
[Code of Federal Regulations]
[Title 44, Volume 1]
[Revised as of October 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 44CFR1]

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              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE
 
             CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY
 
PART 1--RULEMAKING; POLICY AND PROCEDURES--Table of Contents
 
Subpart A--General

Sec. 1.1  Purpose.

    (a) This part contains the basic policies and procedures of the 
Federal Emergency Management Agency (FEMA) for adoption of rules. These 
policies and procedures incorporate those provisions of section 4 of the 
Administrative Procedure Act (APA) (5 U.S.C. 553) which FEMA will 
follow. This part and internal FEMA Manuals implement Executive Order 
12291.
    (b) Rules which must be published are described in section 3(a) of 
the APA, 5 U.S.C. 552(a). FEMA implementation of paragraph (a) is 
contained in 44 CFR part 5, subpart B.
    (c) This part contains policies and procedures for implementation of 
the Regulatory Flexibility Act which took effect January 1, 1981.
    (d) A FEMA Manual No. 1140.1, ``The Formulation, Drafting, 
Clearance, and Publication of Federal Register Documents'' has been 
issued describing the internal procedures including policy level 
oversight of FEMA for:
    (1) Publishing the semiannual agenda of significant regulations 
under development and review;
    (2) Making initial determinations with respect to significance of 
proposed rulemaking;
    (3) Determining the need for regulatory analyses; and
    (4) Reviewing existing regulations, including the reviews required 
by the Regulatory Flexibility Act.
    (e) As the FEMA Manual deals with internal management it is not 
subject to the requirements either of 5 U.S.C. 552 or 553. Its 
provisions are not part of this rule and reference to it is informative 
only.

[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]

Sec. 1.2  Definitions.

    (a) Rule or regulation means the whole or a part of any agency 
statement of general applicability and future effect designed to (1) 
implement, interpret, or prescribe law or policy, or (2) describe 
procedures or practice requirements. It includes any rule of general 
applicability governing Federal grants to State and local governments 
for which the agency provides an opportunity for notice and public 
comment, except that the term rule does not include a rule of particular 
applicability relating to rates, wages, prices, facilities, appliances, 
services, or allowances therefor or to valuations, costs or accounting, 
or practices relating to such rates, wages, structures, prices, 
appliances, services, or allowances. For purposes of this part the term 
rule does not include regulations issued with respect to a military or 
foreign affairs function of the United States.

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    (b) Rulemaking means the FEMA process for considering and 
formulating the issuance, amendment or repeal of a rule.
    (c) Director means the Director, FEMA, or an official to whom the 
Director has expressly delegated authority to issue rules.
    (d) FEMA means Federal Emergency Management Agency.
    (e) Major rule means any regulation that is likely to result in:
    (1) An annual effect on the economy of $100 million or more;
    (2) A major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; or
    (3) Significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises in 
domestic or export markets.

[46 FR 32584, June 24, 1981, as amended at 49 FR 38118, Sept. 27, 1984]

Sec. 1.3  Scope.

    (a) This part prescribes general rulemaking procedures for the 
issuance, amendment, or repeal of rules in which participation by 
interested persons is required by 5 U.S.C. 553 or other statutes, by 
Executive Order 12291, by FEMA policy, or by Sec. 1.4 of this part.
    (b) Any delegation by the Director of authority to issue rules may 
not be further redelegated, unless expressly provided for in the 
delegation.
    (c) This part does not apply to rules issued in accordance with the 
formal rulemaking provisions of the Administrative Procedure Act (5 
U.S.C. 556, 557).

Sec. 1.4  Policy and procedures.

