[Title 44 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2004 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          44

                         Revised as of October 1, 2004


          Emergency Management and Assistance
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2004
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]






                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2004



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
  Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area 
                              (202) 512-1800
      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 44:
          Chapter I--Federal Emergency Management Agency, 
          Department of Homeland Security                            3
          Chapter IV--Department of Commerce and Department of 
          Transportation                                           615
  Finding Aids:
      Table of CFR Titles and Chapters........................     623
      Alphabetical List of Agencies Appearing in the CFR......     641
      List of CFR Sections Affected...........................     651

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 44 CFR 1.1 refers to 
                       title 44, part 1, section 
                       1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2004), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2250, 24 hours a day. For payment by check, 
write to the Superintendent of Documents, Attn: New Orders, P.O. Box 
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, [email protected].

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2004.

[[Page ix]]



                               THIS TITLE

    Title 44--Emergency Management and Assistance is composed of one 
volume. The contents of this volume represent all current regulations 
codified under this title of the CFR as of October 1, 2004.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page x]]




[[Page 1]]



              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE




  --------------------------------------------------------------------
                                                                    Part

chapter i--Federal Emergency Management Agency, Department 
  of Homeland Security......................................           1

chapter iv--Department of Commerce and Department of 
  Transportation............................................         401

[[Page 3]]



 CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND 
                                SECURITY




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
0               General statements of policy [Reserved]
1               Rulemaking; policy and procedures...........           7
2               Organization, functions, and delegations of 
                    authority...............................          13
3               [Reserved]
4               Intergovernmental review of Federal 
                    Emergency Management Agency (FEMA) 
                    programs and activities.................          27
5               Production or disclosure of information.....          30
6               Implementation of the Privacy Act of 1974...          46
7               Nondiscrimination in federally-assisted 
                    programs (FEMA Reg. 5)..................          64
8               National security information...............          79
9               Floodplain management and protection of 
                    wetlands................................          81
10              Environmental considerations................         101
11              Claims......................................         111
12              Advisory committees.........................         138
13              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         145
14              Administration of grants: Audits of State 
                    and local governments...................         172
15              Conduct at the Mt. Weather Emergency 
                    Assistance Center and at the National 
                    Emergency Training Center...............         178
16              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Federal 
                    Emergency Management Agency.............         182

[[Page 4]]

17              Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         188
18              New restrictions on lobbying................         207
19              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         218
20-24           [Reserved]
25              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         234
26-49           [Reserved]

              SUBCHAPTER B--INSURANCE AND HAZARD MITIGATION
50-54           [Reserved]

                 NATIONAL INSURANCE DEVELOPMENT PROGRAM
55-58           [Reserved]

                    NATIONAL FLOOD INSURANCE PROGRAM
59              General provisions..........................         235
60              Criteria for land management and use........         250
61              Insurance coverage and rates................         266
62              Sale of insurance and adjustment of claims..         316
63              Implementation of section 1306(c) of the 
                    National Flood Insurance Act of 1968....         332
64              Communities eligible for the sale of 
                    insurance...............................         337
65              Identification and mapping of special hazard 
                    areas...................................         339
66              Consultation with local officials...........         356
67              Appeals from proposed flood elevation 
                    determinations..........................         358
68              Administrative hearing procedures...........         361
69              [Reserved]
70              Procedure for map correction................         363
71              Implementation of coastal barrier 
                    legislation.............................         365
72              Procedures and fees for processing map 
                    changes.................................         369
73              Implementation of section 1316 of the 
                    National Flood Insurance Act of 1968....         372
74              [Reserved]
75              Exemption of State-owned properties under 
                    self-insurance plan.....................         373
76-77           [Reserved]
78              Flood mitigation assistance.................         376

[[Page 5]]

79              [Reserved]

                     FEDERAL CRIME INSURANCE PROGRAM
80-149          [Reserved]

                SUBCHAPTER C--FIRE PREVENTION AND CONTROL
150             Public safety awards to public safety 
                    officers................................         380
151             Reimbursement for costs of firefighting on 
                    Federal property........................         383
152             Assistance to firefighters grant program....         388
153-199         [Reserved]

                    SUBCHAPTER D--DISASTER ASSISTANCE
200             [Reserved]
201             Mitigation planning.........................         397
202-203         [Reserved]
204             Fire Management Assistance Grant Program....         404
205             [Reserved]
206             Federal Disaster Assistance for disasters 
                    declared on or after November 23, 1988..         414
207-208         [Reserved]
209             Supplemental property acquisition and 
                    elevation assistance....................         515
210-294         [Reserved]

               SUBCHAPTER E--CERRO GRANDE FIRE ASSISTANCE
295             Cerro Grande fire assistance................         523
296-299         [Reserved]

                       SUBCHAPTER F--PREPAREDNESS
300             Disaster preparedness assistance............         536
301             [Reserved]
302             Civil defense-State and local Emergency 
                    Management Assistance Program (EMA).....         537
303             [Reserved]
304             Consolidated grants to insular areas........         546
305-311         [Reserved]
312             Use of civil defense personnel, materials, 
                    and facilities for natural disaster 
                    purposes................................         547
313-320         [Reserved]
321             Maintenance of the mobilization base 
                    (Department of Defense, Department of 
                    Energy, Maritime Administration)........         550
323             Guidance on priority use of resources in 
                    immediate post attack period (DMO-4)....         553
324-326         [Reserved]

[[Page 6]]

327             Policy on use of Government-owned industrial 
                    plant equipment by private industry 
                    (DMO-10A)...............................         558
328             [Reserved]
329             Use of priorities and allocation authority 
                    for Federal supply classification (FSC) 
                    common use items (DMO-12)...............         559
330             Policy guidance and delegation of 
                    authorities for use of priorities and 
                    allocations to maximize domestic energy 
                    supplies in accordance with subsection 
                    101(c) of the Defense Production Act of 
                    1950, as amended (DMO-13)...............         561
331             Preservation of the mobilization base 
                    through the placement of procurement and 
                    facilities in labor surplus areas.......         562
332             Voluntary agreements under section 708 of 
                    the Defense Production Act of 1950, as 
                    amended.................................         563
333             [Reserved]
334             Graduated mobilization response.............         566
335-349         [Reserved]
350             Review and approval of State and local 
                    radiological emergency plans and 
                    preparedness............................         570
351             Radiological emergency planning and 
                    preparedness............................         580
352             Commercial Nuclear Power Plants: Emergency 
                    Preparedness Planning...................         586
353             Fee for services in support, review and 
                    approval of State and local government 
                    or licensee radiological emergency plans 
                    and preparedness........................         592
354             Fee for services to support FEMA'S offsite 
                    Radiological Emergency Preparedness 
                    Program.................................         600
355-359         [Reserved]
360             State assistance programs for training and 
                    education in comprehensive emergency 
                    management..............................         604
361             National earthquake hazards reduction 
                    assistance to State and local 
                    governments.............................         606
362             Criteria for acceptance of gifts, bequests, 
                    or services.............................         612
363-399         [Reserved]

[[Page 7]]



                          SUBCHAPTER A_GENERAL



             PART 0_GENERAL STATEMENTS OF POLICY [RESERVED]



PART 1_RULEMAKING; POLICY AND PROCEDURES--Table of Contents




                            Subpart A_General

Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Scope.
1.4 Policy and procedures.
1.5 Rules docket.
1.6 Ex parte communications.
1.7 Regulations agendas.
1.8 Regulations review.
1.9 Regulatory impact analyses.

                   Subpart B_Procedures for Rulemaking

1.10 Initiation of rulemaking.
1.11 Advance notice of proposed rulemaking.
1.12 Notice of proposed rulemaking.
1.13 Participation by interested persons.
1.14 Additional rulemaking proceedings.
1.15 Hearings.
1.16 Adoption of a final rule.
1.17 Petitions for reconsideration.
1.18 Petition for rulemaking.

    Authority: 5 U.S.C. 551, 552, 553; 5 U.S.C. 601, et seq.; E.O. 
12291. Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148.

    Source: 46 FR 32584, June 24, 1981, unless otherwise noted.



                            Subpart A_General



Sec. 1.1  Purpose.

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

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



Sec. 1.2  Definitions.

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

[[Page 8]]

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

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



Sec. 1.3  Scope.

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



Sec. 1.4  Policy and procedures.

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

[[Page 9]]

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

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



Sec. 1.5  Rules docket.

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

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



Sec. 1.6  Ex parte communications.

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

[[Page 10]]



Sec. 1.7  Regulations agendas.

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

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



Sec. 1.8  Regulations review.

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



Sec. 1.9  Regulatory impact analyses.

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

[[Page 11]]

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



                   Subpart B_Procedures for Rulemaking



Sec. 1.10  Initiation of rulemaking.

    Rulemaking may be initiated on the Director's motion or upon motion 
of an official to whom rulemaking authority has been delegated. 
Rulemaking may also be initiated on the petition of any interested 
person in accordance with the provisions of Sec. 1.18. Interested 
person includes a Federal, State, or local government or government 
agency.



Sec. 1.11  Advance notice of proposed rulemaking.

    An Advance Notice of Proposed Rulemaking will be published in the 
Federal Register and contains:
    (a) A description of the proposed new program or program changes, 
and why they are needed;
    (b) A presentation of the major policy issues involved;
    (c) A request for comments, both specific and general, on the need 
for the proposed rule and the provisions that the rule might include;
    (d) If appropriate, a list of questions about the proposal which 
seeks to bring out detailed comments;
    (e) If known, an estimate of the reporting or recordkeeping 
requirements, if any, that the rule would impose; and
    (f) The time within which comments may be submitted to the Rules 
Docket Clerk, Federal Emergency Management Agency, Washington, DC 20472.

[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983; 
49 FR 33879, Aug. 27, 1984]



Sec. 1.12  Notice of proposed rulemaking.

    Each notice of proposed rulemaking required by statute, executive 
order, or by Sec. 1.4 will be published in the Federal Register and 
will include:
    (a) The substance or terms of the proposed rule or a description of 
the subject matter and issues involved.
    (b) A statement of how and to what extent interested persons may 
participate in the proceeding.
    (c) Where participation is limited to written comments, a statement 
of the time within which such comments must be submitted.
    (d) A reference to the legal authority under which the proposal is 
issued.
    (e) In a proceeding which has provided Advance Notice of Proposed 
Rulemaking, an analysis of the principal issues and recommendations 
raised by the comments, and the manner in which they have been addressed 
in the proposed rulemaking.
    (f)(1) A brief statement setting forth the agency's initial 
determination whether the proposed rule is a major rule, together with 
the reasons underlying that determination;
    (2) For each proposed major rule, a brief summary of the agency's 
preliminary Regulatory Impact Analysis; and
    (3) The initial regulatory flexibility analysis or a summary thereof 
as required by the Regulatory Flexibility

[[Page 12]]

Act (5 U.S.C. 601, et seq.), or a certification that the rule, if 
promulgated, will not have a significant economic impact on a 
significant number of small entities pursuant to 5 U.S.C. 605. Such 
certification may be made by any FEMA official with rulemaking 
authority.
    (g) It is desirable, but not required, that the notices contain a 
target deadline for issuance of the regulation, and that to the extent 
feasible, this deadline be met.
    (h) If the rule is one which contains a requirement for collection 
of information, a copy of the rule will be furnished OMB in accordance 
with 44 U.S.C. 3504(h).

[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984]



Sec. 1.13  Participation by interested persons.

    (a) Unless the notice otherwise provides, any interested person may 
participate in rulemaking proceedings by submitting written data, views 
or arguments within the comment time stated in the notice. In addition, 
the Director may permit the filing of comments in response to original 
comments.
    (b) In appropriate cases, the Director may provide for oral 
presentation of views in additional proceedings described in Sec. 1.14.
    (c) Copies of regulatory flexibility analyses shall be furnished the 
Chief Counsel for Advocacy of the Small Business Administration.



Sec. 1.14  Additional rulemaking proceedings.

    The Director may invite interested persons to present oral 
arguments, appear at informal hearings, or participate in any other 
procedure affording opportunity for oral presentation of views. The 
transcript or minutes of such meetings, as appropriate, will be kept and 
filed in the Rules Docket.



Sec. 1.15  Hearings.

    (a) The provisions of 5 U.S.C. 556 and 557, which govern formal 
hearings in adjudicatory proceedings, do not apply to informal 
rulemaking proceedings described in this part. When opportunity is 
afforded for oral presentation, the informal ``hearing'' is a 
nonadversary, fact-finding proceeding. Any rule issued in a proceeding 
under this part in which a hearing is held need not be based exclusively 
on the record of such hearing.
    (b) When a hearing is provided, the Director will designate a 
representative to conduct the hearing.



Sec. 1.16  Adoption of a final rule.

    (a) All timely comments will be considered in taking final action on 
a proposed rule. Each preamble to a final rule will contain a short 
analysis and evaluation of the relevant significant issues set forth in 
the comments submitted, and a clear concise statement of the basis and 
purpose of the rule.
    (b) When determined necessary by the Director in accordance with the 
provisions of 1 CFR 18.12, the preamble shall contain the following 
information:
    (1) A discussion of the background and major issues involved;
    (2) In the case of a final rule, any significant differences between 
it and the proposed rule;
    (3) A response to substantive public comments received; and
    (4) Any other information the Director considers appropriate.
    (c) At the time of publication of the final rule, a statement shall 
be published describing how the public may obtain copies of the final 
regulatory flexibility analysis which must be prepared in accordance 
with 5 U.S.C. 604 unless the procedure for waiver or delay of completion 
under 5 U.S.C. 608 is followed.
    (d) Before approving any final major rule FEMA will:
    (1) Make a determination that the regulation is clearly within the 
authority delegated by law and consistent with congressional intent and 
include in the Federal Register at the time of promulgation a memorandum 
of law supporting that determination; and
    (2) Make a determination that the factual conclusions upon which the 
rule is based have substantial support in the agency record, viewed as a 
whole, with full attention to public comments in general and the 
comments of persons directly affected by the rule in particular.

[[Page 13]]



Sec. 1.17  Petitions for reconsideration.

    Petitions for reconsideration of a final rule will not be 
considered. Such petitions, if filed, will be treated as petitions for 
rulemaking in accordance with Sec. 1.18.



Sec. 1.18  Petition for rulemaking.

    (a) Any interested person may petition the Director for the 
issuance, amendment, or repeal of a rule. For purposes of this section 
the term person includes a Federal, State or local government or 
government agency. Each petition shall:
    (1) Be submitted to the Rules Docket Clerk;
    (2) Set forth the substance of the rule or amendment proposed or 
specify the rule sought to be repealed or amended;
    (3) Explain the interest of the petitioner in support of the action 
sought; and
    (4) Set forth all data and arguments available to the petitioner in 
support of the action sought.
    (b) No public procedures will be held directly on the petition 
before its disposition. If the Director finds that the petition contains 
adequate justification, a rulemaking proceeding will be initiated or a 
final rule will be issued as appropriate. If the Director finds that the 
petition does not contain adequate justification, the petition will be 
denied by letter or other notice, with a brief statement of the ground 
for denial. The Director may consider new evidence at any time; however, 
repetitious petitions for rulemaking will not be considered.



PART 2_ORGANIZATION, FUNCTIONS, AND DELEGATIONS OF AUTHORITY
--Table of Contents




     Subpart A_Organization, Functions, and Delegations of Authority

                                 General

Sec.
2.1 Purpose.
2.2 Organization of FEMA.
2.3 Exercise of authority.
2.4 General limitations and reservations.
2.5 Delegations not included.
2.6 Redelegation of authority.
2.7 General delegations.
2.8 Designation of subordinates to act.

                              FEMA Offices

2.11 Office of the Director.
2.12 Office of the Inspector General.
2.13 Office of the General Counsel.
2.14 Office of Congressional and Governmental Affairs.
2.15 Office of Emergency Information and Public Affairs.
2.16 Office of Policy and Assessment.
2.17 Office of Human Resources Management.
2.18 Office of Equal Rights.
2.19 Office of Financial Management.
2.20 Office of Regional Operations.
2.21 Ombudsman. [Reserved]
2.22 Regional Offices.

                             Administrations

2.31 Federal Insurance Administration.
2.32 United States Fire Administration.

                              Directorates

2.41 Mitigation Directorate.
2.42 Preparedness, Training, and Exercises Directorate.
2.43 Response and Recovery Directorate.
2.44 Operations Support Directorate.

Subpart B [Reserved]

                      Subpart C_OMB Control Numbers

2.80 Purpose.
2.81 OMB control numbers assigned to information collections.

    Authority: 5 U.S.C. 552; Reorganization Plan No. 3 of 1978, 5 U.S.C. 
App. 1; E.O. 12127, 3 CFR, 1979 Comp., p. 376; E.O. 12148, as amended, 3 
CFR, 1979 Comp., p. 412.

    Source: 59 FR 26133, May 19, 1994, unless otherwise noted.



     Subpart A_Organization, Functions, and Delegations of Authority

                                 General



Sec. 2.1  Purpose.

    This part describes the organization of the Federal Emergency 
Management Agency (FEMA), and the general course and method by which its 
functions are administered. It provides for the exercise by officials of 
FEMA of authorities that are vested in the Director specifically by 
statute, as head of an agency, or as a consequence of a law authorizing 
such exercise. It also provides for exercise of authorities that have 
been transferred to the Director by Reorganization Plan or delegated to

[[Page 14]]

the Director by Executive Order or other appropriate document.



Sec. 2.2  Organization of FEMA.

    (a) The Director is the head of FEMA. All authorities of FEMA are 
either vested in the Director by statute or have been transferred to or 
delegated to the Director. Notwithstanding any delegation by the 
Director to a subordinate officer of FEMA, the Director may also 
exercise such authority.
    (b) FEMA is composed of the Offices, Administrations, and 
Directorates, the responsibilities of which are described in Sec. Sec. 
2.11 through 2.44.
    (c) The Executive Board of FEMA consists of the senior managers 
appointed by the President and confirmed by the Senate as well as 
representatives of the Regional Directors and other senior managers as 
the Director shall designate from time to time. The principal function 
of the Executive Board is to review the Agency's overall direction, 
performance, and policies. The Executive Board will hold regular 
meetings on a quarterly basis and may hold special meetings at the 
discretion of the Director.



Sec. 2.3  Exercise of authority.

    Exercise of the authority delegated by this subpart or redelegated 
pursuant to this subpart is subject to the direction, control, and 
authority of the Director, and is governed by applicable laws, Executive 
Orders, Federal agency regulations or issuances applicable to FEMA. Such 
exercise is also governed by regulations issued by FEMA, and by 
policies, objectives, directives, manuals, instructions, plans, 
standards, procedures and limitations issued from time to time by or on 
behalf of the Director.



Sec. 2.4  General limitations and reservations.

