Published Notice of Proposed Rulemaking (NPRM)

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules

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phone number) between 9:00 a.m. and
5:00 p.m., Monday through Friday,
except federal holidays. An informal
docket may also be examined during
normal business hours at the Northwest
Mountain Regional Office of the Federal
Aviation Administration, Air Traffic
Organization, Western Service Center,
Operations Support Group, 1601 Lind
Avenue SW., Renton, WA 98057.
Persons interested in being placed on
a mailing list for future NPRM’s should
contact the FAA’s Office of Rulemaking,
(202) 267–9677, for a copy of Advisory
Circular No. 11–2A, Notice of Proposed
Rulemaking Distribution System, which
describes the application procedure.
The Proposal
The FAA is proposing an amendment
to Title 14 Code of Federal Regulations
(14 CFR) Part 71 by modifying Class E
airspace extending upward from 700
feet above the surface at Bend
Municipal Airport, Bend, OR.
Additional airspace is needed to
accommodate Area Navigation (RNAV)
Global Positioning System (GPS)
standard instrument approaches and
departures at the Airport. This action is
necessary for the safety and
management of aircraft departing and
arriving under IFR operations at Bend
Municipal airport. The geographic
coordinates of the airport would also be
updated. Class E airspace designations
are published in paragraph 6005 of FAA
Order 7400.9W, dated August 8, 2012,
and effective September 15, 2012, which
is incorporated by reference in 14 CFR
Part 71.1. The Class E Class E airspace
designations are published in paragraph
6005, of FAA Order 7400.9W, dated
August 8, 2012, and effective September
15, 2012, which is incorporated by
reference in 14 CFR 71.1. The Class E
airspace designation listed in this
document will be published
subsequently in this Order.
The FAA has determined this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current.
Therefore, this proposed regulation; (1)
is not a ‘‘significant regulatory action’’
under Executive Order 12866; (2) is not
a ‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified this proposed rule, when
promulgated, would not have a
significant economic impact on a

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substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the U.S. Code. Subtitle 1,
Section 106, describes the authority for
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more
detail the scope of the agency’s
authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of the airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it would
modify controlled airspace at Bend
Municipal Airport, OR.
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1E,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the
authority delegated to me, the Federal
Aviation Administration proposes to
amend 14 CFR Part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
Part 71 continues to read as follows:

■

Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1

[Amended]

2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9W,
Airspace Designations and Reporting
Points, dated August 8, 2012, and
effective September 15, 2012 is
amended as follows:

■

Paragraph 6005 Class E airspace areas
extending upward from 700 feet or more
above the surface of the earth.

*

*

*

*

*

ANM OR E5 Bend, OR [Modified]
Bend Municipal Airport, OR
(Lat. 44°05′40″ N., long. 121°12′01″ W.)
That airspace extending upward from 700
feet above the surface within a 4.3 mile
radius of Bend Municipal Airport, and

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within 2.2 miles each side of the 338° radial
extending from the 4.3 mile radius to 6.5 NM
northwest of the airport, and 1.0 mile each
side of the airport 360° radial from the 4.3
mile radius to 6.0 miles north of the airport,
and 1.5 miles each side of the 183° radial
from the 4.3 mile radius to 9.3 miles south
from the airport; that airspace extending
upward from 1,200 feet above the surface
bounded by a line extending from lat.
44°09′51″ N., long. 121°21′05″ W., to lat.
44°14′29″ N., long. 121°06′59″ W., to lat.
44°27′24″ N., long. 121°15′42″ W., to lat.
44°23′11″ N., long. 121°30′16″ W., thence to
the point of beginning.
Issued in Seattle, Washington, on February
15, 2013.
Clark Desing,
Manager, Operations Support Group, Western
Service Center.
[FR Doc. 2013–04831 Filed 2–28–13; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 201
[Docket ID: FEMA–2012–0001]
RIN 1660–AA77

Change in Submission Requirements
for State Mitigation Plans
Federal Emergency
Management Agency, DHS.
ACTION: Notice of proposed rulemaking.
AGENCY:

This proposed rule revises the
Federal Emergency Management Agency
(FEMA) Mitigation Planning regulations
in order to reduce the frequency of
Standard State and Enhanced State
Mitigation Plan updates by extending
the update requirement from 3 to 5
years.
DATES: Comment on the proposed rule,
including the Paperwork Reduction Act
information collection, is due on or
before April 30, 2013.
ADDRESSES: You may submit comments,
identified by Docket ID: FEMA–2012–
0001, by one of the following methods:
Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
Mail/Hand Delivery/Courier:
Regulatory Affairs Division, Office of
Chief Counsel, Federal Emergency
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
SUMMARY:

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules
instructions on submitting comments,
see the Public Participation portion of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Frederick Sharrocks, Branch Chief,
Assessment and Planning Branch, Risk
Analysis Division, Federal Insurance
and Mitigation Administration, DHS/
FEMA, 1800 South Bell Street,
Arlington, VA 20598–3030. Phone: (202)
646–2796. Facsimile: (202) 646–2787.
Email:
Frederick.Sharrocks@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
Table of Abbreviations
CFR Code of Federal Regulations
DMA 2000 Disaster Mitigation Act of 2000
DHS Department of Homeland Security
EA Environmental Assessment
EIS Environmental Impact Statement
FEMA Federal Emergency Management
Agency
FMA Flood Mitigation Assistance
FOIA Freedom of Information Act
HMA Hazard Mitigation Assistance
HMGP Hazard Mitigation Grant Program
IFR Interim Final Rule
NEPA National Environmental Policy Act
of 1969
NFIP National Flood Insurance Program
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
PDM Pre-Disaster Mitigation
PRA Paperwork Reduction Act of 1995
RFC Repetitive Flood Claims
RIN Regulatory Identifier Number
Stafford Act Robert T. Stafford Disaster
Relief and Emergency Assistance Act, as
amended
SRL Severe Repetitive Loss

emcdonald on DSK67QTVN1PROD with PROPOSALS

Table of Contents
I. Public Participation
A. Privacy Act
B. Submission of Sensitive Information
C. Public Meeting
D. Public Input
II. Background
A. Disaster Mitigation Act of 2000
B. Hazard Mitigation Assistance
C. Regulatory History
D. Discussion of the NPRM
E. Stakeholder Involvement
F. Proposed Revisions
G. Implementation
III. Regulatory Analyses
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act (PRA) of 1995
E. National Environmental Policy Act
(NEPA) of 1969
F. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13132, Federalism
H. Executive Order 12630, Taking of
Private Property

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I. Executive Order 12898, Environmental
Justice
J. Executive Order 12988, Civil Justice
Reform
K. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
L. Executive Order 11988, Floodplain
Management

