[Federal Register: October 31, 2007 (Volume 72, Number 210)]
[Rules and Regulations]
[Page 61719-61750]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc07-21]
[[Page 61719]]
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Part II
Department of Homeland Security
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Federal Emergency Management Agency
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44 CFR Parts 59, 61, 78, et al.
Flood Mitigation Grants and Hazard Mitigation Planning; Interim Rule
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Parts 59, 61, 78, 79, 80, 201, and 206
[Docket ID FEMA-2006-0010]
RIN 1660-AA36
Flood Mitigation Grants and Hazard Mitigation Planning
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Interim rule.
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SUMMARY: This interim rule implements certain provisions of the
Bunning-Bereuter-Blumenauer Flood Insurance Reform Act of 2004 to
provide new incentives for States and communities to mitigate the
effects of flood damage to severe repetitive loss properties by
creating the Severe Repetitive Loss program (SRL), and through reduced
cost-share requirements in the existing Flood Mitigation Assistance
program (FMA). In addition, the rule ensures that the FMA planning
requirements are consistent with other applicable regulations, and
streamlines the planning requirements for Indian tribal governments. It
also describes requirements for the acquisition of property for open
space with mitigation funds, including under SRL and FMA. Finally, this
interim rule makes technical changes to clarify current practices and
implements conforming amendments to reflect current authorities,
including the recent change to the standard amount of authorized Hazard
Mitigation Grant Program assistance.
DATES: Effective Date: December 3, 2007.
Comment Date: Comments on the rule including the new Paperwork
Reduction Act collections are due on or before December 31, 2007.
Applicability Date: Part 78 will continue to apply to the
administration of funds awarded for which the application period opened
prior to December 3, 2007. Parts 79 and 80 will apply to the
administration of funds awarded for which the application period opens
on or after December 3, 2007, except that Sec. 80.19 will apply as of
December 3, 2007 regardless of the original project date.
ADDRESSES: You may submit comments, identified by Docket ID FEMA-2006-
0010, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: FEMA-RULES@dhs.gov. Include Docket ID FEMA-2006-0010 in the
subject line of the message.
Fax: 866-466-5370.
Mail/Hand Delivery/Courier: Rules Docket Clerk, Office of Chief
Counsel, Federal Emergency Management Agency, Room 835, 500 C Street,
SW., Washington, DC 20472.
FOR FURTHER INFORMATION CONTACT: Cecelia Rosenberg, Mitigation
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington DC 20472, (phone) 202-646-3321, (facsimile) 202-646-2719, or
(e-mail) cecelia.rosenberg@dhs.gov.
SUPPLEMENTARY INFORMATION:
Request for Comments
FEMA encourages public participation in this rulemaking. Comments
will be most helpful if they state a particular section (or sections)
of the rule, and offer specific proposals for change, as needed. All
submissions received must include the agency name and docket ID (FEMA-
2006-0010). Regardless of the method used for submitting comments or
material, all submissions will be posted, without change, to the
Federal eRulemaking Portal at http://www.regulations.gov, and will
include any personal information you provide. Therefore, submitting
this information makes it public. You may wish to read the Privacy Act
notice that is available on the Privacy and Use Notice link on the
Administration Navigation Bar of http://www.regulations.gov.
All comments received, as well as this document are available on
the public docket for this rulemaking. For access to the docket, go to
the Federal eRulemaking Portal at http://www.regulations.gov. Submitted
comments may also be inspected at FEMA, Office of Chief Counsel, Room
835, 500 C Street, SW., Washington, DC 20472.
At this time, FEMA does not anticipate it will hold a public
meeting for this rulemaking project.
Table of Abbreviations
BC--Benefit Cost
BCA--Benefit Cost Analysis
CAP-SSE--Community Assistance Program-State Support Services Element
CRS--Community Rating System
DHS--Department of Homeland Security
FEMA--Federal Emergency Management Agency
FIRM--Flood Insurance Rate Map
FIS--Flood Insurance Study
FMA--Flood Mitigation Assistance
HMGP--Hazard Mitigation Grant Program
ICC--Increased Cost of Compliance
NEPA--National Environmental Policy Act of 1969
NFIA--National Flood Insurance Act of 1968
NFIF--National Flood Insurance Fund
NFIP--National Flood Insurance Program
OMB--Office of Management and Budget
PDM--Pre-disaster Mitigation
POC--Point of Contact
PRA--Paperwork Reduction Act of 1995
RFC--Repetitive Flood Claims
SHMO--State Hazard Mitigation Officer
SQA Net--Simple and Quick Access Net
SRL--Severe Repetitive Loss
USACE--United States Army Corps of Engineers
I. Background
This rule implements provisions of the Bunning-Bereuter-Blumenauer
Flood Insurance Reform Act of 2004 (the Act), Public Law 108-264, 118
Stat. 714, found at 42 U.S.C. 4102a. The Act amends the National Flood
Insurance Act of 1968 to provide new programs and incentives for States
and communities to mitigate flood damage to severe repetitive loss
properties. Severe repetitive loss properties are residential
properties covered under a contract for flood insurance that have
incurred flood-related damage (i) for which 4 or more separate claims
payments have been made under flood insurance coverage, with the amount
of each such claim exceeding $5,000, and with the cumulative amount
exceeding $20,000; or (ii) for which at least 2 separate claims
payments have been made under such coverage, with the cumulative amount
exceeding the value of the property. Pursuant to the Act, this interim
rule implements the new Severe Repetitive Loss (SRL) program, which is
authorized by the Act until September 30, 2009, and amends the existing
Flood Mitigation Assistance (FMA) program to meet the requirements of
the Act. In addition, FEMA is modifying the mitigation planning
regulations to minimize the burden on State, local, and Indian tribal
governments, to streamline the planning process, and to ensure
consistency in the local planning requirements that apply to all FEMA
mitigation programs, including the SRL and FMA programs.
Also, effective October 4, 2006, section 684 of the Post-Katrina
Emergency Management Reform Act of 2006, Public Law 109-295, amended
the amount of Hazard Mitigation Grant Program (HMGP) assistance
authorized for States with an approved Standard State Mitigation Plan
from 7.5 percent to 15 percent of the total estimated Federal
assistance (excluding administrative costs) provided for a major
disaster under FEMA Public and Individual Assistance programs for
amounts spent up to $2 billion, and established a sliding scale for
HMGP assistance, based on the amount of the total estimated
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Federal assistance. This interim rule amends FEMA's regulations to
reflect this statutory change.
II. Discussion of Interim Rule
The SRL grant program was created pursuant to Section 1361A of the
National Flood Insurance Act of 1968 (NFIA, or ``the Act''), 42 U.S.C.
4030, as amended by the Bunning-Bereuter-Blumenauer Flood Insurance
Reform Act of 2004, Public Law 108-264, with the goal of reducing flood
damages to SRL properties. The long-term goal of the SRL program is to
reduce or eliminate claims under the NFIP through project activities
that will result in the greatest savings to the NFIF in the shortest
period of time.
The new program, the SRL program, is authorized through September
30, 2009 and is designed to provide mitigation assistance to address
properties that have experienced repetitive flood losses and that are
insured under the NFIP. The SRL program focuses on a subset of all
repetitive flood loss properties: Those residential properties with a
high frequency of losses or a high value of claims. The mitigation of
losses sustained by these properties, through projects such as buyouts,
elevation, relocation, or floodproofing, will produce savings for
policyholders under the NFIP and for Federal taxpayers through reduced
flood insurance losses and reduced Federal disaster assistance. The
program relies on a strategy of making mitigation offers to these
severe repetitive loss property owners and shifting more of the burden
of recovery costs to those property owners who decline the offer of
mitigation assistance, and choose to remain vulnerable to repetitive
flood damage, by incrementally increasing their rates for flood
insurance. As established by Congress, the sale of flood insurance
under the NFIP is subject to the rules and regulations of FEMA. FEMA
has elected to have State-licensed insurance companies' agents and
brokers sell flood insurance to consumers. Those whose rates are
increased will be eligible to appeal this increase via an independent
third party from a list based on professional qualifications
impartially developed by FEMA's Alternative Dispute Resolution (ADR)
office. To reduce costs, the property owner may request that the
Administrator substitute a reviewer from FEMA's ADR office for the
independent third party.
With respect to grant programs, FEMA has actively engaged in flood
mitigation through its HMGP, FMA, PDM and Repetitive Flood Claims (RFC)
programs. Each of these programs was created under different
legislative authorities, and as a result, have varied impacts on
reducing the nation's inventory of the most floodprone structures. What
has not existed is a program that specifically addresses and provides
funds for the elimination of, or reduction of risk to, the subset of
those properties that create the largest impact on claims paid from the
NFIF. Most of these properties existed before the inception of the NFIP
and its associated floodplain management standards, and are thus
eligible for discounted insurance rates. Furthermore, none of these
other programs feature a formal mitigation offer process whereby
insurance rates may be increased if the property owner declines the
offer.
FEMA intends to focus the SRL program in communities and on
property owners who choose to participate in the program. This will
maximize the benefits of the program, while minimizing adverse impacts
on communities and property owners. The program will provide an
opportunity for many property owners to address recurring flooding
problems, and reduce the impact of these events.
The legislation also provides an incentive to mitigate damage to
severe repetitive loss properties through reduced non-Federal cost-
share requirements for the SRL and FMA programs (from 25 percent to 10
percent) for projects in States with approved State Mitigation Plans
that meet the additional repetitive loss requirements. The reduced cost
share would be available only for projects that address severe
repetitive loss properties.
While the SRL and FMA programs will be implemented as separate
programs, with different funding accounts, they are similar in their
goals and purpose. FEMA has included both of these programs in one
implementing regulation to ensure as much consistency as reasonable
between the programs and to limit the confusion around program
implementation, since both programs will likely be managed by the same
State agency staff.
The final rule implementing the FMA program is published elsewhere
in today's Federal Register. (It follows an interim rule published
March 20, 1997 at 62 FR 13346.) See 44 CFR part 78. This part will
continue to be used to implement the FMA program for all grants awarded
for which the application period opened prior to December 3, 2007.
This new interim rule creates a new part (part 79, with details
specific to acquisition projects at a new part 80), that restates the
requirements for the existing FMA program in a format more consistent
with the approach to all of FEMA's mitigation grant programs. Part 79
will implement the FMA program for all grants awarded for which the
application period opens on or after December 3, 2007.
Part 79 also implements a change to the cost share available to
States under the FMA program if their approved mitigation plan meets
certain criteria, described herein in Sec. 201.4. States would be
eligible for a reduced cost share if their mitigation plan addresses
actions related to reducing the risk to repetitive loss properties that
they have already taken, and those actions that they intend to take.
The requirements for the new SRL program are incorporated into this
rule. In addition, this interim rule brings the FMA program regulations
into conformance with current policies, and ensures better conformance
to existing grants management requirements. In authorizing the SRL
program in section 102 of the Act, and amending the FMA program in
section 103 of the Act, Congress directed FEMA to ``provide assistance
for properties in the order that will result in the greatest amount of
savings to the National Flood Insurance Fund in the shortest period of
time'' and to provide assistance for activities that are ``in the best
interest of the National Flood Insurance Fund.'' FEMA has concluded
that Congress' stated goals for the two programs are similar.
Therefore, there is no substantial difference in how FEMA will
determine the funding priority for the two programs.
As an additional aspect of implementing these programs, this rule
includes a new part (part 80) which describes the requirements and
procedures for open space property acquisition which applies to the SRL
and FMA programs, as well as all FEMA hazard mitigation assistance
programs. In light of the Act's requirements regarding property
acquisition, FEMA determined that a central reference point for all
mitigation grant program property acquisitions would make the programs
more consistent overall and easier to implement.
Elsewhere in today's Federal Register, FEMA published a final rule
implementing section 322 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford Act), 42 U.S.C. 5165. (It follows an
interim rule published February 26, 2002 at 67 FR 8844.) The final rule
identified the requirements for State, Tribal, and local mitigation
plans. This new interim rule streamlines the mitigation planning
requirements contained in that rule by making the
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FMA planning requirements, currently implemented in a separate part of
the regulation at Sec. 78.5, consistent with the mitigation planning
requirements outlined in part 201. This will ensure that local
governments can comply with one set of mitigation planning requirements
in order to be eligible to apply for all FEMA mitigation project grant
funding, including the FMA and SRL programs.
In addition, this interim rule streamlines the roles and
responsibilities of Indian tribal governments in mitigation planning.
In the preexisting regulations, Indian tribal governments were given
the option of preparing either a State-level Mitigation Plan, or a
Local-level Mitigation Plan, depending on whether or not they intended
to apply directly to FEMA as a grantee or whether they would apply
through the State as a subgrantee. FEMA has found, however, that
neither of these options has sufficiently met the needs of the Indian
tribal governments.
To address this problem, this interim rule establishes a specific
planning requirement for Indian tribal governments that recognizes some
of the unique aspects of these governments. The rule establishes Tribal
Mitigation Plans for plans prepared and approved after December 3,
2007. The rule provides that plans prepared and approved under the
preexisting rule, under either the State or local requirements, would
also be recognized as Tribal Mitigation Plans. These older plans,
however, would be required to meet the revised criteria when the
original approval expires. Most Indian tribal governments fit the local
planning model, in that they do not have sub-jurisdictions as States
do; however, if they are grantees, the rule would require that they
provide the capability assessment and identification of funding options
that are listed in the State plan requirements. This rule combines the
appropriate aspects of these planning requirements into one section,
with a single plan required for Indian tribal governments.
This rule also implements section 106 of the Act, which modifies
the insurance rates for property leased from the Federal government
``located on the river-facing side of any dike, levee, or other
riverine flood control structure, or seaward of any seawall or other
coastal flood control structure.'' These properties will be charged the
full actuarial insurance premium rates.
Finally, this rule makes conforming amendments, as well as
technical corrections to clarify current authorities and practices.
This rule thus makes revisions to the amount of assistance available to
States under the Hazard Mitigation Grant Program in Sec. 79.4 as a
result of changes made to the Stafford Act in the Post-Katrina
Emergency Management Reform Act passed in October 2006.
III. Solicitation of Public Comments
Section 102 of the Act required FEMA, within 90 days of the Act, to
consult with State and local officials in carrying out the development
of procedures for the distribution of funds to States and communities
to carry out eligible mitigation activities. To meet this requirement,
FEMA published a Federal Register notice on September 15, 2004, at 69
FR 55642, to initiate consultation with State and local officials, as
well as members of the public. In the notice, FEMA solicited responses
to the following questions: What key factors FEMA should consider in
developing the SRL program; the parameters that FEMA should use to
define severe repetitive loss for multifamily structures; the process
FEMA should use to notify property owners that their property is
considered a severe repetitive loss property by virtue of the
legislative definition; the criteria FEMA should use to allocate funds
to States, including whether or not there should be caps on the funding
as is the case under the FMA program; the criteria that should be used
to approve State mitigation plans to take advantage of the increased
Federal cost share; the criteria FEMA should use to determine projects
that will result in the greatest amount of savings to the National
Flood Insurance Fund (NFIF); and, what types of assistance should FEMA
provide to States and communities when making offers to owners of SRL
properties. Interested parties initially had until November 30, 2004,
to submit written comments in response to these questions. FEMA
extended the deadline for comments until December 7, 2004. FEMA
received 26 written comments. Eight of those comments were received
from States, ten from communities and eight were from associations. On
November 17, 2004, as part of the consultation process, FEMA held a
meeting in Washington DC with representative officials of State and
local governments, organizations representing emergency management,
floodplain management, and insurance professions, and other interested
parties.
FEMA reviewed and considered all oral and written responses as FEMA
developed the SRL grant program and this interim rule. FEMA's
questions, the public comments, and FEMA's responses to the public
comments are listed below.
Question 1: What key factors should FEMA consider in developing the
Pilot Program for Severe Repetitive Loss Properties under section
1361A?
Multiple commenters stated that the program should be administered
by the States, similar to existing FEMA mitigation grant programs,
including FMA and Pre-Disaster Mitigation (PDM). However, once
commenter wrote that the existing programs take too long to implement.
Multiple commenters stated that funding allocations should be
disbursed based on the location of SRL properties (those with the
greatest drain, greatest losses, most number of SRL properties, etc.),
rather than disbursing funds evenly among States. Multiple comments
indicated that the ranking of properties should ensure that those
properties with the most loss claims should be addressed first.
Multiple commenters stated that allocations should also consider the
State and/or community capability, defined as having plans in place,
past performance shown to mitigate repetitive loss properties, projects
lined-up, and/or matching funds available. Multiple comments also
indicated that funds should be prioritized to those communities with
experience managing FEMA funds and/or with matching funds and projects
lined-up. Multiple commenters indicated that reallocations should occur
quickly to move funds to communities that need them.
A considerable number of commenters stated that the data used for
determining those properties that meet the SRL property definition was
not accurate and needed to be updated/corrected, and that real-time
claim reporting was needed.
Multiple commenters stated that the parameters for demolition
rebuild projects need to be clarified. Multiple commenters stated that
property owners, communities, and States must be able to determine the
most appropriate mitigation measures.
Multiple commenters stated that there needs to be clear definitions
for ``notices'' and ``offers,'' and that both need to include clear
details of the appeals process and insurance implications. Further,
multiple commenters stated that there needs to be a clear description
of the property value in an offer.
Multiple commenters stated that FEMA would need additional staff
with National Flood Insurance Program (NFIP) expertise to manage the
program.
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Multiple commenters stated that the Increased Cost of Compliance
(ICC) should be made available for match, or indicated that many
communities would not be able to provide the cost share.
Multiple commenters indicated that the program should focus on cost
effectiveness, and Benefit/Cost analysis in particular.
Multiple commenters indicated that the planning requirement should
be clearly defined, and multiple commenters suggested a plan be
required to prioritize funding.
Multiple commenters requested that a streamlined, simple, or
tailored application and grants management process be implemented; and
that guidance needs to be clear regarding the roles and
responsibilities of FEMA, States and communities.
Multiple commenters stated that mitigation funds should be directed
to only those covered under an NFIP policy. Multiple respondents
indicated that insurance policy writers needed education and awareness/
outreach, both to understand the program and the ICC benefits.
FEMA's Response
In response to comments regarding administration of the program by
the States, the new Part 79 added in this rulemaking deals with the
States' program administration responsibilities, which are being
designed similar to the way FEMA's other mitigation grant programs
operate. In response to comments regarding the accuracy of data used to
identify SRL properties, insurance and claims information for
properties validated as meeting the legislative characteristics of SRL
are now available to States on a web-based site (SQA Net), which is
updated monthly. Furthermore, regulations and program procedures
clearly describe the notice, offer, and appeals processes. Program
procedures have been developed to define the parameters and limitations
imposed for the demolition/rebuild activity type. State, local and
tribal mitigation plans will be required and are described in this
interim rule; allocation of funds will be based on the number of SRL
properties within each State, in accordance with the authorizing
legislation; it is also described in this interim rule. Awards shall be
prioritized in order of the greatest savings to the National Flood
Insurance Fund, by virtue of the Benefit Cost Ratio.
With respect to concerns over the accuracy of claims data, FEMA has
continually worked to update the claims information data to increase
accuracy, including field verification of property information when
necessary. Furthermore, property owners can discuss errors in their
claim history with NFIP representatives. As described under the
response to Question 3, a property owner is given a toll-free number to
call if they have questions about their designation as an SRL property.
With respect to concerns regarding the details of receiving a
mitigation offer, particularly for an acquisition, FEMA has developed
an offer letter that will contain information regarding the mitigation
project type; the amount of the purchase offer, including the basis and
methodology for calculating the purchase offer, and the final offer
amount that reflects applicable deductions; notification that
participation in the SRL program is voluntary; the amount of time the
property owner has to accept or reject the offer; the right of the
property owner to appeal the increase in flood insurance rates if they
refuse the offer; a summary of the consultation process, and other
pertinent information.
In response to the comment that funds should only be directed to
those covered under a NFIP policy, the definition of a SRL property
includes the requirement that the property is covered by a NFIP policy.