    (a) All powers and duties not delegated by the Director in this 
subpart, nor otherwise provided for in Title 44, are reserved to the 
Director.
    (b) The following specific authorities are reserved to the Director:
    (1) Certain authorities relating to reporting to Congress and the 
President including those under:
    (i) Section 16 of the Federal Fire Prevention and Control Act of 
1974 (15 U.S.C. 2215);
    (ii) Section 1320 of the National Flood Insurance Act (42 U.S.C. 
4027);
    (iii) Section 1234 of the National Housing Act (12 U.S.C. 1749bbb-
10d);
    (iv) Section 406 of the Federal Civil Defense Act of 1950, as 
amended (50 U.S.C. App. 2258);
    (v) Section 5(b)(1)(D) of the Earthquake Hazards Reduction Act of 
1977 (42 U.S.C. 7704(b)(1)(D)); and
    (vi) Section 2-105 of Executive Order 12148 of July 20, 1979.
    (2) Authorities connected with declaration of major disasters and 
emergencies, and with delegations to other agencies including:
    (i) The authority to make recommendations to the President 
concerning the determination that an emergency exists pursuant to 
section 501 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5191);
    (ii) The authority to make recommendations to the President 
concerning the issuance of a major disaster declaration pursuant to 
section 401 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5170); and
    (iii) Provision is made in Sec. 2.11 of this part for the Deputy 
Director to exercise the authorities set out in this paragraph when the 
Director is unavailable due to illness or incapacity.
    (3) Authorities relating to voluntary agreements under section 708 
of the Defense Production Act (50 U.S.C. App. 2158) delegated to the 
Director in section 501 of Executive Order 10480.
    (4) Authority to make the determination concerning Federal operation 
of the program and the report to Congress under section 1340 of the 
National Flood Insurance Act (42 U.S.C. 4071).
    (5) Authority to appoint Federal Coordinating Officers under section 
302 of the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act (42 U.S.C. 5143).



Sec. 2.5  Delegations not included.

    Other delegations of authority have been and will be made in other 
FEMA regulations and by internal FEMA directives that concern internal 
FEMA

[[Page 15]]

policies and operations. These are valid delegations. Without in any way 
limiting the number of those delegations, and without describing all of 
them in this listing which is not complete, they include those:
    (a) Delegations concerning Federal personnel matters such as those 
concerning appointing authority, compensation, and so on. These are 
considered internal personnel rules and are not published in this 
chapter but are published in a FEMA Instruction.
    (b) Delegation to the General Counsel as Ethics Counselor under 5 
CFR part 2638.
    (c) Delegations under parts 5 and 6 of this subchapter relating to 
the Freedom of Information Act and Privacy Act.
    (d) Delegations to several officials relating to authentication of 
records under 44 CFR 5.82.
    (e) Delegations to the General Counsel and Chief Financial Officer 
with respect to claims under part 11 of this subchapter.
    (f) Delegations to classify information originally as Secret or 
Confidential.
    (g) Delegations to make certifications and findings under the 
Regulatory Flexibility Act, 5 U.S.C. 601-612; the National Environmental 
Policy Act, 42 U.S.C. 4321-4335; the Paperwork Reduction Act, 44 U.S.C. 
3501-3520; E.O. 12612 of October 26, 1987, 3 CFR, 1987 Comp., p. 252; 
E.O. 12778 of October 23, 1991, 3 CFR, 1991 Comp., p. 359; E.O. 12866 of 
September 30, 1993, 3 CFR, 1993 Comp., p. 638; and any other 
certifications or findings required by existing or future laws, 
executive orders, or other authorities;
    (h) Delegations concerning environmental matters under part 10 of 
this subchapter; and
    (i) Delegations concerning floodplain management and wetlands 
protection matters under part 9 of this subchapter.



Sec. 2.6  Redelegation of authority.

    (a) It is FEMA's policy that the authorities delegated by this 
chapter should, whenever appropriate, be redelegated to the manager or 
official who has immediate responsibility for the action. Authority 
delegated by this chapter, unless otherwise specifically provided, may 
be redelegated in whole or in part provided any such redelegation is in 
writing and approved by the officer to whom the authority is initially 
delegated. This restriction does not apply to a temporary redelegation 
of authority to a principal deputy or first assistant to be exercised 
during the absence of the delegating official.
    (b) The authority to issue regulations having general applicability 
and future effect designed to implement, interpret or prescribe law or 
policy, and which are to be published in the Federal Register, may be 
delegated or redelegated only to positions for which it is required that 
the incumbent be confirmed by the United States Senate. This does not 
prohibit an acting official from issuing regulations. This paragraph 
does not apply to rules issued under parts 64, 65, 67, or 70 of this 
title.



Sec. 2.7  General delegations.

    (a) This section sets forth general delegations to the officers or 
employees named in paragraph (b) of this section.
    (b) The officers authorized to exercise authorities in paragraph (c) 
of this section are:
    (1) Deputy Director;
    (2) Chief of Staff;
    (3) Inspector General;
    (4) General Counsel;
    (5) Director of the Office of Congressional and Governmental 
Affairs;
    (6) Director of the Office of Emergency Information and Public 
Affairs;
    (7) Director of the Office of Policy and Assessment;
    (8) Director of the Office of Human Resources Management;
    (9) Director of the Office of Equal Rights;
    (10) Chief Financial Officer;
    (11) Director of the Office of Regional Operations;
    (12) Regional Directors;
    (13) Federal Insurance Administrator;
    (14) United States Fire Administrator;
    (15) Associate Director for Mitigation;
    (16) Associate Director for Preparedness, Training, and Exercises;

[[Page 16]]

    (17) Associate Director for Response and Recovery; and
    (18) Associate Director for Operations Support.
    (c) Each officer named in paragraph (b) of this section is 
authorized to:
    (1) Approve official travel as temporary duty travel on official 
business and allowable expenses incidental thereto for employees of 
their respective organizational units, in accordance with the Federal 
Travel Regulations; except that travel to and from points outside of the 
United States is subject to prior notification to the Director and 
foreign travel (i.e., travel outside the United States and its insular 
areas) is subject to prior approval of the Director. However, no officer 
or employee may approve his or her own travel. Travel of officers named 
in paragraph (b) of this section is approved by the Deputy Director or 
the Chief of Staff, except that travel of a Regional Director may be 
approved by the Deputy Regional Director for that Region.
    (2) Approve travel advances of funds through disbursing officers or 
imprest fund cashiers for employees of the respective organizational 
units who are entitled to per diem or mileage allowance or subsistence 
expenses in accordance with the Federal Travel Regulations.
    (3) Approve travel vouchers for employees of their respective 
organizational units.
    (4) Approve travel by employees of their respective organizations at 
the invitation and expense of parties outside of the Federal Government, 
with the concurrence of the Designated Agency Ethics Officer (DAEO) or a 
Deputy DAEO;
    (5) Approve funding requisitions;
    (6) As appropriate, issue final agency decisions on individual or 
class complaints of discrimination because of race, color, national 
origin, religion, sex, disability, age, or economic status.
    (7) Promulgate internal guidance to cover areas of assigned 
responsibilities.
    (8) Approve training costing less than $2500 (all expenses) or 
training of less than 80 hours in duration, whichever is more 
restrictive, except that this authority does not include authority to 
approve training involving the use of facilities of foreign governments 
or international organizations, which must be approved by the Director; 
or the authority to approve acceptance by employees of contributions or 
awards from non-Government organizations, whether in cash or in kind, 
which must be approved by the Director.
    (9) Adjust working hours for individual employees when there is 
special justification therefor that it is in the interest of FEMA or to 
accommodate individual needs of employees for legitimate reasons where 
the work of the agency will not be impeded.
    (10) Approve incentive awards to subordinates, Public Service 
Awards, cash awards of $1,500 or less for individuals and quality 
within-grade salary increases.
    (11) Enter into and administer funded and unfunded memoranda of 
understanding with respect to assigned duties.
    (12) Classify documents derivatively, based on the original 
classification by other Federal agencies or the Director.



Sec. 2.8  Designation of subordinates to act.

    Each officer named in Sec. 2.7(b) shall:
    (a) Submit to the Director, for approval, a list of three or more 
subordinates to act for such officer during his or her absence; and
    (b) Ensure that each Division Director, Branch Chief, or head of any 
other organizational unit under that officer's authority designate one 
or more subordinate employees to serve as acting head of the unit during 
the absence of the head of a unit or during a vacancy in the position.

                              FEMA Offices



Sec. 2.11  Office of the Director.

    The Deputy Director is the first assistant to the Director under the 
Vacancies Act, 5 U.S.C. 3341 et seq., and acts in place of the Director 
when the Director is not available because of illness or incapacity. The 
Deputy Director is the Chief Operating Officer of the Agency, with the 
duties and powers set forth in Presidential Memorandum of October 1, 
1993, ``Implementing Reform in the Executive Branch.'' The Deputy 
Director is authorized to exercise the

[[Page 17]]

duties and powers of the Director as necessary to carry out the 
responsibilities of the Chief Operating Officer and to act in place of 
the Director in the Director's unavailability.



Sec. 2.12  Office of the Inspector General.

    (a) Mission. The Office of the Inspector General serves FEMA as an 
independent unit to promote economy, efficiency, and effectiveness; to 
prevent waste, fraud, and abuse; and to keep the Congress and the 
Director fully informed on these subjects.
    (b) Functions. The principal functions of the Office of the 
Inspector General are:
    (1) Performance of all audit functions relating to programs and 
operations of FEMA;
    (2) Inspection of agency activities to identify actual or potential 
fraud, waste, abuse, or mismanagement and to develop recommendations for 
corrective action;
    (3) Investigation of allegations of illegal, unethical, or other 
activities that may lead to civil or criminal liability on the part of 
FEMA or its employees, contractors, or program participants; and
    (4) Referral of potential criminal prosecutions to the Department of 
Justice, under 28 U.S.C. 535.
    (c) Authority. The position of Inspector General of FEMA is created 
by statute (The Inspector General Act of 1978, as amended, 5 U.S.C. App. 
3 Sec. Sec. 1-15). The Inspector General is authorized to exercise the 
duties and powers set forth in that statute.



Sec. 2.13  Office of the General Counsel.

    (a) Mission. The Office of the General Counsel renders legal advice 
and assistance on all matters related to Agency programs and operation, 
and conducts the Agency's ethics program and Freedom of Information Act/
Privacy Act program.
    (b) Functions. The principal functions of the Office of the General 
Counsel are:
    (1) Rendering legal opinions and advice with respect to the duties, 
powers, and responsibilities of the Director, FEMA, and other Agency 
officers and employees and the applications of statutes, rules and 
regulations, other administrative issuances, and judicial precedents to 
Agency operations;
    (2) Review for legal sufficiency of all Agency documents requiring 
legal interpretation or opinion.
    (3) Establishment of Agency policy for and conduct of all 
appearances on behalf of FEMA in litigation or administrative 
proceedings and hearings;
    (4) Liaison to the Department of Justice except when otherwise 
provided by the Office of the Inspector General.
    (5) Coordination of the FEMA regulatory program, including liaison 
to the Office of Management and Budget and the Office of the Federal 
Register;
    (6) Operation of the FEMA legislative reference program, including 
liaison to the Office of Management and Budget and allied legislative 
proposals; and
    (7) Operation of FEMA's ethics program and Freedom of Information 
Act and Privacy Act program.
    (c) Delegated authorities. The General Counsel is authorized to 
exercise the duties and powers of the Director to:
    (1) Accept service of process on behalf of the Agency, and on behalf 
of its officials and employees in connection with performance of their 
official duties;
    (2) Determine the agency's position with respect to litigation and 
refer matters directly to the Attorney General for prosecution or for 
initiation of litigation;
    (3) Determine the government's position in connection with any 
dispute before a Board of Contract Appeals, including the authority to 
settle or adjust any such claim.
    (4) Consider, compromise and settle tort claims against FEMA, but 
any award, compromise, or settlement of more than $25,000 requires the 
prior written approval of the Attorney General or designee;
    (5) Serve as the Designated Agency Ethics Officer;
    (6) Make technical corrections to all FEMA documents, including 
rules and regulations submitted to the Federal Register;
    (7) Consider, compromise and settle personnel claims of less than 
$15,000 against FEMA;
    (8) Waive claims of the United States against a person arising out 
of pay and allowances to an employee of FEMA in amounts of not more than 
$1,500, and in

[[Page 18]]

accordance with the requirements of 5 U.S.C. 5584, and the implementing 
regulations and standards of the Comptroller General; and
    (9) Enter into ratification agreements at the direction of the 
Department of Justice in order to insure that FEMA's subrogation 
interest will be represented.



Sec. 2.14  Office of Congressional and Governmental Affairs.

    (a) Mission. The Office of Congressional and Governmental Affairs 
coordinates FEMA's ongoing emergency management relationships with the 
Congress, public interest groups, and State and local organizations.
    (b) Functions. The principal functions of the Office of 
Congressional and Governmental Affairs are:
    (1) Liaison with Congress, the Office of Management and Budget, and 
the White House on legislative matters directly affecting FEMA;
    (2) Advising the Director and other FEMA officials on actions 
pending or anticipated in Congress;
    (3) Liaison with Federal Coordinating Officers following 
declarations of disasters or emergencies under the Stafford Act, on 
matters requiring coordination with Congress; and
    (4) Liaison with FEMA's constituencies on FEMA legislative matters.
    (c) Delegated authorities. The Director of the Office of 
Congressional and Governmental Affairs is authorized to exercise the 
duties and powers of the Director in the Director's capacity as agency 
head in support of the functions listed in paragraph (b) of this 
section.



Sec. 2.15  Office of Emergency Information and Public Affairs.

    (a) Mission. The Office of Emergency Information and Public Affairs 
informs the public about FEMA's programs and activities, both in time of 
disaster and in other times.
    (b) Functions. The principal functions of the Office of Emergency 
Information and Public Affairs are:
    (1) Gathering and dissemination of information about FEMA's programs 
and activities;
    (2) Liaison with news media;
    (3) Management of Joint Information Centers during disasters.
    (c) Delegated authorities. The Director of the Office of Emergency 
Information and Public Affairs is authorized to exercise the duties and 
powers of the Director in the Director's capacity as agency head as set 
forth in paragraph (b) of this section.



Sec. 2.16  Office of Policy and Assessment.

    (a) Mission. The Office of Policy and Assessment manages and 
facilitates policy development, strategic planning, planning, 
performance standards and assessment, innovation, and organizational 
development to achieve FEMA's overall mission.
    (b) Functions. The principal functions of the Office of Policy and 
Assessment are:
    (1) Facilitation of the development and implementation of Agency 
policy, including systematic review and evaluation of that policy;
    (2) Development and coordination of FEMA's strategic planning 
process;
    (3) Development of standards and mechanisms for evaluation of Agency 
performance;
    (4) Development and implementation of a system for identifying 
shortfalls in Agency programs and performance and for monitoring 
progress towards their remediation;
    (5) Oversight of FEMA's implementation of the Government Performance 
and Results Act of 1993, Pub. L. 103-62, 107 Stat. 285.
    (6) Oversight of implementation of FEMA's environmental 
responsibilities;
    (7) Support of the FEMA Executive Board;
    (8) Oversight of, and provision of guidance for, FEMA's renewal and 
participation in the Reinvention Laboratory process; and
    (9) Facilitating institutional change and innovation.
    (c) Delegated authorities. The Director of the Office of Policy and 
Assessment is authorized to exercise the duties and powers of the 
Director in the Director's capacity as agency head in support of the 
functions listed in paragraph (b) of this section.

[[Page 19]]



Sec. 2.17  Office of Human Resources Management.

    (a) Mission. The Office of Human Resources Management provides and 
maintains a workforce capable of carrying out FEMA's mission.
    (b) Functions. The principal functions of the Office of Human 
Resources Management are:
    (1) Administration of FEMA's classification and position management 
programs;
    (2) Recruitment and placement of employees;
    (3) Administration of compensation and leave programs;
    (4) Management of FEMA's disaster personnel program;
    (5) Administration of workforce and workplace programs;
    (6) Management of FEMA's labor relations, employee relations, and 
employee benefit programs;
    (7) Administration of performance management and incentive awards 
programs;
    (8) Establishment and maintenance of personnel records; and
    (9) Coordination of affirmative employment programs with the Office 
of Equal Rights and support of FEMA's Offices, Administrations, and 
Directorates in meeting their affirmative actions goals.
    (c) Delegated authorities. The Director of the Office of Human 
Resources Management is authorized to exercise the duties and powers of 
the Director in the Director's capacity as agency head in support of the 
functions listed in paragraph (b) of this section.



Sec. 2.18  Office of Equal Rights.

    (a) Mission. The Office of Equal Rights assists management in 
fulfilling its responsibilities to ensure Equal Rights for all employees 
and applicants for employment, and to guarantee protection for the civil 
rights of every American receiving assistance from FEMA.
    (b) Functions. The principal functions of the Office of Equal Rights 
are:
    (1) Development, in coordination with Agency management, of multi-
year Affirmative Employment Plans and annual updates covering women, 
minority group members, and persons with disabilities;
    (2) Training regarding Equal Rights and Civil Rights and 
Responsibilities;
    (3) Investigation and non-adjudicatory resolution of complaints of 
discrimination and referral of unresolved complaints to the Equal 
Employment Opportunity Commission or the Department of Justice; and
    (4) Ensuring compliance with Civil Rights guidance in FEMA's 
programs and operations.
    (c) Delegated authorities. The Director of the Office of Equal 
Rights is authorized to exercise the duties and powers of the Director 
as set forth in:
    (1) E.O. 12336, as amended;
    (2) E.O. 12250;
    (3) E.O. 12067, as amended;
    (4) E.O. 11478, as amended;
    (5) E.O. 11141; and
    (6) E.O. 11063, as amended.



Sec. 2.19  Office of Financial Management.