I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of this Notice
of Proposed Rulemaking (NPRM).
Comments that will provide the most
assistance to the Federal Emergency
Management Agency (FEMA) in
developing this rule will refer to a
specific provision of the NPRM, explain
the reason for any comments, and
include other information or authority
that supports such comments. 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–2012–0001, indicate
the specific section of this document to
which each comment applies, and
provide a reason for each suggestion or
recommendation.
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.). 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, 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 NPRM. 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
(DHS)’s FOIA regulation found in 6

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13845

Code of Federal Regulations (CFR) Part
5 and FEMA’s regulations found in 44
CFR part 5.
C. Public Meeting
FEMA does not plan to hold a public
meeting on this NPRM, but you may
submit a request for one at the address
specified in the ADDRESSES section of
this NPRM explaining why one would
be beneficial. If FEMA determines that
a public meeting would aid this
rulemaking, FEMA will hold one at a
time and place announced by a notice
in the Federal Register.
D. Public Input
FEMA welcomes comments on all
aspects of the regulatory analysis;
particularly comments regarding the
cost and benefit estimates of this
rulemaking, as well as the assumptions
used to derive those estimates.
Comments that would be most useful
are those that include supporting data
and/or provide suggestions that
decrease cost or increase benefits, while
still obtaining State Mitigation Planning
objectives.
II. Background
Hazard mitigation is any sustained
action taken to reduce or eliminate longterm risk to people and property from
natural hazards and their effects. The
purpose of hazard mitigation planning
is to identify policies and actions that
can be implemented over the long-term
to reduce risk and future losses.
Mitigation plans form the foundation for
a community’s long-term strategy to
reduce disaster losses and break the
cycle of disaster damage, reconstruction,
and repeated damage. The planning
process is as important as the plan itself.
It creates a framework for risk-based
decision making to reduce damage to
lives, property, and the economy from
future disasters. State, Tribal, and local
governments benefit from mitigation
planning by identifying publiclyaccepted cost-effective actions for risk
reduction, focusing resources on the
greatest risks and vulnerabilities, and
building partnerships by involving
people, organizations, and businesses.
The planning process, and mitigation
plans, foster education and awareness of
hazards and risk, communicate
priorities to state and Federal officials,
and align risk reduction with other
community objectives, such as
community development. State, Tribal,
and local governments are required to
develop a hazard mitigation plan as a
condition for receiving certain types of
Federal non-emergency disaster
assistance.

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules

A. Disaster Mitigation Act of 2000
The Disaster Mitigation Act of 2000
(DMA 2000), Public Law 106–390, 114
Stat. 1552, amended the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (Stafford Act) and
provided an opportunity for States,
Tribes, and local governments to take a
new and revitalized approach to
mitigation planning. Section 104 of
DMA 2000 continued the requirement
for a State mitigation plan as a condition
of non-emergency disaster assistance,
and created incentives for increased
coordination and integration of
mitigation activities at the State level.
DMA 2000 repealed Section 409 of the
Stafford Act, which required mitigation
plans and the use of minimum
standards, and replaced it with two
separate sections of the law: Mitigation
planning in section 322 (codified at 42
U.S.C. 5165), and minimum codes and
standards in section 323 (codified at 42
U.S.C. 5165a). FEMA previously
implemented section 409 through 44
CFR part 206, Subpart M. The DMA
2000 planning requirements were
placed in 44 CFR part 201 to reflect the
broader relevance of planning to all
FEMA mitigation programs, while the
minimum standards remained in 44
CFR part 206, Subpart M.
Section 104 of DMA 2000 and
FEMA’s implementing regulations
emphasize the need for State, Tribal,
and local entities to closely coordinate
mitigation planning and
implementation efforts. The planning
process provides a link between State,
Tribal and local mitigation programs.
Both State level and local plans should
incorporate mitigation implementation
strategies and sustainable recovery
actions. FEMA also recognizes that
governments are involved in a range of
planning activities and that mitigation
plans may be linked to or reference
hazardous materials and other nonnatural hazard plans. Improved
mitigation planning will result in a
better understanding of risks and
vulnerabilities, as well as expedite
implementation of measures and
activities to reduce those risks, both preand post-disaster.
DMA 2000 included a provision for
increased Federal funding for hazard
mitigation measures for States with
approved mitigation plans. 42 U.S.C.
5165(e). FEMA implemented this
provision through development of a
new two-tiered State mitigation plan
process: Standard State Mitigation
Plans, which allow a State to receive
Hazard Mitigation Grant Program
(HMGP) funding ranging from 7.5 to 15
percent of disaster grants awarded by

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FEMA, depending on the total estimated
eligible Stafford Act disaster assistance,
and Enhanced State Mitigation Plans,
which allow a State to receive HMGP
funds based on 20 percent of the total
estimated eligible Stafford Act disaster
assistance. 44 CFR 201.5. Enhanced
State Mitigation Plans must meet the
requirements for Standard State
Mitigation Plans at 44 CFR 201.4 and
must also demonstrate that the State has
developed a comprehensive mitigation
program, that it effectively uses
available mitigation funding, and that it
is capable of managing the increased
funding.
B. Hazard Mitigation Assistance
FEMA’s Hazard Mitigation Assistance
(HMA) grant programs provide funding
for eligible mitigation activities that
reduce disaster losses and protect life
and property from future disaster
damages. Currently, FEMA administers
the following HMA grant programs:
• Hazard Mitigation Grant Program
(HMGP) assists in implementing longterm hazard mitigation measures
following Presidential disaster
declarations. Funding is available to
implement projects in accordance with
State, Tribal, and local priorities. HMGP
grants may fund the updating of
mitigation plans.
• Pre-Disaster Mitigation (PDM)
provides funds on an annual basis for
hazard mitigation planning and the
implementation of mitigation projects
prior to a disaster. The goal of the PDM
program is to reduce overall risk to the
population and structures, while at the
same time reducing reliance on Federal
funding from actual disaster
declarations. PDM grants may fund the
updating of mitigation plans.
• Flood Mitigation Assistance (FMA)
provides funds on an annual basis so
that measures can be taken to reduce or
eliminate risk of flood damage to
buildings insured under the National
Flood Insurance Program (NFIP). FMA
grants may fund the updating of
mitigation plans.
• Repetitive Flood Claims (RFC)
provides funds on an annual basis to
reduce the risk of flood damage to
individual properties insured under the
NFIP that have had one or more claim
payments for flood damages.
• Severe Repetitive Loss (SRL)
provides funds on an annual basis to
reduce the risk of flood damage to
residential structures insured under the
NFIP that are qualified as SRL
structures.
FEMA’s HMA grants are provided to
eligible applicants (States/Tribes/
Territories) that, in turn, provide
subgrants to local governments and

