Uncertainty Analysis
    The estimates of the costs of the final rule are subject to
uncertainty due to the uniqueness of each arbitration case. The cost
estimates can vary widely depending on complexity and other factors. As
a result, the cost estimate could be overstated or understated.
    There are several sources of uncertainty in this analysis: The
number of eligible applicants, the final deadlines for filing, and the
potential number of arbitration cases. Major disasters do not occur on
a regular time interval. The severity of the disaster would affect the
number of applicants that decide to apply for funding in the PA
Program. The number of eligible applicants can vary year-to-year.
    Historical data used in this analysis was based on the arbitration
process for Hurricanes Katrina and Rita, which is different in a couple
of key respects from this final arbitration process. While the cost
shares for Katrina and Rita were 100 percent, cost shares for future
disaster declarations may be as high as 25 percent for applicants.\37\
Because Katrina/Rita applicants were not required to pay for any
portion of their project cost, they had an incentive to apply for more
costly projects and pursue arbitration when denied. Future disasters
with a cost share may lead applicants to be more conservative in
applying for PA projects, which may result in fewer arbitration
requests than was indicated in the primary estimate.
---------------------------------------------------------------------------

    \37\ ``The Federal share of assistance is not less than 75
percent of the eligible cost. The recipient determines how the non-
Federal share (up to 25 percent) is split with the subrecipients
(i.e., eligible applicants).'' Program Overview: Public Assistance.
FEMA. https://www.fema.gov/assistance/public/program-overview. Last
accessed on: May 25, 2021.
---------------------------------------------------------------------------

    Additionally, the timeframe for submitting arbitration requests
under 44 CFR 206.209 was 30 days. However, FEMA is implementing a 60-
day submission deadline for arbitration submissions under DRRA
requirements to align with the 60-day submission timeframe for second
appeals. This additional time may affect the number of arbitration
cases submitted in the future, but FEMA cannot reliably predict these
impacts at this time.
Alternatives
    FEMA identified several alternative regulatory approaches to the
requirements in this final rule. The alternatives included: (1) Not
issuing a mandatory regulation; (2) an alternate definition of rural;
and (3) not requiring electronic submission.
    FEMA did not consider the first alternative option of not issuing a
mandatory regulation. The DRRA mandates FEMA to promulgate a rule
allowing the option of arbitration in lieu of a second appeal and
specifies the CBCA as the arbitration administrator. As such, FEMA must
pursue a regulatory action.
    FEMA considered using an alternate definition of rural, such as
OMB's nonmetropolitan area definition. OMB's nonmetropolitan area is
defined as areas outside the boundaries of metropolitan areas.\38\
---------------------------------------------------------------------------

    \38\ 2010 Standards for Delineating Metropolitan and
Micropolitan Statistical Areas; Notice. Office of Management and
Budget. See 75 FR 37246, June 28, 2010. https://www.govinfo.gov/content/pkg/FR-2010-06-28/pdf/2010-15605.pdf. Last accessed: May 25,
2021.
---------------------------------------------------------------------------

    Nonmetropolitan areas are outside the boundaries of metropolitan
areas and are further subdivided into two types:
    1. Micropolitan (micro) areas, which are nonmetro labor-market
areas centered on urban clusters of 10,000-49,999 persons and defined
with the same criteria used to define metro areas.
    2. All remaining counties, often labeled ``noncore'' counties
because they are not part of ``core-based'' metro or micro areas.
    OMB defines metropolitan areas to include:
    1. Central counties with one or more urbanized areas; urbanized
areas are densely-settled urban entities with 50,000 or more people.
    2. Outlying counties that are economically tied to the core
counties as measured by labor-force commuting. Outlying counties are
included if 25

percent of workers living in the county commute to the central
counties, or if 25 percent of the employment in the county consists of
workers coming out from the central counties--the so-called ``reverse''
commuting pattern.
    FEMA did not recommend using OMB's definition because it combines
rural area populations into Metropolitan counties. The OMB definition
would also result in some rural areas, such as the Grand Canyon, being
considered a metropolitan county. This alternative would not result in
reducing the impact on small entities, while accomplishing the stated
objective of the rule.
    FEMA considered not requiring applicants to submit a request for
arbitration electronically. Current practices allow FEMA to accept hard
copy submissions (through U.S. Mail or other means) for first and
second appeals. In addition, FEMA currently accepts electronic
submissions for requests for arbitration under 44 CFR 206.209. FEMA
chose to require electronic submissions as it would provide FEMA with
enhanced ability to track and establish deadlines in the arbitration
process. CBCA's rule requires applicants to use an electronic method to
submit their documentation and request for arbitration to CBCA. Thus,
requiring electronic submission will not pose an undue burden on most
applicants.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. An agency must prepare a Final Regulatory Flexibility
Analysis (FRFA) unless it determines and certifies that a rule, if
promulgated, will not have a significant economic impact on a
substantial number of small entities. This final rule will not have a
significant economic impact on a substantial number of small entities.
In accordance with the Regulatory Flexibility Act, a FRFA must contain
the following statements, including descriptions of the reason(s) for
the rulemaking, its objective(s), the affected small entities, any
additional burden for book or record keeping and other compliance
requirements; any Federal rules that duplicate, overlap, or conflict
with the rulemaking, and significant alternatives considered. The
following sections address these subjects individually in the context
of this final rule.

1. Statement of a need for, and objectives of the rule.

    PA helps State and local governments respond to and recover from
the challenges faced during major disasters and emergencies. To support
State and local governments facing those challenges, Congress passed
DRRA.
    Under the PA Program, as authorized by the Stafford Act, FEMA
awards grants to eligible applicants to assist them in responding to
and recovering from Presidentially-declared emergencies and major
disasters. The recipient, as defined at 44 CFR 206.201(m), is the
government to which a grant is awarded, and which is accountable for
the use of the funds provided. Generally, the State for which the
emergency or major disaster is declared is the recipient. The recipient
can also be an Indian Tribal government. The applicant, as defined at
44 CFR 206.201(a), is a State agency, local government, or eligible PNP
submitting an application to the recipient for assistance under the
State's grant.
    The PA Program provides Federal funds for debris removal, emergency
protective measures, repair and replacement of roads and bridges,
utilities, water treatment facilities, public buildings, and other
infrastructure. When the President declares an emergency or major
disaster declaration authorizing disbursement of funds through the PA
Program, that presidential declaration automatically authorizes FEMA to
accept applications from eligible applicants under the PA Program. To
apply for a grant under the PA Program, the eligible applicant must
submit a Request for PA to FEMA through the recipient. Upon award, the
recipient notifies the applicant of the award, and the applicant
becomes a subrecipient.
    Applicants currently have a right to arbitration to dispute FEMA
eligibility determinations associated with Hurricanes Katrina and Rita;
see 44 CFR 206.209. The DRRA amended the Stafford Act and FEMA
promulgated a regulation providing all applicants the right to request
arbitration for disputes under all disaster declarations after January
1, 2016 that are above certain dollar amount thresholds. This final
rule implements the Section 1219 requirements of DRRA and will grant
applicants an additional method of recourse.