    (a) Mission. The Office of Financial Management promotes sound 
financial management and accountability throughout the Agency by 
providing financial guidance, information, and services to FEMA 
management, its employees, and the Agency's customers.
    (b) Functions. This office reports directly to the Director of FEMA 
regarding financial management matters and is headed by the Chief 
Financial Officer. The principal functions of the Office of Financial 
Management are:
    (1) Oversight of all financial management activities relating to the 
programs and operations of the Agency, including fund manager for all 
Agency funds;
    (2) Development, operation, and maintenance of an integrated Agency 
accounting and financial management system, including internal and 
external financial reporting;
    (3) Oversight of the Agency's internal control guidance and review 
program;
    (4) Direction, management, and provision of policy guidance and 
oversight of Agency financial management personnel, activities, and 
operations;
    (5) Preparation of the annual report described in 31 U.S.C. 
902(a)(6) to the Director of FEMA and to the Office of Management and 
Budget;
    (6) Oversight of and responsibility for the formulation and 
execution of the

[[Page 20]]

Agency's budget and accounts for actual expenditures;
    (7) Preparation and submission of timely performance reports to the 
Director of FEMA and operating units;
    (8) Review, on a biennial basis, of the fees, royalties, rents, and 
other charges imposed by the Agency for services and things of value it 
provides, and recommendation of revision of those charges to reflect 
costs incurred by the Agency in providing those services and things of 
value.
    (c) Authority. The position of Chief Financial Officer was created 
by statute (Agency Chief Financial Officers Act, as amended, 31 U.S.C. 
901-1114, 3511-3521). The Chief Financial Officer is authorized to 
exercise the duties and powers set forth in that statute. The Chief 
Financial Officer is specifically authorized to:
    (1) Supervise the activities and functions of the Office of the 
Financial Management and oversee all financial management activities 
relating to the programs and operations of the Agency.
    (2) Direct, manage, and provide policy guidance and oversight of the 
Agency financial management personnel, activities and operations.
    (3) Establish and maintain an integrated Agency accounting and 
financial management system, including financial reporting and internal 
controls, that--
    (i) Complies with applicable accounting principles, standards, and 
requirements and standards prescribed by the Office of Management and 
Budget, the General Accounting Office, and the Department of the 
Treasury;
    (ii) Provides for complete, reliable and timely information, that is 
prepared on a uniform basis, and that is responsive to the financial 
management needs of the Agency; and,
    (iii) Complies with any other requirements applicable to such 
systems.
    (4) Prepare and submit a financial statement that conforms to the 
requirements of 31 U.S.C. 902 and 3515. Develop and implement the 5-year 
financial management plan as required by 31 U.S.C. 902(a)(5).
    (5) Develop the Agency's financial management plans and budgets, and 
review legislative proposals and other programmatic proposals to provide 
advice to the Director on the financial implications of such proposals.
    (6) Develop and implement Agency asset management systems, including 
systems for cash management, credit management, debt collection, and 
property and inventory management and control.
    (7) Review on a biennial basis the fees, royalties, rents and other 
charges imposed by the Agency for services and things of value it 
provides, and make recommendations to the Director on revising those 
charges to reflect actual costs incurred by the Agency in providing 
those services and things of value. Premiums and other policy holder 
charges that relate to the issuance of policies (National Flood 
Insurance and Crime Insurance programs) are set by the Federal Insurance 
Administrator pursuant to Federal law and regulation.
    (8) Develop, operate and maintain an Administrative Fund Control 
System that provides, for accurate and timely data on the status of each 
account. This Administrative Fund Control System shall comply with 
appropriate statutory requirements and regulations issued by General 
Accounting Office, Office of Management and Budget, the Department of 
the Treasury, and other central administrative agencies.
    (9) Establish and maintain the appropriate accounts designated by 
the Department of the Treasury, the General Accounting Office, and 
Office of Management and Budget and such subsidiary records as may be 
necessary for accounting, audit and management purposes. Establish and 
maintain controls for appropriations and other special limitations 
required by law. Maintain reliable accounting records that will be the 
basis for preparing and supporting the budget requests of the Agency, 
controlling the execution of the budget and providing financial 
information required by law and regulation.
    (10) Oversee the implementation of internal control systems that 
conform with rules, circulars, and other directives issued by General 
Accounting Office, Office of Management and Budget, and the Department 
of the Treasury. Report to the Director, as required by

[[Page 21]]

law and regulation, whether the Agency's internal control systems and 
other financial systems and processes comply with applicable law and 
regulation.
    (11) Develop and implement administrative standards and cost 
principles for the Agency's assistance programs in conformity with 
rules, circulars, and other directives that are issued by the General 
Accounting Office, the Office of Management and Budget, and the 
Department of the Treasury.
    (12) Develop and maintain procedures for approving requisitions for 
disbursing funds, reports of current accounts rendered by disbursing 
officers, and other financial and accounting documents involving FEMA, 
the General Accounting Office, the Department of the Treasury, and the 
Office of Management and Budget.
    (13) Certify to the General Accounting Office any charge against any 
officer or agent entrusted with public property, arising from any loss 
and accruing by this person's fault, to the Government as to the 
property so entrusted to this person.
    (14) Approve all expenditures and receipt all vouchers and other 
documents necessary to carry out FEMA's appropriations and programs.
    (15) Certify that all required documents, information and approvals 
respecting fiscal transactions are present; verify or cause to be 
verified the accuracy of the financial computations, the consistency of 
the information included in the various documents; and determine, or 
cause to be determined, that the financial transactions of the Agency 
are in strict accordance with the law, regulations and decisions.
    (16) Authorize officers and employees to certify vouchers.
    (17) Receive and credit amounts received to the applicable 
appropriation of FEMA or to the miscellaneous receipts account.
    (18) Request cashier designation and resolution from the Department 
of the Treasury, and designate cashiers to serve in FEMA.
    (19) Approve invitational travel for the Office of Financial 
Management.
    (20) Have access to records and documents as required by 31 U.S.C. 
902(b) (1)(A), (1)(B), and (1)(C). Access to records and documents is 
subject to the limitations in 31 U.S.C. 902(b)(2).



Sec. 2.20  Office of Regional Operations.

    (a) Mission. The Office of Regional Operations coordinates FEMA's 
policies, programs, and administrative and management guidance with 
Regional Directors and ensures that regional implementation is 
consistent with the Director's goals.
    (b) Functions. The principal functions of the Office of Regional 
Operations are:
    (1) Liaison between the Regional Directors and the Director, 
Associate Directors, Administrators, and Office Directors;
    (2) Advising the Director, Associate Directors, Administrators, and 
Office Directors on regional matters; and
    (3) Providing guidance to Regional Directors on policy, programs, 
operations, and administrative matters.
    (c) Delegated authorities. The Director of the Office of Regional 
Operations is authorized to exercise the duties and powers of the 
Director in the Director's capacity as agency head in support of the 
functions listed in paragraph (b) of this section.



Sec. 2.21  Ombudsman. [Reserved]



Sec. 2.22  Regional Offices.

    (a) Mission. The Regional Offices implement FEMA's policies and 
programs at the regional level.
    (b) Functions. The principal functions of the Regional Offices are:
    (1) Liaison, within the regions, with other Federal agencies, State 
and local governments, voluntary and other private organizations, and 
the public;
    (2) Recommendations to the Director on implementation of policy and 
improvement of the administration of FEMA's programs;
    (3) Administration of Comprehensive Cooperative Agreements, grants, 
and other financial assistance to State and local governments;
    (4) Response to disasters and emergencies declared under the 
Stafford Act, through Regional Response Teams;
    (5) Recovery activities under the Stafford Act;

[[Page 22]]

    (6) Implementation of floodplain management aspects of the National 
Flood Insurance Program;
    (7) Management of training and field exercises; and
    (8) Technical assistance to Federal agencies, State and local 
governments, and voluntary and other private organizations regarding 
emergency response planning, preparedness, mitigation, response, and 
recovery.
    (c) Delegated authorities. In general, Regional Directors are 
authorized, within their respective regions, to exercise the duties and 
powers of the Administrators and Associate Directors as set forth in 
Sec. Sec. 2.32 through 2.44. However, the authorities of the Earthquake 
Hazards Reduction Act of 1977, as amended, 42 U.S.C. 7701 et seq., are 
not delegated to Regional Directors (except for the authority of 42 
U.S.C. 7704(b)(2)(A)(i), which is delegated). In addition, the 
authorities of the Federal Insurance Administrator as set forth in Sec. 
2.31 are not delegated to the Regional Directors.

                             Administrations



Sec. 2.31  Federal Insurance Administration.

    (a) Mission. The Federal Insurance Administration markets, issues, 
and services insurance policies under the National Flood Insurance 
Program (NFIP) and the Federal Crime Insurance Program (FCIP), with 
assistance from private insurance companies and servicing contractors.
    (b) Functions. The principal functions of the Federal Insurance 
Administration are:
    (1) Establishment of regulations, policy guidelines, standard 
contracts of insurance, and insurance rates for the NFIP and FCIP;
    (2) Establishment of policy, plans, and procedures for evaluation, 
payment, and review of insurance claims;
    (3) Oversight of servicing contracts for the NFIP and FCIP and the 
issuance and servicing of flood insurance policies by Write-Your-Own 
(WYO) carriers;
    (4) Studies of the costs and feasibility of proposed extensions of 
the National Flood Insurance Program or of the proposed establishment of 
Federal insurance programs for other natural hazards; and
    (5) Administration of the National Flood Insurance Fund and National 
Insurance Development Fund.
    (c) Delegated authorities. The Federal Insurance Administrator is 
authorized to exercise the duties and powers of the Director as set 
forth in section 1-104 of E.O. 12127 insofar as it pertains to the 
marketing, issuance, and servicing of insurance under the NFIP and FCIP.



Sec. 2.32  United States Fire Administration.

    (a) Mission. The United States Fire Administration works to reduce 
deaths, injuries, and property loss caused by fires in the United 
States.
    (b) Functions. The principal functions of the United States Fire 
Administration are:
    (1) Education of the public about fire problems and high fire risk 
behaviors;
    (2) Providing training and technical assistance to fire and 
emergency services providers in incident response, mitigation and 
management;
    (3) Collection and analysis of fire incident information;
    (4) Investigation of technologies, equipment, and strategies for 
fire and emergency services providers;
    (5) Coordination with State and local fire and emergency agencies 
concerning arson investigation and mitigation, use of building and fire 
codes, fire protection and multi-agency cooperation; and
    (6) Management and operation of the National Emergency Training 
Center, Emmitsburg, Maryland.
    (c) Delegated authorities. The United States Fire Administrator is 
authorized to exercise the duties and powers of the Director as set 
forth in section 1-103 of E.O. 12127.

                              Directorates



Sec. 2.41  Mitigation Directorate.

    (a) Mission. The Mitigation Directorate administers programs to 
reduce or eliminate loss of life and property from natural and 
technological hazards.
    (b) Functions. The principal functions of the Mitigation Directorate 
are:

[[Page 23]]

    (1) Identifying and assessing the risks posed by natural and 
technological hazards, except that, on issues of technological risk 
assessment, FEMA will defer to the Agency having primary responsibility 
in the specific area, notably the Nuclear Regulatory Commission (NRC) 
regarding accidents at commercial nuclear power plants, and the United 
States Army regarding chemical weapons;
    (2) Developing mitigation policies and strategies for implementing 
programs designed to reduce or eliminate loss of life and property from 
natural and technological hazards;
    (3) Coordinating with other Federal agencies and the scientific 
community on matters that will enhance FEMA'S ability to reduce or 
eliminate loss of life and property from natural and technological 
hazards;
    (4) Transferring information on the risks posed by natural and 
technological hazards to other Federal agencies and State and local 
government officials, and the public;
    (5) Promoting a multi-hazard approach to mitigation at State and 
local levels;
    (6) Coordinating with national associations whose membership, 
expertise, and standard-setting capabilities enhance the reduction of 
risks associated with natural and technological hazards;
    (7) Providing for the dissemination of information and delivery of 
technical assistance to build mitigation capabilities and promote 
mitigation activities;
    (8) Carrying out hazard mitigation activities of the Stafford Act, 
including the processing of applications for hazard mitigation grants, 
disbursement of funds under section 404 of the Stafford Act, and 
administrative responsibilities in support of these activities;
    (9) Management of Comprehensive Cooperative Agreements with the 
States, through which the Mitigation programs are implemented in the 
regions; and
    (10) Establishment of Agency Geographic Information Systems (GIS) 
requirements and an Agency-wide GIS policy.
    (c) Delegated authorities. The Associate Director for Mitigation is 
authorized to exercise the duties and powers of the Director as set 
forth in:
    (1) 33 U.S.C. 467h, 709b, insofar as it pertains to the Dam 
Inspection Program;
    (2) Section 1-104 of E.O. 12127 insofar as it pertains to:
    (i) Determining the eligibility of communities to participate in the 
National Flood Insurance Program;
    (ii) Identification of flood-prone areas;
    (iii) Determination of inclusion or non-inclusion of properties 
within the Coastal Barrier Resources System established by 16 U.S.C. 
3503 or within an otherwise protected area;
    (iv) Determination of projected flood elevations for State and local 
governments to use in adopting flood plain management laws, regulations 
or ordinances;
    (v) Establishment of criteria for land management and use, flood 
control, flood zoning, and flood damage protection; and
    (vi) Purchase of properties insured under the National Flood 
Insurance Program that have been damaged substantially beyond repair by 
flood;
    (3) E.O. 11988;
    (4) The following sections of E.O. 12148, as amended:
    (i) Section 4-203, insofar as it pertains to hurricane preparedness, 
as set forth in section 201 of the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act, 42 U.S.C. 5131;
    (ii) Section 4-203, insofar as it pertains to hazard mitigation set 
forth in sections 404, 406, 409, and 411 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5170, 5172, 
5176, and 5178;
    (iii) Section 4-204, pertaining to earthquake hazards reduction as 
set forth in the Earthquake Hazards Reduction Act of 1977, as amended, 
42 U.S.C. 7701-7706; and
    (5) E.O. 12699.



Sec. 2.42  Preparedness, Training, and Exercises Directorate.

    (a) Mission. The Preparedness, Training, and Exercises Directorate 
supports the emergency preparedness, training, and exercises 
capabilities of Federal, State and local governments.

[[Page 24]]

    (b) Functions. The principal functions of the Preparedness, 
Training, and Exercises Directorate are:
    (1) Management of programs to establish, maintain, and enhance the 
capabilities of Federal, State, and local governments to prepare for, 
respond to, recover from a broad range of emergencies, including such 
programs as the Radiological Emergency Preparedness (REP) Program, 
Chemical Stockpile Emergency Preparedness Program (CSEPP), and the 
delegated responsibilities under the Federal Civil Defense Act of 1950, 
as amended (50 U.S.C. App. 2251-2303);
    (2) Management of Comprehensive Cooperative Agreements with the 
States, through which agreements the above programs are implemented in 
the regions;
    (3) Training of Federal, State, and local government employees to 
prepare for, respond to, recover from a broad range of emergencies;
    (4) Testing of Federal, State, and local emergency preparedness and 
response procedures through a comprehensive exercise, evaluation and 
corrective action program; and
    (5) Recommendation of policy for all-hazard emergency preparedness 
and provision of implementation guidance, as required by statute, 
international agreement, or executive order.
    (c) Delegated authorities. The Associate Director for Preparedness, 
Training, and Exercises Directorate is authorized to exercise the duties 
and powers of the Director as set forth in:
    (1) E.O. 10480, as amended;
    (2) E.O. 11179, as amended;
    (3) Sections 1-103(b) and 1-105, E.O. 12127;
    (4) Section 1-101, E.O. 12148;
    (5) E.O. 12241;
    (6) E.O. 12656, other than section 202;
    (7) E.O. 12657; and
    (8) E.O. 12742.



Sec. 2.43  Response and Recovery Directorate.

    (a) Mission. The Response and Recovery Directorate maintains an 
integrated operational capability to respond to and recover from the 
consequences of a disaster, regardless of its cause, in cooperation with 
other Federal agencies, State and local governments, volunteer 
organizations, and the private sector.
    (b) Functions. The principal functions of the Response and Recovery 
Directorate are:
    (1) Management of Disaster Assistance, including damage assessment, 
recommendations to the President on declaration of disasters or 
emergencies under the Robert T. Stafford Disaster Relief and Emergency 
Assistance (Stafford) Act, 42 U.S.C. 5121-5201, processing of 
applications for disaster assistance and disbursement of Federal 
disaster assistance funds, except for hazard mitigation assistance 
provided under section 404 of the Stafford Act, 42 U.S.C. 5170c.
    (2) Coordination among Federal agencies, State and local 
governments, and the American Red Cross of the ongoing development and 
the implementation of the Federal Response Plan (for implementation of 
Pub. L. 93-288, as amended) and associated plans for response to and 
recovery from a broad range of disasters;
    (3) Support of communications and Automated Data Processing (ADP) 
capabilities for interagency operations during a wide range of 
emergencies; and
    (4) Maintaining the continuity of essential functions of the Federal 
Government during a wide range of emergencies.
    (c) Delegated authorities. The Associate Director for Response and 
Recovery is authorized to exercise the duties and powers of the Director 
as set forth in:
    (1) Sections 2-102 and 4-203, Executive Order 12148, as amended, 
except insofar as they pertain to hazard mitigation assistance; and
    (2) Section 202, Executive Order 12656.



Sec. 2.44  Operations Support Directorate.

    (a) Mission. The Operations Support Directorate provides direct 
support and services to FEMA's all-hazards emergency management program 
of mitigation, preparedness, response and recovery.
    (b) Functions. The principal functions of the Operations Support 
Directorate are:
    (1) Services primarily for the support of internal functions, 
including:

[[Page 25]]

    (i) Management and oversight of the Agency's procurement system, 
including acquisition of supplies and services;
    (ii) Printing and publications;
    (iii) Telecommunications operations;
    (iv) Automated data processing;
    (v) Software design and engineering;
    (vi) Records management;
    (vii) Agency-wide logistics and property management;
    (viii) Protection of personnel, facilities, and equipment;
    (ix) Management of transit subsidies;
    (x) Preparation of visual presentations materials;
    (xi) Placement of advertisements in general circulation newspapers; 
and
    (2) Services that support organizations outside of FEMA as well as 
the agency itself, including:
    (i) Telecommunications design and engineering;
    (ii) Resource and economic modeling;
    (iii) Management of data storage and production associated with 
Geographic Information Systems (GIS) and other analytic systems;
    (iv) Security of classified records;
    (v) Security of classified communications;
    (vi) Background investigations for the granting of security 
clearances;
    (vii) Determination of suitability for employment under 5 CFR part 
731; and
    (viii) Control of public information collections.
    (c) Delegated authorities. Subject to the qualifications of 
paragraph (d) of this section, the Associate Director for Operations 
Support is authorized to exercise the duties and powers of the Director 
as set forth in:
    (1) E.O. 10450, as amended;
    (2) E.O. 12046, as amended;
    (3) E.O. 12356; and
    (4) E.O. 12472.
    (d) Authorities delegated directly to the Director, Acquisition 
Services Division. The Director, Acquisition Services Division, 
Operations Support Directorate, is authorized to:
    (1)(i) Exercise authority under section 104(h) of the Comprehensive 
Environmental Response, Compensation and Liability Act of 1980 delegated 
to the Director by section 2(f) of Executive Order 12316;
    (ii) Exercise authority of the Director concerning extraordinary 
contractual actions under paragraph 21 of Executive Order 10789.
    (iii) Exercise authority delegated to the Director by Executive 
Order 12352 and act as procurement executive.
    (2)(i) Make purchases and contracts by advertising for equipment and 
supplies, administrative equipment, office supplies, professional 
services, transportation of persons and property, and nonpersonal 
services, and determine that the rejection of any bid is in the public 
interest;
    (ii) Negotiate purchases and contracts for equipment and supplies, 
professional services, transportation of persons and property, and non-
personal services without advertising; and make and issue determinations 
related thereto pursuant to section 302(c) (1)-(b)(10)(10), (14) and 
(15) of the Federal Property and Administrative Services Act of 1949 (41 
U.S.C. 252(c) (1)-(10), (14) and (15)) and 40 U.S.C. 541-544 with 
respect to contracting for services of Architects Engineers;
    (iii) Enter into and administer interagency agreements under the 
Economy Act or any other such agreement involving obligation of funds;
    (3) Notwithstanding any general delegation of statutory authority in 
this part to another officer of FEMA, if the authority delegated in the 
general statutory delegation contains procurement authority that 
authority is delegated solely to the Director, Acquisition Services 
Division, with authority to redelegate to any employee of FEMA. As used 
in this paragraph (d) the term ``procurement'' includes acquisition from 
a recipient including a State or local government, of property or 
services for the direct benefit or use of the Federal Government. This 
includes authority under section 201(h) of the Federal Civil Defense Act 
but excludes authority under section 1362 of the National Flood 
Insurance Act.
    (4) Notwithstanding any general delegation of authority in this part 
to another officer of FEMA, other than the delegation to Regional 
Directors under Sec. 2.22, if the authority delegated contains 
authority to award discretionary grants that authority is delegated to 
the Director, Acquisition Services Division, who is authorized to 
exercise

[[Page 26]]

the authority of the Director with respect thereto. The Director, 
Acquisition Services Division, may redelegate this authority to any 
employee of FEMA. Discretionary grants include those instruments that 
are awarded to a selected or limited number of recipients deemed best 
qualified based upon criteria designed for the conduct of a specific 
project. This can include governments. Discretionary grants do not 
include those awarded to recipients for which:
    (i) The recipient or class of recipient is mandated by legislation 
or regulation;
    (ii) The amount of the instrument or the amount of the program is 
established by legislation and discretion in the award process is 
limited; or
    (iii) There is no choice in the purpose of the award or whether to 
make the award. The delegation to the Regional Directors under Sec. 
2.22 to implement various programs is not affected by this delegation to 
the Director, Acquisition Services Division.

