[Federal Register Volume 79, Number 49 (Thursday, March 13, 2014)]
[Rules and Regulations]
[Pages 14180-14182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-05442]



Federal Emergency Management Agency

44 CFR Part 12

[Docket ID: FEMA-2014-0011]
RIN 1660-AA81

Removal of Federal Advisory Committee Act Regulations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.


SUMMARY: This final rule removes the regulations that implement the 
Federal Advisory Committee Act (FACA) for the Federal Emergency 
Management Agency (FEMA). FEMA's implementation of FACA is now governed 
by the rules promulgated by the General Services Administration (GSA) 
and by the policies issued by the Department of Homeland Security 

DATES: Effective Date: April 14, 2014.

    Program Information: Demaris Belanger, Group Federal Officer (GFO), 
Office of the Chief Administrative Officer, Mission Support Bureau, 
Federal Emergency Management Agency, Room 706-A, 500 C Street SW., 
Washington, DC 20472-3000, phone: 202-212-2182, email: 
[email protected].
    Legal Information: Michael Delman, Attorney Advisor, Office of 
Chief Counsel, Federal Emergency Management Agency, 8NE, 500 C Street 
SW., Washington, DC 20472-3100, phone: 202-646-2447, email: 
[email protected].


I. Background

    The Federal Advisory Committee Act \1\ of 1972 (FACA) governs the 
establishment, operation, oversight, and termination of advisory 
committees within the executive branch of the Federal Government. With 
certain exceptions, an advisory committee is ``any committee, board, 
commission, council, conference, panel, task force, or other similar 
group, or any subcommittee or other subgroup thereof'' established or 
utilized by the President or one or more agencies, or established by 
statute, for the purpose of obtaining advice or recommendations.\2\ 
FACA includes requirements that each advisory committee have a charter 
and that meetings be open to the public, subject to certain limited 
exceptions.\3\ FACA also establishes a Committee Management Secretariat 
within the General Services Administration (GSA) that is responsible 
for all matters related to advisory committees.\4\ Pursuant to 
Executive Order 12024, the Administrator of GSA has been delegated all 
of the functions vested in the President by FACA. FACA requires that 
each agency establish uniform administrative guidelines and management 
controls for advisory committees established by the agency.\5\ The 
Federal Emergency Management

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Agency (FEMA) implemented the requirements of FACA through regulations 
published at 44 CFR part 12 titled ``Advisory Committees'' on September 
29, 1980.\6\ FEMA has made subsequent technical changes, but has made 
no substantive changes to the rule.\7\

    \1\ Public Law 92-463, 86 Stat. 770 (Oct. 6, 1972), as amended, 
5 U.S.C. App.
    \2\ Sec. 3, Public Law 92-463, as amended, 5 U.S.C. App.
    \3\ Secs. 9, 10, Public Law 92-463, as amended, 5 U.S.C. App.
    \4\ Sec. 7, Public Law 92-463, as amended, 5 U.S.C. App.
    \5\ Sec. 8, Public Law 92-463, as amended, 5 U.S.C. App.
    \6\ 45 FR 64179, Sep. 29, 1980.
    \7\ See 47 FR 13148, 13149-50, Mar. 29, 1982; 48 FR 44541, 
44543, Sept. 29, 1983; 49 FR 33878, 33879, Aug. 27, 1984; 50 FR 
40004, 40007, Oct. 1, 1985; 74 FR 15328, 15337-8, Apr. 3, 2009.

    On April 28, 1983, GSA published an interim final rule providing 
administrative and interpretative guidelines for Federal agencies on 
the implementation of FACA \8\, followed by a final rule on December 2, 
1987.\9\ GSA published another final rule on October 5, 1989 to clarify 
aspects of the 1987 rule.\10\ In 1997, GSA determined that the 1987 and 
1989 regulations had become out-of-date as a result of significant 
decisions issued by the Supreme Court and other Federal Courts. On June 
10, 1997, GSA issued an Advance Notice of Proposed Rulemaking to seek 
input on a proposed revision.\11\ GSA published a proposed rule on 
January 14, 2000 \12\ and a final rule on July 19, 2001.\13\ The 2001 
GSA FACA rule is codified at 41 CFR part 102-3. The rule ``provides the 
policy framework that must be used by agency heads in applying the 
Federal Advisory Committee Act.'' 41 CFR 102-3.5.

    \8\ 48 FR 19324, Apr. 28, 1983.
    \9\ 52 FR 45926, Dec. 2, 1987.
    \10\ 54 FR 41214, Oct. 5, 1989.
    \11\ 62 FR 31550, June 10, 1997.
    \12\ 65 FR 2504, Jan. 14, 2000.
    \13\ 66 FR 37728, July 19, 2001.