2. Statement of the significant issues raised by the public comments in
response to the Initial Regulatory Flexibility Analysis (IRFA), a
statement of the assessment of the agency of such issues, and a
statement of any changes made to the proposed rule as a result of such
comments.

    FEMA did not receive any comments on the IRFA for this rule, and
therefore did not make any changes to this FRFA from the proposed rule
due to public comments.

3. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
response to the proposed rule, and a detailed statement of any change
made to the final rule as a result of the comments.

    FEMA did not receive any comments on the proposed rule from the
Chief Counsel for Advocacy of the SBA.

4. A description of and an estimate of the number of small entities to
which the rule will apply or an explanation of why no such estimate is
available.

    ``Small entity'' is defined in 5 U.S.C. 601. The term ``small
entity'' can have the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.''
Section 601(3) defines a ``small business'' as having the same meaning
as ``small business concern'' under Section 3 of the SBA. This includes
any small business concern that is independently owned and operated and
is not dominant in its field of operation. Section 601(4) defines a
``small organization'' as any not-for-profit enterprise which is
independently owned and operated and is not dominant in their field of
operation. Section 601(5) defines ``small governmental jurisdiction''
as governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than 50,000.
    The SBA also stipulates in its size standards of how large an
entity may be and still be classified as a ``small entity.'' These
small business size standards are matched to industries described in
the North American Industry Classification System to determine if an
entity is considered small.
    This final rule does not place any additional requirements on small
entities. It does, however, offer them an alternative means to dispute
FEMA's determination for PA eligibility. If the entity chooses to
dispute a PA determination, and they select

arbitration rather than a second appeal, they would be responsible for
their share of the cost of the arbitration process.
    All small entities would have to meet the final requirements to be
eligible for arbitration. FEMA identified 3,478 applicants for FEMA's
PA Program \39\ that would be eligible for arbitration under the final
requirements for the time frame from 2010 through 2019. FEMA used
Slovin's formula \40\ and a 90 percent confidence interval to determine
the sample size. FEMA sampled 97 of these applicants and found that 74
(76 percent) met the definition of a small entity based on the
population size of local governments (less than 50,000 population),\41\
or PNPs based on size standards set by the SBA.\42\ The remaining 23
entities were not found to be considered small entities. Eligible small
entities included 67 small government agencies and seven PNP
organizations. Based on information presented in the Executive Orders
12866 and 13563 section, FEMA estimates 15 arbitration cases per year.
If 76 percent of these are small entities, FEMA estimates 11
arbitration requests per year from small entities with an average cost
of between $13,211 and $22,651 per case. Eleven small entities do not
represent a substantial number of small entities impacted by this final
rule and the costs imposed to these small entities are not significant.
---------------------------------------------------------------------------

    \39\ FEMA reported 3,778 applicants in the NPRM to this rule.
The number of applicants has since been adjusted to account for more
recent data and new timeframe for analysis. The NPRM contained data
from 2009-2017 due to the limited data available at that time. This
final rule contains data from 2010-2019.
    \40\ Slovin's formula is n = N/(1 + N*e-2). 3,478/(1 + 3,478 x
0.1-2) = 97 (rounded).
    \41\ Information on population sizes was obtained using the U.S.
Census Bureau's City and Town Population Totals 2010-2018. Available
at https://www.census.gov/data/tables/time-series/demo/popest/2010s-total-cities-and-towns.html.
    \42\ Small Business Administration. ``Table of Size Standards''
(.xlxs). Available at https://www.sba.gov/document/support-table-size-standards. Revenue and employment information for individual
PNP's was obtained from PNP websites.
---------------------------------------------------------------------------

5. Description of the projected reporting, recordkeeping, and other
compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the types of professional skills necessary for preparation of the
report or record.

    Arbitration--As an alternative to the appeal process, applicants
may request arbitration of the disputed determination. To be eligible
for Section 423 arbitration, a PA applicant's request must meet all
three of the following conditions: (1) The amount in dispute arises
from a disaster declared after January 1, 2016; (2) the disputed amount
exceeds $500,000 (or $100,000 if the applicant is in a ``rural area,''
defined as having a population of less than 200,000 living outside an
urbanized area); and (3) the applicant submitted a first appeal with
FEMA pursuant to the requirements established in 44 CFR 206.206.
    The applicant must submit a Request for Arbitration to the
recipient, CBCA, and FEMA. The Request for Arbitration must contain a
written statement, which specifies the amount in dispute, all
documentation supporting the position of the applicant, the disaster
number, and the name and address of the applicant's authorized
representative or counsel. FEMA estimates that it will take an
applicant 2 hours to complete the Request for Arbitration (these 2
hours are accounted for in the economic analysis through the 47 hours
of hearing preparation time for applicants) with a wage rate of $86.36
for a general and operations manager. FEMA estimates the opportunity
cost of time for completing the request will be $172.72 per applicant.
With an estimated 11 cases per year, FEMA estimates the total burden
for completing the request is $1,900 per year. The person completing
the request would need to be familiar with PA regulations and policies.