Subpart B [Reserved]



                      Subpart C_OMB Control Numbers



Sec. 2.80  Purpose.

    The purpose of this subpart is to display OMB control numbers 
assigned to FEMA's information collection requirements.



Sec. 2.81  OMB control numbers assigned to information collections.

    This section collects and displays the control numbers assigned to 
information collection requirements of FEMA by OMB pursuant to the 
Paperwork Reduction Act of 1980. FEMA intends that this section comply 
with the requirements of section 3507(f) of the Paperwork Reduction Act, 
which requires that agencies display a current control number assigned 
by the Director of the Office of Management and Budget for each agency 
information collection requirement.

------------------------------------------------------------------------
                                                             Current OMB
                                                             control No.
------------------------------------------------------------------------
44 CFR part or section where identified or described:
  7 subpart E..............................................    3067-0177
  11.36....................................................    3067-0122
  11.54....................................................    3067-0122
  11 subpart D.............................................    3067-0167
  59.22(a).................................................    3067-0020
  59.22(b)(2)..............................................    3067-0018
  60.3, 60.4, 60.5.........................................    3067-0022
  61, 61 app. A(1), 61 app. B..............................    3067-0022
  62 subpart C, 62 app. A, 62 app. B.......................    3067-0169
  63 subpart B.............................................    3067-0196
  64.3(c)..................................................    3067-0020
  65.......................................................    3067-0147
  66, 67...................................................    3067-0148
  70.......................................................    3067-0147
  71.......................................................    3067-0120
  75 subpart B.............................................    3067-0127
  80, 81, 83...............................................    3067-0031
  151 subpart B............................................    3067-0141
  204......................................................    3067-0290
  205.33...................................................    3067-0113
  205.34...................................................    3067-0113
  205.52(e)................................................    3067-0009
  205.54(e)................................................    3067-0146
  205.54(f), 205.54(j).....................................    3067-0163
  205.59...................................................    3067-0166
  205.94...................................................    3067-0034
  205.96...................................................    3067-0026
  205 subpart G............................................    3067-0066
  205.116..................................................    3067-0151
  205.200(b)...............................................    3067-0048
  205.207..................................................    3067-0048
  205.208..................................................    3067-0048
  206.35...................................................    3067-0113
  206.36...................................................    3067-0113
  206.101(e)...............................................    3067-0009
  206.131(e)...............................................    3067-0146
  206.131(f), 206.131(j)...................................    3067-0163
  206.171..................................................    3067-0166
  206.202(c)...............................................    3067-0033
  206.204..................................................    3067-0151
  206.364..................................................    3067-0034
  206.366..................................................    3067-0026
  206 subpart L............................................    3067-0066
  206.436..................................................    3067-0207
  206.437..................................................    3067-0208
  206.405..................................................    3067-0212
  220.6....................................................    3067-0168
  220.19...................................................    3067-0156
  221.8....................................................    3067-0156
  222.5, 222.6.............................................    3067-0184
  302.3(a), 302.3(d).......................................    3067-0138
  302.3(b).................................................    3067-0123
  302.3(c)(1)..............................................    3067-0096
  302.3(c)(3)..............................................    3067-0090
  308.7....................................................    3067-0074
  352.4....................................................    3067-0201
  352.24...................................................    3067-0201
  360.4(c).................................................    3067-0100
48 CFR part or section where identified or described:
  4452.226-01(a)...........................................    3067-0213
------------------------------------------------------------------------


[59 FR 26133, May 19, 1994, as amended at 66 FR 57347, Nov. 14, 2001]

                            PART 3 [RESERVED]

[[Page 27]]



PART 4_INTERGOVERNMENTAL REVIEW OF FEDERAL EMERGENCY MANAGEMENT AGENCY 
(FEMA) PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
4.1 What is the purpose of these regulations?
4.2 What definitions apply to these regulations?
4.3 What programs and activities of FEMA are subject to these 
          regulations?
4.4 [Reserved]
4.5 What is the Director's obligation with respect to Federal 
          interagency coordination?
4.6 What procedures apply to the selection of programs and activities 
          under these regulations?
4.7 How does the Director communicate with State and local officials 
          concerning FEMA's programs and activities?
4.8 How does the Director provide an opportunity to comment on proposed 
          Federal financial assistance and direct Federal development?
4.9 How does the Director receive and respond to comments?
4.10 How does the Director make efforts to accommodate intergovernmental 
          concerns?
4.11 What are the Director's obligations in interstate situations?
4.12 How may a State simplify, consolidate, or substitute federally 
          required State plans?
4.13 May the Director waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); sec. 401, Intergovernmental Cooperation Act of 
1968, as amended (31 U.S.C. 6506); sec. 204, Demonstration Cities and 
Metropolitan Development Act of 1966, as amended (42 U.S.C. 3334).

    Source: 48 FR 29316, June 24, 1983, unless otherwise noted.

    Editorial Note: For additional information, see related documents 
published at 47 FR 57369, Dec. 23, 1982; 48 FR 17101, Apr. 21, 1983; and 
48 FR 29096, June 24, 1983.



Sec. 4.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on State, areawide, regional and local coordination for review of 
proposed Federal financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
FEMA, and are not intended to create any right or benefit enforceable at 
law by a party against FEMA or its officers.



Sec. 4.2  What definitions apply to these regulations?

    FEMA means the Federal Emergency Management Agency.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Director means the Director of FEMA or an official or employee of 
FEMA acting for the Director under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 4.3  What programs and activities of FEMA are subject to these 
regulations?

    The Director publishes in the Federal Register a list of FEMA's 
programs and activities that are subject to these regulations and 
identifies which of these are subject to the requirements of section 204 
of the Demonstration Cities and Metropolitan Development Act.



Sec. 4.4  [Reserved]



Sec. 4.5  What is the Director's obligation with respect to Federal 
interagency coordination?

    The Director, to the extent practicable, consults with and seeks 
advice from all other substantially affected Federal departments and 
agencies in

[[Page 28]]

an effort to assure full coordination between such agencies and FEMA 
regarding programs and activities covered under these regulations.



Sec. 4.6  What procedures apply to the selection of programs and 
activities under these regulations?

    (a) A State may select any program or activity published in the 
Federal Register in accordance with Sec. 4.3 of this part for 
intergovernmental review under these regulations. Each State, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each State that adopts a process shall notify the Director of 
FEMA's programs and activities selected for that process.
    (c) A State may notify the Director of changes in its selections at 
any time. For each change, the State shall submit to the Director an 
assurance that the State has consulted with local elected officials 
regarding the change. FEMA may establish deadlines by which States are 
required to inform the Director of changes in their program selections.
    (d) The Director uses a State's process as soon as feasible, 
depending on individual programs and activities, after the Director is 
notified of its selections.



Sec. 4.7  How does the Director communicate with State and local 
officials concerning FEMA's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 4.6, the Director, to the extent permitted by law:
    (1) Uses the state process to determine views of State and local 
elected officials; and,
    (2) Communicates with State and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Director provides notice to directly affected State, 
areawide, regional, and local entities in a State of proposed Federal 
financial assistance or direct Federal development if:
    (1) The State has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the State process.

This notice may be made by publication in the Federal Register or other 
appropriate means, which FEMA in its discretion deems appropriate.



Sec. 4.8  How does the Director provide an opportunity to comment on 
proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Director gives state 
processes or directly affected State, areawide, regional and local 
officials and entities at least 60 days from the date established by the 
Director to comment on proposed direct Federal development or Federal 
financial assistance.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with FEMA have been delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Act shall allow areawide 
agencies a 60-day opportunity for review and comment.



Sec. 4.9  How does the Director receive and respond to comments?

    (a) The Director follows the procedures in Sec. 4.10 if:
    (1) A State office or official is designated to act as a single 
point of contact between a state process and all Federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 4.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from State, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a State has not established a process, or is unable to submit 
a state process recommendation, State, areawide, regional and local 
officials and entities may submit comments to FEMA.

[[Page 29]]

    (d) If a program or activity is not selected for a state process, 
State, areawide, regional and local officials and entities may submit 
comments to FEMA. In addition, if a state process recommendation for a 
nonselected program or activity is transmitted to FEMA by the single 
point of contact, the Director follows the procedures of Sec. 4.10 of 
this part.
    (e) The Director considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Director is not required to apply the procedures of Sec. 4.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant or directly to FEMA by a commenting party.



Sec. 4.10  How does the Director make efforts to accommodate 
intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
FEMA through its single point of contact, the Director either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Director in his or her discretion 
deems appropriate. The Director may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Director informs the single point of contact that:
    (1) FEMA will not implement its decision for at least ten days after 
the single point of contact receives the explanation; or
    (2) The Director has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 4.11  What are the Director's obligations in interstate situations?

    (a) The Director is responsible for:
    (1) Identifying proposed Federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select FEMA's program or activity;
    (3) Making efforts to identify and notify the affected State, 
areawide, regional, and local officials and entities in those States 
that have not adopted a process under the Order or do not select FEMA's 
progam or activity;
    (4) Responding pursuant to Sec. 4.10 of this part if the Director 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with FEMA have been delegated.
    (b) The Director uses the procedures in Sec. 4.10 if a state 
process provides a state process recommendation to FEMA through a single 
point of contact.



Sec. 4.12  How may a State simplify, consolidate, or substitute federally 
required State plans?

    (a) As used in this section:
    (1) Simplify means that a State may develop its own format, choose 
its own submission date, and select the planning period for a State 
plan.
    (2) Consolidate means that a State may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the State can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a State may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a State may decide to try to 
simplify, consolidate, or substitute federally required state plans 
without prior approval by the Director.
    (c) The Director reviews each state plan that a State has 
simplified, consolidated, or substituted and accepts

[[Page 30]]

the plan only if its contents meet Federal requirements.



Sec. 4.13  May the Director waive any provision of these regulations?

    In an emergency, the Director may waive any provision of these 
regulations.



PART 5_PRODUCTION OR DISCLOSURE OF INFORMATION--Table of Contents




                      Subpart A_General Provisions

Sec.
5.1 Scope and purposes of part.
5.2 Application.
5.3 Definitions.
5.4 Availability of records.
5.5 Exemptions.
5.6 Congressional information.
5.7 Records of other agencies.
5.8 Records involved in litigation or other judicial process.
5.9 Inconsistent issuances of FEMA and its predecessor agencies 
          superseded.

Subpart B_Publication of or Availability of General Agency Information, 
              Rules, Orders, Policies, and Similar Material

5.20 Publication of rules and general policies.
5.21 Effect of failure to publish.
5.22 Coordination of publication.
5.23 Incorporation by reference.
5.24 Availability of opinions, orders, policies, interpretations, 
          manuals, and instructions.
5.25 Available materials.
5.26 Rules for public inspection and copying.
5.27 Deletion of identifying details.
5.28 Indexes.
5.29 Effect of failure to make information materials available.

                             Subpart C_Fees

5.40 Copies of FEMA records available at a fee.
5.41 FEMA publications.
5.42 Fees to be charged--categories of requesters.
5.43 Waiver or reduction of fees.
5.44 Prepayment of fees.
5.45 Form of payment.
5.46 Fee schedule.
5.47 Appeals regarding fees.

                       Subpart D_Described Records

5.50 General.
5.51 Submission of requests for described records.
5.52 Review of requests.
5.53 Approval of request.
5.54 Denial of request of records.
5.55 Appeal within FEMA of denial of request.
5.56 Extension of time limits.
5.57 Predisclosure notification procedures for confidential commercial 
          information.
5.58 Exhaustion of administrative remedies.
5.59 Judicial relief available to the public.
5.60 Disciplinary action against employees for ``arbitrary or 
          capricious'' denial.
5.61 Contempt for noncompliance.

                          Subpart E_Exemptions

5.70 General.
5.71 Categories of records exempt from disclosure under 5 U.S.C. 552.
5.72 Executive privilege exemption.

    Subpart F_Subpoenas or Other Legal Demands for Testimony or the 
        Production or Disclosure of Records or Other Information

5.80 Scope and applicability.
5.81 Statement of policy.
5.82 Definitions.
5.83 Authority to accept service of subpoenas.
5.84 Production of documents in private litigation.
5.85 Authentication and attestation of copies.
5.86 Production of documents in litigation or other adjudicatory 
          proceeding in which the United States is a party.
5.87 Testimony of FEMA employees in private litigation.
5.88 Testimony in litigation in which the United States is a party.
5.89 Waiver.

    Authority: 5 U.S.C. 552 as amended by sections 1801-1804 of the 
Omnibus Anti-Drug Abuse Act of 1986 which contains the Freedom of 
Information Reform Act of 1986 (Pub. L. 99-570); 5 U.S.C. 301 (Pub. L. 
85-619); Reorganization Plan No. 3 of 1978; E.O. 12127; and E.O. 12148.

    Source: 44 FR 50287, Aug. 27, 1979, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 5.1  Scope and purposes of part.

    This part sets forth policies and procedures concerning the 
availability of and disclosure of records and information held by the 
Federal Emergency Management Agency (FEMA) in accordance with 5 U.S.C. 
552, popularly known as the ``Freedom of Information Act,'' (FOIA).

[[Page 31]]



Sec. 5.2  Application.

    This part applies to all records and information materials 
generated, developed, or held by FEMA at Headquarters, in Regions, or in 
the field, or any component thereof.



Sec. 5.3  Definitions.

    For purposes of this part, the following terms have the meanings 
ascribed to them in this section:
    (a) Records. Records means all books, papers, maps, photographs, or 
other documentary materials, regardless of physical form or 
characteristics made or received by FEMA in pursuance of Federal Law or 
in connection with the transaction of public business and preserved, or 
appropriate for preservation, as evidence of the organization, 
functions, policies, decisions, procedures, operations, or other 
activities of FEMA or because of the information value of data contained 
therein. The term does not include:
    (1) Material made or acquired and preserved solely for reference or 
exhibition purposes, extra copies of documents preserved only for 
convenience of reference, and stocks of publications and of processed 
documents; or
    (2) Objects or articles, such as structures, furniture, paintings, 
sculpture, models, vehicles or equipment; or
    (3) Formulae, designs, drawings, research data, computer programs, 
technical data packages, and the like, which are not considered records 
within the Congressional intent of reference because of development 
costs, utilization, or value. These items are considered exploitable 
resources to be utilized in the best interest of all the public and are 
not preserved for informational value nor as evidence of agency 
functions. Requests for copies of such material shall be evaluated in 
accordance with policies expressly directed to the appropriate 
dissemination or use of these resources. Requests to inspect this 
material to determine its content for informational purposes shall 
normally be granted, unless inspection is inconsistent with the 
obligation to protect the property value of the material, as, for 
example, may be true for patent information and certain formulae, or is 
inconsistent with another significant and legitimate governmental 
purpose.
    (b) Reasonably Described. Reasonably described, when applied to a 
request record, means identifying it to the extent that it will permit 
the location of the particular document with a reasonable effort.
    (c) Agency. Agency, as defined in section 552(e) of title 5 U.S.C., 
includes any executive department, military department, government 
corporation, or other establishment in the executive branch of the 
Government (including the Executive Office of the President), or any 
independent regulatory agency.
    (d) Headquarters FOIA Officer. The FOIA/Privacy Act Specialist or 
his/her designee.
    (e) Regional FOIA Officer. The Regional Director, or his/her 
designee.

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1421, Jan. 7, 1980; 51 
FR 34604, Sept. 30, 1986]



Sec. 5.4  Availability of records.

    (a) FEMA records are available to the greatest extent possible in 
keeping with the spirit and intent of FOIA and will be furnished 
promptly to any member of the public upon request addressed to the 
office designated in Sec. 5.26. The person making the request need not 
have a particular interest in the subject matter, nor must he provide 
justification for the request.
    (b) The requirement of 5 U.S.C. 552 that records be available to the 
public refers only to records in being at the time the request for them 
is made. FOIA imposes no obligation to compile a record in response to a 
request.



Sec. 5.5  Exemptions.

    Requests for FEMA records may be denied if disclosure is exempted 
under the provisions of 5 U.S.C. 552, as outlined in subpart E. Usually, 
except when a record is classified, or when disclosure would violate any 
other Federal statute, the authority to withhold a record from 
disclosure is permissive rather than mandatory. The authority for 
nondisclosure will not be invoked unless there is compelling reason to 
do so.



Sec. 5.6  Congressional information.

    Nothing in this part authorizes withholding information from the 
Congress

[[Page 32]]

except when executive privilege is invoked by the President.



Sec. 5.7  Records of other agencies.

    If a request is submitted to FEMA to make available current records 
which are the primary responsibility of another agency, FEMA will refer 
the request to the agency concerned for appropriate action. FEMA will 
advise the requester that the request has been forwarded to the 
responsible agency.



Sec. 5.8  Records involved in litigation or other judicial process.

    Where there is reason to believe that any records requested may be 
involved in litigation or other judicial process in which the United 
States is a party, including discovery procedures pursuant to the 
Federal Rules of Civil Procedure or Federal Rules of Criminal Procedure, 
the request shall be referred to the General Counsel.



Sec. 5.9  Inconsistent issuances of FEMA and its predecessor agencies 
superseded.

    Policies and procedures of any of FEMA's predecessor agencies 
inconsistent with this regulation are superseded to the extent of that 
inconsistency.



Subpart B_Publication of or Availability of General Agency Information, 
              Rules, Orders, Policies, and Similar Material



Sec. 5.20  Publication of rules and general policies.

    In accordance with 5 U.S.C. 552(a)(1), there are separately stated 
and currently published, or from time to time there will be published, 
in the Federal Register for the guidance of the public, the following 
general information concerning FEMA:
    (a) Description of the organization of the Headquarters Office and 
regional and other offices and the established places at which, the 
employees from whom, and the methods whereby the public may obtain 
information, make submittals or requests, or obtain decisions.
    (b) Statement of the general course and method by which FEMA 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available.
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations.
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by FEMA.
    (e) Each amendment, revision, or repeal of the materials described 
in this section. Much of this information will also be codified in this 
subchapter A.



Sec. 5.21  Effect of failure to publish.

