Regulations on Rulemaking Procedures, 11971-11978 [2022-04309]

Agencies

• Federal Emergency Management Agency
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Rules and Regulations]
[Pages 11971-11978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04309]



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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 1

[Docket ID FEMA-2017-0016]
RIN 1660-AA91


Regulations on Rulemaking Procedures

AGENCY: Federal Emergency Management Agency, Department of Homeland 
Security (DHS).

ACTION: Final rule.

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SUMMARY: This final rule revises Federal Emergency Management Agency 
(FEMA) regulations pertaining to rulemaking. It removes sections that 
are outdated or do not affect the public and it updates provisions that 
affect the public's participation in the rulemaking process.

DATES: This final rule is effective April 4, 2022.

FOR FURTHER INFORMATION CONTACT: Kristen Shedd, Associate Chief 
Counsel, Regulatory Affairs, Office of Chief Counsel, Federal Emergency 
Management Agency, 500 C Street SW, Washington, DC 20472, 202-646-4381, 
or (email) [email protected].

SUPPLEMENTARY INFORMATION: FEMA published a notice of proposed 
rulemaking (NPRM) on June 7, 2017, at 82 FR 26411, proposing revisions 
to its regulations on rulemaking procedures. The NPRM proposed to 
remove outdated provisions, update provisions that affect the public, 
and modify FEMA's waiver of the Administrative Procedure Act exemption 
for matters relating to public property, loans, grants, benefits, and 
contracts. FEMA received five public comments in response to the 
proposed rule. Two commenters, the law offices of Texas RioGrande Legal 
Aid, Inc. (Texas RioGrande) and the National Rural Electric Cooperative 
Association (NRECA), expressed concern that the proposed regulations 
would result in a reduction in transparency and stakeholder involvement 
in FEMA's rulemaking process. One comment, submitted by former research 
consultants to the Administrative Conference of the United States 
(ACUS), recommended further revisions to the petitions for rulemaking 
section. Two comments were unrelated to the subject matter of the 
rulemaking and are not the subject of further discussion below.
    FEMA now finalizes the proposed regulations with some revisions 
made in response to the relevant comments received. FEMA describes 
these revisions and addresses the specific concerns of each commenter 
below.

Administrative Procedure Act Exemption for Public Property, Loans, 
Grants, Benefits, or Contracts

    The Administrative Procedure Act exempts from notice and comment 
rulemaking matters relating to public property, loans, grants, 
benefits, or contracts.\1\ FEMA's regulations currently waive this 
exemption in keeping with a 1969 ACUS Recommendation which recommended 
that Congress remove this exemption from the Administrative Procedure 
Act and that, even in the absence of legislative action, agencies 
should subject these matters to notice and comment rulemaking in the 
interest of transparency and public participation.\2\ In the NPRM, FEMA 
noted that one of its main functions is to administer grant programs 
for emergency preparedness, response, recovery, and mitigation. FEMA 
proposed to modify its waiver of the exemption for three separate and 
independent reasons: (1) It is not feasible to go through the 
rulemaking process for annual grant programs, which comprise the 
majority of FEMA grant programs; (2) the Administrative Procedure Act 
does not require grant program requirements (for annual grant programs 
or otherwise) to be in regulation; and because (3) FEMA requires 
flexibility to adapt quickly to legal and policy mandates. 82 FR 26413.
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    \1\ 5 U.S.C. 553(a)(2).
    \2\ ACUS Recommendation 69-8, adopted October 21-22, 1969, 
available at https://www.acus.gov/sites/default/files/documents/69-8.pdf. FEMA established a regulation waiving the exemption even 
though the ACUS recommendation did not specifically recommend such a 
course of action.
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    Texas RioGrande submitted a comment expressing concern over this 
proposed modification of the waiver of the Administrative Procedure Act 
exemption. Texas RioGrande stated that it had consistently expressed 
concern about lack of transparency in FEMA's administration of its 
Individuals and Households Program (IHP), and that it filed lawsuits on 
behalf of clients in south Texas who were impacted by the use of FEMA's 
``unpublished rules'' following Hurricane Dolly in 2008 and other 
disasters in 2015 and 2016. The commenter noted that it had also 
discussed these concerns in its comments submitted on FEMA's 
Individuals and Households Program Unified Guidance (IHPUG).\3\ The 
IHPUG \4\ compiled FEMA policy for each type of assistance under IHP 
into one comprehensive document and was intended to serve as a singular 
policy resource for State, local, Tribal, and territorial governments, 
and other entities who assist disaster survivors with post-disaster 
recovery. The IHPUG replaced all stand-alone IHP policies and policy 
statements that were previously located in FEMA documents and standard 
operating procedures.\5\
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    \3\ Texas RioGrande's comment on the IHPUG can be viewed at 
www.regulations.gov under Docket ID FEMA-2016-0011, document number 
FEMA-2016-0011-0085.
    \4\ Note the IHPUG has been superseded by the Individual 
Assistance Program and Policy Guide (IAPPG) for any disaster 
declared after March 1, 2019. See https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.
    \5\ The IHPUG can be viewed on FEMA's website at https://www.fema.gov/sites/default/files/2020-05/IHP_Unified_Guidance_FINAL_09272016_0.pdf.
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    The commenter stated that ``FEMA's current published materials do 
not provide anyone outside FEMA a fair idea of how FEMA decides who 
gets what disaster assistance.'' The commenter stated that FEMA's 
current regulations and guidance are ``not a recipe for fair and 
efficient administration of any government program'' and that 
``[w]hether in regulations or informal guidance, FEMA should provide a 
full and fair picture of how it makes its disaster assistance 
decisions, and whether it changes its standards from disaster to 
disaster . . . .'' The commenter stated that ``FEMA already keeps 
hundreds of its IHP standards from being accessible to the public.'' 
The commenter expressed concern that the proposed rule would ``inhibit 
the transparency that policy makers and the public need.''
    Finally, the commenter suggested that the public interest in 
participation outweighs FEMA's need for flexibility to sometimes forego 
notice and comment rulemaking. The commenter opined that current 44 CFR 
1.4(f) and (h) \6\ include a sufficient mechanism for FEMA to bypass 
notice and comment in order to address emergency situations.
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    \6\ Section 1.4(f) generally tracks the ``good cause'' 
exemptions to notice and comment rulemaking requirements under the 
Administrative Procedure Act. Section 1.4(h) relates to emergency 
situations and generally tracks section 6(a)(3)(D) of Executive 
Order 12866.
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    As an initial matter, FEMA notes that the specific contents of the 
IHP regulations and guidance are outside the scope of this rulemaking. 
As the commenter recognized, FEMA already has IHP regulations at 44 CFR 
206.110-206.117, and has already published the IHPUG for notice and 
comment and