6. Description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.

    The alternatives included: (1) Using another definition for
``rural'' and (2) not requiring electronic submission.
    FEMA considered using OMB's nonmetropolitan area definition as an
alternate definition of the term ``rural.'' OMB's nonmetropolitan area
is defined as areas outside the boundaries of metropolitan areas and
are further subdivided into two types:
    1. Micropolitan (micro) areas, which are nonmetro labor-market
areas centered on urban clusters of 10,000-49,999 persons and defined
with the same criteria used to define metro areas.
    2. All remaining counties, often labeled ``noncore'' counties
because they are not part of ``core-based'' metro or micro areas.
    OMB defines metropolitan areas to include:
    1. Central counties with one or more urbanized areas; urbanized
areas are densely-settled urban entities with 50,000 or more people.
    2. Outlying counties that are economically tied to the core
counties as measured by labor-force commuting. Outlying counties are
included if 25 percent of workers living in the county commute to the
central counties, or if 25 percent of the employment in the county
consists of workers coming out from the central counties--the so-called
``reverse'' commuting pattern.
    FEMA did not recommend using the OMB's definition as it combines
rural area populations into Metropolitan counties. The OMB definition
would also result in some rural areas, such as the Grand Canyon, being
considered a metropolitan county. This alternative would not result in
reducing the impact on small entities while accomplishing the stated
objective of the rule.
    FEMA considered not requiring electronic submission. Current
practices allow FEMA to accept physical mail for appeals. In addition,
FEMA currently accepts electronic submissions for requests for
arbitration under 44 CFR 206.209. As CBCA provided an electronic
address for applicants to submit their request for arbitration and
documentation, applicants must use electronic method if they choose the
arbitration process. Thus, electronic submission will not pose an
additional undue burden on applicants that are considered small
entities.
Conclusion
    This rule codifies legislative requirements included in the DRRA,
which adds arbitration as a permanent alternative to a second appeal
under the PA Program. Additionally, applicants that have had a first
appeal pending with FEMA for more than 180 calendar days may withdraw
such appeal and submit a request for arbitration. On December 18, 2018,
FEMA implemented section 1219 of DRRA by posting a Fact Sheet on its
website. On June 21, 2019, CBCA published a final rule (see 84 FR
29085) and FEMA has published a corresponding fact sheet. PA
arbitration has been available for disasters declared after January 1,
2016. FEMA certifies that this regulation will not have a significant
economic impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504,
1531-1536, 1571 (the Act), pertains to any final 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 (adjusted annually for inflation) 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. Exemptions from the Act are found at 2
U.S.C. 1503, they include any regulation or final regulation that
``provides for emergency assistance or relief at the request of any
State, local, or tribal government or any official of a State, local,
or tribal government.'' Thus, FEMA finds this rule to be exempt from
the Act.
    Additionally, FEMA has determined that this rule would not result
in the expenditure by State, local, and Tribal governments, in the
aggregate, nor by the private sector, of $100 million or more (adjusted
annually for inflation) in any one year because of a Federal mandate,
and it would not significantly or uniquely affect small governments.
Therefore, no actions are deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.

D. Paperwork Reduction Act 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.
    This proposed information collection previously published in the
Federal Register on August 31, 2020 at 85 FR 53725 as part of the NPRM.
Since the proposed information collection published on August 31, 2020,
FEMA completed an emergency revision of information collection 1660-
0017. In the emergency information collection for 1660-0017 FEMA added
the FEMA Template 104-FY-21-100 Equitable COVID-19 Response and
Recovery: Vaccine Administration Information which resulted in 51,016
new Total No. of Responses with an .5 Average Burden per response of
(in hours) which resulted in 25,508 Total Annual Burden (in hours)
totaling $1,445,028 in additional Total Annual Respondent Cost. Also,
FEMA is correcting the wage rate used to calculate the Estimated Total
Annual Respondent Cost in the NPRM, which resulted in a decrease of the
Estimated Total Annual Respondent Cost from $29,601,921 to $27,845,344.
FEMA incorrectly used the wage rate for the whole industry, instead of
the State government industry wage rate. \43\ Additionally, the NPRM
incorrectly listed the proposed decrease to the Estimated Total Annual
Cost to the Federal Government as $29,976, an error of $2,498. Rather,
the NPRM should have listed a proposed decrease of $27,478 in
arbitration travel costs; as, we do not have to include them per the
PRA exceptions for civil & administrative actions. See 44 U.S.C.
3518(c). Additionally, the Staff Salaries changed as the wage rate
multiplier changed from 1.6 to 1.45. Finally, the NPRM incorrectly
listed the Estimated Total Annual Costs to the Federal Government, as
$1,890,650, when the NPRM should have listed it as $1,930,187, due to
the previously mentioned changes. No comments were received regarding
the proposed information collection. The purpose of this section is to
notify the public that FEMA will submit the information collection
abstracted below to OMB for review and clearance. This final rule
serves as the 30-day comment period pursuant to 5 CFR 1320.12. FEMA
invites the public to comment on this collection of information.
---------------------------------------------------------------------------

    \43\ Bureau of Labor Statistics, Occupational Employment and
Wage Statistics. https://www.bls.gov/oes/. Last accessed: June 10,
2021.
---------------------------------------------------------------------------

Collection of Information
    Title: PA Program.
    Type of information collection: Revision of a currently approved
collection.
    OMB Number: 1660-0017.
    Form Forms: FEMA Form 009-0-49 Request for Public Assistance; FEMA
Form 009-0-91 Project Worksheet (PW); FEMA Form 009-0-91A Project
Worksheet (PW)--Damage Description and Scope of Work; FEMA Form 009-0-
91B Project Worksheet (PW)--Cost Estimate Continuation Sheet; FEMA Form
009-0-91C Project Worksheet (PW)--Maps and Sketches Sheet; FEMA Form
009-0-91D Project Worksheet (PW)--Photo Sheet; FEMA Form 009-0-120
Special Considerations Questions; FEMA Form 009-0-121 PNP Facility
Questionnaire; FEMA Form 009-0-123 Force Account Labor Summary Record;
FEMA Form 009-0-124 Materials Summary Record; FEMA Form 009-0-125
Rented Equipment Summary Record; FEMA Form 009-0-126 Contract Work
Summary Record; FEMA Form 009-0-127 Force Account Equipment Summary
Record; FEMA Form 009-0-128 Applicant's Benefits Calculation Worksheet;
FEMA Form 009-0-111, Quarterly Progress Report; FEMA Form 009-0-141,
FAC-TRAX System, FEMA Template 104-FY-21-100 Equitable COVID-19
Response and Recovery: Vaccine Administration Information.
    Abstract: The information collected is utilized by FEMA to make
determinations for PA grants based on the information supplied by the
respondents.
    Affected Public: State, local, or Tribal Government.
    Estimated Number of Respondents: 1,068.
    Estimated Number of Responses: 449,084.
    Estimated Total Annual Burden Hours: 491,533.
    The final regulation would provide applicants an additional choice
in FEMA's appeals and arbitration processes: Applicants must choose
either submitting a second appeal or submitting a request for
arbitration. Or, an applicant may select arbitration if the Regional
Administrator has received a first appeal but has not rendered a
decision within 180 calendar days of receipt. There is no change to the
number of responses due to the final rule, as applicants can only
choose one option. The final rule's implementation would not impact the
total number of responses or burden hours.
    FEMA estimated it will take approximately 2 hours to prepare an
electronic appeal or arbitration. This estimate is based on the
assumption that most of the information necessary for preparing the
appeal or arbitration request is found in the existing Project
Worksheet.
    Recipients will also provide a recommendation per each applicant
request for an appeal or arbitration. The total number of
recommendations would not change because of the final rule. FEMA
estimates it will take approximately 1 hour to prepare a
recommendation.
    Currently, the estimated time to complete a request and submit a
letter of recommendation for an appeal is three hours. FEMA also
estimates the time to complete a request and submit an electronic
recommendation for arbitration would also be three hours. The applicant
could re-use the same information from the request for an appeal or
arbitration and the recipient would review similar information in
providing its recommendation. The final

rule would not impact the estimate of the burden hours.
    Table 15 provides estimates of annualized cost to respondents for
the hour burdens for the collection of information.