ICC coverage under the Standard Flood Insurance Policy (SFIP)
provides for the payment of a claim to help pay for the cost to comply
with State or community floodplain management laws or ordinances from a
flood event in which a building has been declared substantially damaged
or repetitively damaged. When an insured building is damaged by a flood
and the State or community declares the building to be substantially or
repetitively damaged, ICC coverage will help pay for the cost to
elevate, floodproof, demolish, or relocate the building up to a maximum
benefit of $30,000. This coverage is in addition to the building
coverage for the repair of actual physical damages from flood under the
SFIP. ICC claims payments from previous flood events may be used to
meet the non-Federal cost share requirements, as long as the period for
making such a claim remains open.
Question 2: What parameters should FEMA use to define severe repetitive
loss for multifamily structures consisting of 5 or more residences?
Multiple commenters stated that the multifamily properties
definition should be the same as the single-family properties
definition. However, several alternative options to define multifamily
properties were suggested including:
The ratio of cumulative loss versus replacement cost;
The determination of substantial damage for a structure;
A proportionate definition based on the number of units;
or
Five or more residences covered under a single contract
for flood insurance that have had 4 or more claims, each exceeding 6.25
percent of the replacement value of the structure, with cumulative
payments exceeding 25 percent of the replacement value. Parameters to
consider included total damages, number of losses, dollar loss per
claim, and low-rise versus high-rise structures.
Multiple commenters agreed that at least 2 claims payments that
cumulatively exceed the replacement value of the structure (as stated
in Section 1361A(b)(2) of the Act) should apply to single family as
well as multifamily properties.
Multiple commenters indicated that multifamily properties should
follow single-family properties as the priority for mitigation funding.
Multiple commenters indicated that Benefit Cost Analysis data
applied to multifamily projects consider more than building damages,
but also content damages, in order to make multifamily projects cost-
effective.
FEMA's Response
FEMA evaluated two options in selecting the definition of
``multifamily property'' for the purposes of this interim final rule.
The first option was keeping the same claims thresholds as defined in
the Act for single family properties. The second option FEMA evaluated
was defining ``multifamily property'' as reflecting the increased
property values and number of units typically associated with
multifamily properties. FEMA analyzed claim information for multifamily
properties and determined that a claim history including four separate
claims of $25,000 with the cumulative amount of such payments exceeding
$100,000 or having at least two separate claims payments with the
cumulative amount of such claims exceeding the value of the property
would be reasonable criteria to select for the meaning of the term
``severe repetitive loss'' for multifamilty properties.
Based on evaluating options, FEMA determined that selecting the
first option allowed properties for which a relatively inexpensive
mitigation solution may be available (such as elevating HVAC equipment
or eliminating finished enclosures below
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elevated floors) to be eligible for SRL program funds. These minimal
mitigation steps may also lead to a diminished need for disaster
housing as well. This definition was chosen because it allows for the
maximum number of multifamily residences to be eligible for funding
consideration under the SRL program by virtue of meeting the definition
of an SRL property.
Thus, ``multifamily property'' is defined in part 79 as ``a
property consisting of five or more residences''. Furthermore, the
definition of ``Severe Repetitive Loss'' as defined in part 79 of this
interim rule uses the same parameters for multifamily properties as for
single family.
Question 3: What process should FEMA use to notify property owners that
their property is considered a severe repetitive loss property as
defined by the statute?
A considerable number of commenters stated that notices to property
owners needed to be coordinated with, sent concurrently to, or shared
with State, Tribal and local communities. A considerable number of
respondents stated that FEMA should be responsible for notifying
property owners, and multiple commenters indicated that this notice
should be in writing, either through certified or registered mail.
A considerable number of respondents stated that the notice needed
to include clear, non-legal, plain English language that described the
notice, the program, the determination, the process, appeals, etc.
Multiple commenters suggested a standard form or one-page document
explaining the program. Furthermore, multiple responses wrote that the
notice be provided with the property owner's insurance policy renewal
to link the program to insurance coverage. Multiple commenters stated
that disclosure in property records, and real estate transactions
needed to be enforced.
FEMA's Response
FEMA's Special Direct Facility (SDF) is operated by the NFIP's
Servicing Agent. It has been in existence since 2000, when FEMA
determined it needed to manage more closely the loss adjustments to the
subset of repetitive loss properties that had the highest number of
losses. For the same reasons, property owners whose claims history
meets the SRL criteria have been receiving letters approximately 150
days before their policy is renewed that identify their properties as
SRL properties. In addition to managing loss adjustments, the SDF will
manage the increase in premiums should the property owner decline an
offer of mitigation. The letters also explain that their flood
insurance policy will be transferred to FEMA's Special Direct Facility
(if the policy is not already being serviced there). These letters are
also sent to the property owner's flood insurance agent, and to their
mortgage lender. This letter provides a toll-free number that the
property owner can call if they have questions about their designation
as an SRL property, or any other questions about the transfer of their
policy.
Question 4: What criteria should FEMA consider when allocating funds to
States and/or communities under the Pilot Program? Should FEMA consider
base allocations for States with higher numbers of severe repetitive
loss properties?
Multiple commenters stated that funds should target those
properties with the most losses to the NFIF, therefore targeting the
most egregious properties regardless of location. A considerable number
of commenters indicated that allocations should be based on the total
number of SRL properties per State. Finally, multiple commenters
indicated that base allocations for those States with high numbers of
SRL properties should be considered.
Multiple commenters stated that any allocation should provide
enough to cover the cost of at least 1 project or some acceptable
number of properties, and multiple responses stated that allocations
should consider variations in costs to mitigate.
Commenters wrote that additional considerations for allocation
included capability factors, such as project readiness, leveraged local
investment, past mitigation grant performance, NFIP compliance, and
Community Rating System (CRS) ratings. Multiple commenters suggested
FEMA base allocations on approved mitigation plans.
Commenters suggested several alternative bases for allocations,
including: Insured values or market values, or values based on value of
future losses.
FEMA's Response
Subpart 79.4 of this interim rule provides for allocations to be
based upon the percentage of the total number of SRL properties located
within each State, as per the authorizing legislation, Flood Insurance
Reform Act of 2004, Public Law 108-264. States with little or no
allocation will be able to apply for 10 percent of the total funds
appropriated in any fiscal year, provided that the State or Tribal
applicant has at least 1 SRL property. State allocations will be large
enough to permit the implementation of at least 1 project.
FEMA considered several options in evaluating how to administer
allocations based on the percentage of the total number of SRL
properties located within each State, as per the authorizing
legislation, Flood Insurance Reform Act of 2004, Public Law 108-264.
States with little or no funding allocation will be able to apply for
10 percent of the total funds made available under SRL in any fiscal
year, provided that the State or Tribal applicant has at least one SRL
property. The options evaluated and not accepted included small
allocations to all States; larger allocations to a limited number of
States with numerous SRL properties; and a variety of allocation
scenarios for States with a limited number of SRL properties.
Ultimately FEMA decided on an allocation that could be adjusted
annually based on the number of SRL properties in a particular State.
FEMA would evaluate the point at which it is more beneficial for a
State to compete for the 10 percent set-aside than to receive an
allocation that was insufficient. This allocation approach provided the
necessary funds to accomplish mitigation projects. The average flood
mitigation project funded under FEMA's mitigation programs is
approximately $70,000-$100,000.
The legislation also required a 10 percent set-aside of the grant
funds for States receiving little or no allocation. FEMA determined
that ``little or no allocation'' meant the point at which it was more
beneficial for a State to compete for appropriate funds to accomplish
mitigation activities than to receive a small allocation, or one which
is below the $70,000-$100,000 average mitigation project cost. The
allocation option that FEMA selected is a reasonable approach to both
allocations and the 10 percent set-aside.
Question 5: Should there be caps on Pilot Program funding for States
and communities similar to Flood Mitigation Assistance program funds?
If so, how would the cap amounts be determined?
The overwhelming response was there should be no caps on funding.
Multiple commenters requested FEMA remove the caps on funding
currently implemented under the FMA program as well.
[[Page 61725]]
FEMA's Response
At the commenters' request, FEMA has not imposed any funding caps
within the SRL program. FMA caps are not changed by this rule, since
they are statutorily based.
Question 6: What criteria should FEMA use to review and approve State
mitigation plans consistent with 44 CFR part 201 to ensure that they
contain recommended actions to mitigate severe repetitive loss
properties?
Multiple commenters indicated that FEMA should be as flexible as
possible in the criteria used to review and approve plans, including
simple goals and strategies that acknowledge properties at risk.
Multiple commenters indicated that mitigation is local, and
therefore States should not be held accountable for local strategies.
Multiple commenters suggested that existing State or local plans should
be accepted, particularly given the limited timeframe of authority for
the Pilot program.
Suggestions, if a plan is required, included providing for
amendments to existing plans and approving projects while the
amendments are being reviewed. Multiple commenters suggested that
criteria to be reviewed focus on capability factors such as plan
implementation, past performance and effort, not the number of severe
repetitive loss properties mitigated. Multiple commenters were
concerned that the lack of accuracy in the repetitive loss database may
affect their ability to meet the planning requirements related to
severe repetitive loss property mitigation. Discrepancies in claims
information and property values as shown in the repetitive loss
database may result in not showing certain properties as being SRL
properties, yet those properties may in fact have been mitigated,
``counting'' towards a SRL property mitigated. Similarly, database
discrepancies may show a property as being SRL, when in fact it may not
be. Therefore, if the property has not been mitigated, it may count
``against'' the state's efforts to indicate mitigation of SRL
properties in their state plan.
Several commenters stated that disclosure of offer and insurance
information needed to be a part of the property's permanent record, and
information needs to be conveyed to the existing and new homeowners
regarding the mitigation offer. Finally, multiple commenters indicated
that there were too many ``lists'' between repetitive loss and severe
repetitive loss.
FEMA's Response
In this interim rule, FEMA requires states to have an approved
State Mitigation Plan meeting the requirements of Sec. Sec. 201.4 or
201.5 to qualify for the reduced non-federal cost share. The plan must
satisfy all standard requirements but also identify specific actions
the state has taken to reduce the number of repetitive loss properties;
specify how the state intends to reduce the number of such properties;
and describe the state's strategy to ensure that local jurisdictions
with SRL properties take actions to reduce the number of these
properties, including the development of local mitigation plans.
Amendments to currently approved State plans will be acceptable.
However, at the time of the next required plan update, the amendment
must be incorporated into the plan and adopted as part of the plan.
Until such time as the amendment is approved by FEMA, grants could be
awarded; but the lower non-Federal cost share would not be available
until the amendment is approved. While State and local plans must
contain different types of data, the two types of planning efforts must
be linked via common mitigation goals and objectives.
With respect to the number of repetitive loss lists, FEMA has made
available a separate list of SRL properties on SQA Net, which is
available to State NFIP Coordinators and State Hazard Mitigation
Officers via FEMA Regional Offices. SQA Net is a secure web portal that
enables access of data from the NFIP flood insurance database. Data is
updated monthly. In pursuing a repetitive loss strategy, FEMA developed
a definition of repetitive loss structures, and maintained a list of
those structures. A target repetitive loss list was also developed,
which consisted of a subset of the list of repetitive loss properties
that had the highest number of losses. FEMA does not consider these
lists to be excessive, and finds that each serves a valuable purpose.
Question 7: What criteria should FEMA use to make the determination
that a State has taken actions to reduce the number of severe
repetitive loss properties in its communities?
Commenters characterized criteria in terms of qualitative and
quantitative criteria, as well as procedures for developing and
reviewing plans.
Qualitative factors suggested include the effort (that is, the
number of offers made or the most egregious properties approached, but
not necessarily accepted or mitigated); documentation that any actions
were taken; partnerships with other programs and funding sources; level
of outreach; and strength of the Community Assistance Program-State
Support Services Element (CAP-SSSE). This program provides funding to
States to provide technical assistance to communities in the National
Flood Insurance Program (NFIP) and to evaluate community performance in
implementing NFIP floodplain management activities. Quantitative
factors proposed include number of properties mitigated, higher
regulatory standards, number of Community Rating System (CRS)
communities, number of repetitive loss properties, other programs in
place, a plan in place, prioritization of properties, leveraging of
matching funds, and others.
Multiple commenters stated that States with approved mitigation
plans in place should not have to submit new plans or ``prove'' that
actions have been taken. Conversely, multiple commenters suggested that
States submit a report or other documentation each year to show actions
taken.
FEMA's Response
Section Sec. 201.5(c)(3)(v) of this interim rule addresses the
State mitigation planning requirements for meeting this provision. The
regulation requires documentation of actions already taken that
specifically focused on SRL properties. Because the mitigation measures
for each State and community could vary widely depending on the factual
circumstances of each state and community, FEMA opted not to set fixed
criteria.
With respect to submitting plans and updates, since most States
already have approved mitigation plans, they may only need to make
limited revisions or clarifications to the plan that focus on this
subset of properties. The entire plan will not need to be resubmitted,
only the amendment that pertains to the SRL mitigation actions.
Finally, at a minimum, states are required to review and update their
mitigation plans every 3 years. Although they may opt to submit
revisions annually, showing the mitigation actions taken, FEMA believed
an annual requirement to be overly burdensome.
Question 8: What criteria should FEMA use to determine projects that
will result in the greatest amount of savings to the National Flood
Insurance Fund? How should the criteria relate to current FEMA
procedures for determining cost effectiveness?
A considerable number of commenters stated that Benefit Cost
[[Page 61726]]
Analysis (BCA) should be used to determine the greatest amount of
savings to the NFIF. Multiple commenters indicated that the benefit
cost analysis should be waived for all SRL properties or for those with
2 or more claims that cumulatively exceed the property value.
Additional suggestions for the use of benefit cost methodologies
included providing clear guidance, a request that it be simple to use,
and that it allow FEMA and applicants to consider all factors, not just
damages. Commenters provided alternative criteria for ranking
properties such as: claims paid; claims relative to property values;
greatest cost savings to insured properties mitigated; or cost
effectiveness based on insurance premium costs.
Multiple commenters expressed that the term ``property value''
needed to be defined clearly, whether based on appraisal value,
replacements value, insured value, or fair market value.
FEMA's Response
All projects for which FEMA provides funding must be cost
effective. For the purpose of determining the amount of savings to the
NFIF as a result of the project, FEMA agreed with the commenters and
used a Benefit Cost Ratio. In this rule, FEMA determines an SRL
property by the cumulative amount of claims when 4 or more claims have
been made, or by the market value of the property in relation to the
cumulative amount of two or more claims when that cumulative amount
exceeds the market value (Sec. 79.2(g)).
Instead of using the term ``property value'', FEMA used the term
``market value'' and defined it in Sec. 79.2. FEMA defined market
value as the amount in cash, or on terms reasonably equivalent to cash,
for which in all probability the property would have sold on the
effective date of the valuation, after a reasonable exposure time on
the open market, from a willing and reasonably knowledgeable seller to
a willing and reasonably knowledgeable buyer, with neither acting under
any compulsion to buy or sell, giving due consideration to all
available economic uses of the property at the time of the valuation.
Question 9: What types of assistance do States and communities want
from FEMA when making offers to owners of severe repetitive loss
properties?
Multiple commenters asked for funding for States and communities to
assist with administrative costs, technical assistance needs, staff,
and application development as part of making offers to owners of SRL
properties. State and community commenters also stated that legal
assistance prior to initiating offers and negotiating with owners would
assist them.
A considerable number of commenters stated that the data supporting
the SRL properties list needed to be updated for accuracy, including
validating the data for addresses, names, claims history, and property
values. In addition, commenters requested access to the database, SQA
Net, flexibility to add structures or validate data, and verifying
premiums. Commenters also suggested FEMA maintain a single national
database for projects, and provide information on the true actuarial
rate in case of refusal at the time of the offer.
Multiple commenters stated that adequate number of FEMA staff
needed to be available to manage the program, and that the staff needs
to be trained in NFIP and FEMA mitigation programs.
Multiple commenters stated that assistance was needed to notify
property owners of the consequences of not accepting offers. The
commenters also stated that a simple FEMA handout or document
explaining the insurance repercussions and the appeals process would be
extremely helpful. Multiple commenters also requested FEMA describe the
tax implications of accepting mitigation funds.
Multiple commenters requested training be made available or
improved for the program, and specifically identified insurance agents
as a target for training.
FEMA's Response
As with our other grant programs, administrative costs are
available to applicants and subapplicants as a percentage of the grant
award, once the grant is awarded. Furthermore, applicants and
subapplicants may be reimbursed for pre-award costs for activities
directly related to the development of the project proposal. These
costs can only have been incurred during the open application period.
These criteria are detailed in Sec. 79.8 of this interim rule.
Certain legal expenses may be considered eligible applicant and/or
subapplicant management cost activities when associated with:
solicitation, review and processing of the SRL subapplications and
subgrant awards, obtaining pre-award consultation agreements from SRL
property owners, and staff salary costs directly related to performing
the activities above. All management cost activities must be in
conformance with 44 CFR part 13, Uniform Administrative Requirements
for Grants and Cooperative Agreements to State and Local Governments
and applicable program guidance.
Applicant management costs are limited to up to 10 percent of the
grant award and subapplicant management costs are limited to up to 5
percent of the grant award. Eligible management costs incurred prior to
the grant award, but after the SRL application period has opened are
identified as pre-award management costs. Costs incurred with respect
to pre-award activities associated with project implementation are not
eligible.
Data on SRL properties is available on the SQA Net to State NFIP
Coordinators and State Hazard Mitigation Officers. This data is being
validated and updated continuously. Over one third of the properties
identified as having a data anomaly have been validated. New
information is published each month on SQA Net. Information on the
insurance premium rate increases for property owners refusing the
mitigation offer will be provided during the consultation. Project-
related data for the SRL program will be housed within the same
database that is maintained for all other Pre-Disaster Mitigation (PDM)
grant programs.
Only FEMA Regional and disaster related staff as well as State
personnel, have been granted access to the repetitive loss and SRL data
available to SQA Net. Several new features have been added to SQA Net
recently including the ability to submit requested updates to
repetitive loss records electronically over the Internet. The ability
to search for claims records and to view former and active policy
records via SQA Net is expected to be in place by Spring 2008. With
respect to allowing local government access to SQA Net, there are
concerns regarding potential security issues and the increased
possibility of the unintentional inappropriate release of the data at
the local level resulting in a Privacy Act violation. Although they do
not have access to the SQA Net system, local communities continue to be
approved users of the repetitive loss data under the Privacy Act.
Program implementation information will contain information on
premium rate increases, if a property owner refuses the mitigation
offer. This program information also contains checklists of the types
of information that the State or community would need to compile and
make available as part of the consultations. The program information
will be augmented further with mitigation consultation tools and
resources for States and communities to aid in the consultation and
offer process.
[[Page 61727]]
Tax implications of accepting mitigation offers must be answered by
the property owner's tax advisor or other State or locally sponsored
tax advisory service. FEMA does not have the authority to provide
information on this issue.
Section 207 of the Bunning-Bereuter-Blumenauer Flood Insurance
Reform Act of 2004 calls for the establishment of minimum training and
education requirements for insurance agents who sell flood insurance
policies. FEMA is working with state insurance commissioners on
training requirements for agents that sell flood insurance policies.
Question 10: What role should states and communities have in the
appeals process for severe repetitive loss property owners who decline
mitigation offers under the Pilot Program? What rules and procedures
should be contained in the Appeals Process?
Of the comments received, 19 entities offered comments on question
10. A general synopsis of these comments is as follows:
----------------------------------------------------------------------------------------------------------------
States/ Local Associations/
General comments on appeals process territories communities organizations
----------------------------------------------------------------------------------------------------------------
Advocate information sharing between FEMA and States....... 1 3 4
Advocate State and/or community involvement in Appeals 5 4 1
Process...................................................
Advocate that only FEMA be involved in Appeals Process..... ............... 1 .................
State participants still discussing the issue with other 1 ............... .................
State agencies............................................
----------------------------------------------------------------------------------------------------------------
The following are the comments on the appeals requirement of the
Pilot Program presented by State and local officials and representative
organizations during the consultation:
Clarity in the details, especially the Appeals Process and
the insurance consequences.
States and communities are also sensitive to any
possibility of liability which may preclude much participation in the
Appeals Process. However, States and communities may be willing to
participate in an administrative capacity in collecting data for
appeals and ensuring that applications are completed.