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made the final IHPUG available on FEMA's website.\7\ This rule, as 
proposed and as finalized, would not directly affect the transparency 
of FEMA's current IHP regulations or guidance. While the rule makes 
clear that FEMA can change the current rules without notice and 
comment, FEMA has no plans to remove the IHP regulations or to reduce 
the transparency of such regulations and guidance.\8\
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    \7\ The Individual Assistance Program and Policy Guide (IAPPG) 
that superseded the IHPUG is also available on FEMA's website. See 
Individual Assistance Program and Policy Guide (IAPPG), Version 1.1, 
May 2021 at https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf. (last accessed on Nov. 4, 2021)
    \8\ As FEMA noted in the proposed rule, the proposed change with 
respect to the grants exemption was partly intended to allow FEMA to 
operate certain annual grants programs without rulemaking. An annual 
grant program is a program for which Congress on an annual basis (1) 
appropriates a certain amount of money for the program, and (2) 
potentially revises requirements associated with the program. IHP is 
not such a program.
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    FEMA agrees with the commenter that it is important to provide fair 
notice of FEMA policies, but FEMA disagrees that this rule will inhibit 
such notice. This rule, as proposed and as finalized, has no bearing on 
the availability of FEMA's policies and procedures to the public. For 
instance, the Administrative Procedure Act and the Freedom of 
Information Act each contain provisions directed at the transparency of 
government programs. See 5 U.S.C. 552; 6 CFR part 5; see also 42 U.S.C. 
5165c(c) (FEMA ``shall promote public access to policies governing the 
implementation of the public assistance program,'' i.e., disaster 
assistance to State, local, and Tribal governments and certain private 
non-profit organizations). And consistent with 2 CFR part 200, FEMA 
posts notices of funding opportunities on www.grants.gov. See 2 CFR 
200.203. Grants.gov provides a common website for Federal agencies to 
post discretionary funding opportunities and for grantees to find and 
apply for them. It helps the grant community learn more about available 
opportunities, facilitates interaction with the Federal government, and 
simplifies the grant application process. This rule does not affect the 
applicability of any of these transparency measures. FEMA will continue 
to provide fair notice of its policies consistent with all applicable 
legal requirements.
    Finally, with respect to public participation, FEMA agrees with the 
commenter that FEMA should maintain its general policy in favor of 
public participation. Consistent with the proposed rule, FEMA has 
retained the general policy in favor of public participation in this 
final rule. FEMA disagrees, however, that existing regulations provide 
sufficient flexibility, as the agency's past experience demonstrates 
the challenges in issuing or revising regulations in sufficient time to 
support some grant programs. FEMA acknowledges that even in the absence 
of the Administrative Procedure Act's notice and comment exemption for 
rules relating to grants, FEMA may be able to avail itself of other 
exceptions to notice and comment (such as the ``good cause'' exception 
at 5 U.S.C. 553(b)(B)) when action is urgently required. FEMA prefers 
to avoid relying solely on such exceptions, however, because the 
Administrative Procedure Act makes the grants exemption available to 
FEMA and because some exceptions from notice and comment requirements 
are narrowly construed by courts. For instance, the ``good cause'' 
exception at 5 U.S.C. 553(b)(B) might not in all cases accommodate 
circumstances where FEMA perceives a need to bypass notice and comment 
in situations of an ongoing emergency such as a global pandemic, where 
a court applying the ``good cause'' standard rigorously might question 
whether FEMA should have acted to address a specific problem sooner. 
There may also be circumstances where, by virtue of multiple concurrent 
disasters or emergencies, there are limited regulatory development 
personnel to expedite multiple rulemaking projects through the notice 
and comment process.
    With respect to the commenter's statement that FEMA's existing 
regulation at 44 CFR 1.4(h) provides an exception to notice and comment 
requirements, that exception is limited to an emergency situation; is 
more narrowly focused on requirements associated with Executive Order 
12866; and calls for the preparation of additional materials for which 
FEMA may at times be inadequately resourced. FEMA does not believe this 
emergency situation exception is sufficient to ensure the flexibility 
needed to effectively implement its grants programs.
    FEMA believes the revisions made in this rule will signal the 
appropriate policy intention to generally favor public participation, 
while providing the degree of flexibility that the Administrative 
Procedure Act provides and that FEMA believes appropriate.
    FEMA notes that the general policy is not the only applicable law 
or regulation relating to public participation in rulemaking. For 
instance, 42 U.S.C. 5165c requires notice and comment before adopting 
any new or modified policy that governs implementation of the Public 
Assistance program and could result in a significant reduction of 
assistance under the program. This statutory requirement ensures that 
one of FEMA's largest grant programs, the Public Assistance program, 
includes opportunities for public participation before any new or 
modified policy that could result in a significant reduction of 
assistance is implemented. FEMA will of course continue to abide by any 
legal or regulatory requirement relating to notice and comment 
rulemaking.
    FEMA is therefore finalizing this aspect of the proposed rule 
without change. As noted above and in the proposed rule, however, FEMA 
does not anticipate a significant change in practice as a result of 
these amendments.