                                                  Table 15--Estimated Annualized Burden Hours and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Number of                Avg. burden     Total                     Total
                                                                Number of    responses      Total         per         annual    Avg. hourly     annual
        Type of respondent              Form name/form No.     respondents      per       number of     response    burden (in   wage rate    respondent
                                                                             respondent   responses    (in hours)     hours)                     cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
State, Local or Tribal Government.  FEMA Form 009-0-49,                 56          129        7,224         0.25        1,806       $56.65     $102,310
                                     Request for PA.
State, Local or Tribal Government.  FEMA Form 009-0-91,                 56          840       47,040          1.5       70,560        56.65    3,997,224
                                     Project Worksheet (PW)
                                     and a Request for Time
                                     Extension.
State, Local or Tribal Government.  FEMA Form 009-0-91A                 56          784       43,904          1.5       65,856        56.65    3,730,742
                                     Project Work Sheet (PW)
                                     Damage Description and
                                     Scope of Work.
State, Local or Tribal Government.  FEMA Form 009-0-91B,                56          784       43,904       1.3333       58,537        56.65    3,316,121
                                     Project Worksheet (PW)
                                     Cost Estimate
                                     Continuation Sheet and
                                     Request for additional
                                     funding for Cost
                                     Overruns.
State, Local or Tribal Government.  FEMA Form 009-0-91C                 56          728       40,768          1.5       61,152        56.65    3,464,261
                                     Project Worksheet (PW)
                                     Maps and Sketches Sheet.
State Local or Tribal Government..  FEMA Form 009-0-91D                 56          728       40,768          1.5       61,152        56.65    3,464,261
                                     Project Worksheet (PW)
                                     Photo Sheet.
State, Local or Tribal Government.  FEMA Form 009-0-120,                56          840       47,040          0.5       23,520        56.65    1,332,408
                                     Special Considerations
                                     Questions/.
State, Local or Tribal Government.  FEMA Form 009-0-128,                56          784       43,904          0.5       21,952        56.65    1,243,581
                                     Applicant's Benefits
                                     Calculation Worksheet/.
State, Local or Tribal Government.  FEMA Form 009-0-121, PNP            56           94        5,264          0.5        2,632        56.65      149,103
                                     Facility Questionnaire.
State, Local or Tribal Government.  FEMA Form 009-0-123,                56           94        5,264          0.5        2,632        56.65      149,103
                                     Force Account Labor
                                     Summary Record.
State, Local or Tribal Government.  FEMA Form 009-0-124,                56           94        5,264         0.25        1,316        56.65       74,551
                                     Materials Summary Record/
                                     .
State, Local or Tribal Government.  FEMA Form 009-0-125,                56           94        5,264          0.5        2,632        56.65      149,103
                                     Rented Equipment Summary
                                     Record.
State, Local or Tribal Government.  FEMA Form 009-0-126,                56           94        5,264          0.5        2,632        56.65      149,103
                                     Contract Work Summary
                                     Record/.
State, Local or Tribal Government.  FEMA Form 009-0-127,                56           94        5,264         0.25        1,316        56.65       74,551
                                     Force Account Equipment
                                     Summary Record/.
State, Local or Tribal Government.  State Administrative Plan           56            1           56            8          448        56.65       25,379
                                     and State Plan
                                     Amendments/No Form.
State, Local or Tribal Government.  FEMA Form 009-0-111,                56            4          224          100       22,400        56.65    1,268,960
                                     Quarterly Progress
                                     Report.
State, Local or Tribal Government.  Request for Appeals or              56            9          504            3        1,512        56.65       85,655
                                     Arbitrations &
                                     Recommendation/No Forms.
State, Local or Tribal Government.  Request for Arbitration &            4            5           20            3           60        56.65        3,399
                                     Recommendation resulting
                                     from Hurricanes Katrina
                                     or Rita/No Form.
State, Local or Tribal Government.  FEMA Form 009-0-141, FAC-           56          913       51,128         1.25       63,910        56.65    3,620,502
                                     TRAX System.
State, Local or Tribal Government.  FEMA Template 104-FY-21-            56          911       51,016          0.5       25,508        56.65    1,445,028
                                     100 Equitable COVID-19
                                     Response and Recovery.
                                                              ------------------------------------------------------------------------------------------
    Total.........................  .........................        1,068  ...........      449,084  ...........      491,533  ...........   27,845,344
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The ``Avg. Hourly Wage Rate'' for each respondent includes a 1.62 multiplier to reflect a fully-loaded wage rate.

    Estimated Total Annual Respondent Cost: $27,845,344.
    Estimated Respondents' Operation and Maintenance Costs: N/A.
    Estimated Respondents' Capital and Start-Up Costs: N/A.
    Estimated Total Annual Costs to the Federal Government: $1,930,187.

E. Privacy Act

    Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a final 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.
    In accordance with DHS policy, FEMA has completed a Privacy
Threshold Analysis (PTA) for this final rule. DHS has determined that
this final rule does not affect the 1660-0017 OMB Control Number's
current compliance with the E-Government Act of 2002 or the Privacy Act
of 1974, as amended. As a result, DHS has concluded that the 1660-0017
OMB Control Number is covered by the DHS/FEMA/PIA-013 Grants Management
Programs Privacy Impact Assessment (PIA). Additionally, DHS has decided
that the 1660-0017 OMB Control Number is covered by the DHS/FEMA--009
Hazard Mitigation,

Disaster Public Assistance, and Disaster Loan Programs System of
Records, 79 FR 16015, Mar. 24, 2014 System of Records Notice (SORN).

F. National Environmental Policy Act of 1969 (NEPA)

    Section 102 of the National Environmental Policy Act of 1969
(NEPA), 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq.) requires
Federal agencies to consider the impacts of their proposed actions on
the quality of the human environment. Each agency can develop
categorical exclusions (catexes) to cover actions that have been
demonstrated to not typically trigger significant impacts to the human
environment individually or cumulatively. If an action does not qualify
for a catex and has the potential to significantly affect the
environment, agencies develop environmental assessments (EAs) to
evaluate those actions. The Council on Environmental Quality's
procedures for implementing NEPA, 40 CFR parts 1500 through 1508,
require Federal agencies to prepare Environmental Impact Statements
(EISs) for major Federal actions significantly affecting the quality of
the human environment. At the end of the EA process, the agency will
determine whether to make a Finding of No Significant Impact or whether
to initiate the EIS process.
    Rulemaking is a major Federal action subject to NEPA. The list of
catexes at DHS Instruction Manual 023-01-001-01 (Revision 01),
``Implementation of the National Environmental Policy Act (NEPA),''
Appendix A, includes a catex for the promulgation of certain types of
rules, including rules that implement, without substantive change,
statutory or regulatory requirements and rules that interpret or amend
an existing regulation without changing its environmental effect.
(Catex A3(b) and (d)).
    The purpose of this rule is to finalize the proposed regulations to
implement the new right of arbitration authorized by the DRRA, and to
revise FEMA's regulations regarding first and second PA appeals.
Additionally, in response to a public comment, FEMA is adding a
definition of Regional Administrator. Plus, FEMA made changes to the
regulatory text regarding first appeals and second appeals at
206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a result of the 60-day
appeals deadline comments. Finally, FEMA is making two technical
revisions at 206.206(b) and 206.206(b)(3)(i)(A) to align the regulatory
text with the dispute of the eligibility for assistance or repayment of
assistance language of Section 423(d)(1) of the Stafford Act. These
changes are to implement statutory requirements and to amend existing
regulation without changing its environmental effect, consistent with
Catex A3(b) and (d), as defined in DHS Instruction Manual 023-01-001-01
(Rev. 01), Appendix A. No extraordinary circumstances exist that will
trigger the need to develop an EA or EIS. See DHS Instruction Manual
023-01-001-01 V(B)(2).