Property owners should make an appeal in writing, along
with supporting documentation. The jurisdiction can also file
documentation either in support or against the property owner's reason
for the appeal.
The decision to accept or deny the appeal must come from
FEMA, thereby removing the States and communities from the threat of
legal action. FEMA should send written notice of its findings to the
state, community and property owner.
Appeals rule requirements should not be written in a way
that allows the property owners to easily avoid mitigation activities
or higher flood insurance premiums.
States and communities should be an informational role;
again, concern to keep the States and communities from the potential
legal liabilities.
The local communities and the State officials should just
assist people with the appeals. FEMA should make all your final
decisions and handle all the paperwork. We also feel that there should
be some formal recommendation from your parishes or local communities
or State.
The appeal process should start with the community. If the
owner of a property rejects an offer but can easily show that in
purchasing, that he relied on a FIRM [Flood Insurance Rate Map] map
that indicated the property was not on the mapped flood hazard area,
this should not have to go to FEMA.
The appeal should go through the local government. They
are the ones with claims on the property; they could validate it.
Should come through the state as the administrator of the program. We
could validate it; just like with an appeal from the local government,
you concur, you may not concur, no comment, but that provides the
additional insight.
FEMA's Response
As established in Sec. 78.7(d) of this rule, an appeal on
increased insurance rates is made in writing by the property owner to
the FEMA Regional Administrator within 90 days of the date of the
notice of insurance increase. The Regional Administrator may request
the Grantee, and Sub-grantee (State and community) if applicable, to
assist in the collection of data to support the property owner's
appeal. The Regional Administrator will review the information provided
by the property owner and may participate in discussions with the
property owner, and if applicable, with the Grantee and Sub-grantee to
resolve the appeal prior to sending it to an Independent Third Party or
a reviewer from FEMA's Alternative Dispute Resolution office (at the
property owner's discretion).
IV. Regulatory Requirements
A. Administrative Procedure Act Statement
In general, FEMA publishes a rule for public comment before issuing
a final rule, under the Administrative Procedure Act, 5 U.S.C. 533 and
44 CFR 1.12. The Administrative Procedure Act, however, provides an
exception from that general rule where the agency for good cause finds
that the procedures for prior comment and response are impracticable,
unnecessary, or contrary to public interest.
This interim rule implements provisions of the Bunning-Bereuter-
Blumenauer Flood Insurance Reform Act of 2004, which amended the
National Flood Insurance Act of 1968. The key component of this rule
includes implementation of the new SRL program as well as amending
provisions of the existing FMA program. The rule also streamlines the
planning process, and clarifies the planning requirements to address
existing, unanticipated inconsistencies.
Authorization for the SRL program expires on September 30, 2009.
Funding for the new SRL program was made available as of fiscal year
2006, thus it is important to allow States, tribes, communities, and
property owners to access these funds so that they may have the
opportunity to reduce their flood losses to these high risk properties
as soon as possible. It is also in the public interest to mitigate
these SRL properties as soon as possible to minimize further costs
resulting from upcoming seasonal flooding. These properties often pose
the highest costs to the Nation in terms of discounted Federal flood
insurance rates, as well as Federal disaster assistance payments,
Prior comment on this rule is not in the public interest where the
implementation of the new SRL program, as well as the modified FMA
program, will assist States recovering from flood disasters nationwide,
including Hurricanes Katrina and Rita, by providing additional grant
resources
[[Page 61728]]
and increasing the Federal cost share for projects mitigating SRL
properties. In particular, States and communities are at a critical
stage for identifying properties to be mitigated in the post-Katrina
recovery efforts, and these funds are essential for targeting the most
costly properties in the area. To be most effective, the funds need to
be made available to the Gulf Coast States and communities affected by
Katrina and Rita as soon as possible. At the end of August 2007, there
were just under 8,100 properties identified as meeting the definition
of severe repetitive loss properties; approximately 58 percent, or
4,685 properties, lie within the 5 States most affected by Hurricanes
Katrina and Rita. Mitigating these SRL properties will provide States
the opportunity to reduce future losses to these SRL properties, which
represent the largest drain on the NFIF and also will reduce future
disaster costs to the local, State, and Federal government.
States, tribes, and communities also have a strong interest in
accessing, as soon as possible, information in the rule that outlines
how the States can revise their mitigation plans to receive the reduced
cost share under the FMA and SRL programs. This cost-share reduction is
an important incentive and, in some cases, necessary to allow
communities, which otherwise would not be able to meet the match
requirement, to mitigate SRL properties. It is essential that the
availability of this information not be delayed, particularly where in
many cases the revisions to mitigation plans will themselves, require
time-consuming coordination across multiple agencies.
In accordance with the Administrative Procedure Act, 5 U.S.C. 553
(b), FEMA believes that prior notice and comment would be contrary to
the public interest, as it would serve only to delay the benefits of
this rule to States, tribes, and communities, and would continue
imposing the costs of these at-risk properties on the general public.
FEMA nevertheless recognizes the importance of public input in the
regulatory process. To that end, FEMA involved the public in a
consultation process prior to the publication of this interim rule. To
initiate the consultation process, FEMA published a Federal Register
notice on September 15, 2004, 69 FR 55642. The comment period was
supposed to close on November 30, 2004, but FEMA extended the deadline
for comments until December 7, 2004, and received 26 written comments
from States, communities, and associations. Also, as part of the
consultation, FEMA invited representative officials of State and local
governments, organizations representing emergency management,
floodplain management, and insurance professions, to provide oral
presentations on the requirements and issues raised in the Federal
Register notice. Comments received were given careful consideration in
the preparation of this interim rule.
Finally, FEMA actively encourages and solicits comments on this
interim rule from interested parties. These comments will be given
careful consideration, and could result in changes to these
regulations.
B. National Environmental Policy Act
FEMA has considered this rule in accordance with its implementing
regulations for complying with the National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321-4370f), which are found at 44 CFR part 10.
This rule addresses applicant planning requirements, as well as
eligibility, funding increases, and cost sharing/funding incentives
relating to certain disaster mitigation programs and does not change
the type or nature of mitigation actions that may be funded. This
rulemaking would neither individually nor cumulatively have a
significant effect on the human environment and, therefore, neither an
environmental assessment nor an environmental impact statement is
required. This rulemaking is among the category of actions included in
the Categorical Exclusions listed at 44 CFR 10.8(d)(2)(ii), which
excludes the preparation, revision and adoption of regulations from the
preparation of an environmental assessment or environmental impact
statement, where the rule relates to actions that qualify for
categorical exclusions. The related actions of the development of plans
and administrative activities that are included in this rule are also
categorically excluded under 44 CFR 10.8(d)(2)(iii) and 44 CFR
10.8(d)(2)(i).
C. Executive Order 11988, Floodplain Management
FEMA has prepared and reviewed this rule under the provisions of
Executive Order 11988, Floodplain Management. Part 9 sets forth FEMA's
policy, procedures, and responsibilities in implementing this Executive
Order. In summary, these are, to the greatest possible degree: To avoid
long and short term adverse impacts associated with the occupancy and
modification of floodplains; avoid direct and indirect support of
floodplain development whenever there is a practical alternative;
reduce the risk of flood loss; promote the use of nonstructural flood
protection methods to reduce the risk of flood loss; minimize the
impacts of floods on human health, safety and welfare; restore and
preserve the natural and beneficial values served by floodplains; and
adhere to the objectives of the Unified National Program for Floodplain
Management. As stated in the rule, the purpose of the SRL and FMA
programs is to mitigate insured property losses from floods, thereby
minimizing impacts to the NFIF, which is consistent with the intent of
the Executive Order. In addition, for project activities funded through
the SRL and FMA programs, each project will go through the
environmental review process, which will include compliance with
Executive Order 11988.
D. Executive Order 12866, Regulatory Planning and Review
FEMA has prepared and reviewed this rule under the provisions of
Executive Order 12866, Regulatory Planning and Review. Under Executive
Order 12866, a significant regulatory action is subject to the Office
of Management and Budget (OMB) review and the requirements of the
Executive Order. The Executive Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Regulatory Alternatives
In determining how to move forward with this rule, two alternatives
were considered. The first alternative was to issue an interim rule for
the SRL program, and to modify the existing separate FMA rule to
incorporate changes made by the Act. This would result in two sections
of the CFR addressing mitigation grant programs funded through the NFIP
which could result in disjointed implementation of the two similar
programs.
The second alternative (and the one adopted by FEMA) was to
establish and proceed with the implementation of the SRL and FMA
programs as described in
[[Page 61729]]
this interim rule. This will allow FEMA to ensure a more consistent
approach to implementation and management of these programs. FEMA has
been working to implement all of the mitigation grant programs in a
consistent manner, and this regulatory change furthers that attempt.
These changes are also expected to limit confusion around program
implementation since both programs will likely be managed by the same
state agency staff.
Congressional Appropriations
The regulations implementing the FMA program were originally issued
on March 20, 1997. Historically, the program has provided $20 million
in grants on an annual basis to States and communities to reduce flood
losses to properties insured under the NFIP. In fiscal year 2007, $31
million was made available for the FMA program to fund activities that
help reduce repetitive flood insurance claims, thereby reducing the
drain on the NFIP from these properties. This program provides an
opportunity for every State to fund planning and project activities
but, since it is a small program, it is unable to assist all those who
could benefit from it. The Bunning-Bereuter-Blumenauer Flood Insurance
Reform Act of 2004 provides for additional program funding for the FMA
program, as well as makes it easier for some to participate in the
program, by providing the ability for States to reduce the cost share
for those properties that meet the definition of a severe repetitive
loss property.
The primary purpose of this rule is to implement the new SRL
program, which will provide grants to property owners to mitigate their
risk from flooding, with incremental increases in the insurance
premiums imposed if they decline to accept the offers of mitigation. In
fiscal year 2007, $40 million was made available by Congress for the
SRL program. Therefore, in fiscal year 2007, a total of $71 million was
allocated for these programs ($31 million for FMA and $40 million for
SRL).
Impact From Increase in Insurance Premiums
Most severe repetitive loss properties were built prior to December
31, 1974, and the insurance premiums for these properties are supported
financially by other NFIP policyholders. Repetitive loss properties
only account for approximately 1 percent of the current NFIP policies,
yet these properties historically account for over 30 percent of the
amount paid in claims. Under the SRL program, owners of severe
repetitive loss properties will receive mitigation offers. Refusals of
these offers will result in increased premiums for owners of these
properties. Thus, in either case, this rule should help shift the
disproportionate burden away from the majority of NFIP policyholders
who do not own SRL properties.
Within the NFIP, the average discounted premium paid by owners of
property built before December 31, 1974 is $800 per year. However, if
those properties were rated on an actuarial basis, taking into account
their actual flood risk, the annual premiums they should be paying
would average between $1,700 and $1,900 per year. Severe repetitive
loss properties as a subset of the pre-1974 properties have higher
flood risks than most properties with discounted premiums insured under
the NFIP, and their actuarial rates could be much higher. For purposes
of estimating the annual economic impact of this interim rule, FEMA
used an average actuarial premium rate of $5,000 for these severe
repetitive loss properties. This average actuarial rate does not
reflect the discount premium rate; rather it more closely represents
the flood risk to the property.
Of the $40 million available each year for the SRL program, FEMA
assumes that $37 million will be awarded as project grants, and that
the average grant per property is $75,000. Therefore, offers will be
made to approximately 500 property owners in the first year. It is
assumed that up to 3 percent of those property owners might decline the
offer of mitigation assistance, and that these 15 properties would be
subject to the increased insurance premiums. This 3 percent figure is
based on the fact that although NFIP engages in litigation for less
than 1 percent of its claims in an average claims year, there have been
3 times the normal number of claims as a result of Hurricanes Katrina,
Rita, and Wilma. Also, after the wildfires of Cerro Grande, FEMA
instituted a similar grant program whereby homeowners received funds
for repair, with an appeals provision. Approximately 3 percent of those
homeowners appealed their grant amount.
This increased cost of insurance for these 15 properties would
result in an average discounted premium increase of approximately $400
per property owner (50% of the $800 average discounted premium), for a
total increase in insurance premiums of $6,000 the first year. This
premium rate can increase over time, until the actuarial rate
(averaged, for the purpose of this rule to $5,000) is reached. At no
time, however, would the premium paid for the affected property exceed
the actuarial rate. If, over the remaining 1 year of the pilot SRL
program, one expects the number of property owners declining the offer
of assistance to remain the same, then the total number of affected
properties will be 30. Within 10 to 20 years, when all 30 of the
affected properties whose owners declined the mitigation offer will
each pay actuarial premium rates described above as averaging $5,000
per year, the maximum annual impact of the program would be $150,000
($5000 x 30).
Changes to HMGP
The rulemaking makes a technical change to reflect existing HMGP
post-disaster allocation amounts already in effect as a result of
amendments to Section 404 of the Stafford Act (42 U.S.C. 5170c, as
amended by Pub. L. 109-295, Sec. 684). The change set non-
discretionary standard allocation amounts for the program.
Open Space
As part of implementing the SRL and FMA, this rule also includes a
new part (part 80) which describes the requirements and procedures for
open space acquisition which will apply to these programs, as well as
all FEMA mitigation grant programs. The Act requires certain special
acquisition procedures for SRL, however open space acquisitions funded
under all FEMA mitigation grant programs otherwise subject to the same
requirements to ensure mitigation objectives are met. Prior to this
rule, acquisition requirements for each mitigation grant program were
addressed in the respective mitigation grant program regulations or
guidance, such as at Sec. 78.12 for FMA and Sec. 206.434 for HMGP,
including associated program guidance. A central reference point for
all mitigation grant program property acquisitions is intended to make
the programs easier to implement. There will be no additional cost from
this change.
Increase in Federal Share
The rule also implements the changes to the FMA program by allowing
for a 90 percent Federal share for the mitigation of severe repetitive
loss properties, amending the method by which State funding allocations
are calculated, and making the FMA planning requirements and other
program aspects consistent with other FEMA mitigation planning and
program requirements. Though there is no net change in the funding
allocated for FMA with this new cost share provision, the distribution
of the funding will shift to the Federal ``side''. In FY 2007, $31
[[Page 61730]]
million was made available for the FMA program. Since the change in
Federal share will be from 75 percent to 90 percent, the change in
Federal outlay will be $4.65 million. This figure includes two very
conservative assumptions: That all properties mitigated under FMA will
be SRL properties; and that all States will seek this new cost share by
virtue of revising their State mitigation plans.
Intangible Benefit
As of the end of August 2007, just under 8,100 properties were
identified as meeting the definition of severe repetitive loss. Of
those, approximately 58 percent are in the 5 States most affected by
hurricanes Katrina and Rita. Alabama has 223 properties, Louisiana has
2,567 properties, Mississippi has 148 properties, Texas has 1,275
properties, and Florida has 472 properties. Implementation of the new
SRL program, as well as the modified FMA program, will assist these
States in recovering from these disasters by providing additional grant
resources and the ability to increase the Federal cost share for
projects mitigating SRL properties.
The economic impact of this rule is approximately $76 million. This
rulemaking has been determined to be a nonsignificant regulatory action
under section 3(f) of Executive Order 12866 by OMB. This rule adheres
to the principles of regulation of the Executive Order.
E. Executive Order 12898, Environmental Justice
Under Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994, FEMA incorporates
environmental justice into our policies and programs. The Executive
Order 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 our programs, denying persons the benefits of our
programs, or subjecting persons to discrimination because of their
race, color, or national origin.
No action that FEMA can anticipate under the interim rule will have
a disproportionately high or adverse human health and environmental
effect on any segment of the population. This rule implements the SRL
program, providing mitigation grants to severe repetitive loss
properties, and modifies aspects of the FMA program and the mitigation
planning requirements. With respect to Indian tribal governments, the
rule streamlines and simplifies the planning requirements. Finally,
this interim rule amends Sec. 206.432 to reflect statutory and
technical changes to HMGP. Accordingly, the requirements of Executive
Order 12898 do not apply to this interim rule.
F. Paperwork Reduction Act of 1995
This interim rule includes provisions constituting collections of
information under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C.
3501 et seq.). Under section 3507(d) of the PRA, The Federal Emergency
Management Agency (FEMA) will submit a copy of this rulemaking action
to the Office of Management and Budget (OMB) for review. FEMA is
submitting a request for review and approval of collections of
information under OMB's emergency processing procedures. Through
publication of this interim rule, FEMA is requesting a 6-month approval
for these information collections. FEMA plans to follow this emergency
approval request with a 3-year approval request. The 3-year request
will be processed under OMB's normal clearance procedures in accordance
with the provisions of OMB regulation at 5 CFR 1320.10. This interim
rule also serves as the 60 day notice required by 5 CFR 1320.8. FEMA
invites the public to comment on the proposed collections of
information during this 60 day comment period.
Several collections of information referenced in this interim rule
have existing OMB approvals under the PRA. The rule in Sec. Sec.
79.3(b), 79.3(c), 79.3(d), 79.5(a)(2), 79.5(b), 79.6(b), 79.7(b),
79.9(a), 201.3, 201.6, and 201.7 contains collections of information
under the PRA for which FEMA requests approval of amendments to
existing collections by OMB. In addition, FEMA is requesting approval
of two new collections of information for the interim rule contained
under the new Sec. Sec. 79.7(d), 80.13(a), 80.13(b), 80.17(e),
80.19(b), 80.19(d), 80.19(e), 80.21, and 206.434.
1. Collection of Information
Part 201 under OMB Number 1660-0062, State/Local/Tribal Hazard
Mitigation Plans--under section 322 of Stafford Act clarifies the
State, Tribal, and local mitigation planning requirements. Before this
interim rule goes into effect, applicants for FMA funds are required to
develop a plan that specifically addresses flood mitigation planning
requirements under part 78. This plan is collected under OMB collection
number 1660-0075; Flood Mitigation Assistance--Flood Mitigation Plan.
Applicants for all other types of mitigation grant funding are required
to develop a plan that addresses all hazards for which the applicant
seeks funds under part 201, which may also include floods. This plan is
collected under OMB collection number 1660-0062; State/Local/Tribal
Hazard Mitigation Plans--under section 322 of Stafford Act. With the
revisions established by this interim rule, the all hazards plan
developed under part 201 will meet the requirements for all mitigation
grants including FMA, which means that applicants will no longer be
required to submit the flood specific plans under part 78. Because of
this change FEMA is discontinuing OMB collection number 1660-0075, and
revising OMB collection number 1660-0062.
Due to this change in the mitigation grant process, there are
outstanding flood mitigation grants that have been issued with the
requirement that the grantee submit a flood mitigation plan pursuant to
the requirements of part 78. Although FEMA will no longer require the
submission of flood mitigation plans for those funds awarded during
application periods that open on or after the effective date of this
rule, FEMA will continue to accept flood mitigation plans until the end
of a grantee's current period of performance to include any extensions
granted pursuant to Sec. 78.9 and FEMA's Financial and Acquisition
Management Division's Extension Policy.
Title: State/Local/Tribal Hazard Mitigation Plans-Section 322 of
the Disaster Mitigation Act of 2000.
OMB Number: 1660-0062.
Abstract: The purpose of the State/Local/Tribal Hazard Mitigation
Plan requirements is to outline the strategy by which State, tribal and
local governments use to demonstrate the goals, priorities, and
commitment to reduce risks from natural hazards and serves as a guide
for State and local decision makers as they commit resources to
reducing the effects of natural hazards.
Affected Public: State, Local or Tribal Government.
Number of Respondents: 56.
Estimated Time per Respondent: 2,408.
Estimated Total Annual Burden Hours: 768,320.
Frequency of Response: On Occasion.
The authorized SRL grant program will be implemented under the new
part 79. However, the administration of FMA funds for which application
period opens prior to publication of this rule will be subject to part
78, while the new
[[Page 61731]]
part 79 is used to administer new FMA grants.
2. Collection of Information
The SRL grant program was authorized by Congress in 2004 and
expires on September 30, 2009. The SRL grant program focuses on a
subset of all repetitive flood loss properties, residential properties
with a high frequency of losses or a high value of claims, defined as
severe repetitive loss properties. This is a non-disaster grant program
that is authorized annually and not as a result of a Presidential
Disaster Declaration. The information collection activity under the
approved OMB information collection 1660-0025, FEMA Grant
Administrative Forms is a paper-based collection used by States and
local government to obtain grant information and is being amended to
include the following burden hours for the SRL grant program.