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other eligible entities. Subgrantees may
be a State agency, local government,
private nonprofit organization (for
HMGP only), or Indian Tribal
government. Indian Tribal governments
acting as a subgrantee are accountable to
the State grantee. The applicant selects
and prioritizes subapplications
developed and submitted to them by
subapplicants. These subapplications
are submitted to FEMA for
consideration of funding.
Under FEMA’s mitigation grant
programs there is a standard cost share
formula in which the Federal
government provides 75 percent of the
project cost and the State or subgrantee
provides 25 percent. In general, hazard
mitigation assistance is restricted to a
percentage of total Federal contributions
for a major disaster, which currently
ranges from 7.5 to 15 percent depending
on the estimated aggregate amount of
Federal grants for that disaster. 42
U.S.C. 5170c(a). Indian Tribal
governments that meet the requirments
for Enhanced State Mitigation Plans
may also be considered for increased
HMGP funding. 44 CFR 201.3(e)(3).
C. Regulatory History
FEMA’s February 26, 2002 Interim
Final Rule (IFR), entitled ‘‘Hazard
Mitigation Planning and Hazard
Mitigation Grant Program,’’ 67 FR 8844,
implemented section 322 of the Stafford
Act by adding a new part 201 to 44 CFR.
The IFR discontinued the requirement
under former section 409 of the Stafford
Act that States revise their mitigation
plan after every disaster declaration, but
included the requirement that Standard
State Mitigation Plans had to be updated
by November 1, 2003 1 and resubmitted
to the appropriate Regional Director for
approval every 3 years from the date of
the approval of the previous plan in
order to continue program eligibility.
Additionally, the IFR provided criteria
for Enhanced State Mitigation Plans and
required that for States to be eligible for
the 20 percent HMGP funding, the
Enhanced State Mitigation Plan must be
approved by FEMA within the 3 years
prior to the current major disaster
declaration, and resubmitted for
approval every three years. On October
31, 2007, FEMA published a Final Rule
adopting, without substantive changes,
the requirements for hazard mitigation
1 An October 1, 2002 revision changed the date
by which the Standard State Mitigation Plans had
to be updated from November 1, 2003 to November
1, 2004. 67 FR 61512. A subsequent revision on
September 13, 2004 provided for a 6 month
extension, up to May 1, 2005, at the request of the
Governor or Indian Tribal leader. 69 FR 55094.

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules
planning pursuant to section 322 of the
Stafford Act.
Table 1 displays the regulatory history
for the mitigation planning

requirements listed in §§ 201.3–201.5
for the Standard and Enhanced State
Mitigation Plan reporting requirements.

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Currently, these Plans have to be
updated every 3 years.

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TABLE 1
Federal Register
citation

Date

Effect on §§ 201.3,
201.4, & 201.5

RIN

Action

3067–AD22 .............

IFR ........................

2/26/02

67 FR 8844 ...........

Added §§ 201.3,
201.4, & 201.5.

3067–AD22 .............

IFR ........................

10/1/02

67 FR 61512 .........

Revised §§ 201.3
and 201.4.

1660–AA17 2 ...........

IFR ........................

9/13/04

69 FR 55094 .........

1660–AA17 .............

Final Rule ..............

10/31/07

72 FR 61552 .........

Added
§ 201.3(c)(7) &
Revised § 201.4.
Finalized Part 201

1660–AA36 .............

IFR ........................

10/31/07

72 FR 61720 .........

Revised § 201.3 ....

1660–AA36 .............

Final Rule ..............

9/16/09

74 FR 47471 .........

Finalized § 201.3 ...

D. Discussion of the NPRM
Currently, under the mitigation
planning regulations found at 44 CFR
Part 201, State Mitigation Plans
(Standard and Enhanced) are required to
be updated every 3 years as a condition
of receiving non-emergency Stafford Act
assistance and FEMA mitigation grants.
This proposed rule would reduce the
frequency of Standard State and
Enhanced State Mitigation Plan updates
by extending the update requirement
from 3 to 5 years.
The purpose of mitigation planning is
to develop and maintain a continuous
process leading to implementation of
actions that reduce the Nation’s losses
from future natural disasters and
promote more resilient communities,
thus reducing disaster response and
recovery costs. Mitigation planning may
differ from other types of planning in
that this inclusive process is designed to
encourage coordination with other
agencies, stakeholders, programs, and
initiatives. Further, in order to be
effective, plans must be relevant.
Therefore, § 201.4(d) requires that
mitigation plans be reviewed and
revised to reflect changes in
2 The RIN changed from 3067–AD22 to 1660–
AA17 as a result of FEMA becoming a component
of the Department of Homeland Security.

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development, progress in statewide
mitigation efforts, and changes in
priorities.
Mitigation planning is a continuous
process of engaging stakeholders,
identifying hazards as conditions may
change, assessing risk and
vulnerabilities as development patterns
may change, and developing a strategy
that can be implemented using available
resources, programs, and initiatives
based on current priorities. The
outcome of the mitigation planning
process is implementation of mitigation
actions that reduce vulnerabilities
identified in the risk assessment.
As stated in the planning regulations
at § 201.4(a), the mitigation plan is the
demonstration of the State’s
commitment to reduce risks from
natural hazards and serves as a guide for
State decision makers as they commit
resources to reducing the effects of
natural hazards. In addition, per
§ 201.4(c)(4)(i), States have the
responsibility to support, through
funding and technical assistance, the
development of Local Mitigation Plans.
Through mitigation planning, States
build partnerships as well as capacity to
increase resilience and reduce the
Nation’s risk to natural hazards.
As mitigation planning is a
performance-based approach rather than
prescriptive, there is a wide range in the

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Changes to state mitigation plan
requirements
States must have approved Standard
State Mitigation Plan by November
1, 2003 and every 3 years from the
date of the approval of the previous
plan. Enhanced State Mitigation
Plans resubmitted to the appropriate
Regional Director every 3 years. For
State to be eligible for 20 percent
HMGP funding, the Enhanced State
Mitigation plan must be approved by
FEMA within the 3 years prior to
current major disaster declaration.
Changed the requirement to update
the Standard State Mitigation Plan to
November 1, 2004.
Allowed a 6 month extension to the
deadline for the Standard State Mitigation Plan, up to May 1, 2005.
Corrected a typographical error in
§ 201.4(c)(2)(ii).
Removed references to November 1,
2004 deadline and made technical
corrections.
No changes.

level of effort invested to meet the
minimum requirements for FEMA
approval. This performance-based
approach allows State, local, and Tribal
governments the ability to tailor
mitigation strategies and actions to meet
specific risks and vulnerabilities
identified through risk assessments. In
many instances, mitigation plan updates
provide opportunities for State, local,
and Tribal governments not only to
verify that the plans are still relevant,
but also to strengthen and improve
mitigation strategies and specific actions
to reduce risk and improve resilience.
FEMA proposes the change in the
frequency of the update requirement for
several reasons. First, the proposed
reduction in update frequency will
reduce the regulatory burden on States
and those Indian Tribal governments
that may choose to develop Enhanced
Plans, as well as on FEMA. Second,
aligning the update frequency with local
and Tribal update requirements may
foster closer coordination of mitigation
planning and implementation efforts.
Third, by relieving the regulatory
burden imposed from the frequency of
State plan updates, States and FEMA
may be able to shift resources from the
update and review cycle to other
mitigation planning activities, such as
increased delivery of training and
technical assistance to support Local

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules

and Tribal Mitigation Planning, and to
implementing additional mitigation
actions identified through the planning
process.
E. Stakeholder Involvement
Since 2008, stakeholders, such as the
National Emergency Management
Association (NEMA), have voiced
concerns to FEMA about the frequency
of the update requirement for State
Mitigation Plans. For example, the
NEMA Mitigation Committee prepared a
position paper, dated September 8,
2008, stating that the
disparity between update cycles of [S]tate
and local-[T]ribal plans creates an undue
hardship on a number of [S]tates with limited
staffing or that have experienced multiple
disasters within a plan lifecycle. These
[S]tates feel compelled to begin the plan
review and update process immediately after
their plan was reapproved.