Petitions for Rulemaking

    In the NPRM, FEMA proposed to revise its regulations regarding 
petitions for rulemaking to update and clarify terminology and to 
require that petitions be labeled ``petition for rulemaking'' or 
``rulemaking petition'' to avoid situations where simple correspondence 
is confused with a petition.
    FEMA received a comment from two former co-consultants to ACUS who 
assisted with the ACUS 2014 petitions for rulemaking project. This 
project resulted in ACUS Recommendation 2014-6, ``Petitions for 
Rulemaking.'' See 79 FR 75114, 75117 (Dec. 17, 2014). The commenters 
approved of the revisions FEMA proposed in the NPRM but requested that 
FEMA make additional changes to its petitions for rulemaking 
regulations in accordance with Recommendation 2014-6.
    The commenters proposed that FEMA should accept electronic 
submissions of petitions for rulemaking. FEMA's current regulations as 
well as the proposed regulations only provide for a physical mailing 
address. The commenters quoted from ACUS Recommendation 2014-6, which 
recommends that agencies accept the electronic submission of petitions, 
via email or through regulations.gov (such as by maintaining an open 
docket for the submission of petitions for rulemaking) or their 
existing online docketing system.\9\ The commenters stated that at a 
minimum, FEMA should provide an appropriate and permanent email address 
for submitting petitions.
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    \9\ Recommendation 2014-6, #4.
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    FEMA agrees that in most contexts online communication is more 
efficient than physical mail but declines to adopt a binding regulation 
authorizing the

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electronic submission of petitions at this time. FEMA believes allowing 
electronic submission of petitions could lead to confusion or 
inappropriate mass submissions without the proper infrastructure and 
procedures. At this time, FEMA cannot reliably support efficient online 
petitioning and therefore has not revised its regulations to 
permanently authorize the electronic submission of petitions. FEMA is 
open to experimenting with electronic submissions in the future, 
however, and has revised the regulatory text to make clear that FEMA 
will post to its website (www.fema.gov/about/offices/chief-counsel/rulemaking) additional acceptable methods for submitting petitions. If 
FEMA decides to maintain a public docket system for petitions, it will 
revise the above web page to reference that docket system.
    The commenters also recommended that FEMA develop a default 
timeline for responding to petitions or publish online individual 
timelines for responding to each received petition, consistent with 
Recommendation 2014-6, #12 and #13, and with the requirements of the 
Administrative Procedure Act to respond to petitions ``within a 
reasonable time.'' \10\ FEMA does not agree to develop a default 
timeline for responding to petitions. The Administrative Procedure Act 
requires FEMA to respond ``within a reasonable time'' and what is 
considered to be a reasonable time will vary depending on the degree of 
complexity of individual petitions and surrounding circumstances. The 
ACUS recommendations cited do not recommend that agencies issue binding 
regulations for these timeframes, but rather that an agency should 
``adopt in its procedures'' a default timeline for responding or 
otherwise make publicly available the timeframe by which it will 
respond to an individual petition.\11\ Given limited agency resources, 
specific timelines published in regulation could bind FEMA in a way the 
underlying report nor the ACUS recommendation require, creating an 
undue burden on the agency.
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    \10\ 5 U.S.C. 555(b).
    \11\ See Admin. Conf. of the U.S., Recommendation 2014-7, 
Petitions for Rulemaking, 79 FR 75114 (Dec. 17, 2014).
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    The commenters recommended that FEMA create a way for petitioners 
and the public to learn the status of their pending petitions, 
consistent with ACUS Recommendation 2014-6, #7. That recommendation 
suggests either using online dockets or designating a single point of 
contact authorized to provide information about the status of 
petitions. The commenters further stated that FEMA should provide a 
permanent email address and telephone number at which interested 
members of the public can inquire about the status of petitions.
    FEMA is interested in promoting more seamless interactions with the 
public in general, including this particular issue.\12\ FEMA intends to 
experiment with an online docketing system, and does not believe it is 
appropriate to require such a system by regulation at this time. If 
FEMA establishes such a system, FEMA will include a link to the system 
at the web page identified above. Similarly, although FEMA declines to 
include in regulation the name and/or phone number of a point of 
contact for all rulemaking petitions, FEMA is including an email 
address ([email protected]) as a point of contact to 
confirm whether FEMA has received or responded to a specific rulemaking 
petition. FEMA may publish additional information on its website at a 
future date.
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    \12\ This interest is consistent with Executive Order 14058 
``Transforming Federal Customer Experience and Service Delivery to 
Rebuild Trust in Government,'' 86 FR 71357 (Dec. 16, 2021).
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    The commenters stated that FEMA may also consider making additional 
changes as recommended by ACUS, including detailing how FEMA will 
coordinate consideration of petitions with other processes used to 
determine agency priorities, such as the Unified Agenda and 
retrospective review of existing rules.\13\ As stated in Sec.  1.8(b) 
of this final rule, if the FEMA Administrator finds that a petition 
contains adequate justification, a rulemaking proceeding will be 
initiated or a final rule will be issued as appropriate. Prioritization 
would be commensurate with the agency's regulatory priorities, as 
determined by the Administrator. FEMA does not believe that it is 
appropriate to include this internal process in regulation as such 
internal processes are exempt from the requirements of 5 U.S.C. 553 and 
should be subject to change at the Administrator's discretion.
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    \13\ ACUS Recommendation 2014-6, #2.
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    The commenters also suggest further explaining what type of data 
and arguments are most useful for petitioners to provide to aid agency 
evaluation.\14\ The current and proposed regulations request the 
petition to provide the substance of the rule or amendment proposed, or 
specify the rule sought to be repealed or amended, and set forth all 
data and arguments available to the petitioner in support of the action 
sought. FEMA believes that this level of detail is sufficient. FEMA 
does not want to be overly prescriptive, considering the wide variety 
of changes that may be requested by a petitioner, and the wide variety 
of potential petitioners. The current regulations allow flexibility to 
the petitioner by providing general guidelines rather than dictating 
particular data points. If FEMA finds that a particular petition 
requires clarification or additional support before a determination can 
be made, it is its current practice to indicate such to the petitioner. 
This is consistent with ACUS Recommendation 2014-6, #6.
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    \14\ ACUS Recommendation 2014-6, #3.
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    The commenters recommend inviting public comment on petitions as 
appropriate, consistent with ACUS Recommendation 2014-6, #8 and #9. 
FEMA has revised Sec.  1.8 to make clear that it will consider on a 
case-by-case basis whether to solicit public comment on a petition. 
FEMA has further revised this section to clarify that the agency can 
take action to accept comments, by removing text stating that ``No 
public procedures will be held directly on the petition before its 
disposition.'' In making the decision whether to solicit public comment 
on a petition, the agency will consider a variety of factors, including 
the nature and complexity of the petition, to determine if public 
comment is appropriate in advance of a decision on the petition. FEMA 
does not find it necessary to add a provision to the regulations 
regarding a specific public comment process for petitions given this 
change.
    Finally, the commenters recommend posting additional information on 
FEMA's website about how to submit petitions, consistent with ACUS 
Recommendation 2014-6, #16. As noted, FEMA has included a provision 
directing readers to the FEMA website. FEMA may, in its discretion, 
include additional information there.