Title: FEMA Grant Administration Forms.
OMB Number: 1660-0025.
Abstract: This collection of information focuses on the
standardization and consistent use of standard and FEMA forms
associated with grantees request for disaster and non-disaster federal
assistance, submission of financial and administrative reporting and
recordkeeping. The use of the forms will minimize burden on the
respondents and enable FEMA to continue to improve in its grants
administration practices.
Affected Public: State, Local or Tribal Government.
Estimated Total Annual Burden Hours:
Disaster Programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Annual
Data collections activity/instruments respondents responses Hour burden per response responses Total annual burden hours
(A) (B) (C)......................... (D) = (A x B) (C x D)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PA:
SF 424............................ 56 1 45 minutes.................. 56 42 hours.
FF 20-20.......................... 56 1 9.7 hours................... 56 543 hours.
FF 20-16, A, B, C................. 56 1 1.7 hours................... 56 95 hours.
FF 20-10.......................... 56 4 1 hour...................... 224 224 hours.
SF-LLL............................ 56 1 10 minutes.................. 56 9 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 56 ................ 13.3 hours.................. 392 57 Disaster Declarations x
913 hours = 52,041.
SCC:
SF 424............................ 17 1 45 minutes.................. 17 13 hours.
SF 20-20.......................... 17 1 9.7 hours................... 17 165 hours.
FF 20-16, A, B, C................. 17 1 1.7 hours................... 17 29 hours.
FF 20-10 (SF 269)................. 17 4 1 hour...................... 68 68 hours.
SF-LLL............................ 17 1 10 minutes.................. 17 3 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 17 ................ 13.3 hours.................. 119 57 Disaster Declarations x
278 hours = 15,846.
ONA:
SF 424............................ 40 1 45 minutes.................. 40 30 hours.
FF 20-20.......................... 40 1 9.7 hours................... 40 388 hours.
FF 20-16, A, B, C................. 40 1 1.7 hours................... 40 68 hours.
FF 20-10.......................... 40 4 1 hour...................... 160 160 hours.
SF-LLL............................ 40 1 10 minutes.................. 40 7 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 40 ................ 13.3 hours.................. 320 57 Disaster Declarations x
653 hours = 37,221.
HMGP:
SF 424............................ 52 1 45 minutes.................. 52 39 hours.
FF 20-20.......................... 52 15 9.7 hours................... 780 7,566. hours.
FF 20-16, A, B, C................. 52 1 1.7 hours................... 52 88 hours.
FF 20-10.......................... 52 4 1 hour...................... 208 208 hours.
FF 20-17.......................... 52 15 17.2 hours.................. 780 13,416 hours.
FF 20-18.......................... 52 6 4.2 hours................... 312 1,310 hours.
FF 20-19.......................... 52 6 5 minutes................... 312 25 hours.
SF-LLL............................ 52 1 10 minutes.................. 52 9 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 52 ................ 35 hours.................... 2,548 57 Disaster Declarations x
22,661 hours = 1,291,677.
FMAGP:
SF 424............................ 12 4 45 minutes.................. 48 36 hours.
FF 20-20.......................... 36 4 9.7 hours................... 144 1,397 hours.
FF 20-16, A, B, C................. 36 4 1.7 hours................... 144 245 hours.
[[Page 61732]]
FF 20-15.......................... 36 4 17.2 hours.................. 144 2,477 hours.
FF 20-10.......................... 12 4 1 hour...................... 48 48 hours.
FF 20-18.......................... 36 4 4.2 hours................... 144 605 hours.
FF 20-19.......................... 36 4 5 minutes................... 144 12 hours.
SF-LLL............................ 36 4 10 minutes.................. 144 24 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 36 ................ 35 hours.................... 960 94 Disaster Declarations x
4,844 hours = 455,336.
-----------------------------------------------------------------------------------------------------------------
Disaster Grants Total......... 56 ................ 110 hours................... 3,800 1,852,121 hours.
-----------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Disaster Programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Annual
Data collection activity/instruments respondents responses Hour burden per response responses Total burden hours
(A) (B) (C)......................... (D) = (A x B) (C x D)
--------------------------------------------------------------------------------------------------------------------------------------------------------
US&R:
SF 424............................ 28 1 45 minutes.................. 28 21 hours.
FF 20-20.......................... 28 1 9.7 hours................... 28 272 hours.
FF 20-16, A, B, C................. 28 1 1.7 hours................... 28 48 hours.
FF 76-10A......................... 28 1 1.2 hours................... 28 34 hours.
FF 20-10.......................... 28 2 1 hour...................... 56 56 hours.
SF 270............................ 28 1 1 hour...................... 28 28 hours.
SF LLL............................ 28 1 10 minutes.................. 28 5 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 28 ................ 16 hours.................... 224 498 hours.
CAP-SSSE:
SF 424............................ 56 1 45 minutes.................. 56 42 hours.
FF 20-20.......................... 56 1 9.7 hours................... 56 543 hours.
FF 20-15.......................... 56 1 17.2 hours.................. 56 963 hours.
FF 20-16, A, B, C................. 56 1 1.7 hours................... 56 95 hours.
FF 76-10A......................... 56 1 1.2 hours................... 56 67 hours.
FF 20-10.......................... 56 2 1 hour...................... 112 112 hours.
FF 20-18.......................... 56 1 4.2 hours................... 56 235 hours.
FF 20-19.......................... 56 1 5 minutes................... 56 4 hours.
SF LLL............................ 56 1 10 minutes.................. 56 9 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 56 ................ 36 hours.................... 560 2,070 hours.
CSEPP:
SF 424............................ 10 1 45 minutes.................. 10 8.0 hours.
FF 20-20.......................... 10 1 9.7 hours................... 10 97.0 hours.
FF 20-10.......................... 10 4 1 hour...................... 40 40.0 hours.
FF 20-16, A, B, C................. 10 1 1.7 hour.................... 10 17.0 hours.
FF 76-10A......................... 10 1 1.2 hour.................... 10 12.0 hours.
FF 20-18.......................... 10 1 4.2 hours................... 10 42.0 hours.
FF 20-19.......................... 10 1 5 minutes................... 10 1.0 hours.
SF LLL............................ 10 1 10 minutes.................. 10 2.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 10 ................ 19 hours.................... 120 219 hours.
NDSP:
SF 424............................ 51 1 45 minutes.................. 51 38.0 hours.
FF 20-20.......................... 51 1 9.7 hours................... 51 495.0 hours.
FF 20-16, A, B, C................. 51 1 1.7 hours................... 51 87.0 hours.
FF 76-10A......................... 51 1 1.2 hours................... 51 61.0 hours.
FF 20-10.......................... 51 4 1 hour...................... 204 204.0 hours.
SF 270............................ 51 1 1 hour...................... 51 51.0 hours.
SF LLL............................ 51 1 10 minutes.................. 51 8.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 51 ................ 16 hours.................... 510 944 hours.
ICE:
FF 20-10.......................... 17 4 1 hour...................... 68 68.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 17 ................ 1 hour...................... 17 68 hours.
[[Page 61733]]
EqC:
FF 20-10.......................... 3 2 1 hour...................... 6 6 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 3 ................ 1 hour...................... 6 6 hours.
AIDMATRIX:
SF 424............................ 1 1 45 minutes.................. 1 .75 minutes.
FF 20-20.......................... 1 1 9.7 hours................... 1 9.7 hours.
FF 20-10.......................... 1 4 1 hour...................... 4 4.0 hours.
FF 20-16 A, B, C.................. 1 1 1.7 hours................... 1 1.7 hours.
SF LLL............................ 1 1 10 minutes.................. 1 .16 minutes.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 1 ................ 13 hours.................... 8 16 hours.
AHPP:
SF 424............................ 4 1 45 minutes.................. 4 3.0 hours.
FF 20-20.......................... 4 1 9.7 hours................... 4 39.0 hours.
FF 20-10.......................... 4 4 1 hour...................... 16 16.0 hours.
FF 20-16, A, B, C................. 4 1 1.7 hours................... 4 6.8 hours.
SF LLL............................ 4 1 10 minutes.................. 4 .66 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 4 ................ 13 hours.................... 32 65 hours.
CTP:
SF 424............................ 20 1 45 minutes.................. 20 15.0 hours.
FF 20-20.......................... 20 1 9.7 hours................... 20 194.0 hours.
FF 20-15.......................... 20 1 17.2 hours.................. 20 344.0 hours.
FF 20-16, A, B, C................. 20 1 1.7 hours................... 20 34.0 hours.
FF 20-10.......................... 20 4 1 hour...................... 80 80.0 hours.
SF LLL............................ 20 1 10 minutes.................. 20 3.3 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 20 ................ 31 hours.................... 180 670.3 hours.
MMMS:
SF 424............................ 20 1 45 minutes.................. 20 15.0 hours.
FF 20-20.......................... 20 1 9.7 hours................... 20 194.0 hours.
FF 20-15.......................... 20 1 17.2 hours.................. 20 344.0 hours.
FF 20-16, A, B, C................. 20 1 1.7 hours................... 20 34.0 hours.
FF 20-10.......................... 20 2 1 hour...................... 40 40.0 hours.
SF LLL............................ 20 1 10 minutes.................. 20 3.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 20 ................ 31 hours.................... 120 630 hours.
RFC:
SF 424............................ 56 1 45 minutes.................. 56 42.0 hours.
FF 20-20.......................... 56 1 9.7 hours................... 56 543.0 hours.
FF 76-10A......................... 56 1 1.2 hours................... 56 67.0 hours.
FF 20-16, A, B, C................. 56 1 1.7 hours................... 56 95.0 hours.
FF 20-10.......................... 56 4 1 hour...................... 224 224.0 hours.
FF 20-18.......................... 56 1 4.2 hours................... 56 235.0 hours.
FF-20-19.......................... 56 1 5 minutes................... 56 5.0 hours.
SF LLL............................ 56 1 10 minutes.................. 56 9.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 56 ................ 19 hours.................... 616 1,220 hours.
SRL:
FF 424............................ 56 1 45 minutes.................. 56 42.0 hours.
FF 20-20.......................... 56 1 9.7 hours................... 56 543.0 hours.
FF 76-10A......................... 56 1 1.2 hours................... 56 67.0 hours.
FF 20-16, A, B, C................. 56 1 1.7 hours................... 56 95.0 hours.
FF 20-10.......................... 56 4 1 hour...................... 224 224.0 hours.
FF 20-18.......................... 56 1 4.2 hours................... 56 235.0 hours.
FF 20-19.......................... 56 1 5 minutes................... 56 5 hours.
SF LLL............................ 56 1 10 minutes.................. 56 9.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 56 ................ 19 hours.................... 616 1,220 hours.
FMA:
SF 424............................ 56 3 45 minutes.................. 168 126.0 hours.
FF 20-20.......................... 56 3 9.7 hours................... 168 1630.0 hours.
FF 20-16, A, B, C................. 56 1 1.7 hours................... 56 95.0 hours.
FF 76-10A......................... 56 3 1.2 hours................... 168 202.0 hours.
FF 20-10.......................... 56 4 1 hour...................... 224 224.0 hours.
FF 20-18.......................... 56 1 4.2 hours................... 56 235.0 hours.
FF 20-19.......................... 56 1 5 minutes................... 56 4.0 hours.
SF LLL............................ 56 1 10 minutes.................. 56 9.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 56 ................ 19 hours.................... 952 2,525 hours.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61734]]
Non-Disaster Programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Annual
Data collection activity/instruments respondents responses Hour burden per response responses Total burden hours
(A) (B) (C)......................... (D) = (A x B) (C x D)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PDM:
SF 424............................ 56 2 45 minutes.................. 112 84 hours.
FF 20-15.......................... 56 1 17.2 hours.................. 56 963.2 hours.
FF 20-20.......................... 56 2 9.7 hours................... 112 1,086.4 hours.
FF 76-10A......................... 56 2 1.2 hours................... 112 134.4 hours.
FF 20-16, A, B, C................. 56 2 1.7 hours................... 112 190.4 hours.
FF 20-10.......................... 56 8 1 hour...................... 448 448 hours.
FF 20-17.......................... 56 20 17.2 hours.................. 1,120 19,264 hours.
FF 20-18.......................... 56 2 4.2 hours................... 112 470.4 hours.
FF 20-19.......................... 56 2 5 minutes................... 112 9.3 hours.
SF LLL............................ 56 2 10 minutes.................. 112 18.6 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 56 ................ 53 hours.................... 2,408 22,668.7 hours.
AFG*:
SF 424............................ 4,246 1 45 minutes.................. 4,246 3,185.0 hours.
FF 20-20.......................... 4,246 2 9.7 hours................... 8,492 82,372.0 hours.
FF 76-10A......................... 4,246 2 1.2 hours................... 8,492 10,190.0 hours.
FF 20-16, A, B, C................. 4,246 1 1.7 hours................... 4,246 7,218.0 hours.
FF 20-10.......................... 4,246 2 1 hour...................... 8,492 8,492.0 hours.
FF 20-17.......................... 4,246 1 17.2 hour................... 4,246 73,031.0 hours.
FF 20-18.......................... 4,246 1 4.2 hours................... 4,246 17,833.0 hours.
FF 20-19.......................... 4,246 1 5 minutes................... 4,246 340.0 hours.
SF LLL............................ 4,246 1 10 minutes.................. 4,246 705.0 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 4,246 ................ 36 hours.................... 50,952 203,366 hours.
SAFER*:
SF 424............................ 243 1 45 minutes.................. 243 182.0 hours.
FF 20-20.......................... 243 2 9.7 hours................... 486 4,714.0 hours.
FF 76-10A......................... 243 2 1.2 hours................... 486 583.0 hours.
FF 20-16, A, B, C................. 243 1 1.7 hours................... 243 413.1 hours.
FF 20-10.......................... 243 4 1 hour...................... 972 972 hours.
FF 20-17.......................... 243 1 17.2 hours.................. 243 4,179.6 hours.
FF 20-18.......................... 243 1 4.2 hours................... 243 1,020.6 hours.
FF 20-19.......................... 243 1 5 minutes................... 243 20.2 hours.
SF LLL............................ 243 1 10 minutes.................. 243 40.5 hours.
-----------------------------------------------------------------------------------------------------------------
Subtotal...................... 243 ................ 36 hours.................... 3,402 12,125.7 hours.
-----------------------------------------------------------------------------------------------------------------
Non-Disaster Grants Total..... ................ ................ 359......................... 55,378 248,312.
-----------------------------------------------------------------------------------------------------------------
Grand Total............... ................ ................ 469......................... 59,178 2,100,433.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* AFG and SAFER grants are awarded directly to individual Fire departments.
3. Collection of Information
The information collection activity under the approved OMB
information collection 1660-0072, Mitigation Grant Program/e-Grants
(previous named Flood Mitigation Assistance (e-Grants)) and Grant
Supplemental Information is an electronic system used to meet the
intent of the eGovernment initiative. This collection does not
supersede the paper-based collection for Grants (OMB No. 1660-0025).
Applicants may apply using the e-Grants (1660-0072) application
accessible on the Internet at https://portal.fema.gov. The OMB approved
collection 1660-0072 have been combined with OMB No. 1660-0071, Pre-
Disaster Mitigation (PDM) Grant Program/e-Grants to streamline and
simplify documentation of the same information collected for all
mitigation e-Grants program. Because of this change OMB No. 1660-0071
has been discontinued as a separate collection. This collection also
includes the authorized SRL program.
Title: Mitigation Grant Program/ e-Grants.
OMB Number: 1660-0072.
Abstract: The States will utilize the Mitigation Grant Program/e-
Grants, automated application to report to FEMA on a quarterly basis,
certify how funding is being used and to report on the progress of
mitigation activities funded under grant awards, made to grantees by
FEMA who will use the system to review the grantees quarterly reports
to ensure that mitigation grant activities are progressing on schedule
and to track the expenditures of funds.
Affected Public: State, Local or Tribal Government.
Estimated Total Annual Burden Hours:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Burden hours per Total annual
Project/activity (survey, forms(s), focus group, etc.) respondents responses respondent Annual responses burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
FMA:
Benefit-Cost Determination................................ 56 2 5 112 560
[[Page 61735]]
Environmental Review...................................... 56 2 7.5 112 840
Project Narrative--Sub-grant Application.................. 56 4 12 224 2,688
-----------------------------------------------------------------------------------------
Subtotal FMA.......................................... 56 ................ 24.5 448 4,088
RFC:
Benefit-Cost Determination................................ 56 1 5 56 280
Environmental Review...................................... 56 1 7.5 56 420
Project Narrative--Sub-grant Application.................. 56 2 12 112 1,344
-----------------------------------------------------------------------------------------
Subtotal RFC.......................................... 56 ................ 24.5 224 2,084
PDM:
Benefit-Cost Determination................................ 56 20 5 1,120 5,600
Environmental Review...................................... 56 20 7.5 1,120 8,400
Project Narrative--Sub-grant Application (including PDM 56 20 12 1,120 13,440
Evaluation Information Questions \5\)....................
-----------------------------------------------------------------------------------------
Subtotal PDM.......................................... 56 ................ 24.5 3,360 27,440
SRL:
Benefit-Cost Determination................................ 56 7 5 392 1,960
Environment Review........................................ 56 7 7.5 392 2,940
Project Narrative--Sub-grant Application.................. 56 8 12 448 5,376
-----------------------------------------------------------------------------------------
Subtotal SRL.......................................... 56 ................ 24.5 1,232 10,276
-----------------------------------------------------------------------------------------
Total............................................. 56 ................ 98 5264 43,888
--------------------------------------------------------------------------------------------------------------------------------------------------------
4. Collection of Information
The Property Acquisition and Relocation for Open Space (part 80)
will govern property acquisitions for the creation of open space under
all of FEMA mitigation grant programs authorized under both the
Stafford Act and the National Flood Insurance Act of 1968, as amended.
Acquisition and relocation of property for open space use is one of the
most common mitigation activities, and is an eligible activity type
authorized for Federal grant funds under all of FEMA mitigation grant
programs. FEMA mitigation grant programs require all properties
acquired with FEMA funds to be deed restricted and maintained as open
space in perpetuity. This ensures that no future risks from hazards
occur to life or structures on that property, and no future disaster
assistance or insurance payments are made as a result of damages to
that property. This new collection of information is necessary to
establish uniform requirements for State and local implementation of
acquisition activities, and to enforce open space maintenance and
monitoring requirements for properties acquired with FEMA mitigation
grant funds. This interim rule includes a conforming amendment to the
HMGP to refer to the new part 80 for acquisition and relocation
activities, and deletes Sec. 206.434(f).
Title: Property Acquisition and Relocation for Open Space.
Type of Information Collection: New Collection.
OMB Number: 1660-New23.
Form Numbers: None.
Abstract: FEMA and State and local recipients of FEMA mitigation
grant programs will use the information collected under the Property
Acquisition requirements to implement acquisition activities under the
terms of grant agreements for acquisition and relocation activities.
FEMA and State/local grant recipients will also use the information to
monitor and enforce the open space requirements for all properties
acquired with FEMA mitigation grants.
Affected Public: State, local, or Indian tribal government and
individuals or households.
Estimated Total Annual Burden Hours:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Number of Hour burden per Total burden
Data collection activity respondents responses responses response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Voluntary Participation Statement............................. 56 40 1 2240 2440
Deed Restriction Requirements................................. 56 40 4 2240 8960
Monitoring and Reporting Requirements......................... 56 1 4 56 224
Transfer Certification........................................ ................ ................ ................ ................ ................
Enforcement Notices........................................... ................ ................ ................ ................ ................
-----------------------------------------------------------------------------------------
Total..................................................... 56 ................ 9 4,536 11,424
--------------------------------------------------------------------------------------------------------------------------------------------------------
5. Collection of Information
The appeals process in Sec. 79.7(d) outlines the process by which
any owner of a severe repetitive loss property may appeal the decision
of FEMA to increase the chargeable insurance premium rate on property.
