FEMA Taking Comments on Proposal To Amend its Rulemaking Procedures

June 7, 2017 | By Jerry Ashworth | Post a Comment

j143q33k69loivqmp2dg_400x400.gifIn case you missed it, federal agencies are now under orders to streamline and simplify procedures and regulations to reduce administrative burden. To see this in action, take a look at what the Federal Emergency Management Agency (FEMA) is doing. Today, FEMA proposed to revise its regulations pertaining to rulemaking by “removing sections that are outdated or do not affect the public, and updating provisions that affect the public’s participation in the rulemaking process,” such as the submission of public comments, hearings, ex parte communications, the public rulemaking docket, and petitions for rulemaking. The Federal Register notice on the proposal is available at https://www.gpo.gov/fdsys/pkg/FR-2017-06-07/pdf/2017-11559.pdf, and stakeholders can comment through Aug. 7.

FEMA’s current rulemaking regulations are available at https://www.ecfr.gov/cgi-bin/text-idx?SID=482155a76a0e6049ccb5ce2c1c084332&mc=true&node=pt44.1.1&rgn=div5. By studying the current regulations with the changes FEMA has proposed, one can truly get a sense of how the agency is streamlining this regulation. To put it another way, check out this chart that ran in the Federal Register notice:

The following chart lists the current section and how it is affected by the proposed rule:

Current section                                                      Proposed 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) 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.

1.18 Petitions for rulemaking.                               1.8.

However, what is most interesting to grant recipients is a section in the proposal discussing the regulatory waiver for grants and loans. FEMA notes that current regulations state that it is FEMA’s policy to provide for public participation in rulemaking regarding its programs and functions, including for matters that relate to public property, loans, grants, benefits or contracts. FEMA declared this policy notwithstanding that the Administrative Procedure Act’s (APA) notice-and-comment rulemaking requirements do not apply to such programs and functions.

“Because of the uncertainties associated with these programs and the time and resource constraints associated with the rulemaking process, it would be extremely challenging to promulgate or revise regulations each year for these annual grant programs, and therefore FEMA’s practice for years has been to post a notice of funding opportunity on its website at https://www.fema.gov/grants when grant funds become available,” the agency said. “These notices provide detailed information on grant eligibility and conditions, consistent with Office of Management and Budget requirements. FEMA finds that regulations are not necessary for these annual grant programs, because the requirements for the grant are included in legislation and the notices of funding opportunity, which are available to the public on FEMA’s website and www.grants.gov.”

FEMA explained that because it would be unduly burdensome and, in some cases, impossible to promulgate annual grant program requirements in regulation, because the APA does not require grant program requirements to be in regulation and because FEMA requires flexibility to adapt quickly to legal and policy mandates, FEMA considered eliminating current paragraph 1.4(b) entirely. However, it determined that it would retain a statement in support of public participation in rulemaking, and although FEMA saw little reason to retain current paragraph 1.4(b) as drafted, it continues to believe that public participation is frequently beneficial to the rulemaking process, particularly for its nonannual disaster grant programs. Accordingly, FEMA proposed to modify its regulation, particularly section 1. 3, in which it would retain its general policy in favor of public participation, but would retain discretion to depart from this policy in its discretion and as circumstances warrant, such as with respect to annual grant programs.

Take a look at this proposal. You may find that FEMA is oversimplifying these procedures. If so, your voice should be heard.

What do you think about this proposal? Let us know.

LinkedInShare

Post a Comment

Your email is never shared. Required fields are marked *

*
*