Early and Meaningful Opportunity To Participate in the Development of 
Rules

    In the NPRM, FEMA proposed to remove Sec.  1.4(d), which describes 
FEMA's general policy of giving the public, including small entities 
and consumer groups, an early and meaningful opportunity to participate 
in the development of rules such as through advance notices of proposed 
rulemaking, holding open conferences, and convening public forums or 
panels. The NRECA submitted a comment expressing disagreement with 
FEMA's proposal to remove this text. The NRECA stated that the current 
language creates the appropriate impression for the public and 
interested stakeholders looking to become involved in the

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process that FEMA is open to such participation.
    Although FEMA is removing this section from its regulations, FEMA 
continues to support early and meaningful opportunity for the public to 
participate in the development of rules. As a matter of internal 
policy, FEMA sends copies of regulatory actions during the public 
comment period to publications likely to be read by those affected and 
solicits comment from interested parties by such means as direct mail. 
FEMA does not plan to change this policy. FEMA also has a general 
internal policy of publishing requests for information and advance 
notices of proposed rulemaking as appropriate to the rulemaking 
project, specifically to give the public an early and meaningful 
opportunity to participate in the development of a rule. FEMA generally 
favors this approach for rules likely to be deemed significant under 
Executive Order 12866. FEMA followed this policy by publishing two 
requests for information related to the National Flood Insurance 
Program \15\ in advance of considering rulemaking and two advance 
notices of proposed rulemaking (one in 2016, one in 2017) for the 
public assistance program, in order to receive public input before FEMA 
fully developed the proposed rule.\16\ See 82 FR 4064 (Jan. 12, 2017); 
81 FR 3082 (Jan. 20, 2016). The removal of the text streamlines the 
regulations and ensures the agency retains the flexibility to utilize a 
range of public engagement options in advance of rulemaking where 
appropriate.
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    \15\ See 86 FR 47128 (Aug. 23, 2021) and 86 FR 56713 (Oct. 12, 
2021).
    \16\ See 85 FR 80719 (Dec.14, 2020).
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Inclusion of the 60-Day Public Comment Period in the Regulations

    In the NPRM, FEMA proposed to remove Sec.  1.4(e), which states 
FEMA's general policy of affording the public a 60-day comment period 
for notices of proposed rulemaking, unless the Administrator makes an 
exception and sets forth the reasons for the exception in the preamble 
to the notice of proposed rulemaking. The NRECA submitted a comment 
disagreeing with this proposed removal, stating that for the novice 
member of the public or interested stakeholder trying to become 
meaningfully involved in a process that will have impact on livelihoods 
and economic success or failure, there is no harm in including the 
length of the comment period in the regulations.
    As stated in the NPRM, the 60-day comment period is recommended by 
Executive Order 12866. 60 days is also the time frame that FEMA 
generally follows. While the comment period is specifically stated in 
each proposed rule when published in the Federal Register and the 
public would generally be reviewing the proposed rule that may impact 
them instead of FEMA's overall regulatory scheme, FEMA is retaining the 
60-day comment period requirement in this final rule. FEMA still 
believes there are specific situations in which a shorter or longer 
comment period is appropriate. Such situations may include emergency 
situations where public comment is important, but the agency must still 
act in an expeditious manner for shorter comment periods. Longer 
comment periods may be appropriate for more technically complex, 
lengthy proposed rules. Longer comment periods may also be appropriate 
where the rulemaking may impact areas recently struck by a disaster to 
allow potentially impacted individuals more time to fully review the 
rulemaking. FEMA will continue to provide an explanation for departing 
from a 60-day comment period under the final rule, but consistent with 
other changes in this rule, will reserve discretion to depart from this 
standard as FEMA determines appropriate, in its discretion.

Bypassing Notice and Comment for Good Cause or for Statements of 
Policy, Interpretive Rules, and Rules of Organization and Procedure

    In the NPRM, FEMA proposed to remove Sec.  1.4(f), which echoes the 
provisions of the Administrative Procedure Act to exempt from notice 
and comment rulemaking statements of policy, interpretive rules, and 
rules of organization and procedure, or to bypass notice and comment 
for good cause. The NRECA disagreed with the proposed removal for the 
reasons it disagreed with the proposed removals of Sec.  1.4(d) and 
(e). As stated in the NPRM and as noted in response to Texas 
RioGrande's comment above, these exemptions are included in the 
Administrative Procedure Act and FEMA does not need to restate them in 
its regulations in order to follow them. As these are statutory 
exemptions, FEMA has the authority to exempt these items from 
rulemaking without regulations. As such, there is no need to repeat the 
exemptions in FEMA's regulations.