The legislation that created the SRL program provides that any owner of
a severe repetitive loss property who refuses an offer of mitigation
may appeal the decision of FEMA to increase the chargeable insurance
premium rate on that property. The process requires the owner to submit
a written appeal, including any supporting documentation for their
appeal to FEMA within 90 days of the notice of the insurance rate
increase. This new collection of information is necessary to ensure
that the property owner is given
[[Page 61736]]
opportunity to provide additional documentation that support one of the
six allowable bases for appeal, outlined in the authorizing
legislation, and implemented at Sec. 79.7(d).
Title: Severe Repetitive Loss (SRL) Appeals Process.
Type of Information Collection: New Collection.
OMB Number: 1660-New36.
Form Numbers: None.
Abstract: The SRL program provides property owners with the ability
to appeal an increase in their flood insurance premium rate if they
refuse an offer of mitigation under this program. The property owner
must submit information to FEMA to support their appeal.
Affected Public: Federal Government, and individuals or households.
Estimated Total Annual Burden Hours:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Frequency of Number of Hour burden per Total burden
Data collection activity respondents responses responses response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appeal written request and supporting documentation........... 10 1 10 10 100
-----------------------------------------------------------------------------------------
Total..................................................... 10 ................ 10 10 100
--------------------------------------------------------------------------------------------------------------------------------------------------------
Comments: Written comments are solicited to (a) evaluate whether
the proposed data collection is necessary for the proper performance of
the agency, including whether the information shall have practical
utility; (b) evaluate the accuracy of the agency's estimate of the
burden of the proposed information collection, including the validity
of the methodology and assumptions used; (c) enhance the quality,
utility, and clarity of the information to be collected; and (d)
minimize the burden of the collection of information on those who are
to respond, including through the use of appropriate automated,
electronic, mechanical, or other technology, e.g., permitting
electronic submission of responses. FEMA will continue to accept
comments from interested persons through December 31, 2007. Submit
comments by one of the methods provided in the ADDRESSES section at the
beginning of this rule.
Requests for additional information regarding FEMA's Paperwork
Reduction Act requirements or copies of the information collection
should be made to Chief, Records Management and Privacy, FEMA, 500 C
Street, SW., Room 609, Washington, DC 20472, facsimile number (202)
646-3347, or e-mail address FEMA-Information-Collections@dhs.gov.
G. Executive Order 13132, Federalism
Executive Order 13132, Federalism, dated August 4, 1999, sets forth
principles and criteria that agencies must adhere to in formulating and
implementing policies that have federalism implications, that is,
regulations that have substantial direct effects on the States, or on
the distribution of power and responsibilities among the various levels
of government. Federal agencies must closely examine the statutory
authority supporting any action that would limit the policymaking
discretion of the States, and to the extent practicable, must consult
with State and local officials before implementing any such action.
FEMA published a Federal Register notice on September 15, 2004, 69
FR 55642, to initiate consultation with State and local officials, as
well as members of the public in the formulation of this rule.
Interested parties initially had until November 30, 2004, to submit
written comments in response to the notice. FEMA extended the deadline
for comments until December 7, 2004, and received 23 written comments
from States, communities, and associations.
On November 17, 2004, as part of the consultation process, FEMA
held a meeting in Washington DC with representative officials of State
and local governments; organizations representing emergency management,
floodplain management, and insurance professions; and other interested
parties.
Both the written comments received and the oral comments presented
at the meeting addressed aspects of the SRL program, including the
circumstances affecting severe repetitive loss property owners, the
mitigation offer process, the effects of insurance premium increases on
individuals who refuse mitigation offers, and the appeals process. In
the context of preparing this rule, FEMA reviewed and addressed all of
the comments received in response to the Federal Register notice
including the oral presentations made on November 17, 2004.
FEMA has reviewed this rule under Executive Order 13132 and has
concluded that the rule, which implements statutory requirements for a
new SRL program as well as a potential increase in the Federal share
for the FMA program, simplifies the planning requirements, and reflects
a statutorily mandated change to the HMGP allocation, does not have
federalism implications as defined by the Executive Order. FEMA has
determined that the rule does not significantly affect the rights,
roles, and responsibilities of States, and involves no preemption of
State law nor does it limit State policymaking discretion.
FEMA will continue to evaluate the new SRL and FMA programs, as
well as the planning requirements, and will work with interested
parties as FEMA implements the requirements of 44 CFR parts 59, 61, 78,
79, 80, 201, and 206. In addition, FEMA actively encourages and
solicits comments on this interim rule from interested parties, and
FEMA will consider those comments in preparing the final rule.
H. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
FEMA has reviewed this interim rule under Executive Order 13175. In
reviewing the portion of the interim rule which streamlines the
mitigation planning requirements affecting Indian tribal governments,
FEMA finds that, while it does have ``tribal implications'' as defined
in Executive Order 13175, it will not have a substantial direct effect
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.
FEMA has worked with Indian tribal governments while implementing
its programs, and has modified its procedures to accommodate some of
the issues relating to the tribal governments. This rule clarifies
those procedures and streamlines the roles and responsibilities of
Indian tribal governments in mitigation planning. In the February 26,
2002 interim rule, Indian tribal governments were given the option of
preparing either a State-level Mitigation Plan, or a Local-level
Mitigation Plan depending on whether or not they intended to apply
directly to FEMA as a grantee, or whether they
[[Page 61737]]
would apply through the State as a subgrantee. Neither of these options
has sufficiently met the needs of the Indian tribal governments. The
new interim rule establishes a specific planning requirement for Indian
tribal governments that recognizes some of the unique aspects of these
governments. The rule establishes requirements for Tribal Mitigation
Plans for plans prepared and approved after December 3, 2007. The rule
provides that plans prepared and approved under the preexisting rule,
either under the State or local requirements, would also be recognized
as Tribal Mitigation Plans. These older plans, however, would be
required to meet the revised criteria when the original plan approval
expires. This rule combines the appropriate aspects of State and local
planning requirements into one section for Indian tribal governments.
Prior to the preparation of this rule, FEMA discussed the planning
requirements with many of the Indian tribal governments as they were
developing their own plans, or while attending tribal training courses,
and heard the concerns regarding the planning requirements.
In conclusion, the interim rule does not impose substantial direct
compliance costs on Indian tribal governments, nor does it preempt
tribal law, impair treaty rights nor limit the self-governing powers of
Indian tribal governments.
I. Congressional Review of Agency Rulemaking
FEMA has sent this interim rule to the Congress and to the General
Accountability Office under the Congressional Review of Agency
Rulemaking Act, (Congressional Review Act), Public Law 104-121. This
interim rule is not a ``major rule'' within the meaning of the
Congressional Review Act. It implements statutory requirements creating
the SRL program and statutory amendments providing for an increased
Federal share for FMA projects affecting severe repetitive loss
properties; streamlines and makes consistent the planning requirements
for FMA and Indian tribal governments; and makes a technical update to
reflect a statutory change in the HMGP allocation.
The interim rule will not result in a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. 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. The rule is not
an unfunded Federal mandate within the meaning of the Unfunded Mandates
Reform Act of 1995, Public Law 104-4, and any enforceable duties that
FEMA imposes are a condition of Federal assistance or a duty arising
from participation in a voluntary Federal program.
J. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA'') mandates that an agency
conduct a RFA analysis when an agency is ``required by section 553 * *
* to publish general notice of proposed rulemaking for any proposed
rule * * * 5 U.S.C. 603(a). Accordingly, RFA analysis is not required
when a rule is exempt from notice and comment rulemaking under 5 U.S.C.
553(b). DHS has determined that good cause exists under 5 U.S.C.
553(b)(B) to exempt this rule from the notice and comment requirements
of 5 U.S.C. 553(b). Therefore no RFA analysis under 5 U.S.C. 603 is
required for this rule.
K. Executive Order 12630, Taking of Private Property
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights. In fact, Sec. 80.5(a) states that
[e]ligible acquisition projects are those where the property owner
participates voluntarily, and the grantee/subgrantee will not use
its eminent domain authority to acquire the property for the open
space purposes should negotiations fail.
L. 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, to minimize litigation,
eliminate ambiguity, and reduce burden.
List of Subjects
44 CFR Part 59
Flood insurance, Reporting and recordkeeping requirements.
44 CFR Part 61
Flood insurance, Reporting and recordkeeping requirements.
44 CFR Parts 78 and 79
Flood insurance, Grant programs.
44 CFR Part 80
Acquisition and relocation for open space.
44 CFR Part 201
Administrative practice and procedure, Disaster assistance, Grant
programs, Reporting and recordkeeping requirements.
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.
0
For the reasons set forth in the preamble, the Federal Emergency
Management Agency amends 44 CFR chapter I as set forth below:
PART 59--GENERAL PROVISIONS
0
1. The authority citation for part 59 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31,
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.
0
2. Section 59.1 is amended by revising the definition of State as
follows:
Sec. 59.1 Definitions.
* * * * *
State means any State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and
the Commonwealth of the Northern Mariana Islands.
* * * * *
PART 61--INSURANCE COVERAGE AND RATES
0
3. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31,
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.
0
4. In Sec. 61.9 add paragraphs (d) and (e) as follows:
Sec. 61.9 Establishment of chargeable rates.
* * * * *
(d) Properties that meet the definition of Severe Repetitive Loss
properties as defined in Sec. 79.2(g) of this subchapter, and who
refuse an offer of mitigation pursuant to Sec. 79.7 of this subchapter
are not eligible for the rates identified in paragraphs (a) through (c)
of this section.
(e) Properties leased from the Federal Government and located
either on the
[[Page 61738]]
river-facing side of a dike, levee, or other riverine flood control
structure, or seaward of any seawall or other coastal flood control
structure are not eligible for the rates identified in paragraphs (a)
through (c) of this section.
PART 78--FLOOD MITIGATION ASSISTANCE
0
5. The authority citation for part 78 is revised to read as follows:
Authority: 6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C.
4104c, 4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR,
1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p.
376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286,
68 FR 10619, 3 CFR, 2003 Comp., p. 166.
0
6. Revise Sec. 78.1(a) to read as follows:
Sec. 78.1 Purpose.
(a) The purpose of this part is to prescribe actions, procedures,
and requirements for administration of the Flood Mitigation Assistance
(FMA) program, authorized by Sections 1366 and 1367 of the National
Flood Insurance Act of 1968, 42 U.S.C. 4104c and 4104d. The rules in
this part apply to the administration of funds awarded under the FMA
program for which the application period opened prior to December 3,
2007. On or after that date, the administration of funds awarded under
FMA program shall be subject to the rules in part 79 of this
subchapter.
* * * * *
0
7. Remove the undesignated center heading FEDERAL CRIME INSURANCE
PROGRAM which precedes RESERVED PARTS 80-149.
0
8. Add part 79 to read as follows:
PART 79--FLOOD MITIGATION GRANTS
Sec.
79.1 Purpose.
79.2 Definitions.
79.3 Responsibilities.
79.4 Availability of funding.
79.5 Application process.
79.6 Eligibility.
79.7 Offers and appeals under the SRL program.
79.8 Allowable costs.
79.9 Grant administration.
Authority: 6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C.
4104c, 4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR,
1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p.
376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286,
68 FR 10619, 3 CFR, 2003 Comp., p. 166.
Sec. 79.1 Purpose.
(a) The purpose of this part is to prescribe actions, procedures,
and requirements for administration of the hazard mitigation grant
programs made available under the National Flood Insurance Act of 1968,
as amended, and the Flood Disaster Protection Act of 1973, as amended,
42 U.S.C. 4001 et seq. The Severe Repetitive Loss (SRL) and Flood
Mitigation Assistance (FMA) grant programs mitigate losses from floods,
minimizing impacts to the National Flood Insurance Fund (NFIF). The
rules in this part apply to the administration of funds under the SRL
and FMA programs for which the application period opens on or after
December 3, 2007. Prior to this date, the administration of funds under
the FMA program shall be subject to the rules in part 78 of this
subchapter.
(b) The purpose of the SRL program is to:
(1) Assist State and local governments in funding actions that
reduce or eliminate the risk of flood damage to residential properties
insured under the National Flood Insurance Program (NFIP) that meet the
definition of severe repetitive loss property;
(2) Reduce the need to increase flood insurance premiums of NFIP
policyholders that would otherwise be required to pay for potential
future repetitive claims associated with severe repetitive loss
properties; and
(3) Reduce loss of life, property damage, outlays for the NFIF, and
Federal disaster assistance by reducing or eliminating the risk of
flood damage to those insured properties that have historically
experienced the most severe flood losses.
(c) The purpose of the FMA program is to assist State and local
governments in funding cost-effective actions that reduce or eliminate
the risk of flood damage to buildings, manufactured homes, and other
structures insured under the NFIP.
Sec. 79.2 Definitions.
(a) Except as otherwise provided in this part, the definitions set
forth in section 59.1 of this subchapter are applicable to this part.
(b) Applicant is the State or Indian tribal government applying to
FEMA for a grant, and which will be accountable for the use of the
funds.
(c) Community means:
(1) A political subdivision, including any Indian tribe, authorized
tribal organization, Alaskan native village or authorized native
organization, that has zoning and building code jurisdiction over a
particular area having special flood hazards, and is participating in
the NFIP; or
(2) A political subdivision of a State, or other authority that is
designated by a political subdivision to develop and administer a
mitigation plan.
(d) Grantee means the State or Indian tribal government to which
FEMA awards a grant and which is accountable for the use of the funds
provided. The grantee is the entire legal entity, even if only a
particular component of the entity is designated in the grant award
document.
(e) Market Value is generally defined as the amount in cash, or on
terms reasonably equivalent to cash, for which in all probability the
property would have sold on the effective date of the valuation, after
a reasonable exposure time on the open competitive market, from a
willing and reasonably knowledgeable seller to a willing and reasonably
knowledgeable buyer, with neither acting under any compulsion to buy or
sell, giving due consideration to all available economic uses of the
property at the time of the valuation.
(f) Multifamily Property means a property consisting of 5 or more
residences.
(g) Severe Repetitive Loss Properties are defined as single or
multifamily residential properties that are covered under an NFIP flood
insurance policy and:
(1) That have incurred flood-related damage for which 4 or more
separate claims payments have been made, with the amount of each claim
(including building and contents payments) exceeding $5,000, and with
the cumulative amount of such claims payments exceeding $20,000; or
(2) For which at least 2 separate claims payments (building
payments only) have been made under such coverage, with cumulative
amount of such claims exceeding the market value of the building.
(3) In both instances, at least 2 of the claims must be within 10
years of each other, and claims made within 10 days of each other will
be counted as 1 claim.
(h) Subapplicant means a State agency, community, or Indian tribal
government submitting an application for planning or project activity
to the applicant for assistance under the FMA or SRL programs. Upon
grant award, the subapplicant is referred to as the subgrantee.
(i) Subgrant means an award of financial assistance made under a
grantee to an eligible subgrantee.
(j) Subgrantee means the State agency, community, or Indian tribal
government or other legal entity to which a subgrant is awarded and
which is accountable to the grantee for the use of the funds provided.
(k) Administrator means the head of the Federal Emergency
Management
[[Page 61739]]
Agency, or his/her designated representative, appointed under section
503 of the Post-Katrina Emergency Management Reform Act of 2006 (Pub.
L. 109-295). The term also refers to the Director as discussed in part
2 of this chapter.
(l) Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated
representative, appointed under section 507 of the Post-Katrina
Emergency Management Reform Act of 2006 (Pub. L. 109-295). The term
also refers to Regional Directors as discussed in part 2 of this
chapter.
Sec. 79.3 Responsibilities.
(a) Federal Emergency Management Agency (FEMA). Administer and
provide oversight to all FEMA-related hazard mitigation programs and
grants, including:
(1) Issue program implementation procedures, as necessary, which
will include information on availability of funding;
(2) Allocate funds to States for the FMA and for the SRL programs;
(3) Award all grants to the grantee after evaluating subgrant
applications for eligibility and ensuring compliance with applicable
Federal laws, giving priority to such properties, or to the subset of
such properties, as the Administrator may determine are in the best
interest of the NFIF;
(4) Provide technical assistance and training to State, local and
Indian tribal governments regarding the mitigation and grants
management process;
(5) Review and approve State, Indian tribal, and local mitigation
plans in accordance with part 201 of this chapter;
(6) Comply with applicable Federal statutory, regulatory, and
Executive Order requirements related to environmental and historic
preservation compliance, including reviewing and supplementing, if
necessary, the environmental analyses conducted by the State and
subgrantee in accordance with part 10 of this chapter;
(7) Establish and maintain an updated list of SRL properties and
make such information available to States and communities; and
(8) Notify owners of SRL properties that their properties meet the
definition of a severe repetitive loss property and provide a summary
of the opportunities and implications of being identified as such.
(b) State. The State will serve as the applicant and grantee
through a single Point of Contact (POC) for the FMA and SRL programs.
The POC is a State agency that must have working knowledge of NFIP
goals, requirements, and processes and ensure that the programs are
coordinated with other mitigation activities at the State level. States
will:
(1) Have a FEMA approved Mitigation Plan in accordance with part
201 of this chapter;
(2) Review and submit local mitigation plans to the FEMA Regional
Administrator for final review and approval;
(3) Provide technical assistance and training to communities on
mitigation planning, mitigation project activities, developing subgrant
applications, and implementing approved subgrants;
(4) Prioritize and recommend subgrant applications to be approved
by FEMA, based on the State Mitigation Plan, other State evaluation
criteria and the eligibility criteria described in Sec. 79.6;
(5) Award FEMA-approved subgrants; and
(6) Comply with program requirements under this part, grant
management requirements identified under part 13 of this chapter, the
grant agreement articles, and other applicable Federal, State, tribal
and local laws and regulations.
(c) Indian tribal governments. The Indian tribal government will
coordinate all tribal activities relating to hazard evaluation and
mitigation including:
(1) Have a FEMA approved Tribal Mitigation Plan in accordance with
Sec. 201.7 of this chapter;
(2) A Federally Recognized Indian tribal government as defined by
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a,
applying directly to FEMA for mitigation grant funding will assume the
responsibilities of the ``State'' as the term is used in this part, as
applicant or grantee, described in paragraphs (b)(3) through (6) of
this section; and
(3) A Federally Recognized Indian tribal government as defined by
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a,
applying through the State, will assume the responsibilities of the
community (as the subapplicant or subgrantee) described in paragraphs
(d)(2) through (4) of this section.
(d) Community. The community (referred to as both subapplicant and
subgrantee) will:
(1) Prepare and submit a FEMA-approved Local Mitigation Plan,
consistent with the requirements of part 201 of this chapter;
(2) Complete and submit subgrant applications to the State POC for
FMA planning, project and management cost subgrants, and for SRL
project and management cost subgrants;
(3) Implement all approved subgrants; notifying each holder of a
recorded interest in severe repetitive loss properties when an offer of
mitigation assistance has been made under the SRL program, and when
such offer has been refused; and
(4) Comply with program requirements under this part, grant
management requirements identified under part 13 of this chapter, the
grant agreement articles, and other applicable Federal, State, tribal
and local laws and regulations.
Sec. 79.4 Availability of funding.
(a) Allocation. (1) For the amount made available for the SRL
program, the Administrator will allocate the available funds to States
each fiscal year based upon the percentage of the total number of
severe repetitive loss properties located within that State. Ten
percent of the total funds made available in any fiscal year will be
made available to States and Indian tribal applicants that have at
least 1 SRL property and that receive little or no allocation.
(2) For the amount made available for the FMA program, the
Administrator will allocate the available funds each fiscal year. Funds
will be distributed based upon the number of NFIP policies, repetitive
loss structures, and any other such criteria as the Administrator may
determine are in the best interests of the NFIF.
(i) A maximum of 7.5 percent of the amount made available in any
fiscal year may be allocated for FMA planning grants nationally. A
planning grant will not be awarded to a State or community more than
once every 5 years, and an individual planning grant will not exceed
$150,000 to any State agency applicant, or $50,000 to any community
subapplicant. The total planning grant made in any fiscal year to any
State, including all communities located in the State, will not exceed
$300,000.
(ii) The total amount of FMA project grant funds provided during
any 5-year period will not exceed $10,000,000 to any State agency(s) or
$3,300,000 to any community. The total amount of project grant funds
provided to any State, including all communities located in the State
will not exceed $20,000,000 during any 5-year period. The Administrator
may waive the limits of this subsection for any 5-year period when a
major disaster or emergency is declared pursuant to the Robert T.