II. Discussion of the Rule

    This rule removes FEMA's regulations implementing FACA at 44 CFR 
part 12. FEMA's regulations implementing FACA are obsolete. Since FEMA 
promulgated its rule in 1980, GSA has promulgated several rules, 
including the 2001 rule setting up the framework for advisory 
committees throughout the executive branch of the Federal Government. 
GSA's rule includes detailed requirements for advisory committees along 
with appendices that contain key points and principles answering 
frequently asked questions on Federal advisory committees.
    In addition, FEMA, as a part of the Department of Homeland Security 
(DHS), follows the policies of DHS. FEMA was an independent agency when 
it promulgated its rule in 1980, but became part of DHS in 2003.\14\ 
DHS has an internal directive governing committee management; that 
directive is available on the web at http://www.dhs.gov/xlibrary/assets/foia/mgmt_directive_2300_committee_management.pdf. FEMA 
follows the DHS directive for the management of its advisory 
committees. This removal of part 12 reflects FEMA's existing practice 
of following GSA's regulations and DHS policies, rather than the 
obsolete part 12 regulations.

    \14\ Homeland Security Act of 2002, Public Law 107-296, 116 
Stat. 2135 (Nov. 25, 2002). See also 6 U.S.C. 313 (``There is in the 
Department [of Homeland Security] the Federal Emergency Management 

III. Regulatory Analyses

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) generally requires an agency 
to publish a rule for public comment prior to implementation. 5 U.S.C. 
553. The APA, however, provides an exception to this requirement for 
rules of agency procedure or practice. 5 U.S.C. 553(b)(3)(A). FEMA's 
removal of 44 CFR part 12 is related to FEMA's internal procedures. 
This rule addresses the internal procedures that FEMA uses for advisory 
committees, and it is limited to the requirements on FEMA for setting 
up and administering FACA committees. This rule falls within the APA's 
exception for rules of agency procedure or practice.

B. Executive Order 12866, Regulatory Planning and Review and Executive 
Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 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. This rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866. 
Accordingly, the rule has not been reviewed by the Office of Management 
and Budget. As explained in the background section, this rule is a 
removal of an obsolete part of 44 CFR. It will make no substantive 
changes to FEMA policies and procedures. This rule imposes no 
regulatory costs on the public. FEMA reviewed its regulations and 
determined that part 12 is outmoded. Therefore, FEMA has decided that 
it should repeal its advisory committee regulations and rely on the GSA 
rule and DHS guidance.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), and 
section 213(a) of the Small Business Regulatory Enforcement Fairness 
Act of 1996, Public Law 104-121, 110 Stat. 847, 858-9 (Mar. 29, 1996) 
(5 U.S.C. 601 note) require that special consideration be given to the 
effects of proposed regulations on small entities. The RFA mandates 
that an agency conduct an RFA analysis when an agency is ``required by 
section 553 . . ., or any other law, to publish general notice of 
proposed rulemaking for any proposed rule[.]'' 5 U.S.C. 603(a). 
Accordingly, an RFA is not required when a rule is exempt from notice 
and comment rulemaking. FEMA has determined that this rule is exempt 
from notice and comment rulemaking. Therefore, an RFA analysis under 5 
U.S.C. 603 is not required for this rule.

D. Unfunded Mandates Reform Act

    FEMA has not issued a notice of proposed rulemaking for this 
regulatory action; therefore, the provisions of the Unfunded Mandates 
Reform Act of 1995, as amended, 2 U.S.C. 658, 1501-1504, 1531-1536, 
1571, do not apply to this regulatory action.

E. 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. FEMA has determined that 
this rulemaking does not require any collection of information under 
the Paperwork Reduction Act.

F. 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 parts 
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

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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 
    Rulemaking is a major federal action subject to NEPA. However, FEMA 
has categorically excluded certain actions from the preparation of an 
EIS or EA, unless extraordinary circumstances exist. As applicable 
here, 44 CFR 10.8(d)(2)(ii) exempts the preparation, revision, and 
adoption of regulations from the preparation of an EA or EIS if the 
rule relates to an action that qualifies for a categorical exclusion. 
Administrative actions are categorically excluded from NEPA. 44 CFR 
10.8(d)(2)(i). Because this is a rulemaking related to an 
administrative function and no extraordinary circumstances exist, no EA 
or EIS will be prepared.

G. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments,'' (65 FR 67249, Nov. 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. FEMA has determined that this 
rulemaking will not have tribal implications.

H. 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. This 
rulemaking does not have federalism implications.

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 
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, national origin or 
income level.
    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.

J. Executive Order 12988, Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 9, 
1996), to minimize litigation, eliminate ambiguity, and reduce burden.

K. Congressional Review Act

    FEMA has sent this final rule to the Congress and to the Government 
Accountability Office under the Congressional Review of Agency 
Rulemaking Act, (``Congressional Review Act''), Public Law 104-121, 110 
Stat. 847 (Mar. 29, 1996) (5 U.S.C. 801 et seq.). This rule is not a 
``major rule'' within the meaning of the Congressional Review Act. It 
will not have an annual effect on the economy of $100,000,000 or more; 
it will not result in a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and it will not have significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets.

List of Subjects in 44 CFR Part 12

    Advisory committees.
    For the reasons discussed in the preamble, and under the authority 
of the Homeland Security Act of 2002, 6 U.S.C. 101 et seq., and the 
Federal Advisory Committee Act, 5 U.S.C. App., the Federal Emergency 
Management Agency amends 44 CFR Chapter I, subchapter A, as follows:


1. Remove and reserve part 12, consisting of Sec. Sec.  12.1 through 

    Dated: March 6, 2014.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2014-05442 Filed 3-12-14; 8:45 am]