This position paper included a
recommendation to support
a revision to 44 CFR Part 201 to extend State
Hazard Mitigation Plans revision and
revision requirements, and FEMA review of
[S]tate mitigation activities, from [3] years to
[5] years to match the review cycles for local
and [T]ribal hazard mitigation plans.

In 2011, DHS received public
comments on the mitigation planning
regulations in response to a Federal
Register notice published as part of a
retrospective review of its regulations.
According to the final report titled
‘‘Final Plan for the Retrospective
Review of Existing Regulations’’ dated
August 22, 2011 (See page 16),

emcdonald on DSK67QTVN1PROD with PROPOSALS

DHS received a comment (the top-voted
comment mentioned above) recommending
that DHS change the current FEMA State
Standard and Enhanced Hazard Mitigation
Plan update requirement from every [3] years
to every [5] years so that it is consistent with
current Local Hazard Mitigation Plan update
requirements. Commenters asserted that [5]
years would be an appropriate timeframe for
[S]tate mitigation plan updates for both
efficiency and resource-limitation reasons.

As part of the review, DHS
determined that FEMA will consider
possible changes to the mitigation
planning regulations as part of a longterm retrospective review over the next
3 years. The ‘‘Final Plan for the
Retrospective Review of Existing
Regulations’’ is available at the
following link: https://www.dhs.gov/
xlibrary/assets/dhs-ogc-finalretrospective-review-plan-8-22-11final.pdf.
On November 8, 2011, 23 Members of
Congress sent a letter to FEMA
Administrator Fugate requesting that
FEMA
alter its regulations under 44 CFR Part 201
and extend to [5] years the cycle by which

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State Hazard Mitigation Plans must be
submitted. The existing [3]-year time frame
for FEMA to review and approve new
mitigation plans has become increasingly
burdensome for many [S]tate planning
offices.

The letter further stated that
[t]he shorter cycle creates an undue hardship
on [S]tates with limited staffing or those that
have experienced multiple disasters within a
plan lifecycle. In order to prevent a
disqualifying lapse, these [S]tates are
compelled to restart the process immediately
following the approval of the previous plan.

Finally, the letter closed by stating
[m]aintaining high quality up-to-date
mitigation plans is a critical component of
our national disaster response plan.
Extending the update cycle to [5] years
would ensure that our [S]tate planning
offices can complete this vital task, along
with their other duties, while maximizing
available resources.

The 23 Members of Congress asked
FEMA to amend 44 CFR Part 201 to
accommodate this change.
F. Proposed Revisions
FEMA proposes to amend §§ 201.3–
201.5, based on the reasons listed earlier
in this preamble and to address the
comments it has received from
stakeholders. Every reference to FEMA
Standard State and Enhanced State
Mitigation Plan update requirements
would be changed from 3 years to 5
years, so that it is consistent with
current Local and Tribal Mitigation Plan
update requirements. Based on
stakeholder input received to date,
FEMA is proposing that 5 years would
be an appropriate timeframe for
Standard State and Enhanced State
Mitigation Plan updates.
G. Implementation
If the proposed revisions are adopted,
the Standard State Mitigation Plan and
the Enhanced State Mitigation Plan
updates would be due 5 years from the
date of the approval of the previous
plan.
III. Regulatory Analyses
A. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
FEMA has prepared and reviewed this
rule under the provisions of Executive
Order 12866, ‘‘Regulatory Planning and
Review’’ (58 FR 51735, Oct. 4, 1993) as
supplemented by Executive Order
13563, ‘‘Improving Regulation and
Regulatory Review’’ (76 FR 3821, Jan.
21, 2011). This proposed rule is not a
significant regulatory action, and
therefore has not been reviewed by the

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Office of Management and Budget
(OMB).
This portion of the preamble
summarizes FEMA’s analysis of the
economic impacts of this proposed rule.
However, readers seeking greater detail
are encouraged to read the full
regulatory evaluation, a copy of which
FEMA has placed in the docket for this
rulemaking.
In conducting the aforementioned
analyses, FEMA has determined that the
proposed rule: (1) Has benefits that
justify its costs; (2) is not an
economically ‘‘significant regulatory
action’’ as defined in section 3(f) of
Executive Order 12866; (3) would not
have a significant economic impact on
a substantial number of small entities;
and (4) would not impose an unfunded
mandate on State, local, or Tribal
governments, or on the private sector by
exceeding $100 million or more
annually (adjusted for inflation with a
base year of 1995). These analyses are
summarized below.
Who Is Potentially Affected by This
Rule
The proposed rule would affect
States 3 that choose to submit updated
Standard State Mitigation Plans or
Enhanced State Mitigation Plans to
FEMA for approval, and Indian Tribal
governments that choose to meet the
requirements for Enhanced State
Mitigation Plans in order to qualify for
increased HMGP funding.
Savings to Society of This Rule
The cost to update a State’s Mitigation
Plan is unique to that respective State.
However, for the purposes of this
analysis, FEMA estimates an average
Standarad State Mitigation Plan update
unit cost of $205,000 and an Enhanced
State Mitigation Plan update unit cost of
$524,000. FEMA also assumes that 46
States would submit Standard State
Mitigation Plans and 10 States would
submit Enhanced State Mitigation Plans.
FEMA would also incur costs to
review State Mitigation Plans. FEMA
estimates that a General Schedule 13,
Step 1, Federal employee, at a fully
loaded wage of $48.08 ($34.34 * 1.4 =
$48.076) would spend 120 hours
reviewing a Standard or Enhanced State
Mitigation Plan. The resulting FEMA
review cost per plan is $5,770 (120
hours * $48.08 per hour = $5,769.60).
Therefore, the cost of State Mitigation
Plan updates in a given year, where all
3 As defined by section 102 of the Stafford Act,
‘‘State’’ means any State of the United States, the
District of Columbia, Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands. 42
U.S.C. 5122 (2011).