Stafford Disaster Relief and Emergency Assistance Act for flood
conditions.
(b) Redistribution. Funds allocated to States who choose not to
participate in
[[Page 61740]]
either the FMA or SRL program in any given year will be reallocated to
participating States and Indian tribal applicants. Any funds allocated
to a State, and the communities within the State, which have not been
obligated within the timeframes established by the Administrator, shall
be redistributed by the Administrator to other States and communities
to carry out eligible activities in accordance with this part.
(c) Cost share. All mitigation activities approved under the
State's grant will be subject to the following cost-share provisions:
(1) FEMA may contribute up to 75 percent of the eligible cost of
activities for grants approved for funding; or
(2) FEMA may contribute up to 90 percent of the cost of the
eligible activities for each severe repetitive loss property for which
grant amounts are provided if the State has an approved State
Mitigation Plan meeting the repetitive loss requirements identified in
Sec. 201.4(c)(3)(v) of this chapter at the time the project
application is submitted;
(3) For the FMA program only, of the non-Federal contribution, not
more than one half will be provided from in-kind contributions.
Sec. 79.5 Application process.
(a) Applicant or grantee. (1) States will be notified of the amount
allocated to them for the SRL and FMA programs each fiscal year, along
with the application timeframes.
(2) The State will be responsible for soliciting applications from
eligible communities, or subapplicants, and for reviewing and
prioritizing applications prior to forwarding them to FEMA for review
and award.
(3) Participation in these flood mitigation grant programs is
voluntary, and States may elect not to participate in either the SRL or
FMA program in any fiscal year without compromising their eligibility
in future years.
(4) Indian tribal governments interested in applying directly to
FEMA for either the FMA or SRL program grants should contact the
appropriate FEMA Regional Administrator for application information.
(b) Subapplicant or subgrantee. Participation in the SRL and the
FMA program is voluntary, and communities may elect not to apply.
Communities or other subapplicants who choose to apply must develop
applications within the timeframes and requirements established by FEMA
and must submit applications to the State.
Sec. 79.6 Eligibility.
(a) Eligible applicants and subapplicants. (1) States, Indian
tribal governments, and communities participating in the NFIP may apply
for FMA planning and project grants and associated management costs.
(2) States, Indian tribal governments, and communities
participating in the NFIP may apply for SRL project grants and
associated management costs.
(3) Communities withdrawn, suspended, or not participating under
part 60 of this subchapter of the NFIP are not eligible for either the
FMA or SRL programs.
(b) Plan requirement. (1) States must have an approved State
Mitigation Plan meeting the requirements of Sec. Sec. 201.4 or 201.5
of this chapter in order to apply for grants through the FMA or SRL
programs. Indian tribal governments must have an approved plan meeting
the requirements of part 201 of this chapter at the time of
application.
(2) In order to be eligible for FMA and SRL project grants,
subapplicants must have an approved mitigation plan at the time of
application in accordance with part 201 of this chapter that, at a
minimum, addresses flood hazards.
(c) Eligible activities. (1) Planning. FMA planning grants may be
used to develop or update State, Indian tribal and/or local mitigation
plans which meet the planning criteria outlined in part 201 of this
chapter. FMA planning grants are limited to those activities necessary
to develop or update the flood portion of any mitigation plan. Planning
grants are not eligible for funding under the SRL program.
(2) Projects. Projects funded under the SRL program are limited to
those activities that specifically reduce or eliminate flood damages to
severe repetitive loss properties. Projects funded under the FMA
program are limited to activities that reduce flood damages to
properties insured under the NFIP. For either program, applications
involving any activities for which implementation has already been
initiated or completed are not eligible for funding, and will not be
considered. Eligible activities are:
(i) Acquisition of real property from property owners, and
demolition or relocation of buildings to convert the property to open
space use in perpetuity, in accordance with part 80 of this subchapter;
(ii) Demolition or relocation of structures to areas outside of the
floodplain;
(iii) Elevation of existing structures to at least base flood
levels or higher, if required by FEMA or if required by any State or
local ordinance, and in accordance with criteria established by the
Administrator;
(iv) Floodproofing of existing non-residential structures in
accordance with the requirements of the NFIP or higher standards if
required by FEMA or if required by any State or local ordinance, and in
accordance with criteria established by the Administrator;
(v) Floodproofing of historic structures as defined in Sec. 59.1
of this subchapter;
(vi) For SRL only, demolition and rebuilding of properties to at
least base flood levels or higher, if required by FEMA or if required
by any State or local ordinance, and in accordance with criteria
established by the Administrator; and
(vii) Minor physical localized flood reduction measures that lessen
the frequency or severity of flooding and decrease predicted flood
damages, and that do not duplicate the flood prevention activities of
other Federal agencies. Major flood control projects such as dikes,
levees, floodwalls, seawalls, groins, jetties, dams and large-scale
waterway channelization projects are not eligible.
(d) Minimum project criteria. In addition to being an eligible
project type, mitigation grant projects must also:
(1) Be in conformance with mitigation plans approved under part 201
of this chapter for the State and community where the project is
located;
(2) Be in conformance with part 9 of this chapter, Floodplain
management and protection of wetlands, part 10 of this chapter,
Environmental considerations, Sec. 60.3 of this subchapter, Flood
plain management criteria for flood-prone areas, and other applicable
Federal, State, tribal, and local laws and regulations;
(3) Be technically feasible;
(4) Solve a problem independently, or constitute a functional
portion of a long-term solution where there is assurance that the
project as a whole will be completed. This assurance will include
documentation identifying the remaining funds necessary to complete the
project, and the timeframe for completing the project;
(5) Be cost-effective and reduce the risk of future flood damage;
(6) Consider long-term changes to the areas and entities it
protects, and have manageable future maintenance and modification
requirements. The subgrantee is responsible for the continued
maintenance needed to preserve the hazard mitigation benefits of these
measures; and
[[Page 61741]]
(7) Not duplicate benefits available from another source for the
same purpose or assistance that another Federal agency or program has
more primary authority to provide.
Sec. 79.7 Offers and appeals under the SRL program.
(a) Consultation. States and communities shall consult, to the
extent practicable, and in accordance with criteria determined by the
Administrator, with owners of the severe repetitive loss properties to
select the most appropriate eligible mitigation activity. These
consultations shall be initiated in the early stages of the project
development, and shall continue throughout the process. After FEMA
awards the project grant, the subgrantee shall continue to consult with
the property owners to determine the specific conditions of the offer.
(b) Mitigation offer. After FEMA awards the grant and the
subgrantee completes final consultations with the property owners, the
subgrantee shall develop and present official offers to the property
owners participating in the mitigation activities.
(1) The offer shall include all pertinent information regarding the
mitigation activity, including a detailed description of the activity
(e.g. property acquisition, elevation), the responsibilities of and
benefits to the property owner, a summary of the consultation process,
timeframes, and the consequences of refusing such offer. For open space
acquisitions, it will also include the market value of the property,
the basis for the purchase offer, and the final offer amount. The offer
will also clearly state that the property owner's participation in the
SRL program is voluntary.
(2) The subgrantee will send the written offer to the property
owner's current mailing address as a certified letter, along with a
copy to the appropriate FEMA Regional Administrator. In addition, the
subgrantee will notify each holder of a recorded interest on the
property when such offer is extended, along with the identification of
the mitigation assistance being offered.
(3) The property owner will have 45 days from the date of the
letter to accept or refuse the offer of mitigation assistance in
writing. Failure to respond in writing within this time period will be
deemed a refusal of the offer.
(c) Insurance increases due to refusal of offer. In any case in
which the property owner refuses an offer of mitigation assistance made
through the SRL program, the Administrator shall provide written notice
that the chargeable insurance rates with respect to the property will
increase effective on the next renewal of the policy.
(1) The chargeable insurance premium rate shall be increased to the
amount equal to 150 percent of the chargeable rate for the property at
the time that the offer was made, as adjusted by any other premium
adjustments otherwise applicable to the property. Each time there is
another claim payment in excess of $1,500, the chargeable premium rate
for that property shall be the amount equal to 150 percent over the
chargeable rate at the time of every such claim, as adjusted by any
other premium adjustments otherwise applicable to the property. The
increases shall end when the actuarial rate is reached.
(2) Upon each renewal or modification of the flood insurance
coverage, the property owner will be able to accept the original
mitigation offer, if the community, through the State, forwards the
request to FEMA, and if sufficient funds are available.
(d) Appeals of insurance rate increases. Any owner of a severe
repetitive loss property may appeal the decision to increase the
chargeable insurance premium rate as described in paragraph (c) of this
section by submitting a written appeal, including supporting
documentation that is postmarked or delivered to the appropriate FEMA
Regional Administrator within 90 days of the date of the notice of the
insurance increase. The increase in the amount of chargeable premium
rate for flood insurance coverage for the property will be suspended
pending the outcome of the appeal.
(1) Appeals must be based upon one or more of the following
grounds. The property owner must include documentation to support each
ground serving as a basis for the appeal:
(i) The offered mitigation activity is an acquisition and the
property owner would be unable to purchase a replacement of the primary
residence that is of comparable value and that is functionally
equivalent. The property owner must document the actions taken to
locate such replacement dwelling and demonstrate that no such dwelling
is available.
(ii)(A) The amount of Federal funds offered for a mitigation
activity, when combined with funds from the required non-Federal
sources, would not cover the actual eligible costs of the mitigation
activity contained in the mitigation offer, based on independent
information. In the case of an acquisition, the purchase offer is not
an accurate estimation of the market value of the property, based on
independent information.
(B) For a mitigation activity other than acquisition, the property
owner must submit independent estimates from professional engineers or
registered architects to support this claim. For an acquisition, the
property owner must submit an appraisal from a qualified appraiser to
support this claim, and valuations will be considered by a review
appraiser.
(iii) The offered mitigation activity would diminish the integrity
of a historic district, site, building, or object's significant
historic characteristics to the extent where the historic resource
would lose its status as listed or eligible for inclusion on the
National Register of Historic Places. The property owner must submit
appropriate documentation from the State Historic Preservation Officer/
Tribal Historic Preservation Officer to support this claim.
(iv) For a multifamily property: Each of the flood insurance claims
payments that served as the basis for its designation as a severe
repetitive loss property must have resulted directly from the actions
of a third party in violation of Federal, State, or local law,
ordinance, or regulation. The property owner(s) must submit appropriate
evidence, documentation, or data to support this claim.
(v) The property owner relied upon FEMA Flood Insurance Rate Maps
(FIRMs) that were current at the time the property was purchased, and
the effective FIRM and associated Flood Insurance Study (FIS) did not
indicate that the property was located in an area having special flood
hazards. The property owner must produce the dated FIRM and FIS in
effect at the time the property was purchased to support this claim.
(vi) An alternative mitigation activity would be at least as cost
effective as the offered mitigation activity. The property owner must
submit documentation of the costs for a technically feasible and
eligible alternative mitigation activity based on estimates from
qualified appraisers, professional engineers, or registered architects,
and information and documentation demonstrating the cost effectiveness
using a FEMA approved methodology to support this claim.
(2) The FEMA Regional Administrator will conduct an initial review
of each appeal that is filed on a timely basis to determine if the
appeal complies with this section and includes sufficient documentation
to be evaluated. The Regional Administrator may reject an appeal on
initial review if it is made on
[[Page 61742]]
a basis other than those listed in paragraph (d)(1) of this section; if
the property owner does not provide sufficient documentation,
including, if applicable, supplemental information requested by the
Regional Administrator by the deadline established by the Regional
Administrator, which shall not exceed the timeframe described in
paragraph (d) of this section; or if the appeal otherwise fails to
comply with this section.
(3) If, upon initial review, the Regional Administrator determines
that the basis for the offered mitigation activity was erroneous on its
face and the appeal can be resolved in favor of the property owner, the
appeal will be closed and no insurance increase will apply to the
property. All other cases will be referred to the Administrator for
assignment to an independent third party for review. The independent
third party shall make a final determination on each appeal within 90
days of the date on which FEMA receives the appeal. As a low cost
option, the property owner may request that the Administrator
substitute a reviewer from FEMA's Alternative Dispute Resolution Office
for the independent third party.
(4) A property owner who brings an appeal will be responsible for
paying his/her attorneys' fees and costs to gather the necessary
documentation and data to demonstrate the ground(s) for the appeal.
Attorneys' fees and costs cannot be awarded by the independent third
party.
(5) If the property owner prevails on appeal, the independent third
party shall require the Administrator to charge the risk premium rate
for flood insurance coverage of the property at the amount paid prior
to the mitigation offer, as adjusted by any other premium adjustments
otherwise applicable to the property. If the independent third party
hearing the appeal is compensated for such service, the NFIF shall bear
the costs of such compensation.
(6) If the property owner loses the appeal, the Administrator shall
promptly increase the chargeable risk premium rate for flood insurance
coverage of the property to the amount established pursuant to
paragraph (c) of this section, and shall collect from the property
owner the amount necessary to cover the stay of the applicability of
such increased rates while the appeal was pending. If FEMA does not
receive the additional premium by the date it is due, the amount of
coverage will be reduced to match the amount of premium payment
received. If the independent third party hearing the appeal is
compensated for such service, the property owner shall bear the costs
of such compensation.
Sec. 79.8 Allowable costs.
(a) General. General policies for determining allowable costs are
addressed in Sec. Sec. 13.4, 13.6, and 13.22 of this chapter.
Allowable costs are explained in this paragraph.
(1) Eligible Management Costs--(i) Grantee. States are eligible to
receive management costs consisting of a maximum of 10 percent of the
planning and project activities awarded to the State, each fiscal year
under FMA and SRL, respectively. These costs must be included in the
application to FEMA. An Indian tribal government applying directly to
FEMA is eligible for management costs consisting of a maximum of 10
percent of grants awarded for planning and project activities under the
SRL and FMA programs respectively.
(ii) Subgrantee. Subapplicants may include a maximum of 5 percent
of the total funds requested for their subapplication for management
costs to support the implementation of their planning or project
activity. These costs must be included in the subapplication to the
State.
(2) Indirect costs. Indirect costs of administering the FMA and SRL
programs are eligible as part of the 10 percent management costs for
the grantee or the 5 percent management costs of the subgrantee, but in
no case do they make the recipient eligible for additional management
costs that exceed the caps identified in paragraph (a)(1) of this
section. In addition, all costs must be in accordance with the
provisions of part 13 of this chapter and Office of Management and
Budget Circular A-87.
(b) Pre-award costs. FEMA may fund eligible pre-award planning or
project costs at its discretion and as funds are available. Grantees
and subgrantees may be reimbursed for eligible pre-award costs for
activities directly related to the development of the project or
planning proposal. These costs can only be incurred during the open
application period of the respective grant program. Costs associated
with implementation of the activity but incurred prior to grant award
are not eligible. Therefore, activities where implementation is
initiated or completed prior to award are not eligible and will not be
reimbursed.
(c) Duplication of benefits. Grant funds may not duplicate benefits
received by or available to applicants, subapplicants and project
participants from insurance, other assistance programs, legal awards,
or any other source to address the same purpose. Such individual or
entity must notify the grantee and FEMA of all benefits that it
receives or anticipates from other sources for the same purpose. FEMA
will reduce the subgrant award by the amounts available for the same
purpose from another source.
(d) Negligence or other tortious conduct. FEMA grant funds are not
available where an applicant, subapplicant, other project participant,
or third party's negligence or intentional actions contributed to the
conditions to be mitigated. If the applicant, subapplicant, or project
participant suspects negligence or other tortious conduct by a third
party for causing such condition, they are responsible for taking all
reasonable steps to recover all costs attributable to the tortious
conduct of the third party. FEMA generally considers such amounts to be
duplicated benefits available for the same purpose, and will treat them
consistent with paragraph (c) of this section.
(e) FEMA grant funds are not available to satisfy or reimburse for
legal obligations, such as those imposed by a legal settlement, court
order, or State law.
Sec. 79.9 Grant administration.
(a) The Grantee must follow FEMA grant requirements, including
submission of performance and financial status reports, and shall
follow adequate competitive procurement procedures. In addition,
grantees are responsible for ensuring that all subgrantees are aware of
and follow the requirements contained in part 13 of this chapter.
(b) During the implementation of an approved grant, the State POC
may find that actual costs are exceeding the approved award amount.
While there is no guarantee of additional funding, FEMA will only
consider requests made by the State POC to pay for such overruns if:
(1) Funds are available to meet the requested increase in funding;
(2) The amended grant award meets the cost-share requirements
identified in this section; and
(3) The total amount obligated to the State does not exceed the
maximum funding amounts set in Sec. 79.4(a)(2).
(c) Grantees may use cost underruns from ongoing subgrants to
offset overruns incurred by another subgrant(s) awarded under the same
grant. All costs for which funding is requested must have been included
in the original application's cost estimate.
(d) For all cost overruns that exceed the amount approved under the
grant,
[[Page 61743]]
and which require additional Federal funds, the State POC shall submit
a written request with a recommendation, including a justification for
the additional funding to the Regional Administrator for a
determination. If approved, the Regional Administrator shall increase
the grant through an amendment to the original award document.
(e) At the time of closeout, FEMA will recapture any funds provided
to a State or a community under these programs if the applicant has not
provided the appropriate matching funds, the approved project has not
been completed within the timeframes specified in the grant agreement,
or the completed project does not meet the criteria specified in this
part.
0
9. Add part 80 to read as follows:
PART 80--PROPERTY ACQUISITION AND RELOCATION FOR OPEN SPACE
Subpart A--General
Sec.
80.1 Purpose and scope.
80.3 Definitions.
80.5 Roles and responsibilities.
Subpart B--Requirements Prior to Award
80.7 General.
80.9 Eligible and ineligible costs.
80.11 Project eligibility.
80.13 Application information.
Subpart C--Post-Award Requirements
80.15 General.
80.17 Project implementation.
80.19 Land use and oversight.
Subpart D--After the Grant Requirements
80.21 Closeout requirements.
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5206; the National Flood
Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp.,
p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44
FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR,
1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.
Subpart A--General
Sec. 80.1 Purpose and scope.
This part provides guidance on the administration of FEMA
mitigation assistance for projects to acquire property for open space
purposes under all FEMA hazard mitigation assistance programs. It
provides information on the eligibility and procedures for implementing
projects for acquisition and relocation of at-risk properties from the
hazard area to maintain the property for open space purposes. This part
applies to property acquisition for open space project awards made
under any FEMA hazard mitigation assistance program. This part
supplements general program requirements of the funding grant program
and must be read in conjunction with the relevant program regulations
and guidance available at http://www.fema.gov. This part, with the
exception of Sec. 80.19 Land use and oversight, applies to projects
for which the funding program application period opens or for which
funding is made available pursuant to a major disaster declared on or
after December 3, 2007. Prior to that date, applicable program
regulations and guidance in effect for the funding program (available
at http://www.fema.gov) shall apply. Section 80.19 Land use and
oversight apply as of December 3, 2007 to all FEMA funded acquisitions
for the purpose of open space.
Sec. 80.3 Definitions.
(a) Except as noted in this part, the definitions applicable to the
funding program apply to implementation of this part. In addition, for
purposes of this part:
(b) Applicant is the State or Indian tribal government applying to
FEMA for a grant, and which will be accountable for the use of the
funds.
(c) Grantee means the State or Indian tribal government to which
FEMA awards a grant and which is accountable for the use of the funds
provided. The grantee is the entire legal entity, even if only a
particular component of the entity is designated in the grant award
document.
(d) Market Value is generally defined as the amount in cash, or on
terms reasonably equivalent to cash, for which in all probability the
property would have sold on the effective date of the valuation, after
a reasonable exposure time on the open competitive market, from a
willing and reasonably knowledgeable seller to a willing and reasonably
knowledgeable buyer, with neither acting under any compulsion to buy or
sell, giving due consideration to all available economic uses of the
property at the time of the valuation.
(e) National of the United States means a person within the meaning
of the term as defined in the Immigration and Nationality Act, 8 U.S.C.
section 1101(a)(22).