    5 U.S.C. 552(a)(1) provides that, except to the extent that a person 
has actual and timely notice of the terms thereof, a person may not in 
any manner be required to resort to, or to be adversely affected by, a 
matter required to be published in the Federal Register and not so 
published.



Sec. 5.22  Coordination of publication.

    The General Counsel, FEMA, is responsible for coordination of FEMA 
materials required to be published in the Federal Register.



Sec. 5.23  Incorporation by reference.

    When deemed appropriate, matter covered by this subpart, which is 
reasonably available to the class of persons affected thereby may be 
incorporated by reference in the Federal Register in accordance with 
standards prescribed from time to time by the Director of the Federal 
Register (see 1 CFR part 51).



Sec. 5.24  Availability of opinions, orders, policies, interpretations, 
manuals, and instructions.

    FEMA will make available for public inspection and copying the 
material described in 5 U.S.C. 552(a)(2) as enumerated in Sec. 5.25 and 
an index of those materials as described in Sec. 5.28, at convenient 
places and times.



Sec. 5.25  Available materials.

    FEMA materials which are available under this subpart are as 
follows:

[[Page 33]]

    (a) Final opinions and orders made in the adjudication of cases.
    (b) Those statements of policy and interpretations which have been 
adopted by FEMA and are not published in the Federal Register.
    (c) Administrative staff manuals and instructions to staff that 
affect a member of the public, unless such materials are promptly 
published and copies offered for sale.



Sec. 5.26  Rules for public inspection and copying.

    (a) Location. Materials are available for public inspection and 
copying at the following locations:
    (1) Headquarters:

Federal Center Plaza, 500 C Street, SW, Washington, DC 20472

    (2) Regional Offices

Region I, Room 442, J. W. McCormack Post Office & Court House, Boston, 
MA 02109;
Region II, 26 Federal Plaza, New York, NY 10278;
Region III, Liberty Square Bldg. (Second Floor), 105 South Seventh 
Street, Philadephia, PA 19106;
Region IV, 1371 Peachtree Street, N.E., 7th Floor, Atlanta, GA 30309;
Region V, 300 South Wacker Drive, 24th Floor, Chicago, IL 60606;
Region VI, Federal Regional Center, Denton, TX 76201;
Region VII, 911 Walnut Street, Room 300, Kansas City, MO 64106;
Region VIII, Denver Federal Center, Bldg. 710, Denver, CO 80225-0267;
Region XI, Building 105, Presidio of San Francisco, CA 94129;
Region X, Federal Regional Center, 130-228th Street, SW., Bothell, WA 
98021-9796.

    (b) Time. Materials will be made available for public inspection and 
copying during the normal hours of business.
    (c) FEMA will furnish reasonable copying services at fees specified 
in subpart C. Such reproduction services as are required will be 
arranged by the Office of Administrative Support in the headquarters or 
by regional offices as appropriate.
    (d) Handling of materials. The unlawful removal or mutilation of 
materials is forbidden by law and is punishable by fine or imprisonment 
or both. FEMA personnel making materials available will ensure that all 
materials provided for inspection and copying are returned in the same 
condition as provided.

[44 FR 50287, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982; 
48 FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985]



Sec. 5.27  Deletion of identifying details.

    To the extent required to prevent a clearly unwarranted invasion of 
personal privacy, FEMA may delete identifying details when making 
available or publishing an opinion, statement of policy, interpretation, 
or staff manual or instruction. However, the justification for each 
deletion will be explained fully in writing, and will require the 
concurrence of the General Counsel. A copy of the justification will be 
attached to the material containing the deletion and a copy will also be 
furnished to the Headquarters FOIA Officer or appropriate Regional 
Director.



Sec. 5.28  Indexes.

    FEMA will maintain and make available for public inspection and 
copying current indexes arranged by subject matter providing identifying 
information for the public regarding any matter issued, adopted, or 
promulgated after July 4, 1967, and described in Sec. 5.25. FEMA will 
publish quarterly and make available copies of each index or supplements 
thereto. The indexes will be maintained for public inspection at the 
location described in Sec. 5.26.



Sec. 5.29  Effect of failure to make information materials available.

    Materials requested to be made available pursuant to Sec. 5.24 that 
affect a member of the public may be relied upon, used, or cited as 
precedent by FEMA against any private party only if (a) they have been 
indexed and either made available or published as required by 5 U.S.C. 
552(a)(2), or (b) the private party has actual and timely notice of 
their terms.



                             Subpart C_Fees



Sec. 5.40  Copies of FEMA records available at a fee.

    One copy of FEMA records not available free of charge will be 
provided at a fee as provided in Sec. 5.46. A reasonable number of 
additional copies will be provided for the applicable fee where

[[Page 34]]

reproduction services are not readily obtainable from private commercial 
sources.



Sec. 5.41  FEMA publications.

    Anyone may obtain FEMA publications without charge from the FEMA 
Headquarters, Regional Offices and from FEMA, P.O. Box 8181, Washington, 
DC 20024 in accordance with standard operating procedures, including 
limitation on numbers of specific individual publications. FEMA Films 
may be obtained on loan or certain of these films may be purchased, in 
which case fees will be charged as set out in a FEMA catalogue. Non-
exempt FEMA research reports are available from the National Technical 
Information Service, United States Department of Commerce, which 
establishes its own fee schedule. Charges, if any, for these items and 
similar user charges are established in accordance with other provisions 
of law as, for example, 31 U.S.C. 9701 and are not deemed search and 
duplication charges hereunder.

[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985]



Sec. 5.42  Fees to be charged--categories of requesters.

    (a) There are four categories of FOIA requesters: Commercial use 
requesters; representatives of news media; educational and noncommercial 
scientific institutions; and all other requesters. The time limits for 
processing requests shall only begin upon receipt of a proper request 
which reasonably identifies records being sought. The Freedom of 
Information Reform Act of 1986 prescribes specific levels of fees for 
each of these categories:
    (1) When records are being requested for commercial use, the fee 
policy of FEMA is to levy full allowable direct cost of searching for, 
reviewing for release, and duplicating the records sought. Commercial 
users are not entitled to two hours of free search time nor 100 free 
pages of reproduction of documents. The full allowable direct cost of 
searching for and reviewing records will be charged even if there is 
ultimately no disclosure of records. Commercial use is defined as a use 
that furthers the commercial, trade or profit interests of the requester 
or person on whose behalf the request is made. In determining whether a 
requester falls within the commercial use category, FEMA will look to 
the use to which a requester will put the documents requested. Where a 
requester does not explain his/her use, or where his/her explanation is 
insufficient to permit a determination of the nature of the use, FEMA 
shall require the requester to provide information regarding the use to 
be made of the information and if the request does not include an 
agreement to pay all appropriate fees, FEMA will process such request 
only up to the $30.00 threshold which is the estimated cost to FEMA to 
collect fees which we are prohibited from charging by law. Requesters 
must reasonably describe the records sought.
    (2) When records are being requested by representatives of the news 
media, the fee policy of FEMA is to levy reproduction charges only, 
excluding charges for the first 100 pages. Representatives of the news 
media refers to any person actively gathering news for an entity that is 
organized and operated to publish or broadcast news to the public. The 
term news means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations broadcasting to the public at 
large, and publishers of periodicals (but only in those instances where 
they can qualify as disseminators of ``news'') who make their products 
available for purchase or subscription by the general public. These 
examples are not intended to be all-inclusive. As traditional methods of 
news delivery evolve (i.e., electronic dissemination of newspapers 
through telecommunications services), such alternative media would be 
included in this category. In the case of ``freelance'' journalists, 
they may be regarded as working for a news organization if they can 
demonstrate a solid basis for expecting publication through that 
organization, even though not actually employed by it. For example, a 
publication contract would be the clearest proof, but FEMA may also look 
to the past publication record, press accreditation, guild membership, 
business registration, Federal Communications

[[Page 35]]

Commission licensing, or similar credentials of a requester in making 
this determination. To be eligible for inclusion in this category, 
requesters must meet the criteria specified in this section and his or 
her request must not be made for a commercial use basis as that term is 
defined under paragraph (a)(1) of this section. A request for records 
supporting the news dissemination function of the requester shall not be 
considered to be a request that is for a commercial use. Requesters must 
reasonably describe the records sought.
    (3) When records are being requested by an educational or 
noncommercial scientific institution whose purpose is scholarly or 
scientific research, the fee policy of FEMA is to levy reproduction 
charges only, excluding charges for the first 100 pages. Educational 
institution refers to a preschool, a public or private elementary or 
secondary school, an institution of graduate higher education, an 
institution of undergraduate higher education, an institution of 
professional education and an institution of vocational education, which 
operates a program or programs of scholarly research. Noncommercial 
scientific institution refers to an institution that is not operated on 
a commercial basis as that term is defined under paragraph (a)(1) of 
this section and which is operated solely for the purpose of conducting 
scientific research, the results of which are not intended to promote 
any particular product or industry. To be eligible for inclusion in this 
category, requesters must show that the request is being made under the 
auspices of a qualifying institution and that the records are not sought 
for a commercial use, but are sought in furtherance of scholarly (if the 
request is from an educational institution) or scientific (if the 
request is from a noncommercial scientific institution) research. 
Requesters must reasonably describe the records sought.
    (4) For any other request which does not meet the criteria contained 
in paragraphs (a)(1) through (3) of this section, the fee policy of FEMA 
is to levy full reasonable direct cost of searching for and duplicating 
the records sought, except that the first 100 pages of reproduction and 
the first two hours of search time shall be furnished without charge. 
The first two hours of computer search time is based on the hourly cost 
of operating the central processing unit and the operator's hourly 
salary plus 16 percent. When the cost of the computer search, including 
the operator time and the cost of operating the computer to process the 
request, equals the equivalent dollar amount of two hours of the salary 
of the person performing the search, i.e., the operator, FEMA shall 
begin assessing charges for computer search. Requests from individuals 
requesting records about themselves filed in FEMA's systems of records 
shall continue to be treated under the fee provisions of the Privacy Act 
of 1974 which permit fees only for reproduction. Requesters must 
reasonably describe the records sought.
    (b) Except for requests that are for a commercial use, FEMA may not 
charge for the first two hours of search time or for the first 100 pages 
of reproduction. However, a requester may not file multiple requests at 
the same time, each seeking portions of a document or documents, solely 
in order to avoid payment of fees. When FEMA believes that a requester 
or, on rare occasions, a group of requesters acting in concert, is 
attempting to break a request down into a series of requests for the 
purpose of evading the assessment of fees, FEMA may aggregate any such 
requests and charge accordingly. For example, it would be reasonable to 
presume that multiple requests of this type made within a 30-day period 
had been made to avoid fees. For requests made over a longer period, 
however, FEMA must have a solid basis for determining that aggregation 
is warranted in such cases. Before aggregating requests from more than 
one requester, FEMA must have a concrete basis on which to conclude that 
the requesters are acting in concert and are acting specifically to 
avoid payment of fees. In no case may FEMA aggregate multiple requests 
on unrelated subjects from one requester.
    (c) In accordance with the prohibition of section (4)(A)(iv) of the 
Freedom of Information Act, as amended, FEMA shall not charge fees to 
any requester, including commercial use requesters, if the cost of 
collecting a fee

[[Page 36]]

would be equal to or greater than the fee itself.
    (1) For commercial use requesters, if the direct cost of searching 
for, reviewing for release, and duplicating the records sought would not 
exceed $30.00, FEMA shall not charge the requester any costs.
    (2) For requests from representatives of news media or educational 
and noncommercial scientific institutions, excluding the first 100 pages 
which are provided at no charge, if the duplication cost would not 
exceed $30.00, FEMA shall not charge the requester any costs.
    (3) For all other requests not falling within the category of 
commercial use requests, representatives of news media, or educational 
and noncommercial scientific institutions, if the direct cost of 
searching for and duplicating the records sought, excluding the first 
two hours of search time and first 100 pages which are free of charge, 
would not exceed $30.00, FEMA shall not charge the requester any costs.

[52 FR 13677, Apr. 24, 1987]



Sec. 5.43  Waiver or reduction of fees.

    (a) FEMA may waive all fees or levy a reduced fee when disclosure of 
the information requested is deemed to be in the public interest because 
it is likely to contribute significantly to public understanding of the 
operations or activities of the Federal Government and is not primarily 
in the commercial interest of the requester.
    (b) A fee waiver request shall indicate how the information will be 
used, to whom it will be provided, whether the requester intends to use 
the information for resale at a fee above actual cost, any personal or 
commercial benefits that the requester reasonably expects to receive by 
the disclosure, provide justification to support how release would 
benefit the general public, the requester's and/or intended user's 
identity and qualifications, expertise in the subject area and ability 
and intention to disseminate the information to the public.

[52 FR 13678, Apr. 24, 1987]



Sec. 5.44  Prepayment of fees.

    (a) When FEMA estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250.00, FEMA may 
require a requester to make an advance payment of the entire fee before 
continuing to process the request.
    (b) When a requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), FEMA 
may require the requester to pay the full amount owed plus any 
applicable interest as provided in Sec. 5.46(d), and to make an advance 
payment of the full amount of the estimated fee before the agency begins 
to process a new request or a pending request from that requester.
    (c) When FEMA acts under paragraphs (a) or (b) of this section, the 
administrative time limits prescribed in subsection (a)(6) of the FOIA 
(i.e., 10 working days from the receipt of initial requests and 20 
working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits) will begin only after FEMA 
has received fee payments described under paragraphs (a) or (b) of this 
section.

[52 FR 13678, Apr. 24, 1987]



Sec. 5.45  Form of payment.

    Payment shall be by check or money order payable to the Federal 
Emergency Management Agency and shall be addressed to the official 
designated by FEMA in correspondence with the requestor or to the 
Headquarters FOIA Officer or Regional FOIA Officer, as appropriate.

[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983]



Sec. 5.46  Fee schedule.

    (a) Manual searches for records. FEMA will charge at the salary 
rate(s), (i.e., basic hourly pay rate plus 16 percent) of the 
employee(s) conducting the search. FEMA may assess charges for time 
spent searching, even if the agency fails to locate the records or if 
records located are determined to be exempt from disclosure. FEMA may 
assess charges for time spent searching, even if FEMA fails to locate 
the

[[Page 37]]

records or if records located are determined to be exempt from 
disclosure.
    (b) Computer searches for records. FEMA will charge the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary 
apportionable to the search. FEMA may assess charges for time spent 
searching, even if FEMA fails to locate the records or if records 
located are determined to be exempt from disclosure.
    (c) Duplication costs. (1) For copies of documents reproduced on a 
standard office copying machine in sizes up to 8\1/2\ x 14 inches, the 
charge will be $.15 per page.
    (2) The fee for reproducing copies of records over 8\1/2\ x 14 
inches or whose physical characteristics do not permit reproduction by 
routine electrostatic copying shall be the direct cost of reproducing 
the records through government or commercial sources. If FEMA estimates 
that the allowable duplication charges are likely to exceed $25, it 
shall notify the requester of the estimated amount of fees, unless the 
requester has indicated in advance his/her willingness to pay fees as 
high as those anticipated. Such a notice shall offer a requester the 
opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (3) For copies prepared by computer, such as tapes or printouts, 
FEMA shall charge the actual cost, including operator time, of 
production of the tape or printout. If FEMA estimates that the allowable 
duplication charges are likely to exceed $25, it shall notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance his/her willingness to pay fees as high as those 
anticipated. Such a notice shall offer a requester the opportunity to 
confer with agency personnel with the objective of reformulating the 
request to meet his/her needs at a lower cost.
    (4) For other methods of reproduction or duplication, FEMA shall 
charge the actual direct costs of producing the document(s). If FEMA 
estimates that the allowable duplication charges are likely to exceed 
$25, it shall notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his/her willingness to pay 
fees as high as those anticipated. Such a notice shall offer a requester 
the opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (d) Interest may be charged to those requesters who fail to pay fees 
charged. FEMA may begin assessing interest charges on the amount billed 
starting on the 31st day following the day on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of Title 
31 U.S.C. and will accrue from the date of the billing.
    (e) FEMA shall use the most efficient and least costly methods to 
comply with requests for documents made under the FOIA. FEMA may choose 
to contract with private sector services to locate, reproduce and 
disseminate records in response to FOIA requests when that is the most 
efficient and least costly method. When documents responsive to a 
request are maintained for distribution by agencies operating statutory-
based fee schedule programs, such as but not limited to the Government 
Printing Office or the National Technical Information Service, FEMA will 
inform requesters of the steps necessary to obtain records from those 
sources.

[52 FR 13678, Apr.24, 1987, as amended at 52 FR 33410, Sept. 3, 1987]



Sec. 5.47  Appeals regarding fees.

    A requestor whose application for a fee waiver or a fee reduction is 
denied may appeal that decision to the Deputy Director in the manner 
prescribed in subpart D.



                       Subpart D_Described Records



Sec. 5.50  General.

    (a) Except for records made available pursuant to subpart B, FEMA 
shall promptly make records available to a requestor pursuant to a 
request which

[[Page 38]]

reasonably described such records unless FEMA invokes an exemption 
pursuant to subpart E. Although the burden of reasonable description of 
the records rests with the requestor, FEMA will assist in identification 
to the extent practicable. Where requested records may be involved in 
litigation or other judicial proceedings in which the United States is a 
party, the procedures set forth under Sec. 5.8 shall be followed.
    (b) Upon receipt of a request which does not reasonably describe the 
rec ords requested, FEMA may contact the requestor to seek a more 
specific description. The 10-day time limit set forth in Sec. 5.52 will 
not start until a request reasonably describing the records is received 
in the office of the appropriate official identified in Sec. 5.51.



Sec. 5.51  Submission of requests for described records.

    (a) For records located in the FEMA Headquarters, requests shall be 
submitted in writing, to the Headquarters FOIA Officer, Federal 
Emergency Management Agency, Washington, DC 20472. For records located 
in the FEMA Regional Offices, requests shall be submitted to the 
appropriate Regional FOIA Officer, at the address listed in Sec. 5.26. 
Requests should bear the legend ``Freedom of Information Request'' 
prominently marked on both the face of the request letter and the 
envelope. The 10-day time limit for agency determinations set forth in 
Sec. 5.52 shall not start until a request is received in the office of 
the appropriate official identified in this paragraph.
    (b) The Headquarters FOIA Officer shall respond to questions 
concerning the proper office to which Freedom of Information requests 
should be addressed.



Sec. 5.52  Review of requests.

    (a) Upon receipt of a request for information, the Headquarters FOIA 
Officer, or the Regional FOIA Officer for a regional office, will 
forward the request to the FEMA office which has custody of the record.
    (b) Upon any request for records made pursuant to Sec. 5.20, Sec. 
5.24, or Sec. 5.51, the office having custody of the records shall 
determine within 10 workdays, after receipt of any such request in the 
office of the appropriate official identified in Sec. 5.51 whether to 
comply with the request. If the request is approved, the office having 
custody of the record shall notify the requestor and the Headquarters 
FOIA Officer whether request originated in Headquarters, Region or 
field.

[44 FR 50287, Aug. 27, 1979, as amended at 50 FR 40006, Oct. 1, 1985; 53 
FR 2740, Feb. 1, 1988]



Sec. 5.53  Approval of request.