    (a) In promulgating new regulations, reviewing existing regulations, 
and developing legislative proposals concerning regulation, FEMA, to the 
extent permitted by law, shall adhere to the following requirements:
    (1) Administrative decisions shall be based on adequate information 
concerning the need for and consequences of proposed government action;
    (2) Regulatory action shall not be undertaken unless the potential 
benefits to society for the regulation outweigh the potential costs to 
society;
    (3) Regulatory objectives shall be chosen to maximize the net 
benefits to society;
    (4) Among alternative approaches to any given regulatory objective, 
the alternative involving the least net cost to society shall be chosen; 
and
    (5) FEMA shall set regulatory priorities with the aim of maximizing 
the aggregate net benefits to society, taking into account the condition 
of the particular entities affected by regulations, the condition of the 
national economy, and other regulatory actions contemplated for the 
future.
    (b) It is the 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.
    (c) FEMA will publish notices of proposed rulemaking in the Federal 
Register and will give interested persons an opportunity to participate 
in the rulemaking through submission of written data, views, and 
arguments with or without opportunity for oral presentation.
    (d) In order to give the public, including small entities and 
consumer groups, an early and meaningful opportunity to participate in 
the development of rules, for a number of regulations the Director will 
employ additional methods of inviting public participation. These 
methods include, but are not limited to, publishing advance Notices of 
Proposed Rulemaking (ANPR), which can include a statement with respect 
to the impact of the proposed rule on small entities; holding open 
conferences; convening public forums or panels, sending notices of 
proposed regulations to publications likely to be read by those affected 
and soliciting comment from interested parties by such means as direct 
mail. An ANPR should be used to solicit public comment early in the 
rulemaking process for significant rules.
    (e) It is the policy of FEMA that its notices of proposed rulemaking 
are to afford the public at least sixty days for

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submission of comments unless the Director makes an exception and sets 
forth the reasons for the exception in the preamble to the notice of 
proposed rulemaking. This period shall also include any period of review 
required by the Office of Management and Budget in accordance with the 
Paperwork Reduction Act of 1980.
    (f) Unless required by statute or Executive Order, notice and public 
procedure may be omitted if the Director, for good cause, determines in 
a particular case or class of cases that notice and public procedure is 
impractical, unnecessary or contrary to the public interest and sets 
forth the reason for the determination in the rulemaking document or, 
for a class of cases, in a published rule or statement of policy. In a 
particular case, the reasons for the determination will be stated in the 
rulemaking document. Notice and public procedure may also be omitted 
with respect to statements of policy, interpretative rules, rules 
governing FEMA's organization or its own internal practices or 
procedures, or if a statute expressly authorizes omission.
    (g) A final substantive rule will be published not less than 30 days 
before its effective date unless it grants or recognizes an exemption or 
relieves a restriction or unless the rulemaking document states good 
cause for its taking effect less than 30 days after publication. 
Statements of policy and interpretative rules will usually be made 
effective on the date of publication.
    (h) This part shall not apply to any regulation that responds to an 
emergency situation, provided that, any such regulation shall be 
reported to the Director, Office of Management and Budget, as soon as is 
practicable. FEMA shall publish in the Federal Register a statement of 
the reasons why it is impracticable for the agency to follow the 
procedures of Executive Order 12291 with respect to such a rule, and the 
agency shall prepare and transmit, if needed, as soon as is practicable 
a Regulatory Impact Analysis of any such major rule.

[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984; 
50 FR 40004, Oct. 1, 1985]

Sec. 1.5  Rules docket.

    (a) Documents which are public records and which are a part of a 
specific rulemaking procedure, including but not limited to, advance 
notices of proposed rulemaking, notices of proposed rulemaking, written 
comments addressed to the merits of a proposed rule, and comments 
received in response to notices, or withdrawals or terminations of 
proposed rulemaking, petitions for rulemaking, requests for oral 
argument in public participation cases, requests for extension of time, 
grants or denials of petitions or requests, transcripts or minutes of 
informal hearings, final rules and general notices shall be maintained 
in the Office of General Counsel. All public rulemaking comments should 
refer to the docket number which appears in the heading of the rule and 
should be addressed to the Rule Docket Clerk, Federal Emergency 
Management Agency, Office of General Counsel.
    (b) Documents which are a part of a specific rulemaking proceeding 
are public records. After a docket is established, any person may 
examine docketed material at any time during established hours of 
business and may obtain a copy of any docketed material upon payment of 
the prescribed fee. (See part 5 of this chapter.)

[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983]

Sec. 1.6  Ex parte communications.

    In rulemaking proceedings subject only to the procedural 
requirements of 5 U.S.C. 553:
    (a) All oral communications from outside FEMA of significant 
information and argument respecting the merits of a proposed rule, 
received after notice of proposed informal rulemaking and in its course 
by FEMA or its offices and divisions or their personnel participating in 
the decision, should be summarized in writing and placed promptly in the 
Rules Docket File available for public inspection.
    (b) FEMA may conclude that restrictions on ex parte communications 
in particular rulemaking proceedings are necessitated by consideration 
of fairness or for other reasons.

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Sec. 1.7  Regulations agendas.