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 will 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.
    The purpose of this rule is to finalize the proposed regulations to
implement the new right of arbitration authorized by the DRRA, and to
revise FEMA's regulations regarding first and second PA appeals.
Additionally, in response to a public comment, FEMA is adding a
definition of Regional Administrator. Plus, FEMA made changes to the
regulatory text regarding first appeals and second appeals at
206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a result of the 60-day
appeals deadline comments. Finally, FEMA is making two technical
revisions at 206.206(b) and 206.206(b)(3)(i)(A) to align the regulatory
text with the dispute of the eligibility for assistance or repayment of
assistance language of Section 423(d)(1) of the Stafford Act.
    Under the final rule, Indian Tribal Governments have the same
opportunity to participate in arbitrations as other eligible
applicants; however, given the participation criteria required under 42
U.S.C. 5189a(d) and its voluntary nature, FEMA anticipates a very small
number, if any Indian Tribal Governments, will participate in the new
permanent right of arbitration. FEMA also anticipates a very small
number of Indian Tribal Governments will be affected by the other major
revisions to 44 CFR 206.206. As a result, FEMA does not expect this
final rule to have a substantial direct effect on one or more Indian
Tribal Governments or impose direct compliance costs on Indian Tribal
Governments. Additionally, since FEMA anticipates a very small number,
if any Indian Tribal Governments will participate in the arbitration
portion of the final rule nor will be affected by the rest of the
finalized revisions to 44 CFR 206.206, FEMA does not expect the
regulations to have substantial direct effects on the relationship
between the Federal Government and Indian Tribal Governments or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribal Governments.

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. FEMA has
analyzed this final rule under Executive Order 13132 and determined
that it does not have implications for federalism.

I. Executive Order 12630, Taking of Private Property

    This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, ``Governmental
Actions and Interference With Constitutionally Protected Property
Rights'' (53 FR 8859, Mar. 18, 1988).

J. Executive Order 12898, Environmental Justice

    Executive Order 12898 ``Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations'' (59 FR
7629, Feb. 16, 1994), as amended by Executive Order 12948 (60 FR 6381,
Feb. 1, 1995) mandates that Federal agencies identify and address, as
appropriate, disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on
minority and low-income populations. It 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, or national origin or income level. The purpose
of this rule is to finalize the proposed regulations to implement the
new right of arbitration authorized by the DRRA, and to revise FEMA's
regulations regarding first and second PA appeals. Additionally, in
response to a public comment, FEMA is adding a definition of Regional
Administrator. Plus, FEMA made changes to the regulatory text regarding
first appeals and second appeals at 206.206(b)(1)(ii)(A) and
(b)(2)(ii)(A) as a result of the 60-day appeals deadline comments.
Finally, FEMA is making two technical revisions at 206.206(b) and
206.206(b)(3)(i)(A) to align the regulatory text with the dispute of
the eligibility for assistance or repayment of assistance language of
Section 423(d)(1) of the Stafford Act. There are no adverse effects and
no disproportionate effects on minority or low-income populations.

K. Executive Order 12988, Civil Justice Reform

    This final rule meets applicable standards in Sections 3(a) and
3(b)(2) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729,
Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce
burden.

L. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

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

M. Congressional Review of Agency Rulemaking

    Under the Congressional Review of Agency Rulemaking 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.
    FEMA has submitted this final rule to the Congress and to GAO
pursuant to the CRA. OMB has determined that this rule is not a ``major
rule'' within the meaning of the CRA.

List of Subjects in 44 CFR Part 206

    Administrative practice and procedure, Coastal zone, Community
facilities, Disaster assistance, Fire prevention, Grant programs--
housing and community development, Housing, Insurance,
Intergovernmental relations, Loan programs--housing and community
development, Natural resources, Penalties, Reporting and recordkeeping
requirements.

    For the reasons stated in the preamble, the Federal Emergency
Management Agency amends 44 CFR part 206 as follows:

PART 206--FEDERAL DISASTER ASSISTANCE

0
1. The authority citation for part 206 continues to read as follows:

    Authority:  Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security
Delegation 9001.1.

0
2. Revise Sec.  206.206 to read as follows:

Sec.  206.206   Appeals and arbitrations.

    (a) Definitions. The following definitions apply to this section:
    Administrator means the Administrator of the Federal Emergency
Management Agency.
    Amount in dispute means the difference between the amount of
financial assistance sought for a Public Assistance project and the
amount of financial assistance for which FEMA has determined such
Public Assistance project is eligible.
    Applicant has the same meaning as the definition at Sec.
206.201(a).
    Final agency determination means: (1) The decision of FEMA, if the
applicant or recipient does not submit a first appeal within the time
limits provided for in paragraph (b)(1)(ii)(A) of this section; or
    (2) The decision of FEMA, if the applicant or recipient withdraws
the pending appeal and does not file a request for arbitration within
30 calendar days of the withdrawal of the pending appeal; or
    (3) The decision of the FEMA Regional Administrator, if the
applicant or recipient does not submit a second appeal within the time
limits provided for in paragraph (b)(2)(ii)(A) of this section.
    Recipient has the same meaning as the definition at Sec.
206.201(m).
    Regional Administrator means an administrator of a regional office
of FEMA, or his/her designated representative.
    Rural area means an area with a population of less than 200,000
outside an urbanized area.
    Urbanized area means an area that consists of densely settled
territory that contains 50,000 or more people.
    (b) Appeals and Arbitrations. An eligible applicant or recipient
may appeal any determination previously made related to an application
for or the provision of Public Assistance according to the procedures
of this section. An eligible applicant may request arbitration to
dispute the eligibility for assistance or repayment of assistance.
    (1) First Appeal. The applicant must make a first appeal in writing
and submit it electronically through the recipient to the Regional
Administrator. The recipient must include a written recommendation on
the applicant's appeal with the electronic submission of the
applicant's first appeal to the Regional Administrator. The recipient
may make recipient-related appeals to the Regional Administrator.
    (i) Content. A first appeal must:
    (A) Contain all documented justification supporting the applicant
or recipient's position;
    (B) Specify the amount in dispute, as applicable; and
    (C) Specify the provisions in Federal law, regulation, or policy
with which the applicant or recipient believes the FEMA determination
was inconsistent.
    (ii) Time Limits. (A) The applicant may make a first appeal through
the recipient within 60 calendar days from the date of the FEMA
determination that is the subject of the appeal and the recipient must
electronically forward to the Regional Administrator the applicant's
first appeal with a recommendation within 120 calendar days from the
date of the FEMA determination that is the subject of the appeal. If
the applicant or the recipient do not meet their respective 60-calendar
day and 120-calendar day deadlines, FEMA will deny the appeal. A
recipient may make a recipient-related first appeal within 60 calendar
days from the date of the FEMA determination that is the subject of the
appeal and must electronically submit their first appeal to the
Regional Administrator.
    (B) Within 90 calendar days following receipt of a first appeal, if
there is a need for additional information, the Regional Administrator
will provide electronic notice to the recipient and applicant. If there
is no need for additional information, then FEMA will not provide
notification. The Regional Administrator will generally allow the