    When a request is approved, records will be made available promptly 
in accordance with the terms of the regulation. Copies may be furnished 
or the records may be inspected and copied as provided in Sec. 5.26.



Sec. 5.54  Denial of request of records.

    (a) Each of the following officials within FEMA, any official 
designated to act for the official, or any official redelegated 
authority by such officials shall have the authority to make initial 
denials of requests for disclosure of records in his or her custody, and 
shall, in accordance with 5 U.S.C. 552(a)(6)(C) be the responsible 
official for denial of records under this part.
    (1) Deputy Director
    (2) [Reserved]
    (3) Federal Insurance Administrator
    (4) Associate Directors
    (5) United States Fire Administrator
    (6) Chief of Staff
    (7) Office Directors
    (8) General Counsel
    (9) Inspector General
    (10) Comptroller
    (11) Regional Directors
    (b) If a request is denied, the appropriate official listed in 
paragraph (a) of this section shall except as provided in Sec. 5.56 
advise the requestor within 10 workdays of receipt of the request by the 
official specified in Sec. 5.51 and furnish written reasons for the 
denial. The denial will (1) describe the record or records requested, 
(2) state the reasons for nondisclosure pursuant to subpart E, (3) state 
the name and title or position of the official responsible for the 
denial of such request, and (4) state the requestor's appeal rights.
    (c) In the event FEMA cannot locate requested records the 
appropriate official specified in paragraph (a) of this

[[Page 39]]

section will inform the requestor (1) that the agency has determined at 
the present time to deny the request because the records have not yet 
been found or examined, but (2) that the agency will review the request 
within a specified number of days, when the search or examination is 
expected to be complete. The denial letter will state the name and title 
or position of the official responsible for the denial of such request. 
In such event, the requestor may file an agency appeal immediately, 
pursuant to Sec. 5.55.

[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986]



Sec. 5.55  Appeal within FEMA of denial of request.

    (a) A requestor denied access, in whole or in part, to FEMA records 
may appeal that decision within FEMA. All appeals should be addressed to 
the Headquarters FOIA Officer, Federal Emergency Management Agency, 
Washington, DC, 20472 regardless of whether the denial being appealed 
was made at Headquarters, in a field office, or by a Regional Director.
    (b) An appeal must be received in the Headquarters FOIA Office no 
later than thirty calendar days after receipt by the requestor of the 
initial denial.
    (c) An appeal must be in writing and should contain a brief 
statement of the reasons why the records should be released and enclose 
copies of the initial request and denial. The appeal letter should bear 
the legend, ``FREEDOM OF INFORMATION APPEAL,'' conspicuously marked on 
both the face of the appeal letter and on the envelope. FEMA has twenty 
workdays after the receipt of an appeal to make a determination with 
respect to such appeal. The twenty day time limit shall not begin to run 
until the appeal is received by the Headquarters FOIA Officer. 
Misdirected appeals should be promptly forwarded to that office.
    (d) The Headquarters FOIA Officer will submit the appeal to the 
Deputy Director for final administrative determination.
    (e) The Deputy Director shall be the deciding official on all 
appeals except in those cases in which the initial denial was made by 
him/her. If the Deputy Director made the initial denial, the Director 
will be the deciding official on any appeal from that denial. In the 
absence of the Deputy Director, or in case of a vacancy in that office, 
the Director may designate another FEMA official to perform the Deputy's 
functions.
    (f) If an appeal is filed in response to a tentative denial pending 
locating and/or examination of records, as described in Sec. 5.53(c), 
FEMA will continue to search for and/or examine the requested records 
and will issue a response immediately upon completion of the search and/
or examination. Such action in no way suspends the time for FEMA's 
response to the requestor's appeal which FEMA will continue to process 
regardless of the response under this paragraph.
    (g) If a requestor files suit pending an agency appeal, FEMA 
nonetheless will continue to process the appeal, and will furnish a 
response within the twenty day time limit set out in paragraph (c) of 
this section.
    (h) If, on appeal, the denial of the request for records is in whole 
or in part upheld, the Deputy Director will promptly furnish the 
requestor a copy of the ruling in writing within the twenty day time 
limit set out in paragraph (c) of this section except as provided in 
Sec. 5.55. The notification letter shall contain:
    (1) A brief description of the record or records requested;
    (2) A statement of the legal basis for nondisclosure;
    (3) A statement of the name and title or position of the official or 
officials responsible for the denial of the initial request as described 
in Sec. 5.54 and the denial of the appeal as described in paragraph (f) 
of this section, and
    (4) A statement of the requestor's rights of judicial review.

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50 
FR 40006, Oct. 1, 1985]



Sec. 5.56  Extension of time limits.

    In unusual circumstances as specified in this section, the time 
limits prescribed in Sec. Sec. 5.52 and 5.55 may be extended by an 
official named in Sec. 5.54(a) who will provide written notice to the 
requestor setting forth the reasons for such extension and the date on 
which a

[[Page 40]]

determination is expected. Such notice will specify no date that would 
result in an extension of more than ten work days. In unusual 
circumstances, the Headquarters FOIA Officer may authorize more than one 
extension, divided between the initial request stage and the appeals 
stage, but in no event will the combined periods of extension exceed ten 
work days. As used in this section, ``unusual circumstances'' include 
only those circumstances where extension of time is reasonably necessary 
to the proper processing of the particular request. Examples include:
    (a) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request; or
    (b) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (c) The need for consultation, which shall be conducted with all 
practicable speed, with another agency or with a non-Federal source 
having a substantial interest in the determination of the request or 
among two or more components of FEMA having substantial subject matter 
interest therein.



Sec. 5.57  Predisclosure notification procedures for confidential 
commercial information.

    (a) In general. Business information provided to FEMA by a business 
submitter shall not be disclosed pursuant to a Freedom of Information 
Act (FOIA) request except in accordance with this section. For purposes 
of this section, the following definitions apply:
    (1) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt from 
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C 
552(b)(4), because disclosure could reasonably be expected to cause 
substantial competitive harm.
    (2) Submitter means any person or entity who provides confidential 
commercial information to the government. The term submitter includes, 
but is not limited to, corporations, State governments, and foreign 
governments.
    (b) Notice to business submitters. FEMA shall provide a submitter 
with prompt notice of receipt of a Freedom of Information Act request 
encompassing its business information whenever required in accordance 
with paragraph (c) of this section, and except as provided in paragraph 
(g) of this section. The written notice shall either describe the exact 
nature of the business information requested or provide copies of the 
records or portions of records containing the business information.
    (c) When notice is required. (1) For confidential commercial 
information submitted prior to January 1, 1988, FEMA shall provide a 
submitter with notice of receipt of a FOIA request whenever:
    (i) The records are less than 10 years old and the information has 
been designated by the submitter as confidential commercial information;
    (ii) FEMA has reason to believe that disclosure of the information 
could reasonably result in commercial or financial injury to the 
submitter; or
    (iii) The information is subject to prior express commitment of 
confidentiality given by FEMA to the submitter.
    (2) For confidential commercial information submitted to FEMA on or 
after January 1, 1988, FEMA shall provide a submitter with notice of 
receipt of a FOIA request whenever:
    (i) The submitter has in good faith designated the information as 
commercially or financially sensitive information; or
    (ii) FEMA has reason to believe that disclosure of the information 
could reasonably result in commercial or financial injury to the 
submitter.
    (3) Notice of a request for confidential commercial information 
falling within paragraph (c)(2)(i) of this section shall be required for 
a period of not more than 10 years after the date of submission unless 
the submitter requests, and provides acceptable justification for, a 
specific notice period of greater duration.
    (4) Whenever possible, the submitter's claim of confidentiality 
shall be

[[Page 41]]

supported by a statement or certification by an officer or authorized 
representative of the company that the information in question is in 
fact confidential commercial or financial information and has not been 
disclosed to the public.
    (d) Opportunity to object to disclosure. (1) Through the notice 
described in paragraph (b) of this section, FEMA shall afford a 
submitter 7 working days within which to provide FEMA with a detailed 
statement of any objection to disclosure. Such statement shall specify 
all grounds for withholding any of the information under any exemptions 
of the Freedom of Information Act and, in the case of Exemption 4, shall 
demonstrate why the information is contended to be a trade secret or 
commercial or financial information which is considered privileged or 
confidential. Information provided by a submitter pursuant to this 
paragraph may itself be subject to disclosure under the FOIA.
    (2) When notice is given to a submitter under this section, FEMA 
shall notify the requester that such notice has been given to the 
submitter. The requester will be further advised that a delay in 
responding to the request, i.e., 10 working days after receipt of the 
request by FEMA or 20 working days after receipt of the request by FEMA 
if the time limits are extended under unusual circumstances permitted by 
the FOIA, may be considered a denial of access to records and the 
requester may proceed with an adminstrative appeal or seek judicial 
review, if appropriate.
    (e) Notice of intent to disclose. FEMA shall consider carefully a 
submitter's objections and specific grounds for nondisclosure prior to 
determining whether to disclose business information. Whenever FEMA 
decides to disclose business information over the objection of a 
submitter, FEMA shall forward to the submitter a written notice which 
shall include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which is 7 working days after the 
notice of the final decision to release the requested information has 
been mailed to the submitter. FEMA shall inform the submitter that 
disclosure will be made by the specified disclosure date, unless the 
submitter seeks a court injunction to prevent its release by the date. 
When notice is given to a submitter under this section, FEMA shall 
notify the requester that such notice has been given to the submitter 
and the proposed date for disclosure.
    (f) Notice of lawsuit. (1) Whenever a requester brings legal action 
seeking to compel disclosure of business information covered by 
paragraph (c) of this section, FEMA shall promptly notify the submitter.
    (2) Whenever a submitter brings legal action seeking to prevent 
disclosure of business information covered by paragraph (c) of this 
section, FEMA shall promptly notify the requester.
    (g) Exception to notice requirement. The notice requirements of this 
section shall not apply if:
    (1) FEMA determines that the information shall not be disclosed;
    (2) The information has been published or otherwise officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The information was required in the course of a lawful 
investigation of a possible violation of criminal law.

[53 FR 2740, Feb. 1, 1988]



Sec. 5.58  Exhaustion of administrative remedies.

    Any person making a request to FEMA for records under this part 
shall be deemed to have exhausted his administrative remedies with 
respect to the request if the agency fails to comply with the applicable 
time limit provisions set forth in Sec. Sec. 5.52 and 5.55.

[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]



Sec. 5.59  Judicial relief available to the public.

    Upon denial of a requestor's appeal by the Deputy Director the 
requester may file a complaint in a district court of the United States 
in the district in which the complainant resides, or has his principal 
place of business, or in

[[Page 42]]

which the agency records are situated, or in the District of Columbia, 
pursuant to 5 U.S.C. 552(a)(4)(B).

[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]



Sec. 5.60  Disciplinary action against employees for ``arbitrary or 
capricious'' denial.

    Pursuant to 5 U.S.C. 552(a)(4)(F), whenever the district court, 
described in Sec. 5.59 orders the production of any FEMA records 
improperly withheld from the complainant and assesses against the United 
States reasonable attorney fees and other litigation costs, and the 
court additionally issues a written finding that the circumstances 
surrounding the withholding raise questions whether FEMA personnel acted 
arbitrarily or capriciously with respect to the withholding, the Special 
Counsel in the Merit Systems Protection Board is required to initiate a 
proceeding to determine whether disciplinary action is warranted against 
the officer or employee who primarily was responsible for the 
withholding. The Special Counsel after investigation and consideration 
of the evidence submitted, submits findings and recommendations to the 
Director of FEMA and sends copies of the findings and recommendations to 
the officer or employee or his or her representative. The law requires 
the Director to take any corrective action which the Special Counsel 
recommends.

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980. 
Redesignated and amended at 53 FR 2740, Feb. 1, 1988]



Sec. 5.61  Contempt for noncompliance.

    In the event of noncompliance by FEMA with an order of a district 
court pursuant to Sec. 5.60, the district court may punish for contempt 
the FEMA employee responsible for the noncompliance, pursuant to 5 
U.S.C. 552(a)(4)(G).

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50 
FR 40006, Oct. 1, 1985. Redesignated and amended at 53 FR 2740, Feb. 1, 
1988]



                          Subpart E_Exemptions



Sec. 5.70  General.

    The exemptions enumerated in 5 U.S.C. 552(b), under which the 
provisions for availability of records and informational materials will 
not apply, are general in nature. FEMA will decide each case on its 
merits in accordance with the FEMA policy expressed in subpart A.



Sec. 5.71  Categories of records exempt from disclosure under 5 U.S.C. 552.

    5 U.S.C. 552(b) provides that the requirements of the statute do not 
apply to matters that are:
    (a) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy and are, in fact, properly classified pursuant to such 
Executive Order.
    (b) Related solely to the internal personnel rules and practices of 
an agency.
    (c) Specifically exempted from disclosure by statute other than 
section 552(b) of title 5, provided that such statute (1) requires that 
the matters be withheld from the public in such a manner as to leave no 
discretion on the issue or (2) establishes particular criteria for 
withholding or refers to particular types of matter to be withheld.
    (d) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential.
    (e) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency.
    (f) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (g) Records or information compiled for law enforcment purposes, but 
only to the extent that the production of such law enforcement records 
or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;

[[Page 43]]

    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (h) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of any agency 
responsible for the regulation or supervision of financial institutions.
    (i) Geological and geophysical information and data, including maps, 
concerning wells. Any reasonably segregable portion of a record shall be 
provided to any person requesting the record after deletion of the 
portions which are exempt under this section.
    (j) Whenever a request is made which involves access to records 
described in paragraph (g)(1) of this section and the investigation or 
proceeding involves a possible violation of criminal law; and there is 
reason to believe that the subject of the investigation or proceeding is 
not aware of its pendency, and disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, FEMA may, during only such time as that circumstance 
continues, treat the records as not subject to the requirements of 5 
U.S.C. 552 and this subpart.

[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]



Sec. 5.72  Executive privilege exemption.

    Where application of the executive privilege exemption is desired, 
the matter shall be forwarded to the Director for consideration. If the 
request for information is Congressional, only the President may invoke 
the exemption. Presidential approval is not necessarily required if the 
request for information is in connection with judicial or adjudicatory 
proceedings or otherwise. In connection with judicial proceedings, the 
response shall be coordinated with the Department of Justice.



    Subpart F_Subpoenas or Other Legal Demands for Testimony or the 
        Production or Disclosure of Records or Other Information

    Source: 54 FR 11715, Mar. 22, 1989, unless otherwise noted.



Sec. 5.80  Scope and applicability.

    (a) This subpart sets forth policies and procedures with respect to 
the disclosure or production by FEMA employees, in response to a 
subpoena, order or other demand of a court or other authority, of any 
material contained in the files of the Agency or any information 
relating to material contained in the files of the Agency or any 
information acquired by an employee as part of the performance of that 
person's official duties or because of that person's official status.
    (b) This subpart applies to State and local judicial, administrative 
and legislative proceedings, and Federal judicial and administrative 
proceedings.
    (c) This subpart does not apply to Congressional requests or 
subpoenas for testimony or documents, or to an employee making an 
appearance solely in his or her private capacity in judicial or 
administrative proceedings that do not relate to the Agency (such as 
cases arising out of traffic accidents, domestic relations, etc.).



Sec. 5.81  Statement of policy.

    (a) It is the policy of FEMA to make its records available to 
private litigants to the same extent and in the same manner as such 
records are made available to members of the general

[[Page 44]]

public, except where protected from disclosure by litigation procedural 
authority (e.g., Federal Rules of Civil Procedure) or other applicable 
law.
    (b) It is FEMA's policy and responsibility to preserve its human 
resources for performance of the official functions of the Agency and to 
maintain strict impartiality with respect to private litigants. 
Participation by FEMA employees in private litigation in their official 
capacities is generally contrary to this policy.



Sec. 5.82  Definitions.

    For purposes of this subpart, the following terms have the meanings 
ascribed to them in this section:
    (a) Demand refers to a subpoena, order, or other demand of a court 
of competent jurisdiction, or other specific authority (e.g., an 
administrative or State legislative body), signed by the presiding 
officer, for the production, disclosure, or release of FEMA records or 
information or for the appearance and testimony of FEMA personnel as 
witnesses in their official capacities.
    (b) Employee of the Agency includes all officers and employees of 
the United States appointed by or subject to the supervision, 
jurisdiction or control of the Director of FEMA.
    (c) Private litigation refers to any legal proceeding which does not 
involve as a named party the United States Government, or the Federal 
Emergency Management Agency, or any official thereof in his or her 
official capacity.



Sec. 5.83  Authority to accept service of subpoenas.

    In all legal proceedings between private litigants, a subpoena duces 
tecum or subpoena ad testificandum or other demand by a court or other 
authority for the production of records held by FEMA Regional offices or 
for the oral or written testimony of FEMA Regional employees should be 
addressed to the appropriate Regional Director listed in Sec. 5.26. For 
records or testimony of the Office of Inspector General, the subpoena 
should be addressed to the Inspector General, FEMA, Washington, DC 
20472. For all other records or testimony, the subpoena should be 
addressed to the General Counsel, FEMA, Washington, DC 20472. No other 
official or employee of FEMA is authorized to accept service of 
subpoenas on behalf of the Agency.



Sec. 5.84  Production of documents in private litigation.

    (a) The production of records held by FEMA in response to a subpoena 
duces tecum or other demand issued pursuant to private litigation, 
whether or not served in accordance with the provisions of Sec. 5.83 of 
this subpart, is prohibited absent authorization by the General Counsel 
or, as to records of the Office of the Inspector General, by the 
Inspector General.
    (b) Whenever an official or employee of FEMA, including any Regional 
Director, receives a subpoena or other demand for the production of 
Agency documents or material, he or she shall immediately notify and 
provide a copy of the demand to the General Counsel, unless the subpoena 
or demand seeks the production of documents or material maintained by 
the Office of Inspector General, in which case a copy of the demand 
shall be provided to the Inspector General.
    (c) The General Counsel (or Inspector General), after consultation 
with other appropriate officials as deemed necessary, shall promptly 
determine whether to disclose the material or documents identified in 
the subpoena or other demand. Generally, authorization to furnish the 
requested material or documents shall not be withheld unless their 
disclosure is prohibited by relevant law or for other compelling 
reasons.
    (d) Whenever a subpoena or demand commanding the production of any 
record is served upon any Agency employee other than as provided in 
Sec. 5.83 of this subpart, or the response to a demand is required 
before the receipt of instructions from the General Counsel (or 
Inspector General), such employee shall appear in response thereto, 
respectfully decline to produce the record(s) on the ground that it is 
prohibited by this section and state that the demand has been referred 
for the prompt consideration of the General Counsel (or, where 
appropriate, the Inspector General).

[[Page 45]]

    (e) Where the release of documents in response to a subpoena duces 
tecum is authorized by the General Counsel (or, as to documents 
maintained by the Office of Inspector General, the Inspector General), 
the official having custody of the requested records will furnish, upon 
the request of the party seeking disclosure, authenticated copies of the 
documents. No official or employee of FEMA shall respond in strict 
compliance with the terms of a subpoena duces tecum unless specifically 
authorized by the General Counsel (or Inspector General).