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules
updates are submitted, is approximately
$15 million (($205,000 + $5,770) * 46 +
($524,000 + $5,770) * 10 = $14,993,120).
The extension of the State Mitigation
Plan update frequency from 3 to 5 years
would reduce the number of State
Mitigation Plan updates submitted by 2
over 15 years. The resulting
undiscounted total cost savings is
approximately $30 million over 15 years
($14,993,120 * 2 = $29,986,240); or,
$18.8 million total cost savings over 15
years if discounted at 7 percent. The
annual impact of this proposed rule is
approximately $2 million undiscounted
($29,986,240 ÷ 15 = $1,999,083).
Benefits of This Rule
The proposed rule would provide a
number of unquantified benefits
including aligning the State Mitigation
Plan update cycle with the Local and
Tribal Mitigation Plan update cycle and
providing greater flexibility for States to
submit their State Mitigation Plan
updates. The proposed rule would also
provide an opportunity for States to
apply cost savings from the reduction in
State Mitigation Plan update frequency
to other means of increasing resilience
and reducing the Nation’s risk to natural
hazards.

emcdonald on DSK67QTVN1PROD with PROPOSALS

Significance Determination
Under Executive Order 12866, a
significant regulatory action is subject to
the OMB review and the requirements
of the Executive Order. The Executive
Order defines ‘‘significant regulatory
action’’ as one that is likely to result in
a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
The rule is estimated to have a net
quantified undiscounted savings to
society of approximately $30 million
over 15 years. The annual impact of this
rule is an estimated net quantified
savings to society of approximately $2
million undiscounted ($1,999,083). As
such, this rule is not an economically

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significant regulatory action and has not
been reviewed by OMB.
Retrospective Review
To facilitate the periodic review of
existing significant regulations,
Executive Order 13563 requires agencies
to consider how best to promote
retrospective analysis of rules that may
be outmoded, ineffective, insufficient,
or excessively burdensome, and to
modify, streamline, expand, or repeal
them in accordance with what has been
learned. The Executive Order requires
agencies to issue a retrospective review
plan, consistent with law and the
agency’s resources and regulatory
priorities, under which the agency will
periodically review its existing
significant regulations to determine
whether any such regulations should be
modified, streamlined, expanded, or
repealed so as to make the agency’s
regulatory program more effective or
less burdensome in achieving the
regulatory objectives.
The Department of Homeland
Security issued its ‘‘Final Plan for the
Retrospective Review of Existing
Regulations’’ (Plan) on August 22, 2011.
The Plan can be viewed at http://
www.dhs.gov/xlibrary/assets/dhs-ogcfinal-retrospective-review-plan-8-22-11final.pdf. This rule was included in the
Plan as a long-term retrospective review
candidate, meaning the agency would
undertake retrospective review of the
regulation within 3 years of the date of
the Plan. The Plan stated that FEMA
would consider whether it would be
more efficient to extend the review
period to 5 years for each of the plans
as requested by public commenters.
Review of FEMA’s existing Mitigation
Plan regulations revealed the potential
for State cost savings, approximately
$30 million over 15 years, as well as
other benefits. Therefore, FEMA is
proposing to extend the State Mitigation
Plan minimum update frequency from 3
to 5 years.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), FEMA evaluated
and considered whether this rule would
have a significant economic impact on
a substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
As the proposed rule would not result
in additional costs, FEMA does not
anticipate that the rule would have a
significant economic impact on a

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13849

substantial number of small entities.
However, FEMA invites comments on
this initial determination.
C. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995, Public Law 104–4, 109 Stat. 48
(Mar. 22, 1995) (2 U.S.C. 1501 et seq.),
requires Federal agencies to assess the
effects of their discretionary regulatory
actions that may result in the
expenditure by a State, local, or Tribal
government, in the aggregate, or by the
private sector of $100,000,000 or more
in any one year. As the proposed rule
would not have an impact greater than
$100,000,000 or more in any one year,
it is not an unfunded Federal mandate.
D. Paperwork Reduction Act (PRA) of
1995
As required by the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13, 109 Stat. 163, (May 22,
1995) (44 U.S.C. 3501 et seq.), an agency
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless the
collection of information displays a
valid control number.
In this NPRM, FEMA is seeking a
revision to the already existing
collection of information identified as
OMB Control Number 1660–0062, and
withdraws the previous Federal
Register notice regarding this
information collection which published
on February 24, 2012 (77 FR 11142).
This revision reflects the reduction in
the annual cost burden to respondents
or recordkeepers resulting from the
proposed rule, as well as refinements to
current estimates in 1660–0062 based
on changes to the way cost burden is
reported under the PRA. Annual cost
burden was previously derived from
multiplying total annual burden hours,
based on subject matter expert average
hour estimates per mitigation plan, by
the associated wage rates. However,
FEMA has refined how it calculates
annual costs and now uses cost
estimates based on historical mitigation
plan grant data, which includes contract
support and other associated costs. This
NPRM serves as the 60-day comment
period for this proposed change
pursuant to 5 CFR 1320.12. FEMA
invites the general public to comment
on the proposed collection of
information.
Collection of Information
Title: State/Local/Tribal Hazard
Mitigation Plans.
Type of information collection:
Revision of a currently approved
collection.
OMB Number: 1660–0062.

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Form Titles and Numbers: None.
Abstract: The purpose of State, Local,
and Tribal Hazard Mitigation Plan
requirements is to support the
administration of FEMA Mitigation
grant programs, and a significant State,
local, and Tribal commitment to
mitigation activities, comprehensive
mitigation planning, and strong program
management. Implementation of
planned, pre-identified cost-effective
mitigation measures will streamline the
disaster recovery process. Mitigation
plans are the demonstration of the goals
and prioritization to reduce risks from
natural hazards. This proposed rule
revises FEMA Mitigation Planning
regulations in order to reduce the
frequency of Standard State and
Enhanced State Mitigation Plan updates
by extending the update requirement
from 3 to 5 years. This reduction in

frequency will result in a reduction of
8,899 hours in the burden hours on the
public and a $1,350,580 reduction in the
annual cost burden to respondents or
recordkeepers resulting from the
collection of information. Due to the
change in reporting methods described
above, the base line numbers have
changed, resulting in an overall increase
in the estimated total annual cost. This
impact is separate from the effect of the
proposed rule.
Affected Public: State, local, or Tribal
Government.
Estimated Number of Respondents: 56
States submit State Mitigation Plan
updates to FEMA. In addition, those 56
States also review and submit Local and
Tribal Mitigation Plans and plan
updates to FEMA.
Estimated Total Annual Burden
Hours: 227,366 hours.

The previously approved Total
Annual Burden Hours was 768,320
hours. Based on adjustments to how this
burden was estimated (see Information
Collection Request for details) and the
proposed rule’s reduction in burden, the
new estimated Total Annual Burden
Hours is 227,366 hours. This is a
decrease of 540,954 hours, of which
approximately 8,899 hours are
attributed to the change in State
Mitigation Plan update frequency.
However, some of the burden hours
previously accounted for likely reflected
some of the costs, including contract
support, now included in the
separately-reported categories under
total annual cost burden.
Table 3 provides estimates of
annualized cost to respondents for the
hour burdens for the collection of
information.