recipient 30 calendar days to provide any additional information.
    (C) The Regional Administrator will provide electronic notice of
the disposition of the appeal to the applicant and recipient within 90
calendar days of receipt of the appeal or within 90 calendar days
following the receipt of additional information or following expiration
of the period for providing the information.
    (iii) Technical Advice. In appeals involving highly technical
issues, the Regional Administrator may, at his or her discretion,
submit the appeal to an independent scientific or technical person or
group having expertise in the subject matter of the appeal for advice
or recommendation. The period for this technical review may be in
addition to other allotted time periods. Within 90 calendar days of
receipt of the report, the Regional Administrator will provide
electronic notice of the disposition of the appeal to the recipient and
applicant.
    (iv) Effect of an Appeal. (A) FEMA will take no action to implement
any determination pending an appeal decision from the Regional
Administrator, subject to the exceptions in paragraph (b)(1)(iv)(B) of
this section.
    (B) Notwithstanding paragraph (b)(1)(iv)(A) of this section, FEMA
may:
    (1) Suspend funding (see 2 CFR 200.339);
    (2) Defer or disallow other claims questioned for reasons also
disputed in the pending appeal; or
    (3) Take other action to recover, withhold, or offset funds if
specifically authorized by statute or regulation.
    (v) Implementation. If the Regional Administrator grants an appeal,
the Regional Administrator will take appropriate implementing
action(s).
    (vi) Guidance. FEMA may issue separate guidance as necessary to
supplement paragraph (b)(1) of this section.
    (2) Second Appeal. If the Regional Administrator denies a first
appeal in whole or in part, the applicant may make a second appeal in
writing and submit it electronically through the recipient to the
Assistant Administrator for the Recovery Directorate. The recipient
must include a written recommendation on the applicant's appeal with
the electronic submission of the applicant's second appeal to the
Assistant Administrator for the Recovery Directorate. The recipient may
make recipient-related second appeals to the Assistant Administrator
for the Recovery Directorate.
    (i) Content. A second appeal must:
    (A) Contain all documented justification supporting the applicant
or recipient's position;
    (B) Specify the amount in dispute, as applicable; and
    (C) Specify the provisions in Federal law, regulation, or policy
with which the applicant or recipient believes the FEMA determination
was inconsistent.
    (ii) Time Limits. (A) If the Regional Administrator denies a first
appeal in whole or in part, the applicant may make a second appeal
through the recipient within 60 calendar days from the date of the
Regional Administrator's first appeal decision and the recipient must
electronically forward to the Assistant Administrator for the Recovery
Directorate the applicant's second appeal with a recommendation within
120 calendar days from the date of the Regional Administrator's first
appeal decision. If the applicant or the recipient do not meet their
respective 60-calendar day and 120-calendar day deadlines, FEMA will
deny the appeal. If the Regional Administrator denies a recipient-
related first appeal in whole or in part, the recipient may make a
recipient-related second appeal within 60 calendar days from the date
of the Regional Administrator's first appeal decision and the recipient
must electronically submit their second appeal to the Assistant
Administrator for the Recovery Directorate.
    (B) Within 90 calendar days following receipt of a second appeal,
if there is a need for additional information, the Assistant
Administrator for the Recovery Directorate will provide electronic
notice to the recipient and applicant. If there is no need for
additional information, then FEMA will not provide notification. The
Assistant Administrator for the Recovery Directorate will generally
allow the recipient 30 calendar days to provide any additional
information.
    (C) The Assistant Administrator for the Recovery Directorate will
provide electronic notice of the disposition of the appeal to the
recipient and applicant within 90 calendar days of receipt of the
appeal or within 90 calendar days following the receipt of additional
information or following expiration of the period for providing the
information.
    (iii) Technical Advice. In appeals involving highly technical
issues, the Assistant Administrator for the Recovery Directorate may,
at his or her discretion, submit the appeal to an independent
scientific or technical person or group having expertise in the subject
matter of the appeal for advice or recommendation. The period for this
technical review may be in addition to other allotted time periods.
Within 90 calendar days of receipt of the report, the Assistant
Administrator for the Recovery Directorate will provide electronic
notice of the disposition of the appeal to the recipient and applicant.
    (iv) Effect of an Appeal. (A) FEMA will take no action to implement
any determination pending an appeal decision from the Assistant
Administrator for the Recovery Directorate, subject to the exceptions
in paragraph (b)(2)(iv)(B) of this section.
    (B) Notwithstanding paragraph (b)(2)(iv)(A) of this section, FEMA
may:
    (1) Suspend funding (see 2 CFR 200.339);
    (2) Defer or disallow other claims questioned for reasons also
disputed in the pending appeal; or
    (3) Take other action to recover, withhold, or offset funds if
specifically authorized by statute or regulation.
    (v) Implementation. If the Assistant Administrator for the Recovery
Directorate grants an appeal, the Assistant Administrator for the
Recovery Directorate will direct the Regional Administrator to take
appropriate implementing action(s).
    (vi) Guidance. FEMA may issue separate guidance as necessary to
supplement paragraph (b)(2) of this section.
    (3) Arbitration. (i) Applicability. An applicant may request
arbitration from the Civilian Board of Contract Appeals (CBCA) if:
    (A) There is a dispute of the eligibility for assistance or of the
repayment of assistance arising from a major disaster declared on or
after January 1, 2016; and
    (B) The amount in dispute is greater than $500,000, or greater than
$100,000 for an applicant for assistance in a rural area; and
    (C) The Regional Administrator has denied a first appeal decision
or received a first appeal but not rendered a decision within 180
calendar days of receipt.
    (ii) Limitations. A request for arbitration is in lieu of a second
appeal.
    (iii) Request for Arbitration. (A) An applicant may initiate
arbitration by submitting an electronic request simultaneously to the
recipient, the CBCA, and FEMA. See 48 CFR part 6106.
    (B) Time Limits. (1) An applicant must submit a request for
arbitration within 60 calendar days from the date of the Regional
Administrator's first appeal decision; or
    (2) If the first appeal was timely submitted, and the Regional
Administrator has not rendered a decision within 180 calendar days of