Sec. 5.85  Authentication and attestation of copies.

    The Director, Deputy Director, Associate Directors, Administrators, 
the General Counsel, the Docket Clerk, Inspector General, Regional 
Directors, and their designees, and other heads of offices having 
possession of records are authorized in the name of the Director to 
authenticate and attest for copies or reproductions of records. 
Appropriate fees will be charged for such copies or reproductions based 
on the fee schedule set forth in section 5.46 of this part.



Sec. 5.86  Production of documents in litigation or other adjudicatory 
proceeding in which the United States is a party.

    Subpoenas duces tecum issued pursuant to litigation or any other 
adjudicatory proceeding in which the United States is a party shall be 
handled as provided at Sec. 5.8.



Sec. 5.87  Testimony of FEMA employees in private litigation.

    (a) No FEMA employee shall testify in response to a subpoena or 
other demand in private litigation as to any information relating to 
material contained in the files of the Agency, or any information 
acquired as part of the performance of that person's official duties or 
because of that person's official status, including the meaning of 
Agency documents.
    (b) Whenever a demand is made upon a FEMA employee, other than an 
employee of the Office of Inspector General, for the disclosure of 
information described in paragraph (a) of this section, that employee 
shall immediately notify the Office of General Counsel. Employees of the 
Office of Inspector General shall notify the Inspector General of such 
demands. The General Counsel (or Inspector General through designated 
legal counsel), upon receipt of such notice and absent waiver of the 
general prohibition against employee testimony at his or her discretion, 
shall arrange with the appropriate United States Attorney the taking of 
such steps as are necessary to quash the subpoena or seek a protective 
order.
    (c) In the event that an immediate demand for testimony or 
disclosure is made in circumstances which would preclude prior notice to 
and consultation with the General Counsel (or Inspector General), the 
employee shall respectfully request from the demanding authority a stay 
in the proceedings to allow sufficient time to obtain advice of counsel.
    (d) If the court or other authority declines to stay the effect of 
the demand in response to a request made in accordance with paragraph 
(c) of this section pending consultation with counsel, or if the court 
or other authority rules that the demand must be complied with 
irrespective of instructions not to testify or disclose the information 
sought, the employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing these regulations 
and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).



Sec. 5.88  Testimony in litigation in which the United States is a party.

    (a) Whenever, in any legal proceeding in which the United States is 
a party, the attorney in charge of presenting the case for the United 
States requests it, the General Counsel shall arrange for an employee of 
the Agency to testify as a witness for the United States.
    (b) The attendance and testimony of named employees of the Agency 
may not be required in any legal proceeding by the judge or other 
presiding officer, by subpoena or otherwise. However, the judge or other 
presiding officer may, upon a showing of exceptional circumstances (such 
as a case in which a particular named FEMA employee has

[[Page 46]]

direct personal knowledge of a material fact not known to the witness 
made available by the Agency) require the attendance and testimony of 
named FEMA personnel.



Sec. 5.89  Waiver.

    The General Counsel (or, as to employees of the Office of Inspector 
General, the Inspector General) may grant, in writing, a waiver of any 
policy or procedure prescribed by this subpart, where waiver is 
considered necessary to promote a significant interest of the Agency or 
for other good cause. In granting such waiver, the General Counsel (or 
Inspector General) shall attach to the waiver such reasonable conditions 
and limitations as are deemed appropriate in order that a response in 
strict compliance with the terms of a subpoena duces tecum or the 
providing of testimony will not interfere with the duties of the 
employee and will otherwise conform to the policies of this part. The 
Director may, in his or her discretion, review any decision to authorize 
a waiver of any policy or procedure prescribed by this subpart.



PART 6_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents




                            Subpart A_General

Sec.
6.1 Purpose and scope of part.
6.2 Definitions.
6.3 Collection and use of information (Privacy Act statements).
6.4 Standards of accuracy.
6.5 Rules of conduct.
6.6 Safeguarding systems of records.
6.7 Records of other agencies.
6.8 Subpoena and other legal demands.
6.9 Inconsistent issuances of FEMA and/or its predecessor agencies 
          superseded.
6.10 Assistance and referrals.

                     Subpart B_Disclosure of Records

6.20 Conditions of disclosure.
6.21 Procedures for disclosure.
6.22 Accounting of disclosures.

                 Subpart C_Individual Access to Records

6.30 Form of requests.
6.31 Special requirements for medical rec ords.
6.32 Granting access.
6.33 Denials of access.
6.34 Appeal of denial of access within FEMA.

                   Subpart D_Requests To Amend Records

6.50 Submission of requests to amend rec ords.
6.51 Review of requests to amend records.
6.52 Approval of requests to amend records.
6.53 Denial of requests to amend records.
6.54 Agreement to alternative amendments.
6.55 Appeal of denial of request to amend a record.
6.56 Statement of disagreement.
6.57 Judicial review.

   Subpart E_Report on New Systems and Alterations of Existing Systems

6.70 Reporting requirement.
6.71 Federal Register notice of establishment of new system or 
          alteration of existing system.
6.72 Effective date of new system of records or alteration of an 
          existing system of records.

                             Subpart F_Fees

6.80 Records available at fee.
6.81 Additional copies.
6.82 Waiver of fee.
6.83 Prepayment of fees.
6.84 Form of payment.
6.85 Reproduction fees.

                   Subpart G_Exempt Systems of Records

6.86 General exemptions.
6.87 Specific exemptions.

    Authority: 5 U.S.C. 552a; Reorganization Plan No. 3 of 1978; and 
E.O. 12127.

    Source: 44 FR 50293, Aug. 27, 1979, unless otherwise noted.



                            Subpart A_General



Sec. 6.1  Purpose and scope of part.

    This part sets forth policies and procedures concerning the 
collection, use and dissemination of records maintained by the Federal 
Emergency Management Agency (FEMA) which are subject to the provision of 
5 U.S.C. 552a, popularly known as the ``Privacy Act of 1974'' 
(hereinafter referred to as the Act). These policies and procedures 
govern only those records as defined in Sec. 6.2. Policies and 
procedures governing the disclosure and availability of records in 
general are in part 5 of this chapter. This part also covers: (a) 
Procedures for notification to individuals

[[Page 47]]

of a FEMA system of records pertaining to them; (b) guidance to 
individuals in obtaining information, including inspections of, and 
disagreement with, the content of records; (c) accounting of disclosure; 
(d) special requirements for medical records; and (e) fees.



Sec. 6.2  Definitions.

    For the purpose of this part:
    (a) Agency includes any executive department, military department, 
Government corporation, Government controlled corporation, or other 
establishment in the executive branch of the Government (including the 
Executive Office of the President), or any independent regulatory agency 
(see 5 U.S.C. 552(e)).
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (c) Maintain includes maintain, collect, use, and disseminate.
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by an agency, including, but not 
limited to those concerning education, financial transactions, medical 
history, and criminal or employment history, and that contains the name 
or other identifying particular assigned to the individual, such as a 
fingerprint, voiceprint, or photograph.
    (e) System of records means a group of any records under the control 
of an agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other 
identification assigned to that individual.
    (f) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided by 13 U.S.C. 8.
    (g) Routine use means, with respect to the disclosure of a record, 
the use of that record for a purpose which is compatible with the 
purpose for which it was collected.
    (h) System manager means the employee of FEMA who is responsible for 
the maintenance of a system of records and for the collection, use, and 
dissemination of information therein.
    (i) Subject individual means the individual named or discussed in a 
record of the individual to whom a record otherwise pertains.
    (j) Disclosure means a transfer of a record, a copy of a record, or 
any or all of the information contained in a record to a recipient other 
than the subject individual, or the review of a record by someone other 
than the subject individual.
    (k) Access means a transfer of a record, a copy of a record, or the 
information in a record to the subject individual, or the review of a 
record by the subject individual.
    (l) Solicitation means a request by an officer or employee of FEMA 
that an individual provide information about himself or herself.
    (m) Director means the Director, FEMA.
    (n) Deputy Director means the Deputy Director, FEMA, or, in the case 
of the absence of the Deputy Director, or a vacancy in that office, a 
person designated by the Director to perform the functions under this 
regulation of the Deputy Director.
    (o) Privacy Appeals Officer means the FOIA/Privacy Act Specialist or 
his/her designee.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 
51 FR 34604, Sept. 30, 1986]



Sec. 6.3  Collection and use of information (Privacy Act statements).

    (a) General. Any information used in whole or in part in making a 
determination about an individual's rights, benefits, or privileges 
under FEMA programs will be collected directly from the subject 
individual to the extent practicable. The system manager also shall 
ensure that information collected is used only in conformance with the 
provisions of the Act and these regulations.
    (b) Solicitation of information. System managers shall ensure that 
at the time information is solicited the solicited individual is 
informed of the authority for collecting that information, whether 
providing the information is mandatory or voluntary, the purpose for 
which the information will be used, the

[[Page 48]]

routine uses to be made of the information, and the effects on the 
individual, if any, of not providing the information. The Director, 
Office of Administrative Support and Regional Directors shall ensure 
that forms used to solicit information are in compliance with the Act 
and these regulations.
    (c) Solicitation of Social Security numbers. Before an employee of 
FEMA can deny to any individual a right, benefit, or privilege provided 
by law because such individual refuses to disclose his/her social 
security account number, the employee of FEMA shall ensure that either:
    (1) The disclosure is required by Federal statute; or
    (2) The disclosure of a social security number was required under a 
statute or regulation adopted before January 1, 1975, to verify the 
identity of an individual, and the social security number will become a 
part of a system of records in existence and operating before January 1, 
1975.

If solicitation of the social security number is authorized under 
paragraph (c) (1) or (2) of this section, the FEMA employee who requests 
an individual to disclose the social security account number shall first 
inform that individual whether that disclosure is mandatory or 
voluntary, by what statutory or other authority the number is solicited, 
and the use that will be made of it.
    (d) Soliciting information from third parties. An employee of FEMA 
shall inform third parties who are requested to provide information 
about another individual of the purposes for which the information will 
be used.

[44 FR 50293, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982; 
48 FR 12091, Mar. 23, 1983; 50 FR 40006, Oct. 1, 1985]



Sec. 6.4  Standards of accuracy.

    The system manager shall ensure that all records which are used by 
FEMA to make determinations about any individual are maintained with 
such accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to ensure fairness to the individual.



Sec. 6.5  Rules of conduct.

    Employees of FEMA involved in the design, development, operation, or 
maintenance of any system of records or in maintaining any record, shall 
conduct themselves in accordance with the rules of conduct concerning 
the protection of personal information in Sec. 3.25 of this chapter.



Sec. 6.6  Safeguarding systems of records.

    (a) Systems managers shall ensure that appropriate administrative, 
technical, and physical safeguards are established to ensure the 
security and confidentiality of records and to protect against any 
anticipated threats or hazards to their security or integrity which 
could result in substantial harm, embarrassment, inconvenience, or 
unfairness to any individual on whom information is maintained.
    (b) Personnel information contained in both manual and automated 
systems of records shall be protected by implementing the following 
safeguards:
    (1) Official personnel folders, authorized personnel operating or 
work folders and other records of personnel actions effected during an 
employee's Federal service or affecting the employee's status and 
service, including information on experience, education, training, 
special qualification, and skills, performance appraisals, and conduct, 
shall be stored in a lockable metal filing cabinet when not in use by an 
authorized person. A system manager may employ an alternative storage 
system providing that it furnished an equivalent degree of physical 
security as storage in a lockable metal filing cabinet.
    (2) System managers, at their discretion, may designate additional 
records of unusual sensitivity which require safeguards similar to those 
described in paragraph (a) of this section.
    (3) A system manager shall permit access to and use of automated or 
manual personnel records only to persons whose official duties require 
such access, or to a subject individual or his or her representative as 
provided by this part.

[[Page 49]]



Sec. 6.7  Records of other agencies.

    If FEMA receives a request for access to records which are the 
primary responsibility of another agency, but which are maintained by or 
in the temporary possession of FEMA on behalf of that agency, FEMA will 
advise the requestor that the request has been forwarded to the 
responsible agency. Records in the custody of FEMA which are the primary 
responsibility of the Office of Personnel Management are governed by the 
rules promulgated by it pursuant to the Privacy Act.



Sec. 6.8  Subpoena and other legal demands.

    Access to records in systems of records by subpoena or other legal 
process shall be in accordance with the provisions of part 5 of this 
chapter.



Sec. 6.9  Inconsistent issuances of FEMA and/or its predecessor agencies 
superseded.

    Any policies and procedures in any issuances of FEMA or any of its 
predecessor agencies which are inconsistent with the policies and 
procedures in this part are superseded to the extent of that 
inconsistency.



Sec. 6.10  Assistance and referrals.

    Requests for assistance and referral to the responsible system 
manager or other FEMA employee charged with implementing these 
regulations should be made to the Privacy Appeals Officer, Federal 
Emergency Management Agency, Washington, DC 20472.

[45 FR 17152, Mar. 18, 1980]



                     Subpart B_Disclosure of Records



Sec. 6.20  Conditions of disclosure.

    No employee of FEMA shall disclose any record to any person or to 
another agency without the express written consent of the subject 
individual unless the disclosure is:
    (a) To officers or employees of FEMA who have a need for the 
information in the official performance of their duties;
    (b) Required by the provisions of the Freedom of Information Act, 5 
U.S.C. 552.
    (c) For a routine use as published in the notices in the Federal 
Register;
    (d) To the Bureau of the Census for use pursuant to title 13, United 
States Code;
    (e) To a recipient who has provided FEMA with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record subject to the following: The record shall 
be transferred in a form that is not individually identifiable. The 
written statement should include as a minimum (1) a statement of the 
purpose for requesting the rec ords; and (2) certification that the rec 
ords will be used only for statistical purposes. These written 
statements should be maintained as accounting records. In addition to 
deleting personal identifying information from records released for 
statistical purposes, the system manager shall ensure that the identity 
of the individual cannot reasonably be deduced by combining various 
statistical records;
    (f) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Administrator of The National Archives and Records Administration or his 
designee to determine whether the record has such value;
    (g) To another agency or instrumentality of any governmental 
jurisdiction within or under the control of the United States for civil 
or criminal law enforcement activity, if the activity is authorized by 
law, and if the head of the agency or instrumentality or his designated 
representative has made a written request to the Director specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (h) To a person showing compelling circumstances affecting the 
health and safety of an individual to whom the record pertains. (Upon 
such disclosure, a notification must be sent to the last known address 
of the subject individual.)
    (i) To either House of Congress or to a subcommittee or committee 
(joint or of either House, to the extent that the subject matter falls 
within their jurisdiction;
    (j) To the Comptroller General or any duly authorized 
representatives of the

[[Page 50]]

Comptroller General in the course of the performance of the duties of 
the General Accounting Office; or
    (k) Pursuant to the order of a court of competent jurisdiction.
    (l) To consumer reporting agencies as defined in the Fair Credit 
Reporting Act (35 U.S.C. 1681a(f) or the Debt Collection Act of 1982 (31 
U.S.C. 3711(d)(4)).

[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985]



Sec. 6.21  Procedures for disclosure.

    (a) Upon receipt of a request for disclosure, the system manager 
shall verify the right of the requestor to obtain disclosure pursuant to 
Sec. 6.20. Upon that verification and subject to other requirements of 
this part, the system manager shall make the requested records 
available.
    (b) If the system manager determines that the disclosure is not 
permitted under the provisions of Sec. 6.20 or other provisions of this 
part, the system manager shall deny the request in writing and shall 
inform the requestor of the right to submit a request for review and 
final determination to the Director or designee.



Sec. 6.22  Accounting of disclosures.

    (a) Except for disclosures made pursuant to Sec. 6.20 (a) and (b), 
an accurate accounting of each disclosure shall be made and retained for 
5 years after the disclosure or for the life of the record, whichever is 
longer. The accounting shall include the date, nature, and purpose of 
each disclosure, and the name and address of the person or agency to 
whom the disclosure is made;
    (b) The system manager also shall maintain in conjunction with the 
accounting of disclosures;
    (1) A full statement of the justification for the disclosure.
    (2) All documentation surrounding disclosure of a record for 
statistical or law enforcement purposes; and
    (3) Evidence of written consent to a disclosure given by the subject 
individual.
    (c) Except for the accounting of disclosures made to agencies or 
instrumentalities in law enforcement activities in accordance with Sec. 
6.20 (g) or of disclosures made from exempt systems the accounting of 
disclosures shall be made available to the individual upon request. 
Procedures for requesting access to the accounting are in subpart C of 
this part.



                 Subpart C_Individual Access to Records



Sec. 6.30  Form of requests.

    (a) An individual who seeks access to his or her record or to any 
information pertaining to the individual which is contained in a system 
of records should notify the system manager at the address indicated in 
the Federal Register notice describing the pertinent system. The notice 
should bear the legend ``Privacy Act Request'' both on the request 
letter and on the envelope. It will help in the processing of a request 
if the request letter contains the complete name and identifying number 
of the system as published in the Federal Register; the full name and 
address of the subject individual; a brief description of the nature, 
time, place, and circumstances of the individual's association with 
FEMA; and any other information which the individual believes would help 
the system manager to determine whether the information about the 
individual is included in the system of records. The system manager 
shall answer or acknowledge the request within 10 workdays of its 
receipt by FEMA.
    (b) The system manager, at his discretion, may accept oral requests 
for access subject to verification of identity.



Sec. 6.31  Special requirements for medical records.

    (a) A system manager who receives a request from an individual for 
access to those official medical records which belong to the U.S. Office 
of Personnel Management and are described in Chapter 339, Federal 
Personnel Manual (medical records about entrance qualifications or 
fitness for duty, or medical records which are otherwise filed in the 
Official Personnel Folder), shall refer the pertinent system of records 
to a Federal Medical Officer for review and determination in accordance 
with this section. If no Federal Medical Officer is available to make 
the determination

[[Page 51]]

required by this section, the system manager shall refer the request and 
the medical reports concerned to the Office of Personnel Management for 
determination.
    (b) If, in the opinion of a Federal Medical Officer, medical records 
requested by the subject individual indicate a condition about which a 
prudent physician would hesitate to inform a person suffering from such 
a condition of its exact nature and probable outcome, the system manager 
shall not release the medical information to the subject individual nor 
to any person other than a physician designated in writing by the 
subject individual, or the guardian or conservator of the individual.
    (c) If, in the opinion of a Federal Medical Officer, the medical 
information does not indicate the presence of any condition which would 
cause a prudent physician to hesitate to inform a person suffering from 
such a condition of its exact nature and probable outcome, the system 
manager shall release it to the subject individual or to any person, 
firm, or organization which the individual authorizes in writing to 
receive it.



Sec. 6.32  Granting access.

