[Federal Register: September 6, 2002 (Volume 67, Number 173)]
[Rules and Regulations]               
[Page 56930-56931]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06se02-6]                         

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Substance Abuse and Mental Health Services Administration

42 CFR Part 51d

RIN 0930-AA09

 
Mental Health and Substance Abuse Emergency Response Criteria

AGENCY: Substance Abuse and Mental Health Services Administration 
(SAMHSA), HHS.

ACTION: Final rule.

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SUMMARY: Section 3102 of the Children's Health Act of 2000, Pub. L. 
106-310, amends section 501 of the Public Health Service (PHS) Act (42 
U.S.C. 290aa) to add a new subsection (m) entitled ``Emergency 
Response.'' This newly enacted subsection 501(m) authorizes the 
Secretary to use up to, but no more than, 2.5% of all amounts 
appropriated under Title V of the PHS Act, other than those 
appropriated under Part C, in each fiscal year to make ``noncompetitive 
grants, contracts or cooperative agreements to public entities to 
enable such entities to address emergency substance abuse or mental 
health needs in local communities.''
    Because Congress believed the Secretary needed the ability to 
respond to emergencies, it exempted any grants, contracts, or 
cooperative agreements authorized under this section from the peer 
review process. See section 501(m)(1) of the PHS Act. Instead, the 
Secretary is to use an objective review process by establishing 
objective criteria to review applications for funds under this 
authority.

DATES: This Final Rule will become effective on September 6, 2002.

FOR FURTHER INFORMATION CONTACT: Joseph D. Faha, Substance Abuse and 
Mental Health Services Administration (SAMHSA), (301) 443-7017.

SUPPLEMENTARY INFORMATION:

Background

    In the Federal Register of October 11, 2001 (66 FR 51873), the 
Department of Health and Human Services (the Department) published an 
Interim Final Rule to implement the new emergency grant program under 
its recent reauthorization legislation, which was signed into law on 
October 17, 2000, Pub. L. 106-310. Section 3102 of this law adds a new 
subsection, entitled ``Emergency Response'' to section 501 of the 
Public Health Service (PHS) Act. This newly enacted subsection enables 
the Secretary to use a small portion of funds appropriated each fiscal 
year to make ``noncompetitive grants, contracts or cooperative 
agreements to public entities to enable such entities to address 
emergency substance abuse or mental health needs in local 
communities.'' The Interim Final Rule established procedures by which 
the Department may provide these funds.

Comments and Agency Response

    In response to the October 11, 2001, Interim Final Rule, SAMHSA 
received two comments. Both commenters believe that the emergency 
criteria are too narrow in requiring that the emergency must have a 
``sudden, rapid onset and definite conclusion.'' They point out, for 
example, that because the health needs of their community resulting 
from asbestos-related diseases ``unfolded as an ongoing process of 
discovering long term latent health effects that occurred in the past, 
the precipitating event would not fit the criteria.'' The Secretary has 
purposely included the criteria of ``sudden, rapid onset and definite 
conclusion'' to be consistent with the definition of an emergency in 
the regulations of the Federal Emergency Management Agency and declines 
to modify the criteria.
    The commenters also noted the importance of standardizing data 
collection from funded programs, in order to develop response models 
that fit each type of disaster, and to provide for meaningful 
evaluations of overall effectiveness and meta analysis. The Secretary 
responds that the primary purpose of the Emergency Response grants is 
to provide substance abuse and mental health services in the event of 
an emergency, and that focusing on data collection efforts to develop 
response models, evaluation, and meta analysis is outside the purview 
of this primary goal.

Technical Corrections

    We are making a few minor technical changes to the rule. We find 
that these minor technical changes do not rise to the level of 
substantive change and thus comment is unnecessary. See 5 U.S.C. 
553(b)(3)(B).
    First, the term ``Presidential disaster declaration'' is defined in 
Sec.  51d.2, but is not used in the regulation. We are deleting this 
definition because it is unnecessary.
    Second, the Interim Final Rule, at Sec.  51d.8, mistakenly 
indicated that 42 CFR part 50, subpart D--Public Health Service grant 
appeals procedure applies to the Emergency Grant awards. However, the 
Department amended this regulation to remove SAMHSA from the list of 
agencies to which these informal appeal procedures apply. Aggrieved 
grantees have direct access to the Departmental Appeals Board and that 
Board's original jurisdiction. See 63 FR 66062 (Dec. 1, 1998). We are 
deleting reference to this section to avoid any confusion.
    Finally, the Interim Final Rule mistakenly indicated that 45 CFR 
part 75--Informal grant appeals procedures applies to the Emergency 
Grant awards. This provision has been deleted from the Code of Federal 
Regulations, as obsolete and ineffective. See 62 FR 38217 (July 17, 
1997). We are deleting reference to this section to avoid any 
confusion.