TABLE 3
Type of respondent

Local or Tribal Government
Local or Tribal Government
State Government ................
State Government ................
State Government ................
Total ..............................

Form name/form number

Number of
respondents

New Local and Tribal Plans
Local and Tribal Plan Updates.
State Review of Local and
Tribal Plans.
Standard State Plan Updates.
Enhanced State Plan Updates.

56
56
56

...............................................

Number of
responses
per
respondent 1

Total
number of
responses 2

Avg burden
per
response
(hours)

Total annual
burden
(hours)

Avg hourly
wage rate 3

Total annual
respondent
cost 4

5
9

280
504

289
249

80,920
125,496

$45.33
45.33

$3,668,104
5,688,734

14

784

8

6,272

45.33

284,310

46

0.2

9

1,040

9,360

45.33

424,289

10

0.2

2

2,659

5,318

45.33

241,065

56

......................

1,579

....................

227,366

....................

10,306,502

1 Standard

State Plan Updates and Enhanced State Plan Updates Number of Responses per Respondent represents an annual average over 5 years (1 plan update/5 years = 0.2).
2 Standard State Plan Updates Total Number of Responses is rounded to the nearest plan.
3 The ‘‘Avg. Hourly Wage Rate’’ for each respondent includes a 1.4 multiplier to reflect a loaded wage rate and rounded to the nearest cent.
4 Rounded to the nearest dollar.

Estimated Total Annual Cost:
$33,532,730.
The previously approved Total
Annual Cost was $33,452,652. Based on
adjustments to how this cost was
estimated (see Information Collection

Request for details) and the proposed
rule’s reduction in cost, the new
estimated Total Annual Cost is
$33,532,730. This is an increase of
$80,078. This includes a $1,350,580
reduction in cost attributed to the

change in State Mitigation Plan update
frequency.
Table 4 provides estimates of total
annual cost burden to respondents or
recordkeepers resulting from the
collection of information.

emcdonald on DSK67QTVN1PROD with PROPOSALS

TABLE 4

Data collection activity/instrument

*Annual capital
start-up cost
(investments in
overhead,
equipment and
other one-time
expenditures)

*Annual
operations and
maintenance
cost
(such as recordkeeping, technical/professional
services, etc.)

Annual non-labor
cost
(expenditures on
training, travel
and other
resources)

Total annual cost
to respondents

Development of New Local and Tribal Plans ..................................
Local and Tribal Plan Updates ........................................................
State Review of Local and Tribal Plans ..........................................
Standard State Mitigation Plan Updates .........................................
Enhanced State Mitigation Plan Updates ........................................

$12,289,200
............................
............................
............................
............................

............................
$16,299,360
............................
1,217,700
691,680

............................
$2,716,560
............................
202,950
115,280

$12,289,200
19,015,920
0
1,420,650
806,960

Total ..........................................................................................

12,289,200

18,208,740

3,034,790

33,532,730

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules
Overall Estimated Total Cost:
$43,839,232.
The overall estimated cost of this
collection is $43,839,232 ($10,306,502 +
$33,532,730). This is an increase of
$10,386,580 ($33,452,652–$43,839,232)
from the currently approved OMB
inventory.

emcdonald on DSK67QTVN1PROD with PROPOSALS

Comments
Comments may be submitted as
indicated in the ADDRESSES caption
above. Comments are solicited to (a)
evaluate whether the proposed data
collection is necessary for the proper
performance of the agency, including
whether the information shall have
practical utility; (b) evaluate the
accuracy of the agency’s estimate of the
burden of the proposed collection of
information, including the validity of
the methodology and assumptions used;
(c) enhance the quality, utility, and
clarity of the information to be
collected; and (d) minimize the burden
of the collection of information on those
who are to respond, including through
the use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
E. National Environmental Policy Act
(NEPA) of 1969
Section 102 of the National
Environmental Policy Act of 1969
(NEPA), Public Law 91–190, 83 Stat.
852 (Jan. 1, 1970) (42 U.S.C. 4321 et
seq.) requires agencies to consider the
impacts in their decision-making on the
quality of the human environment. The
Council on Environmental Quality’s
procedures for implementing NEPA, 40
CFR 1500 through 1508, require Federal
agencies to prepare Environmental
Impact Statements (EIS) for major
federal actions significantly affecting the
quality of the human environment. Each
agency can develop categorical
exclusions to cover actions that
typically do not trigger significant
impacts to the human environment
individually or cumulatively. Agencies
develop environmental assessments
(EA) to evaluate those actions that do
not fit an agency’s categorical exclusion
and for which the need for an EIS is not
readily apparent. At the end of the EA
process the agency will determine
whether to make a Finding of No
Significant Impact or whether to initiate
the EIS process.
Rulemaking is a major federal action
subject to NEPA. The List of exclusion
categories at 44 CFR 10.8(d)(2)(ii)
excludes the preparation, revision, and
adoption of regulations from the

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preparation of an EA or EIS, where the
rule relates to actions that qualify for
categorical exclusions. The
development of plans under 44 CFR Part
201 is categorically excluded under 44
CFR 10.8(d)(2)(iii) and (xviii)(E). No
extraordinary circumstances exist that
would trigger the need to develop an EA
or EIS. See 44 CFR 10.8(d)(3). An EA
will not be prepared because a
categorical exclusion applies to this
rulemaking action and no extraordinary
circumstances exist.
F. 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 proposed rule would revise
FEMA’s Mitigation Planning regulations
in order to reduce the frequency of
Standard State and Enhanced State
Mitigation Plan updates from 3 to 5
years. Tribal Mitigation Plan updates are
already required every 5 years; however,
in accordance with 44 CFR 201.3(e)(3),
Indian Tribal governments are
potentially eligible to act as grantee and
qualify for increased HMGP funding by
submitting an Enhanced Mitigation
Plan. Under the current regulations,
Indian Tribal governments that wish to
submit an Enhanced Mitigation plan are
required to update that plan every 3
years; the proposed rule would reduce
that frequency to every 5 years. For
these reasons, this rule may have ‘‘tribal
implications’’ as defined in the
Executive Order. Submission of the
plan, however, is voluntary, and
changing the frequency of the plan from
3 to 5 years will not impose direct
compliance costs on Indian tribal
governments. Therefore, FEMA finds