receiving the appeal, an applicant may arbitrate the decision of FEMA.
To request arbitration, the applicant must first electronically submit
a withdrawal of the pending appeal simultaneously to the recipient and
the FEMA Regional Administrator. The applicant must then submit a
request for arbitration to the recipient, the CBCA, and FEMA within 30
calendar days from the date of the withdrawal of the pending appeal.
    (C) Content of request. The request for arbitration must contain a
written statement that specifies the amount in dispute, all
documentation supporting the position of the applicant, the disaster
number, and the name and address of the applicant's authorized
representative or counsel.
    (iv) Expenses. Expenses for each party will be paid by the party
who incurred the expense.
    (v) Guidance. FEMA may issue separate guidance as necessary to
supplement paragraph (b)(3) of this section.
    (c) Finality of decision. (1) A FEMA final agency determination or
a decision of the Assistant Administrator for the Recovery Directorate
on a second appeal constitutes a final decision of FEMA. Final
decisions are not subject to further administrative review.
    (2) In the alternative, a decision of the majority of the CBCA
panel constitutes a final decision, binding on all parties. See 48 CFR
6106.613. Final decisions are not subject to further administrative
review.

Deanne B. Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-17213 Filed 8-13-21; 8:45 am]
BILLING CODE 9111-19-P


[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Rules and Regulations]
[Pages 72384-72385]
[FR Doc No: 2022-25650]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 1141

[Docket No. FDA-2019-N-3065]
RIN 0910-AI39

Tobacco Products; Required Warnings for Cigarette Packages and
Advertisements; Delayed Effective Date

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule; delay of effective date.

-----------------------------------------------------------------------

SUMMARY: As required by an order issued by the U.S. District Court for
the Eastern District of Texas, this action delays the effective date of
the final rule (``Tobacco Products; Required Warnings for Cigarette
Packages and Advertisements''), which published on March 18, 2020. The
new effective date is November 6, 2023.

DATES: The effective date of the rule amending 21 CFR part 1141
published at 85 FR 15638, March 18, 2020, and delayed at 85 FR 32293,
May 29, 2020; 86 FR 3793, January 15, 2021; 86 FR 36509, July 12, 2021;
86 FR 50855, September 13, 2021; 86 FR 70052, December 9, 2021; 87 FR
11295, March 1, 2022; 87 FR 32990, June 1, 2022; and 87 FR 50765,
August 18, 2022, is further delayed until November 6, 2023.

FOR FURTHER INFORMATION CONTACT: Courtney Smith, Office of Regulations,
Center for Tobacco Products, Food and Drug Administration, Document
Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver
Spring, MD 20993-0002, 1-877-287-1371, email:
[email protected].

SUPPLEMENTARY INFORMATION: In the Federal Register of March 18, 2020,
the Food and Drug Administration (FDA or Agency) issued a final rule
establishing new cigarette health warnings for cigarette packages and
advertisements. The final rule implements a provision of the Family
Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub.
L. 111-31) that requires FDA to issue regulations requiring color
graphics depicting the negative health consequences of smoking to
accompany new textual warning label statements. The Tobacco Control Act
amends the Federal Cigarette Labeling and Advertising Act of 1965 (Pub.
L. 89-92) to require each cigarette package and advertisement to bear
one of the new required warnings. The final rule specifies the 11 new
textual warning label statements and accompanying color graphics.
Pursuant to section 201(b) of the Tobacco Control Act, the rule was
published with an effective date of June 18, 2021, 15 months after the
date of publication of the final rule.
    On April 3, 2020, the final rule was challenged in the U.S.
District Court for the Eastern District of Texas.\1\ On May 8, 2020,
the court granted a joint motion to govern proceedings in that case and
postpone the effective date of the final rule by 120 days.\2\ On
December 2, 2020, the court granted a new motion by the plaintiffs to
postpone the effective date of the final rule by an additional 90
days.\3\ On March 2, 2021, the court granted another motion by the
plaintiffs to postpone the effective date of the

final rule by an additional 90 days.\4\ On May 21, 2021, the court
granted another motion by the plaintiffs to postpone the effective date
of the final rule by an additional 90 days.\5\ On August 18, 2021, the
court issued an order to postpone the effective date of the final rule
by an additional 90 days.\6\ On November 12, 2021, the court issued
another order to postpone the effective date of the final rule by an
additional 90 days.\7\ On February 10, 2022, the court issued another
order to postpone the effective date of the final rule by an additional
90 days.\8\ On May 10, 2022, the court issued another order to postpone
the effective date of the final rule by an additional 90 days.\9\ On
August 10, 2022, the court granted a motion by the plaintiffs to
postpone the effective date of the final rule by an additional 90
days.\10\ On November 7, 2022, the court issued another order to
postpone the effective date of the final rule by an additional 31
days.\11\ The court ordered that the new effective date of the final
rule is November 6, 2023. Pursuant to the court order, any obligation
to comply with a deadline tied to the effective date is similarly
postponed, and those obligations and deadlines are now tied to the
postponed effective date.
---------------------------------------------------------------------------

    \1\ R.J. Reynolds Tobacco Co. et al. v. United States Food and
Drug Administration et al., No. 6:20-cv-00176 (E.D. Tex. filed April
3, 2020).
    \2\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex. May
8, 2020) (order granting joint motion and establishing schedule),
Doc. No. 33.
    \3\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex.
December 2, 2020) (order granting Plaintiffs' motion and postponing
effective date), Doc. No. 80.
    \4\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex.
March 2, 2021) (order granting Plaintiffs' motion and postponing
effective date), Doc. No. 89.
    \5\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex. May
21, 2021) (order granting Plaintiffs' motion and postponing
effective date), Doc. No. 91.
    \6\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex.
August 18, 2021) (order postponing effective date), Doc. No. 92.
    \7\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex.
November 12, 2021) (order postponing effective date), Doc. No. 93.
    \8\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex.
February 10, 2022) (order postponing effective date), Doc. No. 94.
    \9\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex. May
10, 2022) (order postponing effective date), Doc. No. 96.
    \10\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex.
August 10, 2022) (order granting Plaintiffs' motion and postponing
effective date), Doc. No. 100.
    \11\ R.J. Reynolds Tobacco Co., No. 6:20-cv-00176 (E.D. Tex.
November 7, 2022) (order postponing effective date), Doc. No. 104.
---------------------------------------------------------------------------

    To the extent that 5 U.S.C. 553 applies to this action, the
Agency's implementation of this action without opportunity for public
comment, effective immediately upon publication today in the Federal
Register, is based on the good cause exception in 5 U.S.C. 553(b)(B).
Seeking public comment is impracticable, unnecessary, and contrary to
the public interest. The 31-day postponement of the effective date,
until November 6, 2023, is required by court order in accordance with
the court's authority to postpone a rule's effective date pending
judicial review (5 U.S.C. 705). Seeking prior public comment on this
postponement would have been impracticable, as well as contrary to the
public interest in the orderly issuance and implementation of
regulations.