Executive Order 12866: Economic Impact

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when rulemaking is 
necessary, to select regulatory approaches that provide the greatest 
net benefits (including potential economic, environmental, public 
health, safety distributive and equity effects). As noted in the 
October 11, 2001, Interim Final Rule, we have determined that the rule 
is not a ``significant regulatory action'' under section 3(f) of the 
Executive Order. This rule does not have an annual effect on the 
economy of $100 million or more, create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency, 
materially alter the budgetary impact of entitlements,

[[Page 56931]]

grants, user fees, or loan programs or the rights and obligations of 
recipients thereof, or raise novel legal or policy issues. Therefore, 
this interim final rule does not require an assessment of the potential 
costs and benefits under section 6(a)(3) of that Order and thus has 
been exempted from review by the Office of Management and Budget under 
that Order.

Regulatory Flexibility

    The Regulatory Flexibility Act (5 U.S.C. chapter 6) requires that 
regulatory actions be analyzed to determine whether they will have a 
significant impact on a substantial number of small entities. As noted 
in the October 11, 2001, Interim Final Rule, we have determined that 
this is not a ``major'' rule under the Regulatory Flexibility Act of 
1980, and that it will not have an effect on the States or on the 
distribution of power and responsibilities among the various levels of 
government.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires that agencies prepare an 
assessment of anticipated costs and benefits before developing any rule 
that may result in an expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any given year. As noted in the October 11, 2001, Interim 
Final Rule, this rule contains no Federal mandates for State, tribal, 
or local governments or for the private sector.

Executive Order 13132: Federalism Implications

    Executive Order 13132, Federalism, requires that Federal agencies 
consult with State and local government officials in the development of 
regulatory policies with federalism implications. As noted in the 
October 11, 2001, Interim Final Rule, we reviewed the rule as required 
under the Order and determined that it does not have any federalism 
implications. This rule will not have an effect on the States or on the 
distribution of power and responsibilities among the various levels of 
government. This having been stated, States support the flexibility 
that this regulation offers them in seeking Federal assistance for 
substance abuse and/or mental health emergencies that may occur in 
their borders.

Paperwork Reduction Act of 1995

    The information collection provisions in this final rule have been 
approved under OMB control number 0930-0229. This approval expires 
April 30, 2005.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175 (65 FR 67249, November 6, 2000) requires us 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    As noted in the October 11, 2001, Interim Final Rule, this proposed 
rule does not have tribal implications. It will not have substantial 
direct effects on tribal governments, 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, 
as specified in Executive Order 13175.

List of Subjects in 42 CFR Part 51d

    Administrative practice and procedure, Disaster assistance, Drug 
abuse, Emergency medical services, Grant programs-health, Health 
facilities, Mental health programs, Privacy, Reporting and 
recordkeeping requirements.

Charles G. Curie,
Administrator, Substance Abuse and Mental Health Services 
Administration.

    Dated: August 23, 2002.
Tommy G. Thompson,
Secretary.

    For the reasons stated above, the Department of Health and Human 
Services amends Part 51d of Subchapter D of Title 42 CFR as follows:

PART 51d--[AMENDED]

    1. The authority citation for part 51d continues to read as 
follows:

    Authority: 42 U.S.C. 290aa(m).

Sec.  51d.2  [Amended]

    2. Amend Sec.  51d.2 by removing the definition of ``presidential 
disaster declaration.''


Sec.  51d.8  [Amended]

    3. Amend Sec.  51d.8 by removing the entry for ``42 CFR part 50, 
subpart D--Public Health grant appeal procedure.''

[FR Doc. 02-22601 Filed 9-5-02; 8:45 am]
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