(f) Purchase offer is the initial value assigned to the property,
which is later adjusted by applicable additions and deductions,
resulting in a final offer amount to a property owner.
(g) Qualified alien means a person within the meaning of the term
as defined at 8 U.S.C. 1641.
(h) ``Qualified conservation organization'' means a qualified
organization with a conservation purpose pursuant to 26 CFR 1.170A-14
and applicable implementing regulations, that is such an organization
at the time it acquires the property interest and that was such an
organization at the time of the major disaster declaration, or for at
least 2 years prior to the opening of the grant application period.
(i) Subapplicant means the entity that submits an application for
FEMA mitigation assistance to the State or Indian tribal applicant/
grantee. With respect to open space acquisition projects under the
Hazard Mitigation Grant Program (HMGP), this term has the same meaning
as given to the term ``applicant'' in part 206, subpart N of this
chapter. Upon grant award, the subapplicant is referred to as the
subgrantee.
(j) Subgrant means an award of financial assistance made under a
grantee to an eligible subgrantee.
(k) Subgrantee means the State agency, community, or Indian tribal
government or other legal entity to which a subgrant is awarded and
which is accountable to the grantee for the use of the funds provided.
(l) Administrator means the head of the Federal Emergency
Management Agency, or his/her designated representative, appointed
under section 503 of the Post-Katrina Emergency Management Reform Act
of 2006 (Pub. L. 109-295). The term also refers to the Director as
discussed in part 2 of this chapter.
(m) Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated
representative, appointed under section 507 of the Post-Katrina
Emergency Management Reform Act of 2006 (Pub. L. 109-295). The term
also refers to Regional Directors as discussed in part 2 of this
chapter.
Sec. 80.5 Roles and responsibilities.
The roles and responsibilities of FEMA, the State, the
subapplicant/subgrantee, and participating property owners in the
particular context of mitigation projects for the purpose of creating
open space include the activities in this section. These are in
addition to grants management roles and responsibilities identified in
regulations and guidance of the program funding the project (available
at http://www.fema.gov) and other responsibilities specified in this
part.
(a) Federal roles and responsibilities. Oversee property
acquisition activities undertaken under FEMA mitigation grant programs,
including:
[[Page 61744]]
(1) Providing technical assistance to the applicant/grantee to
assist in implementing project activities in compliance with this part;
(2) Reviewing applications for eligibility and compliance with this
part;
(3) Reviewing proposals for subsequent transfer of a property
interest and approving appropriate transferees;
(4) Making determinations on the compatibility of proposed uses
with the open space purpose, in accordance with Sec. 80.19;
(5) Complying with applicable Federal statutory, regulatory, and
Executive Order requirements related to environmental and historic
preservation compliance, including reviewing and supplementing, if
necessary, environmental analyses conducted by the State and subgrantee
in accordance with part 10 of this chapter;
(6) Providing no Federal disaster assistance, flood insurance
claims payments, or other FEMA assistance with respect to the property
or any open-space related improvements, after the property interest
transfers; and
(7) Enforcing the requirements of this part and the deed
restrictions to ensure that the property remains in open space use in
perpetuity.
(b) State (applicant/grantee) roles and responsibilities. Serve as
the point of contact for all property acquisition activities by
coordinating with the subapplicant/subgrantee and with FEMA to ensure
that the project is implemented in compliance with this part,
including:
(1) Providing technical assistance to the subapplicant/subgrantee
to assist in implementing project activities in compliance with this
part;
(2) Ensuring that applications are not framed in a manner that has
the effect of circumventing any requirements of this part;
(3) Reviewing the application to ensure that the proposed activity
complies with this part, including ensuring that the property
acquisition activities remain voluntary in nature, and that the
subgrantee and property owners are made aware of such;
(4) Submitting to FEMA subapplications for proposed projects in
accordance with the respective program schedule and programmatic
requirements, and including all the requisite information to enable
FEMA to determine the eligibility, technical feasibility, cost
effectiveness, and environmental and historic preservation compliance
of the proposed projects;
(5) Reviewing proposals for subsequent transfer of property
interest and obtaining FEMA approval of such transfers; and ensuring
that all uses proposed for the property are compatible with open space
project purposes;
(6) Making no application for, nor providing, Federal disaster
assistance or other FEMA assistance for the property or any open-space
related improvements, after the property interest transfers;
(7) Enforcing the terms of this part and the deed restrictions to
ensure that the property remains in open space use in perpetuity; and
(8) Reporting on property compliance with the open space
requirements after the grant is awarded.
(c) Subapplicant/Subgrantee roles and responsibilities. Coordinate
with the applicant/grantee and with the property owners to ensure that
the project is implemented in compliance with this part, including:
(1) Submitting all applications for proposed projects in accordance
with the respective program schedule and programmatic requirements, and
including all the requisite information to enable the applicant/grantee
and FEMA to determine the eligibility, technical feasibility, cost
effectiveness, and environmental and historic preservation compliance
of the proposed projects;
(2) Ensuring that applications are not framed in a manner that has
the effect of circumventing any requirements of this part;
(3) Coordinating with the property owners to ensure they understand
the benefits and responsibilities of participating in the project,
including that participation in the project is voluntary, and that the
property owner(s) are made aware of such;
(4) Developing the application and implementing property
acquisition activities in compliance with this part, and ensuring that
all terms of the deed restrictions and grant award are enforced;
(5) Ensuring fair procedures and processes are in place to
compensate property owners and tenants affected by the purchase of
property; such as determining property values and/or the amount of the
mitigation offer, and reviewing property owner disputes regarding such
offers;
(6) Making no application for Federal disaster assistance, flood
insurance, or other FEMA benefits for the property or any open-space
related improvements, after the property interest transfers;
(7) Taking and retaining full property interest, consistent with
this part; or if transferring such interest, obtaining approval of the
grantee and FEMA;
(8) Submitting to the grantee and FEMA proposed uses on the
property for open space compatibility determinations; and
(9) Monitoring and reporting on property compliance after the grant
is awarded.
(d) Participating property owner roles and responsibilities. Notify
the subapplicant/subgrantee of its interest to participate, provide
information to the subapplicant/subgrantee, and take all required
actions necessary for the completion of the grant application and the
implementation of property acquisition activities in accordance with
this part.
Subpart B--Requirements Prior to Award
Sec. 80.7 General.
A project involving property acquisition or the relocation of
structures for open space is eligible for hazard mitigation assistance
only if the subapplicant meets the pre-award requirements set forth in
this subpart. A project may not be framed in a manner that has the
effect of circumventing the requirements of this subpart.
Sec. 80.9 Eligible and ineligible costs.
(a) Allowable costs. Eligible project costs may include
compensation for the value of structures, for their relocation or
demolition, for associated land, and associated costs. For land that is
already held by an eligible entity, compensation for the land is not an
allowable cost, but compensation for development rights may be
allowable.
(b) Pre-award costs. FEMA may fund eligible pre-award project costs
at its discretion and as funds are available. Grantees and subgrantees
may be reimbursed for eligible pre-award costs for activities directly
related to the development of the project proposal. These costs can
only be incurred during the open application period of the respective
grant program. Costs associated with implementation of the project but
incurred prior to grant award are not eligible. Therefore, activities
where implementation is initiated or completed prior to award are not
eligible and will not be reimbursed.
(c) Duplication of benefits. Grant funds may not duplicate benefits
received by or available to applicants, subapplicants and other project
participants from insurance, other assistance programs, legal awards,
or any other source to address the same purpose. Such individual or
entity must notify the subapplicant and FEMA of all benefits that it
receives, anticipates, or has available from other sources for the
[[Page 61745]]
same purpose. FEMA will reduce the subgrant award by the amounts
available for the same purpose from another source.
(d) Negligence or other tortious conduct. FEMA acquisition funds
are not available where an applicant, subapplicant, other project
participant, or third party's negligence or intentional actions
contributed to the conditions to be mitigated. If the applicant,
subapplicant, or project participant suspects negligence or other
tortious conduct by a third party for causing such condition, they are
responsible for taking all reasonable steps to recover all costs
attributable to the tortious conduct of the third party. FEMA generally
considers such amounts to be duplicated benefits available for the same
purpose, and will treat them consistent with paragraph (c) of this
section.
(e) FEMA mitigation grant funds are not available to satisfy or
reimburse for legal obligations, such as those imposed by a legal
settlement, court order, or State law.
Sec. 80.11 Project eligibility.
(a) Voluntary participation. Eligible acquisition projects are
those where the property owner participates voluntarily, and the
grantee/subgrantee will not use its eminent domain authority to acquire
the property for the open space purposes should negotiations fail.
(b) Acquisition of improved properties. Eligible properties are
those with at-risk structures on the property, including those that are
damaged or destroyed due to an event. In some cases, undeveloped, at-
risk land adjacent to an eligible property with existing structures may
be eligible.
(c) Subdivision restrictions. The land may not be subdivided prior
to acquisition except for portions outside the identified hazard area,
such as the Special Flood Hazard Area or any risk zone identified by
FEMA.
(d) Subapplicant property interest. To be eligible, the
subapplicant must acquire or retain fee title (full property interest)
as part of the project implementation. A pass through of funds from an
eligible entity to an ineligible entity must not occur.
(e) Hazardous materials. Eligible properties include only those
that are not contaminated with hazardous materials, except for
incidental demolition and household hazardous waste.
(f) Open space restrictions. Property acquired or from which a
structure is removed must be dedicated to and maintained as open space
in perpetuity consistent with this part.
Sec. 80.13 Application information.
(a) An application for acquisition of property for the purpose of
open space must include:
(1) A photograph that represents the appearance of each property
site at the time of application;
(2) Assurances that the subapplicant will implement the project
grant award in compliance with subparts C and D of this part;
(3) The deed restriction language, which shall be consistent with
the FEMA model deed restriction that the local government will record
with the property deeds. Any variation from the model deed restriction
language can only be made with prior approval from FEMA's Office of
General Counsel;
(4) The documentation of voluntary interest signed by each property
owner, which must include that the subapplicant has informed them in
writing that it will not use its eminent domain authority for the open
space purpose; and
(5) Assurance that the subject property is not part of an intended,
planned, or designated project area for which the land is to be
acquired by a certain date, and that local and State governments have
no intention to use the property for any public or private facility in
the future inconsistent with this part;
(6) If the applicant is offering pre-event value: certification
that the property owner is a National of the United States or qualified
alien; and
(7) Other information as determined by the Administrator.
(b) Consultation regarding other ongoing Federal activities. (1)
The subapplicant must demonstrate that it has consulted with the United
States Army Corps of Engineers (USACE) regarding the subject land's
potential future use for the construction of a levee system. The
subapplicant must also demonstrate that it has, and will, reject any
future consideration of such use if it accepts FEMA assistance to
convert the property to permanent open space.
(2) The subapplicant must demonstrate that it has coordinated with
its State Department of Transportation to ensure that no future,
planned modifications, improvements, or enhancements to Federal aid
systems are under consideration that will affect the subject property.
(c) Restriction on alternate properties. Changes to the properties
in an approved mitigation project will be considered by FEMA but not
approved automatically. The subapplicant must identify the alternate
properties in the project application and each alternate property must
meet eligibility requirements in order to be considered.
Subpart C--Post-Award Requirements
Sec. 80.15 General.
A project involving property acquisition or the relocation of
structures for open space must be implemented consistent with the
requirements set forth in this subpart.
Sec. 80.17 Project implementation.
(a) Hazardous materials. The subgrantee shall take steps to ensure
it does not acquire or include in the project properties contaminated
with hazardous materials by seeking information from property owners
and from other sources on the use and presence of contaminants
affecting the property from owners of properties that are or were
industrial or commercial, or adjacent to such. A contaminated property
must be certified clean prior to participation. This excludes permitted
disposal of incidental demolition and household hazardous wastes. FEMA
mitigation grant funds may not be used for clean up or remediation of
contaminated properties.
(b) Clear title. The subgrantee will obtain a title insurance
policy demonstrating that fee title conveys to the subgrantee for each
property to ensure that it acquires only a property with clear title.
The property interest generally must transfer by a general warranty
deed. Any incompatible easements or other encumbrances to the property
must be extinguished before acquisition.
(c) Purchase offer and supplemental payments. (1) The amount of
purchase offer is the current market value of the property or the
market value of the property immediately before the relevant event
affecting the property (``pre-event'').
(i) The relevant event for Robert T. Stafford Disaster Relief and
Emergency Assistance Act assistance under HMGP is the major disaster
under which funds are available; for assistance under the Pre-disaster
Mitigation program (PDM) (42 U.S.C. 5133), it is the most recent major
disaster. Where multiple disasters have affected the same property, the
grantee and subgrantee shall determine which is the relevant event.
(ii) The relevant event for assistance under the National Flood
Insurance Act is the most recent event resulting in a National Flood
Insurance Program (NFIP) claim of at least $5000.
(2) For acquisition of properties under the Severe Repetitive Loss
program under part 79 of this subchapter, the purchase offer is not
less than the
[[Page 61746]]
greatest of the amount in paragraph (c)(1) of this section; the
original purchase price paid by the participating property owner
holding the flood insurance policy; or the outstanding amount of any
loan to the participating property owner, which is secured by a
recorded interest in the property at the time of the purchase offer.
(3) The grantee should coordinate with the subgrantee in their
determination of whether the valuation should be based on pre-event or
current market value. Generally, the same method to determine market
value should be used for all participants in the project.
(4) A property owner who did not own the property at the time of
the relevant event, or who is not a National of the United States or
qualified alien, is not eligible for a purchase offer based on pre-
event market value of the property. Subgrantees will ask each
participating property owner to certify that they are either a National
of the United States or qualified alien before offering pre-event
market value for the property.
(5) Certain tenants who must relocate as a result of the project
are entitled to relocation benefits under the Uniform Relocation
Assistance and Real Property Acquisition Policies Act (such as moving
expenses, replacement housing rental payments, and relocation
assistance advisory services) in accordance with 49 CFR part 24.
(6) If a purchase offer for a residential property is less than the
cost of the homeowner-occupant to purchase a comparable replacement
dwelling outside the hazard-prone area in the same community, the
subgrantee for funding under the Severe Repetitive Loss program
implemented at part 79 of this subchapter shall make available a
supplemental payment to the homeowner-occupant to apply to the
difference. Subgrantees for other mitigation grant programs may make
such a payment available in accordance with criteria determined by the
Administrator.
(7) The subgrantee must inform each property owner, in writing, of
what it considers to be the market value of the property, the method of
valuation and basis for the purchase offer, and the final offer amount.
The offer will also clearly state that the property owner's
participation in the project is voluntary.
(d) Removal of Existing Buildings. Existing incompatible facilities
must be removed by demolition or by relocation outside of the hazard
area within 90 days of settlement of the property transaction. The FEMA
Regional Administrator may grant an exception to this deadline only for
a particular property based upon written justification if extenuating
circumstances exist, but shall specify a final date for removal.
(e) Deed Restriction. The subgrantee, upon settlement of the
property transaction, shall record with the deed of the subject
property notice of applicable land use restrictions and related
procedures described in this part, consistent with FEMA model deed
restriction language.
Sec. 80.19 Land use and oversight.
This section applies to acquisitions for open space projects to
address flood hazards. If the Administrator determines to mitigate in
other circumstances, he/she will adapt the provisions of this section
as appropriate.
(a) Open space requirements. The property shall be dedicated and
maintained in perpetuity as open space for the conservation of natural
floodplain functions.
(1) These uses may include: Parks for outdoor recreational
activities; wetlands management; nature reserves; cultivation; grazing;
camping (except where adequate warning time is not available to allow
evacuation); unimproved, unpaved parking lots; buffer zones; and other
uses FEMA determines compatible with this part.
(i) Allowable uses generally do not include: Walled buildings,
levees, dikes, or floodwalls, paved roads, highways, bridges,
cemeteries, landfills, storage of any hazardous or toxic materials,
above or below ground pumping and switching stations, above or below
ground storage tanks, paved parking, off-site fill or other uses that
obstruct the natural and beneficial functions of the floodplain.
(ii) In the rare circumstances where the Administrator has
determined competing Federal interests were unavoidable and has
analyzed floodplain impacts for compliance with Sec. 60.3 of this
subchapter or higher standards, the Administrator may find only USACE
projects recognized by FEMA in 2000 and improvements to pre-existing
Federal-aid transportation systems to be allowable uses.
(2) No new structures or improvements will be built on the property
except as indicated below:
(i) A public facility that is open on all sides and functionally
related to a designated open space or recreational use;
(ii) A public restroom; or
(iii) A structure that is compatible with open space and conserves
the natural function of the floodplain, which the Administrator
approves in writing before the construction of the structure begins.
(3) Any improvements on the property shall be in accordance with
proper floodplain management policies and practices. Structures built
on the property according to paragraph (a)(2) of this section shall be
floodproofed or elevated to at least the base flood level plus 1 foot
of freeboard, or greater, if required by FEMA, or if required by any
State or local ordinance, and in accordance with criteria established
by the Administrator.
(4) After the date of property settlement, no Federal entity or
source may provide disaster assistance for any purpose with respect to
the property, nor may any application for such assistance be made to
any Federal entity or source.
(5) The property is not eligible for coverage under the NFIP for
damage to structures on the property occurring after the date of the
property settlement, except for pre-existing structures being relocated
off the property as a result of the project.
(b) Subsequent transfer. After acquiring the property interest, the
subgrantee, including successors in interest, shall convey any interest
in the property only if the Regional Administrator, through the State,
gives prior written approval of the transferee in accordance with this
paragraph.
(1) The request by the subgrantee, through the State, to the
Regional Administrator must include a signed statement from the
proposed transferee that it acknowledges and agrees to be bound by the
terms of this section, and documentation of its status as a qualified
conservation organization if applicable.
(2) The subgrantee may convey a property interest only to a public
entity or to a qualified conservation organization. However, the
subgrantee may convey an easement or lease to a private individual or
entity for purposes compatible with the uses described in paragraph
(a), of this section, with the prior approval of the Regional
Administrator, and so long as the conveyance does not include authority
to control and enforce the terms and conditions of this section.
(3) If title to the property is transferred to a public entity
other than one with a conservation mission, it must be conveyed subject
to a conservation easement that shall be recorded with the deed and
shall incorporate all terms and conditions set forth in this section,
including the easement holder's responsibility to enforce the easement.
This shall be accomplished by one of the following means:
[[Page 61747]]
(i) The subgrantee shall convey, in accordance with this paragraph,
a conservation easement to an entity other than the title holder, which
shall be recorded with the deed, or
(ii) At the time of title transfer, the subgrantee shall retain
such conservation easement, and record it with the deed.
(4) Conveyance of any property interest must reference and
incorporate the original deed restrictions providing notice of the
conditions in this section and must incorporate a provision for the
property interest to revert to the subgrantee or grantee in the event
that the transferee ceases to exist or loses its eligible status under
this section.
(c) Inspection. FEMA, its representatives and assigns, including
the grantee shall have the right to enter upon the property, at
reasonable times and with reasonable notice, for the purpose of
inspecting the property to ensure compliance with the terms of this
part, the property conveyance and of the grant award.
(d) Monitoring and reporting. Every 3 years the subgrantee (in
coordination with any current successor in interest) through the
grantee, shall submit to the FEMA Regional Administrator a report
certifying that the subgrantee has inspected the property within the
month preceding the report, and that the property continues to be
maintained consistent with the provisions of this part, the property
conveyance and the grant award.
(e) Enforcement. The subgrantee, grantee, FEMA, and their
respective representatives, successors and assigns, are responsible for
taking measures to bring the property back into compliance if the
property is not maintained according to the terms of this part, the
conveyance, and the grant award. The relative rights and
responsibilities of FEMA, the grantee, the subgrantee, and subsequent
holders of the property interest at the time of enforcement, shall
include the following:
(1) The grantee will notify the subgrantee and any current holder
of the property interest in writing and advise them that they have 60
days to correct the violation.
(i) If the subgrantee or any current holder of the property
interest fails to demonstrate a good faith effort to come into
compliance with the terms of the grant within the 60-day period, the
grantee shall enforce the terms of the grant by taking any measures it
deems appropriate, including but not limited to bringing an action at
law or in equity in a court of competent jurisdiction.