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that this proposed rule complies with
Executive Order 13175.
G. Executive Order 13132, Federalism
A rule has implications for federalism
under Executive Order 13132,
‘‘Federalism’’ (64 FR 43255, Aug. 10,
1999), if it has a substantial direct effect
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. FEMA has
analyzed this NPRM under the
Executive Order and determined that it
does not have implications for
federalism.
This proposed rule would revise
FEMA’s Mitigation Planning regulations
in order to reduce the frequency of
Standard State and Enhanced State
Mitigation Plan updates, extending the
update requirement from 3 to 5 years.
As stated under the Stakeholder
Involvement heading, FEMA has
received substantial input requesting
that FEMA change its Mitigation
Planning regulations to reduce the
frequency of Standard State and
Enhanced State Mitigation Plan updates.
Some of those requests have come from
State officials.
The Standard State and Enhanced
State Mitigation Plan updates are
voluntarily submitted by States. Per
DMA 2000, Mitigation Plans are a
condition of receipt of increased Federal
funding for hazard mitigation measures.
If a State chooses not to comply with the
regulations in 44 CFR Part 201, it still
would be eligible for limited emergency
assistance under the Stafford Act. (See
42 U.S.C. 5170a, 5170b, 5173, 5174,
5177, 5179, 5180, 5182, 5183, 5184, and
5192).
H. Executive Order 12630, Taking of
Private Property
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, ‘‘Governmental Actions
and Interference With Constitutionally
Protected Property Rights’’ (53 FR 8859,
Mar. 18, 1988).
I. Executive Order 12898,
Environmental Justice
Under Executive Order 12898, as
amended, ‘‘Federal Actions To Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, Feb. 16,
1994), FEMA incorporates
environmental justice into its policies
and programs. Executive Order 12898
requires each Federal agency to conduct
its programs, policies, and activities that
substantially affect human health or the

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J. Executive Order 12988, Civil Justice
Reform
This NPRM meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, ‘‘Civil Justice
Reform’’ (61 FR 4729, Feb. 7, 1996), to
minimize litigation, eliminate
ambiguity, and reduce burden.

development whenever there is a
practical alternative; reduce the risk of
flood loss; promote the use of
nonstructural flood protection methods
to reduce the risk of flood loss;
minimize the impacts of floods on
human health, safety and welfare;
restore and preserve the natural and
beneficial values served by floodplains;
and adhere to the objectives of the
Unified National Program for
Floodplain Management.
As stated in the preamble, the
planning process provides a link
between State, Tribal and and local
mitigation programs. Both State level
and local plans should address
strategies for incorporating post-disaster
early mitigation implementation
strategies and sustainable recovery
actions. FEMA also recognizes that
governments are involved in a range of
planning activities and that mitigation
plans may be linked to or reference
comprehensive plans, land use plans,
master plans, and other non-natural
hazard plans. Improved mitigation
planning will result in a better
understanding of risks and
vulnerabilities, as well as expediting
implementation of measures and
activities to reduce those risks, both preand post-disaster. This proposed rule
revises FEMA’s Mitigation Planning
regulations in order to reduce the
frequency of Standard State and
Enhanced State Mitigation Plan updates,
extending the update requirement from
3 to 5 years. The proposed change aligns
the State update requirements with
Local and Tribal Mitigation Plan update
requirements, which does not conflict
with the intent of the Executive Order.

K. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
This NPRM will not create
environmental health risks or safety
risks for children under Executive Order
13045, ‘‘Protection of Children From
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, Apr. 23, 1997).

List of Subjects in 44 CFR Part 201
Administrative practice and
procedure, Disaster assistance, Grant
programs, and Reporting and
recordkeeping requirements.
For the reasons discussed in the
preamble, FEMA proposes to amend 44
CFR part 201, as follows:

L. Executive Order 11988, Floodplain
Management
FEMA has prepared and reviewed this
rule under the provisions of Executive
Order 11988, as amended, ‘‘Floodplain
Management’’ (42 FR 26951, May 25,
1977). The regulations at 44 CFR Part 9
set forth FEMA’s policy, procedures,
and responsibilities in implementing
this Executive Order. In summary, these
are, to the greatest possible degree: To
avoid long and short term adverse
impacts associated with the occupancy
and modification of floodplains; avoid
direct and indirect support of floodplain

PART 201—MITIGATION PLANNING

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environment, in a manner that ensures
that those programs, policies, and
activities do not have the effect of
excluding persons from participation in,
denying persons the benefit of, or
subjecting persons to discrimination
because of their race, color, or national
origin or income level.
This rule relates to the
implementation of section 322 of the
Stafford Act (42 U.S.C. 5165). Section
322 focuses specifically on mitigation
planning to identify the natural hazards,
risks, and vulnerabilities of areas in
States, localities, and Tribal areas;
development of Local Mitigation Plans;
technical assistance to local and Tribal
governments for mitigation planning;
and identifying and prioritizing
mitigation actions that the State will
support as resources become available.
The proposed reduction in burden from
the update frequency may allow States
to focus on implementing additional
mitigation actions identified through the
planning process as a means to increase
resilience and reduce the Nation’s risk
to natural hazards; thereby also
protecting human lives and the
environment. No action that FEMA can
anticipate under this rule will have a
disproportionately high and adverse
human health or environmental effect
on any segment of the population.

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1. The authority citation for Part 201
continues to read as follows:

■

Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5207; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; Homeland Security Act of
2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p. 376; E.O. 12148, 44
FR 43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.

2. In § 201.3, revise paragraphs (b)(5),
(c)(2), and (c)(3), and the second

■

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sentence of paragraph (e)(3) to read as
follows:
§ 201.3

Responsibilities.

*

*
*
*
*
(b) * * *
(5) Conduct reviews, at least once
every 5 years, of State mitigation
activities, plans, and programs to ensure
that mitigation commitments are
fulfilled, and when necessary, take
action, including recovery of funds or
denial of future funds, if mitigation
commitments are not fulfilled.
(c) * * *
(2) In order to be considered for the
20 percent HMGP funding, prepare and
submit an Enhanced State Mitigation
Plan in accordance with § 201.5, which
must be reviewed and updated, if
necessary, every 5 years from the date
of the approval of the previous plan.
(3) At a minimum, review and update
the Standard State Mitigation Plan every
5 years from the date of the approval of
the previous plan in order to continue
program eligibility.
*
*
*
*
*
(e) * * *
(3) * * * The plan must be reviewed
and updated at least every 5 years from
the date of approval of the previous
plan.
■ 3. In § 201.4, revise the first sentence
of paragraph (d) to read as follows:
§ 201.4

Standard State Mitigation Plans.

*

*
*
*
*
(d) * * * Plan must be reviewed and
revised to reflect changes in
development, progress in statewide
mitigation efforts, and changes in
priorities and resubmitted for approval
to the appropriate Regional
Administrator every 5 years. * * *
■ 4. In § 201.5, revise the third sentence
of paragraph (a), revise the first sentence
of paragraph (c)(1), and revise paragraph
(c)(2) to read as follows:
§ 201.5

Enhanced State Mitigation Plans.