    (a) The FEMA semi-annual agenda called for by Executive Order 12291 
will be part of the Unified Agenda of Federal Regulations published in 
April and October of each year.
    (b) In accordance with 5 U.S.C. 605, the regulatory flexibility 
agenda required by 5 U.S.C. 602 and the list of rules, if any, to be 
reviewed pursuant to 5 U.S.C. 610 shall be included in the FEMA 
semiannual agenda described in paragraph (a) of this section.
    (c) The semiannual agenda shall, among other items, include:
    (1) A summary of the nature of each major rule being considered, the 
objectives and legal basis for the issuance of the rule, and an 
approximate schedule for completing action on any major rule for which 
the agency has issued a notice of proposed rulemaking.
    (2) The name and telephone number of a knowledgeable agency official 
for each item on the agenda; and
    (3) A list of existing regulations to be reviewed under the terms of 
the Order and a brief discussion of each such regulation.

[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]

Sec. 1.8  Regulations review.

    (a) As part of the semiannual agenda described in Sec. 1.7 of this 
part, FEMA will publish in the Federal Register and keep updated a plan 
for periodic review of existing rules at least within 10 years from date 
of publication of a rule as final. This includes those that have 
significant impact on a substantial number of small entities.
    (b) The purpose of the review shall be to determine whether such 
rules should be continued without change, or should be amended or 
rescinded, consistent with the stated objectives of applicable statutes, 
including minimizing any significant economic impact of the rules upon a 
substantial number of small entities.
    (c) In reviewing rules FEMA shall consider the following factors:
    (1) The continued need for the rule;
    (2) The nature, type and number of complaints or comments received 
concerning the rule from the public;
    (3) The complexity of the rule, including need for review of 
language for clarity;
    (4) The extent to which the rule overlaps, duplicates or conflicts 
with other Federal rules, and, to the extent feasible, with State and 
local governmental rules; and
    (5) The length of time since the rule has been evaluated or the 
degree to which technology, economic conditions, or other factors have 
changed in the area affected by the rule.

Sec. 1.9  Regulatory impact analyses.

    (a) FEMA shall, in connection with any major rule, prepare and 
consider a Regulatory Impact Analysis. Such analysis may be combined 
with the Regulatory Flexibility Analysis described in Secs. 1.12(f) and 
1.16(c) of this part.
    (b) FEMA shall initially determine whether a rule it intends to 
propose or to issue is a major rule and, if a major rule, shall prepare 
Regulatory Impact Analyses and transmit them, along with all notices of 
proposed rulemaking and all final rules, to the Director, Office of 
Management and Budget, as follows:
    (1) If no notice of proposed rulemaking is to be published for a 
proposed major rule that is not an emergency rule, the agency shall 
prepare only a final Regulatory Impact Analysis, which shall be 
transmitted, along with the proposed rule, to the Director, Office of 
Management and Budget, at least 60 days prior to the publication of the 
major rule as a final rule;
    (2) With respect to all other major rules, FEMA shall prepare a 
preliminary Regulatory Impact Analysis, which shall be transmitted, 
along with a notice of proposed rulemaking, to the Director, Office of 
Management and Budget, at least 60 days prior to the publication of a 
notice of proposed rulemaking, and a final Regulatory Impact Analysis, 
which shall be transmited along with the final rule at least 30 days 
prior to the publication of the major rule as a final rule;
    (3) For all rules other than major rules, FEMA shall, unless an 
exemption has been granted, submit to the Director, Office of Management 
and

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Budget, at least 10 days prior to publication, every notice of proposed 
rulemaking and final rule.
    (c) To permit each major rule to be analyzed in light of the 
requirements stated in section 2 of Executive Order 12291, each 
preliminary and final Regulatory Impact Analysis shall contain the 
following information:
    (1) A description of the potential benefits of the rule, including 
any beneficial effects that cannot be quantified in monetary terms, and 
the identification of those likely to receive the benefits;
    (2) A description of the potential costs of the rule, including any 
adverse effects that cannot be quantified in monetary terms, and the 
identification of those likely to bear the costs;
    (3) A determination of the potential net benefits of the rule, 
including an evaluation of effects that cannot be quantified in monetary 
terms;
    (4) A description of alternative approaches that could substantially 
achieve the same regulatory goal at lower cost, together with an 
analysis of this potential benefit and costs and a brief explanation of 
the legal reasons why such alternatives, if proposed, could not be 
adopted; and
    (5) Unless covered by the description required under paragraph 
(c)(4) of this section, an explanation of any legal reasons why the rule 
cannot be based on the requirements set forth in section 2 of Executive 
Order 12291.