(ii) FEMA, its representatives, and assignees may enforce the terms
of the grant by taking any measures it deems appropriate, including but
not limited to 1 or more of the following:
(A) Withholding FEMA mitigation awards or assistance from the State
and subgrantee; and current holder of the property interest.
(B) Requiring transfer of title. The subgrantee or the current
holder of the property interest shall bear the costs of bringing the
property back into compliance with the terms of the grant; or
(C) Bringing an action at law or in equity in a court of competent
jurisdiction against any or all of the following parties: the grantee,
the subgrantee, and their respective successors.
Subpart D--After the Grant Requirements
Sec. 80.21 Closeout requirements.
Upon closeout of the grant, the subgrantee, through the grantee,
shall provide FEMA, with the following:
(a) A copy of the deed recorded for each property, demonstrating
that each property approved in the original application was mitigated
and that the deed restrictions recorded are consistent with the FEMA
model deed restriction language to meet the requirements of this part;
(b) A photo of each property site after project completion;
(c) The latitude-longitude coordinates of each property site;
(d) Identification of each property as a repetitive loss property,
if applicable; and
(e) Other information as determined by the Administrator.
PART 201--MITIGATION PLANNING
0
10. The authority citation for part 201 is revised to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No.
3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security
Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412;
E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
0
11. Section 201.2 is amended by revising the definition of ``Hazard
Mitigation Grant Program'' and by adding the following definitions to
the alphabetical list of definitions:
Sec. 201.2 Definitions.
Administrator means the head of the Federal Emergency Management
Agency, or his/her designated representative, appointed under section
503 of the Post-Katrina Emergency Management Reform Act of 2006 (Pub.
L. 109-295). The term also refers to the Director as discussed in part
2 of this chapter.
Flood Mitigation Assistance (FMA) means the program authorized by
section 1366 of the National Flood Insurance Act of 1968, as amended,
42 U.S.C. 4104c, and implemented at parts 78 and 79.
* * * * *
Hazard Mitigation Grant Program (HMGP) means the program authorized
under section 404 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5170c, and implemented at part 206,
subpart N of this chapter.
* * * * *
Pre-Disaster Mitigation Program (PDM) means the program authorized
under section 203 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5133.
* * * * *
Repetitive Flood Claims (RFC) program means the program authorized
under section 1323 of the National Flood Insurance Act of 1968, as
amended, 42 U.S.C. 4011, which provides funding to reduce flood damages
to individual properties for which 1 or more claim payments for losses
have been made under flood insurance coverage and that will result in
the greatest savings to the National Flood Insurance Program (NFIP) in
the shortest period of time.
Severe Repetitive Loss (SRL) program means the program authorized
under section 1361(a) of the National Flood Insurance Act of 1968, as
amended, 42 U.S.C. 4102a, and implemented at part 79 of this chapter.
Severe Repetitive Loss properties are defined as single or
multifamily residential properties that are covered under an NFIP flood
insurance policy and:
(1) That have incurred flood-related damage for which 4 or more
separate claims payments have been made, with the amount of each claim
(including building and contents payments) exceeding $5,000, and with
the cumulative amount of such claims payments exceeding $20,000; or
(2) For which at least 2 separate claims payments (building
payments only) have been made under such coverage, with cumulative
amount of such claims exceeding the market value of the property.
(3) In both instances, at least 2 of the claims must be within 10
years of each
[[Page 61748]]
other, and claims made within 10 days of each other will be counted as
1 claim.
* * * * *
0
12. Revise paragraphs (c)(1), (c)(3), (d)(2) and (e) of Sec. 201.3 to
read as follows:
Sec. 201.3 Responsibilities.
* * * * *
(c) * * *
(1) Prepare and submit to FEMA a Standard State Mitigation Plan
following the criteria established in Sec. 201.4 as a condition of
receiving non-emergency Stafford Act assistance and FEMA mitigation
grants. In addition, a State may choose to address severe repetitive
loss properties in their plan as identified in Sec. 201.4(c)(3)(v) to
receive the reduced cost share for the Flood Mitigation Assistance
(FMA) and Severe Repetitive Loss (SRL) programs, pursuant to Sec.
79.4(c)(2) of this chapter.
* * * * *
(3) At a minimum, review and update the Standard State Mitigation
Plan every 3 years from the date of the approval of the previous plan
in order to continue program eligibility.
* * * * *
(d) * * *
(2) At a minimum, review and update the local mitigation plan every
5 years from date of plan approval of the previous plan in order to
continue program eligibility.
(e) Indian tribal governments. The key responsibilities of the
Indian tribal government are to coordinate all tribal activities
relating to hazard evaluation and mitigation and to:
(1) Prepare and submit to FEMA a Tribal Mitigation Plan following
the criteria established in Sec. 201.7 as a condition of receiving
non-emergency Stafford Act assistance as a grantee. This plan will also
allow Indian tribal governments to apply through the State, as a
subgrantee, for any FEMA mitigation project grant. Indian tribal
governments with a plan approved by FEMA on or before October 1, 2008
under Sec. 201.4 or Sec. 201.6 will also meet this planning
requirement. All Tribal Mitigation Plans approved after that date must
follow the criteria identified in Sec. 201.7. In addition, an Indian
tribal government may choose to address severe repetitive loss
properties as identified in Sec. 201.4(c)(3)(v) as a condition of
receiving the reduced cost share for the FMA and SRL programs, pursuant
to Sec. 79.4(c)(2) of this chapter.
(2) Review and update the Tribal Mitigation Plan at least every 5
years from the date of approval of the previous plan in order to
continue program eligibility.
(3) In order to be considered for the increased HMGP funding, the
Tribal Mitigation Plan must meet the Enhanced State Mitigation Plan
criteria identified in Sec. 201.5. The plan must be reviewed and
updated at least every 3 years from the date of approval of the
previous plan.
0
13. Revise paragraphs (a) and (c)(7) and add paragraph (c)(3)(v) of
Sec. 201.4 to read as follows:
Sec. 201.4 Standard State Mitigation Plans.
(a) Plan requirement. States must have an approved Standard State
Mitigation Plans meeting the requirements of this section as a
condition of receiving non-emergency Stafford Act assistance and FEMA
mitigation grants. Emergency assistance provided under 42 U.S.C. 5170a,
5170b, 5173, 5174, 5177, 5179, 5180, 5182, 5183, 5184, 5192 will not be
affected. Mitigation planning grants provided through the Pre-disaster
Mitigation (PDM) program, authorized under section 203 of the Stafford
Act, 42 U.S.C. 5133, will also continue to be available. The mitigation
plan is the demonstration of the State's commitment to reduce risks
from natural hazards and serves as a guide for State decision makers as
they commit resources to reducing the effects of natural hazards.
* * * * *
(c) * * *
(3) * * *
(v) A State may request the reduced cost share authorized under
Sec. 79.4(c)(2) of this chapter for the FMA and SRL programs, if it
has an approved State Mitigation Plan meeting the requirements of this
section that also identifies specific actions the State has taken to
reduce the number of repetitive loss properties (which must include
severe repetitive loss properties), and specifies how the State intends
to reduce the number of such repetitive loss properties. In addition,
the plan must describe the strategy the State has to ensure that local
jurisdictions with severe repetitive loss properties take actions to
reduce the number of these properties, including the development of
local mitigation plans.
* * * * *
(7) Assurances. The plan must include assurances that the State
will comply with all applicable Federal statutes and regulations in
effect with respect to the periods for which it receives grant funding,
in compliance with 44 CFR 13.11(c) of this chapter. The State will
amend its plan whenever necessary to reflect changes in State or
Federal statutes and regulations as required in 44 CFR 13.11(d) of this
chapter.
* * * * *
0
14. Revise paragraphs (a)(1), (a)(2), (c)(2)(ii) introductory text,
(d)(1), and (d)(3) and add a sentence to the end of paragraph
(c)(3)(ii) of Sec. 201.6 to read as follows:
Sec. 201.6 Local Mitigation Plans.
* * * * *
(a) * * *
(1) A local government must have a mitigation plan approved
pursuant to this section in order to receive HMGP project grants. The
Administrator may, at his discretion, require a local mitigation plan
for the Repetitive Flood Claims Program. A local government must have a
mitigation plan approved pursuant to this section in order to apply for
and receive mitigation project grants under all other mitigation grant
programs.
(2) Plans prepared for the FMA program, described at part 79 of
this chapter, need only address these requirements as they relate to
flood hazards in order to be eligible for FMA project grants. However,
these plans must be clearly identified as being flood mitigation plans,
and they will not meet the eligibility criteria for other mitigation
grant programs, unless flooding is the only natural hazard the
jurisdiction faces.
* * * * *
(c) * * *
(2) * * *
(ii) A description of the jurisdiction's vulnerability to the
hazards described in paragraph (c)(2)(i) of this section. This
description shall include an overall summary of each hazard and its
impact on the community. All plans approved after October 1, 2008 must
also address NFIP insured structures that have been repetitively
damaged by floods. The plan should describe vulnerability in terms of:
* * * * *
(3) * * *
(ii) * * * All plans approved by FEMA after October 1, 2008, must
also address the jurisdiction's participation in the NFIP, and
continued compliance with NFIP requirements, as appropriate.
* * * * *
(d) * * *
(1) Plans must be submitted to the State Hazard Mitigation Officer
(SHMO) for initial review and coordination. The State will then send
the plan to the appropriate FEMA Regional Office for formal review and
approval. Where the State point of contact for the FMA program is
different from the SHMO, the SHMO will be responsible for
[[Page 61749]]
coordinating the local plan reviews between the FMA point of contact
and FEMA.
* * * * *
(3) A local jurisdiction must review and revise its plan to reflect
changes in development, progress in local mitigation efforts, and
changes in priorities, and resubmit it for approval within 5 years in
order to continue to be eligible for mitigation project grant funding.
* * * * *
0
15. Add Sec. 201.7 to read as follows:
Sec. 201.7 Tribal Mitigation Plans.
The Indian Tribal Mitigation Plan is the representation of the
Indian tribal government's commitment to reduce risks from natural
hazards, serving as a guide for decision makers as they commit
resources to reducing the effects of natural hazards.
(a) Plan requirement. (1) Indian tribal governments applying to
FEMA as a grantee must have an approved Tribal Mitigation Plan meeting
the requirements of this section as a condition of receiving non-
emergency Stafford Act assistance and FEMA mitigation grants. Emergency
assistance provided under 42 U.S.C. 5170a, 5170b, 5173, 5174, 5177,
5179, 5180, 5182, 5183, 5184, 5192 will not be affected. Mitigation
planning grants provided through the PDM program, authorized under
section 203 of the Stafford Act, 42 U.S.C. 5133, will also continue to
be available.
(2) An Indian tribal government may choose to address severe
repetitive loss properties in their plan, as identified in Sec.
201.4(c)(3)(v), to receive the reduced cost share for the FMA and SRL
programs.
(3) Indian tribal governments applying through the State as a
subgrantee must have an approved Tribal Mitigation Plan meeting the
requirements of this section in order to receive HMGP project grants.
The Administrator, at his discretion may require a local mitigation
plan for the Repetitive Flood Claims Program. A tribe must have an
approved Tribal Mitigation Plan in order to apply for and receive FEMA
mitigation project grants, under all other mitigation grant programs.
(4) Multi-jurisdictional plans (e.g. county-wide or watershed
plans) may be accepted, as appropriate, as long as the Indian tribal
government has participated in the process and has officially adopted
the plan. Indian tribal governments must address all the elements
identified in this section to ensure eligibility as a grantee or as a
subgrantee.
(b) An effective planning process is essential in developing and
maintaining a good plan. The mitigation planning process should include
coordination with other tribal agencies, appropriate Federal agencies,
adjacent jurisdictions, interested groups, and be integrated to the
extent possible with other ongoing tribal planning efforts as well as
other FEMA mitigation programs and initiatives.
(c) Plan content. The plan shall include the following:
(1) Documentation of the planning process used to develop the plan,
including how it was prepared, who was involved in the process, and how
the public was involved. This shall include:
(i) An opportunity for the public to comment on the plan during the
drafting stage and prior to plan approval, including a description of
how the Indian tribal government defined ``public;''
(ii) As appropriate, an opportunity for neighboring communities,
tribal and regional agencies involved in hazard mitigation activities,
and agencies that have the authority to regulate development, as well
as businesses, academia, and other private and nonprofit interests to
be involved in the planning process;
(iii) Review and incorporation, if appropriate, of existing plans,
studies, and reports; and
(iv) Be integrated to the extent possible with other ongoing tribal
planning efforts as well as other FEMA programs and initiatives.
(2) A risk assessment that provides the factual basis for
activities proposed in the strategy to reduce losses from identified
hazards. Tribal risk assessments must provide sufficient information to
enable the Indian tribal government to identify and prioritize
appropriate mitigation actions to reduce losses from identified
hazards. The risk assessment shall include:
(i) A description of the type, location, and extent of all natural
hazards that can affect the tribal planning area. The plan shall
include information on previous occurrences of hazard events and on the
probability of future hazard events.
(ii) A description of the Indian tribal government's vulnerability
to the hazards described in paragraph (c)(2)(i) of this section. This
description shall include an overall summary of each hazard and its
impact on the tribe. The plan should describe vulnerability in terms
of:
(A) The types and numbers of existing and future buildings,
infrastructure, and critical facilities located in the identified
hazard areas;
(B) An estimate of the potential dollar losses to vulnerable
structures identified in paragraph (c)(2)(i)(A) of this section and a
description of the methodology used to prepare the estimate;
(C) A general description of land uses and development trends
within the tribal planning area so that mitigation options can be
considered in future land use decisions; and
(D) Cultural and sacred sites that are significant, even if they
cannot be valued in monetary terms.
(3) A mitigation strategy that provides the Indian tribal
government's blueprint for reducing the potential losses identified in
the risk assessment, based on existing authorities, policies, programs
and resources, and its ability to expand on and improve these existing
tools. This section shall include:
(i) A description of mitigation goals to reduce or avoid long-term
vulnerabilities to the identified hazards.
(ii) A section that identifies and analyzes a comprehensive range
of specific mitigation actions and projects being considered to reduce
the effects of each hazard, with particular emphasis on new and
existing buildings and infrastructure.
(iii) An action plan describing how the actions identified in
paragraph (c)(2)(ii) of this section will be prioritized, implemented,
and administered by the Indian tribal government.
(iv) A discussion of the Indian tribal government's pre- and post-
disaster hazard management policies, programs, and capabilities to
mitigate the hazards in the area, including: An evaluation of tribal
laws, regulations, policies, and programs related to hazard mitigation
as well as to development in hazard-prone areas; and a discussion of
tribal funding capabilities for hazard mitigation projects.
(v) Identification of current and potential sources of Federal,
tribal, or private funding to implement mitigation activities.
(vi) An Indian tribal government may request the reduced cost share
authorized under Sec. 79.4(c)(2) of this chapter of the FMA and SRL
programs if they have an approved Tribal Mitigation Plan meeting the
requirements of this section that also identify actions the Indian
tribal government has taken to reduce the number of repetitive loss
properties (which must include severe repetitive loss properties), and
specifies how the Indian tribal government intends to
[[Page 61750]]
reduce the number of such repetitive loss properties.
(4) A plan maintenance process that includes:
(i) A section describing the method and schedule of monitoring,
evaluating, and updating the mitigation plan.
(ii) A system for monitoring implementation of mitigation measures
and project closeouts.
(iii) A process by which the Indian tribal government incorporates
the requirements of the mitigation plan into other planning mechanisms
such as reservation master plans or capital improvement plans, when
appropriate.
(iv) Discussion on how the Indian tribal government will continue
public participation in the plan maintenance process.
(v) A system for reviewing progress on achieving goals as well as
activities and projects identified in the mitigation strategy.
(5) Plan Adoption Process. The plan must be formally adopted by the
governing body of the Indian tribal government prior to submittal to
FEMA for final review and approval.
(6) Assurances. The plan must include assurances that the Indian
tribal government will comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding, in compliance with Sec. 13.11(c) of this chapter. The
Indian tribal government will amend its plan whenever necessary to
reflect changes in tribal or Federal laws and statutes as required in
Sec. 13.11(d) of this chapter.
(d) Plan review and updates. (1) Plans must be submitted to the
appropriate FEMA Regional Office for formal review and approval. Indian
tribal governments who would like the option of being a subgrantee
under the State must also submit their plan to the State Hazard
Mitigation Officer for review and coordination.
(2) The Regional review will be completed within 45 days after
receipt from the Indian tribal government, whenever possible.
(3) Indian tribal governments must review and revise their plan to
reflect changes in development, progress in local mitigation efforts,
and changes in priorities, and resubmit it for approval within 5 years
in order to continue to be eligible for non-emergency Stafford Act
assistance and FEMA mitigation grant funding, with the exception of the
Repetitive Flood Claims program.
PART 206-FEDERAL DISASTER ASSISTANCE
0
16. 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 5206; Reorganization Plan No.
3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security
Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412;
E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
0
17. Section 206.432 is amended by revising paragraphs (b) introductory
text and (b)(1) to read as follows:
Sec. 206.432 Federal grant assistance.
* * * * *
(b) Amounts of Assistance. The total Federal contribution of funds
is based on the estimated aggregate grant amount to be made under 42
U.S.C. 5170b, 5172, 5173, 5174, 5177, 5178, and 5183 of the Stafford
Act for the major disaster (less associated administrative costs), and
shall be as follows:
(1) Standard percentages. Not to exceed 15 percent for the first
$2,000,000,000 or less of such amounts; not to exceed 10 percent of the
portion of such amounts over $2,000,000,000 and not more than
$10,000,000,000; and not to exceed 7.5 percent of the portion of such
amounts over $10,000,000,000 and not more than $35,333,000,000.
* * * * *
0
18. Section 206.433 is amended by revising paragraph (c) to read as
follows:
Sec. 206.433 State responsibilities.
* * * * *
(c) Hazard Mitigation Officer. The State must appoint a Hazard
Mitigation Officer who serves as the responsible individual for all
matters related to the Hazard Mitigation Grant Program.
* * * * *
0
19. Revise paragraphs (a)(2), (c)(5)(ii), (e) introductory text; add a
sentence after the first sentence of (d)(2); remove paragraph (f); and
redesignate current paragraphs (g) and (h) as (f) and (g) of Sec.
206.434 to read as follows:
Sec. 206.434 Eligibility.
(a) * * *
(2) Private nonprofit organizations that own or operate a private
nonprofit facility as defined in Sec. 206.221(e). A qualified
conservation organization as defined at Sec. 80.3(h) of this chapter
is the only private nonprofit organization eligible to apply for
acquisition or relocation for open space projects;
* * * * *
(c) * * *
(5) * * *
(ii) Will not cost more than the anticipated value of the reduction
in both direct damages and subsequent negative impacts to the area if
future disasters were to occur,
* * * * *
(d) * * *
(2) * * * Activities for which implementation has already been
initiated or completed are not eligible for funding. * * *
* * * * *
(e) Property acquisitions and relocation requirements. Property
acquisitions and relocation projects for open space proposed for
funding pursuant to a major disaster declared on or after December 3,
2007 must be implemented in accordance with part 80 of this chapter.
For major disasters declared prior to December 3, 2007, a project
involving property acquisition or the relocation of structures and
individuals is eligible for assistance only if the applicant enters
into an agreement with the FEMA Regional Director that provides
assurances that:
* * * * *
0
20. Add new paragraph (c) to Sec. 206.439 to read as follows:
Sec. 206.439 Allowable costs.
* * * * *
(c) Pre-award costs. FEMA may fund eligible pre-award planning or
project costs at its discretion and as funds are available. Grantees
and subgrantees may be reimbursed for eligible pre-award costs for
activities directly related to the development of the project or
planning proposal. These costs can only be incurred during the open
application period of the grant program. Costs associated with
implementation of the activity but incurred prior to grant award are
not eligible. Therefore, activities where implementation is initiated
or completed prior to award are not eligible and will not be
reimbursed.
Dated: October 24, 2007.
Harvey E. Johnson, Jr.,
Deputy Administrator/Chief Operating Officer, Federal Emergency
Management Agency.
[FR Doc. E7-21265 Filed 10-30-07; 8:45 am]
BILLING CODE 9110-41-P