Periodic Review of Regulations

    In the NPRM, FEMA proposed to remove Sec.  1.8 which describes 
FEMA's intent to publish in the Federal Register, and keep updated, a 
plan for periodic review of existing rules at least within 10 years 
from the date of publication of a final rule. The NRECA disagreed with 
this proposal and recommended that FEMA update section 1.8 to indicate 
that FEMA will continue to participate in reviews of existing rules.
    FEMA proposed to remove this section from part 1 because the 
process for review of existing rules has changed over time and may 
continue to change. FEMA has actively participated in retrospective 
reviews of existing regulations and will continue to do so. As the 
requirements are continually evolving, FEMA finds that including them 
in its rulemaking regulations would not be appropriate, as it would 
continually need to update the regulations as the requirements evolve 
and new executive orders are issued. This does not mean that the public 
will not be informed or involved, however. For example, in August 2011 
DHS finalized a retrospective review plan that established a 
retrospective review process for seeking input from the public on a 
three-year cycle. Pursuant to that plan, DHS published Federal Register 
documents on February 26, 2014 \17\ and October 11, 2016 \18\ seeking 
public comment on existing regulations that DHS should consider as 
candidates for streamlining or repeal. Moreover, on June 15, 2017, FEMA 
published a Federal Register document requesting public input on its 
regulatory reform efforts.\19\ The agency also recently issued a 
request for information seeking input on FEMA's programs, regulations, 
collections of information, and policies and where the public believes 
the agency should consider modifying, streamlining, expanding, or 
repealing.\20\
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    \17\ 79 FR 10760. Comments received can be viewed on 
www.regulations.gov under docket ID DHS-2014-0006.
    \18\ 81 FR 70060. Comments received can be viewed on 
www.regulations.gov under docket ID DHS-2016-0072.
    \19\ 82 FR 27460. Comments received can be viewed on 
www.regulations.gov under docket ID FEMA-2017-0023.
    \20\ See 86 FR 21325 (Apr. 22, 2021).
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    In addition to FEMA's commitment to retrospective review of 
existing regulations, FEMA is obligated by law to perform periodic 
review of rules that have or will have a significant economic impact 
upon a substantial number of small entities. See 5 U.S.C. 610. Because 
this requirement is included in the Regulatory Flexibility Act, FEMA is 
statutorily bound to follow the requirement, regardless of whether the 
requirement is stated in the regulation. Eliminating this provision 
does not eliminate FEMA's requirement to follow the statutory 
requirement and reduces

[[Page 11975]]

the potential confusion any statutory change to this requirement may 
cause until the regulation can be updated.

Review of the Regulatory Flexibility Analysis by the Small Business 
Administration

    In the NPRM, FEMA proposed to remove Sec.  1.13(c), which states 
that copies of regulatory flexibility analyses shall be furnished to 
the Chief Counsel for Advocacy of the Small Business Administration. 
The Regulatory Flexibility Act (RFA) requires agencies to transmit a 
copy of the initial regulatory flexibility analysis, or if the agency 
is certifying the rule, a copy of the factual basis for certification, 
to the Chief Counsel for Advocacy of the Small Business 
Administration.\21\ It is not necessary to include this statutory 
requirement in regulation. The NRECA disagreed with this removal, and 
recommended that FEMA retain the provision, because it informs members 
of the public who are trying to follow the rulemaking process and may 
not be aware of the ability of the Small Business Administration's 
Office of Advocacy to become involved. FEMA declines to incorporate the 
RFA's statutory requirements into regulation. As explained above, FEMA 
is streamlining these regulations and eliminating references to 
specific statutory requirements as FEMA is already required to follow 
those provisions. Members of the public seeking more information on the 
RFA process can review the statutory requirements as the Act is cited 
in each rulemaking where it is applicable.
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    \21\ 5 U.S.C. 603(a), 605(b).
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    FEMA also notes that the RFA requires the agency to respond to any 
comments received from the Small Business Administration.\22\ The 
agency must provide the response to these comments in the final 
Regulatory Flexibility Analysis, which must be posted for public 
viewing, and a summary published in the Federal Register.\23\ FEMA 
posts the final Regulatory Flexibility Analysis under the docket for 
the rule on www.regulations.gov, and a summary is also included in the 
preamble to the final rule. Therefore, the public has full visibility 
of any Small Business Administration involvement. FEMA concludes that 
it is not necessary to include this requirement in its regulations.
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    \22\ 5 U.S.C. 604(a)(3).
    \23\ 5 U.S.C. 604(b).
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Adoption of a Final Rule: Support for Factual Conclusions and 
Adequately Addressing Public Comments

    In the NPRM, FEMA proposed to remove Sec.  1.16(d)(2), which 
requires FEMA to make a determination that the factual conclusions upon 
which a final rule is based have substantial support in the agency 
record, viewed as a whole, with full attention to public comments in 
general and the comments of persons directly affected by the rule in 
particular. The NRECA disagreed with this proposed removal and 
recommended that this requirement be maintained as a testament to 
FEMA's attention to the record and stakeholder input in particular.
    FEMA notes that the Administrative Procedure Act requires that a 
final rule take into consideration the relevant matter presented during 
the public comment period and requires the agency to provide a 
statement of the basis and purposes of the final rule.\24\ This is a 
legal requirement that the agency must meet regardless of whether the 
requirement appears in the agency's own regulations on rulemaking. 
There is robust jurisprudence that has arisen out of this particular 
requirement of the Administrative Procedure Act, which has resulted in 
very detailed and thorough statements of bases and purpose in agency 
rulemakings.\25\ FEMA concludes that this requirement is not necessary 
to be in regulation, as the agency is bound by law to meet it and the 
agency's internal controls ensure the requirement is met.
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    \24\ 5 U.S.C. 553(c).
    \25\ The statement of basis and purpose, commonly referred to as 
the ``preamble,'' has become one of the primary documents that 
judges turn to in deciding the validity of challenged rules. See A 
Guide to Federal Agency Rulemaking, 6th ed., Jeffrey S. Lubbers, 
Part III, Chap. 8, B. See, e.g., Motor Vehicle Manufacturers Ass'n 
v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983); 
Independent U.S. Tanker Owners Committee v. Dole, 809 F.2d 847 (D.C. 
Cir. 1987); Action on Smoking & Health v. CAB, 699 F.2.d 1209 (D.C. 
Cir. 1983).
---------------------------------------------------------------------------

