to assess 
compliance with Federal EHP requirements?
    11. Program Evaluation: How could the analysis of program benefits 
(economic, environmental, public health and safety, equity) justifying 
program costs be an indicator of state performance?
    12. Significant Non-compliance: FEMA seeks input on what would 
constitute a significant non-compliance deficiency warranting temporary 
withdrawal or full termination of PAS designation. Areas of concern 
include subgrant eligibility determinations, cost effectiveness 
reviews, grant management, plan requirements, and EHP responsibilities 
and requirements. Under what circumstances should failure to meet 
requirements and responsibilities established by FEMA result in removal 
of a PAS designation? What criteria should FEMA consider using for PAS 
reinstatement? What other remedies should FEMA consider if a PAS 
jurisdiction fails to comply with Program requirements?
    13. Electronic Systems: What, if any, are the States' concerns 
regarding the use of existing FEMA grant reporting and management 
electronic systems (such as NEMIS) when mandated for PAS participation?
    14. Participation: What factors could FEMA consider and use to 
facilitate and encourage State participation in PAS?
    15. Tribal Considerations: What factors should FEMA consider and 
use to encourage Tribal participation in PAS? What are the potential 
challenges for Tribes in applying for and maintaining PAS designation?
    16. Challenges and Resources: What are the potential challenges for 
States in maintaining PAS designation (such as keeping key personnel, 
covering multiple disaster and recovery needs, or liability concerns)? 
What resources do States need to successfully implement PAS (management 
cost support, training, guidance, job-aids, or other resources)?
    17. Program Participants Impacts: How would program participants be 
impacted when their State administers HMGP under a PAS designation? 
What are the potential benefits (increased access to funding, decreased 
duplication, faster obligation of funding, or other benefits)? What are 
the potential costs (e.g., increased time and paperwork, longer 
obligation timeframes)?
    18. State Impacts: How would States be impacted by administering 
HMGP under a PAS designation? What are the potential benefits? What are 
the potential costs?
    19. State Interest: For FEMA's State, Indian Tribal government and 
Territory stakeholders: Would your State or Tribe consider applying for 
the PAS option for your next disaster declaration?
    20. Overall Effect: Do you think PAS would be beneficial in 
streamlining the provision of funding under the HMGP? Do you think PAS 
would be beneficial in implementing more effective hazard mitigation 
projects? If so, how?

IV. Conclusion

    Comments most helpful to FEMA will address one or more of the 
questions identified above, and will include a detailed explanation of 
the commenter's views. FEMA also invites comments that relate to the 
economic, environmental, or federalism effects that commenters believe 
might result from any PAS program implementation model. All comments 
received will be considered by FEMA in designing future PAS program 
implementation regulations.

    Dated: March 6, 2014.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2014-05437 Filed 3-11-14; 8:45 am]
BILLING CODE 9110-13-P