Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 11971 

1 5 U.S.C. 553(a)(2). 

2ACUS 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. 

3Texas 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. 

4Note the IHPUG has been superseded by the 

Individual Assistance Program and Policy Guide 

(IAPPG) for any disaster declared after March 1, 

2019. See http://www.fema.gov/sites/default/files/ 

documents/fema_iappg-1.1.pdf. 

5The IHPUG can be viewed on FEMA’s website 

at http://www.fema.gov/sites/default/files/2020-05/ 

IHP_Unified_Guidance_FINAL_09272016_0.pdf. 

6Section 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. 

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. 

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outdated or do not affect the public and 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) kristen.shedd@fema.dhs.gov. 

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outdated provisions, update provisions 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. 

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

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. 

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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11972 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 

7The 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 http://www.fema.gov/ 

sites/default/files/documents/fema_iappg-1.1.pdf. 

(last accessed on Nov. 4, 2021) 

8As 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. 9Recommendation 2014–6, #4. 

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

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. 

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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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 11973 

10 5 U.S.C. 555(b). 

11See Admin. Conf. of the U.S., Recommendation 

2014–7, Petitions for Rulemaking, 79 FR 75114 

(Dec. 17, 2014). 

12This 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). 13ACUS Recommendation 2014–6, #2. 14ACUS Recommendation 2014–6, #3. 

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/chiefcounsel/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. 

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 (femaregulations@fema.dhs.gov) 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. 

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 § 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. 

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. 

The commenters recommend inviting 

public comment on petitions as 

appropriate, consistent with ACUS 

Recommendation 2014–6, #8 and #9. 

FEMA has revised § 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 § 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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11974 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 

15See 86 FR 47128 (Aug. 23, 2021) and 86 FR 

56713 (Oct. 12, 2021). 

16See 85 FR 80719 (Dec.14, 2020). 

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. 

20See 86 FR 21325 (Apr. 22, 2021). 

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. 

Inclusion of the 60-Day Public 

Comment Period in the Regulations 

In the NPRM, FEMA proposed to 

remove § 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 § 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 

§ 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 § 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

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 


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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 11975 

21 5 U.S.C. 603(a), 605(b). 

22 5 U.S.C. 604(a)(3). 

23 5 U.S.C. 604(b). 

24 5 U.S.C. 553(c). 

25The 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). 

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 § 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. 

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. 

Adoption of a Final Rule: Support for 

Factual Conclusions and Adequately 

Addressing Public Comments 

In the NPRM, FEMA proposed to 

remove § 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. 

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 semiannually 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. 


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11976 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 

Current section Final rule 

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 


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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 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 foreignbased enterprises in domestic and 

export markets. 

List of Subjects in 44 CFR Part 1 

Administrative practice and 

procedure. 

■ 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. 

§ 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). 

§ 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. 

§ 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. 

§ 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 


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11978 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Rules and Regulations 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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/chiefcounsel/rulemaking and petitioners 

seeking to confirm whether FEMA has 

received or responded to a specific 

rulemaking petition may inquire at 

fema-regulations@fema.dhs.gov. 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. 

§ 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 § 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 220225–0059] 

RIN 0648–BJ09 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan Regulations; Correction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Correcting amendment. 

SUMMARY: This document makes 

technical corrections to a final rule that 

modified the Atlantic Large Whale Take 

Reduction Plan. The correction 

reinstates paragraphs that were 

inadvertently removed from the Code of 

Federal Regulations when the final rule 

published on September 17, 2021. 

DATES: Effective March 3, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Colleen Coogan, Marine Mammal/Sea 

Turtle Branch Chief, phone: (978) 281– 

9181 or email: Colleen.Coogan@

noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Need for Correction 

NMFS published a final rule to 

implement modifications to the Atlantic 

Large Whale Take Reduction Plan 

(ALWTRP or Plan) on September 17, 

2021 (86 FR 51970), to meet the goals 

of the Marine Mammal Protection Act 


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