Availability of Internal Rulemaking Procedures to the Public

    The NRECA objected generally to the proposed removal of regulations 
that reflect FEMA's internal policies because ``those internal 
processes are not available to the public and therefore reduce 
transparency.'' The NRECA also stated its concern that reliance on 
internal processes means that a rulemaking process ``will have a head 
start, gather a head of steam prior to stakeholders including the 
public being able to provide input, and therefore not truly open to 
public participation.''
    As noted earlier, FEMA does not expect that this rule will have any 
material impact on its public outreach as part of the rulemaking 
process. As a matter of policy, FEMA engages in a number of processes 
to ensure appropriate early and meaningful public participation. FEMA 
also publishes its planned regulatory actions semi-annually in the 
Unified Agenda. With respect to transparency and public access to non-
regulatory policies, FEMA notes that www.fema.gov makes many FEMA 
policies available to the public, and that FEMA makes other internal 
documents available to the public as dictated by the Freedom of 
Information Act and other laws on public access to agency information. 
See generally, e.g., 6 CFR part 5.

Change Chart

    The following chart lists the current section and its disposition 
via the final rule:

------------------------------------------------------------------------
              Current section                        Final rule
------------------------------------------------------------------------
1.1 Purpose                                 ............................
    1.1(a)................................  1.1(a).
    1.1(b)................................  Removed.
    1.1(c)................................  Removed.
    1.1(d)................................  Removed.
    1.1(e)................................  Removed.
1.2 Definitions                             ............................
    1.2(a)................................  1.2(a).
    1.2(b)................................  1.2(b).
    1.2(c)................................  1.2(c).
    1.2(d)................................  1.2(d).
    1.2(e)................................  Removed.
1.3 Scope                                   ............................
    1.3(a)................................  1.1(a).
    1.3(b)................................  Removed.
    1.3(c)................................  1.1(b).
1.4 Policy and Procedures                   Removed, except 1.4(b) and
                                             1.4(e) moved to 1.3.
1.5 Rules docket                            ............................
    1.5(a)................................  1.4(a) & 1.5.
    1.5(b)................................  1.4(b).
1.6 Ex parte communications                 ............................
    1.6 Introductory language.............  Removed.
    1.6(a)................................  1.6(a).
    1.5(b)................................  1.6(b).
1.7 Regulations agendas...................  Removed.
1.8 Regulations review....................  Removed.
1.9 Regulatory impact analyses............  Removed.
1.10 Initiation of rulemaking               ............................
    1.10..................................  1.8/partially removed.
1.11 Advance notice of proposed rulemaking  Removed.
1.12 Notice of proposed rulemaking........  Removed.
1.13 Participation by interested persons..  Removed.
1.14 Additional rulemaking proceedings....  1.7(c)/partially removed.
1.15 Hearings                               ............................
    1.15(a)...............................  1.7(a)/partially removed.
    1.15(b)...............................  1.7(b).
1.16 Adoption of a final rule.............  Removed.
1.17 Petitions for reconsideration........  1.9.

[[Page 11976]]

 
1.18 Petitions for rulemaking.............  1.8.
------------------------------------------------------------------------

IV. Regulatory Analyses

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has designated this rule 
a ``significant regulatory action'' although not economically 
significant, under section 3(f) of Executive Order 12866. Accordingly, 
the rule has been reviewed by OMB.
    This final rule revises FEMA regulations pertaining to rulemaking 
by removing sections that are outdated or do not affect the public and 
update provisions that affect the public's participation in the 
rulemaking process. FEMA does not believe this rule imposes additional 
direct costs on the public or government.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 
601-612, agencies must consider the impact of their rulemakings on 
``small entities'' (small businesses, small organizations and local 
governments). When the Administrative Procedure Act requires an agency 
to publish a notice of proposed rulemaking under 5 U.S.C. 553, the RFA 
requires a regulatory flexibility analysis for both the proposed rule 
and the final rule if the rulemaking could ``have a significant 
economic impact on a substantial number of small entities.'' The RFA 
also provides that in lieu of a regulatory flexibility analysis, the 
agency may certify in the rulemaking document that the rulemaking will 
not ``have a significant economic impact on a substantial number of 
small entities'' along with a statement providing the factual basis for 
such certification. FEMA has voluntarily published a notice of proposed 
rulemaking in this case, notwithstanding that this rule is a rule of 
agency organization, procedure, or practice exempt from notice and 
comment rulemaking requirements. See 5 U.S.C. 553(b)(A).
    This rule revises FEMA regulations pertaining to rulemaking by 
removing sections that are outdated or do not affect the public and 
update provisions that affect the public's participation in the 
rulemaking process. This rule does not impose direct costs on small 
entities. Accordingly, and although FEMA is not required to make such 
certification, pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), 
the Administrator of FEMA certifies that this rule does not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504, 
1531-1536, 1571, pertains to any notice of proposed rulemaking which 
implements any rule that includes a Federal mandate that may result in 
the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. If the rulemaking includes a Federal mandate, the Act requires an 
agency to prepare an assessment of the anticipated costs and benefits 
of the Federal mandate. The Act also pertains to any regulatory 
requirements that might significantly or uniquely affect small 
governments. Before establishing any such requirements, an agency must 
develop a plan allowing for input from the affected governments 
regarding the requirements.
    FEMA has determined that this rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
nor by the private sector, of $100,000,000 or more in any one year as a 
result of a Federal mandate, and it will not significantly or uniquely 
affect small governments. Therefore, no actions are deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 
U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless the 
agency obtains approval from OMB for the collection and the collection 
displays a valid OMB control number. See 44 U.S.C. 3506, 3507. FEMA has 
determined that this rulemaking does not contain any collections of 
information as defined by that Act. PRA regulations exempt general 
solicitations of comments from the public such as rulemakings. See 5 
CFR 1320.3(h)(4).