(a) * * * In order for the State to be
eligible for the 20 percent HMGP
funding, FEMA must have approved the
plan within 5 years prior to the disaster
declaration.
*
*
*
*
*
(c) * * *
(1) A State must review and revise its
plan to reflect changes in development,
progress in statewide mitigation efforts,
and changes in priorities, and resubmit
it for approval to the appropriate
Regional Administrator every 5 years.
* * *
(2) In order for a State to be eligible
for the 20 percent HMGP funding, the
Enhanced State Mitigation plan must be
approved by FEMA within the 5 years

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Federal Register / Vol. 78, No. 41 / Friday, March 1, 2013 / Proposed Rules
prior to the current major disaster
declaration.
Dated: February 22, 2013.
W. Craig Fugate,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2013–04794 Filed 2–28–13; 8:45 am]
BILLING CODE 9111–66–P

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571

Agency Response and Decision

[Docket No. NHTSA 2012–0025]

Federal Motor Vehicle Safety
Standards; Denial of Petition for
Rulemaking; Vehicle Rollover
Resistance
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petition for
rulemaking.
AGENCY:

This document denies a
petition for rulemaking submitted by
Mr. Michael Schramm requesting that
the agency initiate rulemaking to
establish a Federal motor vehicle safety
standard (FMVSS) to prevent a vehicle
from being steered into a rollover at any
speed. Mr. Schramm has applied to
patent a device he believes will enable
vehicles to meet his requested standard.
After review of Mr. Schramm’s petition,
we believe the petition lacks sufficient
data to support proposing and
promulgating a safety standard. Further,
it might create conflicts with existing
standard and consumer information
metrics. Therefore, NHTSA is denying
Mr. Schramm’s petition.
FOR FURTHER INFORMATION CONTACT: For
non-legal issues: Mr. John Lee, Office of
Crash Avoidance Standards, NVS–123,
Telephone: (202) 366–4924; Facsimile:
202–493–2739; Email: john.lee@dot.gov.
For legal issues: David Jasinski,
NHTSA Office of Chief Counsel, NCC–
112, Telephone: (202) 366–2992;
Facsimile: 202–366–3820; Email:
david.jasinski@dot.gov.
Both officials can be reached by mail
at the National Highway Traffic Safety
Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590.
SUPPLEMENTARY INFORMATION: On
September 30, 2010, Mr. Michael
Schramm submitted a petition for
rulemaking requesting that NHTSA
establish a Federal motor vehicle safety
standard (FMVSS) to prevent a vehicle
from being steered into a rollover at any

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SUMMARY:

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speed. Mr. Schramm suggested that
NHTSA number and name this new
standard FMVSS No. 140, ‘‘Anti-Roll
Steering.’’ He supplied regulatory text
for the requested FMVSS No. 140, a
copy of his application for a patent for
his rollover prevention apparatus (the
apparatus), a copy of FMVSS No. 126,
‘‘Electronic stability control systems,’’ a
copy of the preliminary regulatory
impact analysis for FMVSS No. 126, and
2002 accident rollover data from the
NHTSA Web site www.safercar.gov. The
requested standard would restrict a
vehicle’s steering wheel from steering a
vehicle into a rollover.
As stated in Mr. Schramm’s petition,
more than 10,000 people were killed in
rollover crashes in 2002. However, in
2009, the rollover fatalities fell to 8,267,
based on NHTSA’s early release of
annual fatality figures.1 While there are
several reasons for these reductions, we
believe that the consumer information
and rulemaking actions that NHTSA has
been actively pursuing played a role in
reducing fatalities and injuries from
rollover crashes and will continue to
reduce these numbers even more.
Since 2001, NHTSA’s New Car
Assessment Program (NCAP) has been
rating vehicles for rollover resistance
and making these ratings available to
consumers on www.safercar.gov and in
other agency publications. Initially,
rollover resistance ratings were based
solely on a vehicle’s Static Stability
Factor (SSF), a calculation that uses a
vehicle’s width and the height of its
center of gravity to predict a vehicle’s
chance of rollover in a single vehicle
crash.
In the Transportation, Recall,
Enhancement, Accountability and
Documentation (TREAD) Act of
November 2000, Congress directed
NHTSA to develop a dynamic rollover
test and to use information obtained in
that test to help inform consumers about
the rollover properties of vehicles. On
October 14, 2003, NHTSA published a
final policy establishing a ‘‘fishhook’’
test as the dynamic rollover test for
NCAP.
The fishhook test is an objective and
repeatable test capable of determining a
vehicle’s susceptibility to rolling over
on-road. The fishhook maneuver uses
steering inputs that approximate the
steering a driver might use in a panic
situation in an effort to regain lane
position or to recover having gone off
1 See Traffic Safety Facts 2009 (Early Edition),
Table 23: Passenger Car and Light Truck Occupants
Killed, by Vehicle Type and Rollover Occurrence,
1982–2009.

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the road. The fishhook test is conducted
at speeds up to 50 mph and in two
symmetric steering inputs (left to right
and right to left), with the final input of
the test being approximately 270 degree.
When the wheels on the same side of a
vehicle simultaneously lift two or more
inches off the ground, the vehicle fails
the test.
The results of this test are noted on
www.safercar.gov for every vehicle
tested. As of 2004, rollover resistance
ratings are based on both a vehicle’s SSF
and whether or not the vehicle tipped
up in the fishhook test. In response to
this rating program, as indicated by the
improvement in ratings and the physical
characteristics of the vehicles, vehicle
manufacturers have made
improvements to the rollover properties
of the vehicle they produce. The agency
has been able to document that some
makes and models of vehicles have
become wider, and have a centers of
gravity that are lower to the ground than
previous versions of similar makes and
models, therefore improving their SSF
and making them less susceptible to
rollover.
On April 6, 2007, NHTSA established
FMVSS No. 126, ‘‘Electronic stability
control systems,’’ (ESC) to help reduce
rollover and other types of loss of
control crashes. ESC systems use
automatic computer-controlled braking
of individual wheels to assist the driver
in maintaining control in critical driving
situations where the vehicle is
beginning to lose directional control at
the rear wheels (spin out) or directional
control at the front wheels (plow out).
NHTSA estimates that ESC has the
potential to prevent 71 percent of
passenger vehicle rollovers that would
otherwise occur in single vehicle
crashes. The agency further estimates
that ESC will save 5,300 to 9,600 lives
and prevent 156,000 to 238,000 injuries
in all types of crashes annually once all
light vehicles on the road are equipped
with ESC systems. Many automotive
manufacturers equipped their vehicles
with ESC prior to the September 1, 2011
date for full compliance with FMVSS
No. 126.
On May 12, 2009, NHTSA upgraded
FMVSS No. 216, ‘‘Roof crush
resistance,’’ to improve roof strength to
reduce the risk of death and serious
injury in rollover crashes. The
amendments double the current roof
strength requirement for light vehicles
weighing up to 6,000 pounds. It
specifies that both the driver and
passenger sides of the roof must be
capable of withstanding a force equal to
three times the weight of the vehicle
applied to one side of the roof, up from
the current 1.5 times the weight of the

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