    Dated: November 18, 2022.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2022-25650 Filed 11-23-22; 8:45 am]
BILLING CODE 4164-01-P


		  UNFUNDED MANDATES REFORM ACT ANALYSIS

FOR THE PROPOSED AMENDMENTS TO THE PORTLAND CEMENT NESHAP UNDER THE
CLEAN AIR ACT

		(April, 2009)

	This document provides an analysis of the effects of the U.S.
Environmental Protection Agency’s (“EPA”) proposed Portland Cement
national emissions standard for hazardous air pollutants (NESHAP)
rulemaking under Title III of the Clean Air Act (“CAA”) on State,
local, and tribal governments, and the private sector as required by the
Unfunded Mandates Reform Act of 1995 (“UMRA”).  EPA has determined
that an UMRA analysis is required because the proposed Portland Cement
NESHAP rulemaking will affect units operated by State and local
governments, and will impose a cost on the private sector greater than
$100 million in any one year.

	This UMRA analysis examines the impacts of the proposed rule on units
that are owned by State, local, tribal governments and the private
sector.  This analysis is based on the regulatory impact analysis
(“RIA”) prepared for this proposed rule.  The RIA for this proposed
rule includes EPA’s assessment of costs, benefits, and economic
impacts and can be found in the docket for this rulemaking at
HYPERLINK "http://www.regulations.gov"  www.regulations.gov .

	This proposed rule includes a maximum achievable control technology
(MACT) standard for Portland cement facilities that are major or area
sources of HAP.  We expect this proposed rule to affect 93 portland
cement manufacturing facilities located in the U.S. and Puerto Rico.
Compliance costs estimated by facility were used as inputs to calculate
the economic impact of the proposed rule.

For the proposed Portland Cement NESHAP, EPA estimated the costs and
emissions reductions that would occur due to the implementation of the
proposed emission limits based on both an engineering cost analysis and
partial equilibrium economic model and the Industrial Sector Integrated
Solution Model.  These emission reductions are based on 2005 emission
baselines.

The emission reductions of the proposed amendments estimated as part of
the engineering cost analysis for existing kilns are 3,800 lb/yr for
mercury, 13,000 tpy for THC, 2,700 tpy for HCl, and 10,600 tpy for PM.
In addition, the proposed emission limits would result in concurrent
control of 116,000 tpy.  For the 20 new kilns expected over the next
five year the estimated emission reduction are 2,400 lb/yr for mercury,
920 tpy of THC, 900 tpy g HCl, 3,100 tpy of PM , and 20,000 tpy for SO2.

These controls will also reduce emissions of secondary PM2.5 (and coarse
PM (PM10-2.5 ) as well).  This is PM that results from atmospheric
transformation processes of precursor gases, including SO2.

In addition to this traditional estimation of emission reductions, EPA
employed the ISIS model to estimate emission reductions.  The estimation
of emission reductions in the ISIS model accounts for the optimization
of the industry and includes the addition of new kilns, kiln
retirements, replacements, and expansions as well as installation of
controls.  Using the ISIS model, in 2013 we estimate reductions of
11,400 lbs of mercury, 11,670 tons of THC, 2,780 tons of HCl, 10,530
tons of PM and 160,000 tons of SO2 compared to total emissions in 2005

The market adjustments in price and quantity were used to estimate the
changes in aggregate economic welfare. Higher cement prices and reduced
consumption lead to consumer welfare losses ($402 million). Domestic
producers (in aggregate) experience a net loss of $204 million. The
total domestic surplus loss (consumer and producers) totals $606
million. Other countries selling cement to the United States will
benefit from higher cement prices (a surplus gain of $89 million

The total monetized benefits of the proposed rule range from $4.4 to
$11.00 billion (2005) dollars).  We expect these proposed amendments to
prevent 620 to 1600 premature mortalities.  The monetized benefits are
comprised primarily of the benefits from reductions in directly emitted
PM2.5 and PM2.5 created from transformation of NOx and SO2.  We cannot
provide a monetary estimate for the benefits associated with reductions
of HAP and CO due to a lack of scientific knowledge of the links between
the reductions in incidence of the health and environmental effects
listed and a value that can be placed on them.  EPA currently has
research going on to provide such monetized estimates.   We are also
unable to quantify and monetize all categories of benefits of NOx
reductions (ecosystem and environmental effects), and to monetize
reduction in premature mortalities associated with ozone reductions.
The methodology for estimating monetized benefits is discussed in more
detail in the RIA.

EPA performed a screening analysis for impacts on the three affected
small entities by comparing compliance costs to entity revenues. EPA’s
analysis found that the ratio of compliance cost to company revenue for
two small entities (including a tribal government) would have an
annualized cost of between 1 percent and 3 percent of sales. One small
business would have an annualized cost of 4.8 percent of sales.  All
three affected facilities are projected to continue to operate under
with-regulation conditions.

	EPA also evaluated small business impacts using the ISIS model.  There
are a total of 7 kilns identified to be associated with small business
facilities affected by this proposal. ISIS identified one of these kilns
to retire in 2013 as a result of the proposed NESHAP.  A second kiln
reduces its utilization by 56 percent in 2013 but recovers later in the
2013 to 2018 time frame as the demand increases.  All the remaining
small business kilns operate at full capacity throughout the 2013 to
2018 time frame.

Although this proposed rule will not impact a substantial number of
small entities, EPA nonetheless has tried to reduce the impact of this
proposed rule on small entities by setting the proposed emissions limits
at the MACT floor, the least stringent level allowed by law.  In the
case where there are overlapping standards between this NESHAP and the
Portland Cement NSPS, we have exempted sources from the least stringent
requirement thereby eliminating the overlapping monitoring, testing and
reporting requirements by proposing that the source comply with only the
more stringent of the standards.  We continue to be interested in the
potential impacts of this proposed rule on small entities and welcome
comments on issues related to such impacts.

One small government entity, a tribe may also be affected by this
proposed rule. EPA estimates that the facility owned by a tribal
government will incur approximately $2.1 million in costs per year.

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