Privacy Act/E-Government Act

    Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must 
determine whether implementation of a proposed regulation will result 
in a system of records. A ``record'' is any item, collection, or 
grouping of information about an individual that is maintained by an 
agency, including, but not limited to, his/her education, financial 
transactions, medical history, and criminal or employment history and 
that contains his/her name, or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of 
records'' is a group of records under the control of an agency from 
which information is retrieved by the name of the individual or by some 
identifying number, symbol, or other identifying particular assigned to 
the individual. An agency cannot disclose any record which is contained 
in a system of records except by following specific procedures.
    The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires 
specific procedures when an agency takes action to develop or procure 
information technology that collects, maintains, or disseminates 
information that is in an identifiable form. This Act also applies when 
an agency initiates a new collection of information that will be 
collected, maintained, or disseminated using information technology if 
it includes any information in an identifiable form permitting the 
physical or online contacting of a specific individual.
    This final rule does not create a new, nor impact a current, system 
of record. Therefore, this proposed rule does not require coverage 
under an existing or new Privacy Impact Assessment or System of Records 
Notice. Any member of the public or any non-Federal entity may submit 
comments on a rulemaking; all comments are posted on 
www.regulations.gov, and that website, as well as each FEMA rulemaking 
document requesting comments, includes a Privacy Notice informing the

[[Page 11977]]

commenter that any comments will be posted for public viewing.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' 65 FR 67249, November 9, 2000, applies to agency 
regulations that have Tribal implications, that is, regulations that 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. Under this Executive order, to the extent 
practicable and permitted by law, no agency shall promulgate any 
regulation that has Tribal implications, that imposes substantial 
direct compliance costs on Indian Tribal governments, and that is not 
required by statute, unless funds necessary to pay the direct costs 
incurred by the Indian Tribal government or the Tribe in complying with 
the regulation are provided by the Federal Government, or the agency 
consults with Tribal officials.
    This rule does not have Tribal implications. Any member of the 
public and any non-Federal entity, including Tribes and Tribal members, 
may participate in Federal rulemaking as outlined in this proposed 
rule, and it is FEMA's policy that ex parte restrictions in rulemaking 
do not apply to Tribal consultations.

Executive Order 13132, Federalism

    Executive Order 13132, ``Federalism,'' 64 FR 43255, August 10, 
1999, sets forth principles and criteria that agencies must adhere to 
in formulating and implementing policies that have federalism 
implications, that is, regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and 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 has 
determined that this rule does not have substantial direct effects on 
the States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and therefore does not have federalism 
implications as defined by the Executive order. It addresses agency 
procedures for rulemaking that affect the public; such rulemaking is a 
Federal process and does not affect State rulemaking processes.

Congressional Review of Agency Rulemaking

    Under Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996, also known as the Congressional Review Act (CRA), 
5 U.S.C. 801-808, before a rule can take effect, the Federal agency 
promulgating the rule must submit to Congress and to the Government 
Accountability Office (GAO) a copy of the rule; a concise general 
statement relating to the rule, including whether it is a major rule; 
the proposed effective date of the rule; a copy of any cost-benefit 
analysis; descriptions of the agency's actions under the Regulatory 
Flexibility Act and the Unfunded Mandates Reform Act; and any other 
information or statements required by relevant executive orders. 5 
U.S.C. 801(a)(1).
    FEMA has sent this rule to the Congress and to GAO pursuant to the 
CRA. OMB's Office of Information and Regulatory Affairs has determined 
that this rule is not a ``major rule'' within the meaning of the CRA. 5 
U.S.C. 804(2). It will not have an annual effect on the economy of 
$100,000,000 or more; it will not result in a major increase in costs 
or prices for consumers, individual industries, Federal, State, or 
local government agencies, or geographic regions; and it will not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

List of Subjects in 44 CFR Part 1

    Administrative practice and procedure.

0
For the reasons discussed in the preamble, the Federal Emergency 
Management Agency revises 44 CFR part 1 to read as follows:

PART 1--RULEMAKING, POLICY, AND PROCEDURES

Sec.
1.1 Purpose and scope.
1.2 Definitions.
1.3 Regulatory policy.
1.4 Public rulemaking docket.
1.5 Public comments.
1.6 Ex parte communications.
1.7 Hearings.
1.8 Petitions for rulemaking.
1.9 Petitions for reconsideration.

    Authority:  5 U.S.C. 551, 553; 6 U.S.C. 101 et seq.; Department 
of Homeland Security Delegation 9001.1.


Sec.  1.1   Purpose and scope.

    (a) This part contains FEMA's procedures for informal rulemaking 
under the Administrative Procedure Act (5 U.S.C. 553) that affect the 
public.
    (b) This part does not apply to rules issued in accordance with the 
formal rulemaking provisions of the Administrative Procedure Act (5 
U.S.C. 556, 557).


Sec.  1.2   Definitions.

    (a) Rule or regulation have the same meaning as those terms are 
defined in the Administrative Procedure Act (5 U.S.C. 551(4)).
    (b) Rulemaking means the FEMA process for considering and 
formulating the issuance, amendment, or repeal of a rule.
    (c) Administrator means the Administrator, FEMA, or an official to 
whom the Administrator has expressly delegated authority to issue 
rules.
    (d) FEMA means Federal Emergency Management Agency.


Sec.  1.3   Regulatory policy.

    (a) It is the general policy of FEMA to provide for public 
participation in rulemaking regarding its programs and functions, 
including matters that relate to public property, loans, grants, or 
benefits, or contracts, even though these matters are not subject to a 
requirement for notice and public comment rulemaking by law.
    (b) It is the general policy of FEMA that its notices of proposed 
rulemaking are to afford the public at least 60 days for submission of 
comments unless the Administrator makes an exception and sets forth the 
reasons for the exception in the preamble to the notice of proposed 
rulemaking.
    (c) The general policies contained in this section are not intended 
to and do not create a right or benefit, substantive or procedural, 
enforceable against the United States or its agencies or officers. FEMA 
may depart from such policies in its absolute discretion, including for 
its annual grant programs and in other cases as circumstances warrant.


Sec.  1.4  Public rulemaking docket.

    (a) FEMA maintains a public docket for each rulemaking after it is 
published in the Federal Register and until the rulemaking is closed 
and archived at the National Archives and Records Administration. The 
public docket includes every document published in the Federal Register 
in conjunction

[[Page 11978]]

with a rulemaking. It also includes regulatory assessments and 
analyses, written comments from the public addressed to the merits of a 
proposed rule, comments from the public received in response to 
notices, or to withdrawals or terminations of a proposed rulemaking, 
requests for a public meeting, requests for extension of time, 
petitions for rulemaking, grants or denials of petitions or requests, 
and transcripts or minutes of informal hearings. The public rulemaking 
docket is maintained by the Regulatory Affairs Division, Office of 
Chief Counsel.
    (b) After FEMA establishes a public rulemaking docket, any person 
may examine docketed material during established business hours by 
prearrangement with the Regulatory Affairs Division, Office of Chief 
Counsel, FEMA, 500 C St. SW, Washington, DC 20472, and may obtain a 
copy of any docketed material (except for copyrighted material). FEMA 
also maintains a copy of each public docket electronically, with the 
exception of copyrighted material, on www.regulations.gov. To access 
the docket on www.regulations.gov, search for the docket ID associated 
with the rulemaking.
    (c) The docket for flood hazard elevation rules issued by the 
National Flood Insurance Program are partially maintained at the 
locality that is the subject of the rule. FEMA includes in the preamble 
of each flood hazard elevation rule the repository address for 
supporting material.


Sec.  1.5  Public comments.

    A member of the public may submit comments via mail or courier to 
the Regulatory Affairs Division, Office of Chief Counsel, Federal 
Emergency Management Agency, 500 C St. SW, Washington, DC 20472, or may 
submit comments electronically to the rulemaking docket at 
www.regulations.gov under the applicable docket ID.


Sec.  1.6   Ex parte communications.

    (a) All oral or written communications from outside the Federal 
Executive branch of significant information and argument respecting the 
merits of a rulemaking document, received after publication of a notice 
of proposed rulemaking, by FEMA or its offices and divisions or their 
personnel participating in the decision, must be summarized in writing 
and placed promptly in the public docket. This applies until the agency 
publishes a final regulatory action such as a withdrawal of the notice 
of proposed rulemaking or a final rule.
    (b) FEMA may conclude that restrictions on ex parte communications 
are necessitated at other times by considerations of fairness or for 
other reasons.
    (c) This section does not apply to Tribal consultations.


Sec.  1.7   Hearings.

    (a) When FEMA affords an opportunity for oral presentation, the 
hearing is an informal, non-adversarial, fact-finding proceeding. Any 
rulemaking issued in a proceeding under this part in which a hearing is 
held need not be based exclusively on the record of such hearing.
    (b) When such a hearing is provided, the Administrator will 
designate a representative to conduct the hearing.
    (c) The transcript or minutes of the hearing will be kept and filed 
in the public rulemaking docket.


Sec.  1.8   Petitions for rulemaking.

    (a) Any interested person may petition the Administrator for the 
issuance, amendment, or repeal of a rule. For purposes of this section, 
the term person includes any member of the public and any entity 
outside the Federal Executive branch of Government. Each petitioner 
must:
    (1) Submit the petition to the Regulatory Affairs Division, Office 
of Chief Counsel, FEMA, 8NE, 500 C Street SW, Washington, DC 20472;
    (2) Label the petition with the following: ``Petition for 
Rulemaking'' or ``Rulemaking Petition'';
    (3) Set forth the substance of the rule or amendment proposed or 
specify the rule sought to be repealed or amended;
    (4) Explain the interest of the petitioner in support of the action 
sought; and
    (5) Set forth all data and arguments available to the petitioner in 
support of the action sought.
    (b) FEMA will specify additional methods of submitting rulemaking 
petitions on its website at www.fema.gov/about/offices/chief-counsel/rulemaking and petitioners seeking to confirm whether FEMA has received 
or responded to a specific rulemaking petition may inquire at [email protected]. The website may also contain other 
information about the petition for rulemaking process.
    (c)(1) FEMA may solicit public comment on the petition in its 
discretion. If the Administrator finds that the petition contains 
adequate justification, a rulemaking proceeding will be initiated, or a 
final rule will be issued as appropriate. If the Administrator finds 
that the petition does not contain adequate justification, the petition 
will be denied by letter or other notice, with a brief statement of the 
ground for denial. The disposition will be posted on 
www.regulations.gov under docket ID FEMA-2022-0011.
    (2) The Administrator may consider new evidence at any time; 
however, FEMA will not consider repetitious petitions for rulemaking.


Sec.  1.9   Petitions for reconsideration.

    Petitions for reconsideration of a final rule will not be 
considered. Such petitions, if filed, will be treated as petitions for 
rulemaking in accordance with Sec.  1.8.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2022-04309 Filed 3-2-22; 8:45 am]
BILLING CODE 9111-19-P