    (a) Upon receipt of a request for access to non-exempt records, the 
system manager shall make these records available to the subject 
individual or shall acknowledge the request within 10 workdays of its 
receipt by FEMA. The acknowledgment shall indicate when the system 
manager will make the records available.
    (b) If the system manager anticipates more than a 10 day delay in 
making a record available, he or she also shall include in the 
acknowledgment specific reasons for the delay.
    (c) If a subject individual's request for access does not contain 
sufficient information to permit the system manager to locate the 
records, the system manager shall request additional information from 
the individual and shall have 10 workdays following receipt of the 
additional information in which to make the records available or to 
acknowledge receipt of the request and indicate when the records will be 
available.
    (d) Records will be available for authorized access during normal 
business hours at the offices where the records are located. A requestor 
should be prepared to identify himself or herself by signature; i.e., to 
note by signature the date of access and/or produce other identification 
verifying the signature.
    (e) Upon request, a system manager shall permit an individual to 
examine the original of a non-exempt record, shall provide the 
individual with a copy of the record, or both. Fees shall be charged in 
accordance with subpart F.
    (f) An individual may request to pick up a record in person or to 
receive it by mail, directed to the name and address provided by the 
individual in the request. A system manager shall not make a record 
available to a third party for delivery to the subject individual except 
for medical records as outlined in Sec. 6.31.
    (g) An individual who selects another person to review, or to 
accompany the individual in reviewing or obtaining a copy of the record 
must, prior to the disclosure, sign a statement authorizing the 
disclosure of the record. The system manager shall maintain this 
statement with the record.
    (h) The procedure for access to an accounting of disclosure is 
identical to the procedure for access to a record as set forth in this 
section.



Sec. 6.33  Denials of access.

    (a) A system manager may deny an individual access to that 
individual's record only upon the grounds that FEMA has published the 
rules in the Federal Register exempting the pertinent system of records 
from the access requirement. These exempt systems of records are 
described in subpart G of this part.
    (b) Upon receipt of a request for access to a record which the 
system manager believes is contained within an exempt system of records 
he or she shall forward the request to the appropriate official listed 
below or to his or her delegate through normal supervisory channels.
    (1) Deputy Director
    (2) [Reserved]
    (3) Federal Insurance Administrator
    (4) Associate Directors

[[Page 52]]

    (5) United States Fire Administrator
    (6) Chief of Staff
    (7) Office Directors
    (8) General Counsel
    (9) Inspector General
    (10) Comptroller
    (11) Regional Directors

The system manager shall append to the request an explanation of the 
determination that the requested record is contained within an exempt 
system of records and a recommendation that the request be denied or 
granted.
    (c) In the event that the system manager serves in one of the 
positions listed in paragraph (b) of this section, he or she shall 
retain the responsibility for denying or granting the request.
    (d) The appropriate official listed in paragraph (b) of this section 
shall, in consultation with the Office of General Counsel and such other 
officials as deemed appropriate, determine if the request record is 
contained within an exempt system of records and:
    (1) If the record is not contained within an exempt system of 
records, the above official shall notify the system manager to grant the 
request in accordance with Sec. 6.32, or
    (2) If the record is contained within an exempt system said official 
shall;
    (i) Notify the requestor that the request is denied, including a 
statement justifying the denial and advising the requestor of a right to 
judicial review of that decision as provided in Sec. 6.57, or
    (ii) Notify the system manager to make record available to the 
requestor in accordance with Sec. 6.31, notwithstanding the record's 
inclusion within an exempt system.
    (e) The appropriate official listed in paragraph (b) of this section 
shall provide the Privacy Appeals Office with a copy of any denial of a 
requested access.

[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986]



Sec. 6.34  Appeal of denial of access within FEMA.

    A requestor denied access in whole or in part, to records pertaining 
to that individual, exclusive of those records for which the system 
manager is the Director, may file an administrative appeal of that 
denial. Appeals of denied access will be processed in the same manner as 
processing for appeals from a denial of a request to amend a record set 
out in Sec. 6.55, regardless whether the denial being appealed is made 
at headquarters or by a regional official.



                   Subpart D_Requests To Amend Records



Sec. 6.50  Submission of requests to amend records.

    An individual who desires to amend any record containing personal 
information about the individual should direct a written request to the 
system manager specified in the pertinent Federal Register notice 
concerning FEMA's systems of records. A current FEMA employee who 
desires to amend personnel records should submit a written request to 
the FEMA Director of Personnel, Washington, DC 20472. Each request 
should include evidence of and justification for the need to amend the 
pertinent record. Each request should bear the legend ``Privacy Act--
Request to Amend Record'' prominently marked on both the face of the 
request letter and the envelope.



Sec. 6.51  Review of requests to amend rec ords.

    (a) The system manager shall acknowledge the receipt of a request to 
amend a record within 10 workdays. If possible, the acknowledgment shall 
include the system manager's determination either to amend the record or 
to deny the request to amend as provided in Sec. 6.53.
    (b) When reviewing a record in response to a request to amend, the 
system manager shall assess the accuracy, relevance, timeliness, and 
completeness of the existing record in light of the proposed amendment 
and shall determine whether the request for the amendment is justified. 
With respect to a request to delete information, the system manager also 
shall review the request and the existing record to determine whether 
the information is relevant and necessary to accomplish an agency 
purpose required to be accomplished by statute or Executive Order.

[[Page 53]]



Sec. 6.52  Approval of requests to amend rec ords.

    If the system manager determines that amendment of a record is 
proper in accordance with the request to amend, he or she promptly shall 
make the necessary corrections to the record and shall send a copy of 
the corrected record to the individual. Where an accounting of 
disclosure has been maintained, the system manager shall advise all 
previous recipients of the record of the fact that a correction has been 
made and the substance of the correction. Where practicable, the system 
manager shall advise the Privacy Appeals Officer that a request to amend 
has been approved.



Sec. 6.53  Denial of requests to amend rec ords.

    (a) If the system manager determines that an amendment of a record 
is improper or that the record should be amended in a manner other than 
that requested by an individual, he shall refer the request to amend and 
his determinations and recommendations to the appropriate official 
listed in Sec. 6.33(b) through normal supervisory channels.
    (b) If the official listed in Sec. 6.33, after reviewing the 
request to amend a record, determines to amend the record in accordance 
with the request, said official promptly shall return the request to the 
system manager with instructions to make the requested amendments in 
accordance with Sec. 6.52.
    (c) If the appropriate official listed in Sec. 6.33, after 
reviewing the request to amend a record, determines not to amend the 
record in accordance with the request, the requestor shall be promptly 
advised in writing of the determination. The refusal letter (1) shall 
state the reasons for the denial of the request to amend; (2) shall 
include proposed alternative amendments, if appropriate; (3) shall state 
the requestor's right to appeal the denial of the request to amend; and 
(4) shall state the procedures for appealing and the name and title of 
the official to whom the appeal is to be addressed.
    (d) The appropriate official listed in Sec. 6.33 shall furnish the 
Privacy Appeals Officer a copy of each initial denial of a request to 
amend a record.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]



Sec. 6.54  Agreement to alternative amendments.

    If the denial of a request to amend a record includes proposed 
alternative amendments, and if the requestor agrees to accept them, he 
or she must notify the official who signed the denial. That official 
immediately shall instruct the system manager to make the necessary 
amendments in accordance with Sec. 6.52.



Sec. 6.55  Appeal of denial of request to amend a record.

    (a) A requestor who disagrees with a denial of a request to amend a 
record may file an administrative appeal of that denial. The requestor 
should address the appeal to the FEMA Privacy Appeals Officer, 
Washington, DC 20472. If the requestor is an employee of FEMA and the 
denial to amend involves a record maintained in the employee's Official 
Personnel Folder covered by an Office of Personnel Management 
Government-wide system notice, the appeal should be addressed to the 
Assistant Director, Information Systems, Agency Compliance and 
Evaluation Group, Office of Personnel Management, Washington, DC 20415.
    (b) Each appeal to the Privacy Act Appeals Officer shall be in 
writing and must be received by FEMA no later than 30 calendar days from 
the requestor's receipt of a denial of a request to amend a record. The 
appeal should bear the legend ``Privacy Act--Appeal,'' both on the face 
of the letter and the envelope.
    (c) Upon receipt of an appeal, the Privacy Act Appeals Officer shall 
consult with the system manager, the official who made the denial, the 
General Counsel or a member of that office, and such other officials as 
may be appropriate. If the Privacy Act Appeals Officer in consultation 
with these officials, determines that the record should be amended, as 
requested, the system manager shall be instructed immediately to amend 
the record in accordance with Sec. 6.52 and shall notify the requestor 
of that action.

[[Page 54]]

    (d) If the Privacy Act Appeals Officer, in consultation with the 
officials specified in paragraph (c) of this section, determines that 
the appeal should be rejected, the Privacy Act Appeals Officer shall 
submit the file on the request and appeal, including findings and 
recommendations, to the Deputy Director for a final administrative 
determination.
    (e) If the Deputy Director determines that the record should be 
amended as requested, he or she immediately shall instruct the system 
manager in writing to amend the record in accordance with Sec. 6.52. 
The Deputy Director shall send a copy of those instructions to the 
Privacy Act Appeals Officer, who shall notify the requester of that 
action.
    (f) If the Deputy Director determines to reject the appeal, the 
requestor shall immediately be notified in writing of that 
determination. This action shall constitute the final administrative 
determination on the request to amend the record and shall include:
    (1) The reasons for the rejection of the appeal.
    (2) Proposed alternative amendments, if appropriate, which the 
requestor subsequently may accept in accordance with Sec. 6.54.
    (3) Notice of the requestor's right to file a Statement of 
Disagreement for distribution in accordance with Sec. 6.56.
    (4) Notice of the requestor's right to seek judicial review of the 
final administrative determination, as provided in Sec. 6.57.
    (g) The final agency determination must be made no later than 30 
workdays from the date on which the appeal is received by the Privacy 
Act Appeals Officer.
    (h) In extraordinary circumstances, the Director may extend this 
time limit by notifying the requestor in writing before the expiration 
of the 30 workdays. The Director's notification will include a 
justification for the extension.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]



Sec. 6.56  Statement of disagreement.

    Upon receipt of a final administrative determination denying a 
request to amend a record, the requestor may file a Statement of 
Disagreement with the appropriate system manager. The Statement of 
Disagreement should include an explanation of why the requestor believes 
the record to be inaccurate, irrelevant, untimely, or incomplete. The 
system manager shall maintain the Statement of Disagreement in 
conjunction with the pertinent record, and shall include a copy of the 
Statement of Disagreement in any disclosure of the pertinent record. The 
system manager shall provide a copy of the Statement of Disagreement to 
any person or agency to whom the record has been disclosed only if the 
disclosure was subject to the accounting requirements of Sec. 6.22.



Sec. 6.57  Judicial review.

    Within 2 years of receipt of a final administrative determination as 
provided in Sec. 6.34 or Sec. 6.55, a requestor may seek judicial 
review of that determination. A civil action must be filed in the 
Federal District Court in which the requestor resides or has his or her 
principal place of business or in which the agency records are situated, 
or in the District of Columbia.



   Subpart E_Report on New Systems and Alterations of Existing Systems



Sec. 6.70  Reporting requirement.

    (a) No later than 90 calendar days prior to the establishment of a 
new system of records, the prospective system manager shall notify the 
Privacy Appeals Officer of the proposed new system. The prospective 
system manager shall include with the notification a completed FEMA Form 
11-2, System of Records Covered by the Privacy Act of 1974, and a 
justification for each system of records proposed to be established. If 
the Privacy Appeals Officer determines that the establishment of the 
proposed system is in the best interest of the Government, then no later 
than 60 calendar days prior to the establishment of that system of 
records, a report of the proposal shall be submitted by the Director or 
a designee thereof, to the President of the Senate, the Speaker of the 
House of Representatives, and the Administrator, Office of Information 
and Regulatory Affairs, Office of Management and Budget for

[[Page 55]]

their evaluation of the probable or potential effect of that proposal on 
the privacy and other personal or property rights of individuals.
    (b) No later than 90 calendar days prior to the alteration of a 
system of records, the system manager responsible for the maintenance of 
that system of records shall notify the Privacy Appeals Officer of the 
proposed alteration. The system manager shall include with the 
notification a completed FEMA Form 11-2. System of Records Covered by 
the Privacy Act of 1974, and a justification for each system of records 
he proposes to alter. If it is determined that the proposed alteration 
is in the best interest of the Government, then, the Director, or a 
designee thereof, shall submit, no later than 60 calendar days prior to 
the establishment of that alteration, a report of the proposal to the 
President of the Senate, the Speaker of the House of Representatives, 
and the Administrator, Office of Information and Regulatory Affairs, 
Office of Management and Budget for their evaluation of the probable or 
potential effect of that proposal on the privacy and other personal or 
property rights of individuals.
    (c) The reports required by this regulation are exempt from reports 
control.
    (d) The Administrator, Office of Information and Regulatory Affairs, 
Office of Management and Budget may waive the time requirements set out 
in this section upon a finding that a delay in the establishing or 
amending the system would not be in the public interest and showing how 
the public interest would be adversely affected if the waiver were not 
granted and otherwise complying with OMB Circular A-130.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 
51 FR 34604, Sept. 30, 1986]



Sec. 6.71  Federal Register notice of establishment of new system or 
alteration of existing system.

    Notice of the proposed establishment or alteration of a system of 
rec ords shall be published in the Federal Register, in accordance with 
FEMA procedures when:
    (a) Notice is received that the Senate, the House of 
Representatives, and the Office of Management and Budget do not object 
to the establishment of a new system or records or to the alteration of 
an existing system of records, or
    (b) No fewer than 30 calendar days elapse from the date of 
submission of the proposal to the Senate, the House of Representatives, 
and the Office of Management and Budget without receipt of an objection 
to the proposal. The notice shall include all of the information 
required to be provided in FEMA Form 11-2, System of Records Covered by 
the Privacy Act of 1974, and such other information as the Director 
deems necessary.



Sec. 6.72  Effective date of new system of records or alteration of an 
existing system of records.

    Systems of records proposed to be established or altered in 
accordance with the provisions of this subpart shall be effective no 
sooner than 30 calendar days from the publication of the notice required 
by Sec. 6.71.



                             Subpart F_Fees



Sec. 6.80  Records available at fee.

    The system manager shall provide a copy of a record to a requestor 
at a fee prescribed in Sec. 6.85 unless the fee is waived under Sec. 
6.82.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]



Sec. 6.81  Additional copies.

    A reasonable number of additional copies shall be provided for the 
applicable fee to a requestor who indicates that he has no access to 
commercial reproduction services.



Sec. 6.82  Waiver of fee.

    The system manager shall make one copy of a record, up to 300 pages, 
available without charge to a requestor who is an employee of FEMA. The 
system manager may waive the fee requirement for any other requestor if 
the cost of collecting the fee is an unduly large part of, or greater 
than, the fee, or when furnishing the record without

[[Page 56]]

charge conforms to generally established business custom or is in the 
public interest.

[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]



Sec. 6.83  Prepayment of fees.

    (a) When FEMA estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250.00, FEMA may 
require a requester to make an advance payment of the entire fee before 
continuing to process the request.
    (b) When a requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), FEMA 
may require the requester to pay the full amount owed plus any 
applicable interest as provided in Sec. 6.85(d), and to make an advance 
payment of the full amount of the estimated fee before the agency begins 
to process a new request or a pending request from that requester.
    (c) When FEMA acts under Sec. 5.44 (a) or (b), the administrative 
time limits prescribed in subsection (a)(6) of the FOIA (i.e., 10 
working days from the receipt of initial requests and 20 working days 
from receipt of appeals from initial denial, plus permissible extensions 
of these time limits) will begin only after FEMA has received fee 
payments described under Sec. 5.44 (a) or (b).

[52 FR 13679, Apr. 24, 1987]



Sec. 6.84  Form of payment.

    Payment shall be by check or money order payable to The Federal 
Emergency Management Agency and shall be addressed to the system 
manager.



Sec. 6.85  Reproduction fees.

    (a) Duplication costs. (1) For copies of documents reproduced on a 
standard office copying machine in sizes up to 8\1/2\ x 14 inches, the 
charge will be $.15 per page.
    (2) The fee for reproducing copies of records over 8\1/2\ x 14 
inches or whose physical characteristics do not permit reproduction by 
routine electrostatic copying shall be the direct cost of reproducing 
the records through Government or commercial sources. If FEMA estimates 
that the allowable duplication charges are likely to exceed $25, it 
shall notify the requester of the estimated amount of fees, unless the 
requester has indicated in advance his/her willingness to pay fees as 
high as those anticipated. Such a notice shall offer a requester the 
opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (3) For other methods of reproduction or duplication, FEMA shall 
charge the actual direct costs of producing the document(s). If FEMA 
estimates that the allowable duplication charges are likely to exceed 
$25, it shall notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his/her willingness to pay 
fees as high as those anticipated. Such a notice shall offer a requester 
the opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (b) Interest may be charge to those requesters who fail to pay fees 
charged. FEMA may begin assessing interest charges on the amount billed 
starting on the 31st day following the day on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of title 
31 U.S.C.

[52 FR 13679, Apr. 24, 1987]



                   Subpart G_Exempt Systems of Records



Sec. 6.86  General exemptions.

    (a) Whenever the Director, Federal Emergency Management Agency, 
determines it to be necessary and proper, with respect to any system of 
records maintained by the Federal Emergency Management Agency, to 
exercise the right to promulgate rules to exempt such systems in 
accordance with the provisions of 5 U.S.C. 552a (j) and (k), each 
specific exemption, including the parts of each system to be exempted, 
the provisions of the Act from which they are exempted, and the 
justification for each exemption shall be published in the Federal 
Register as part of FEMA's Notice of Systems of Rec ords.
    (b) Exempt under 5 U.S.C. 552a(j)(2) from the requirements of 5 
U.S.C. 552a(c) (3) and (4), (d), (e) (1), (2), (3),

[[Page 57]]

(e)(4) (G), (H), and (I), (e) (5) and (8) (f) and (g) of the Privacy 
Act.
    (1) Exempt systems. The following systems of records, which contain 
information of the type described in 5 U.S.C. 552(j)(2), shall be exempt 
from the provisions of 5 U.S.C. 552a listed in paragraph (b) of this 
section.

General Investigative Files (FEMA/IG-2)--Limited Access

    (2) Reasons for exemptions. (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1) 
enable individuals to be notified whether a system of records contains 
records pertaining to them. The Federal Emergency Management Agency 
believes that application of these provisions to the above-listed system 
of records would give individuals an opportunity to learn whether they 
are of record either as suspects or as subjects of a criminal 
investigation; this would compromise the ability of the Federal 
Emergency Management Agency to complete investigations and identify or 
detect violators of laws administered by the Federal Emergency 
Management Agency or other Federal agencies. Individuals would be able 
(A) to take steps to avoid detection, (B) to inform co-conspirators of 
the fact that an investigation is being conducted, (C) to learn the 
nature of the investigation to which they are being subjected, (D) to 
learn the type of surveillance being utilized, (E) to learn whether they 
are only suspects or identified law violators, (F) to continue to resume 
their illegal conduct without fear of detection upon learning that they 
are not in a particular system of records, and (G) to destroy evidence 
needed to prove the violation.
    (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable 
individuals to gain access to records pertaining to them. The Federal 
Emergency Management Agency believes that application of these 
provisions to the above-listed system of records would compromise its 
ability to complete or continue criminal investigations and to detect or 
identify violators of laws administered by the Federal Emergency 
Management Agency or other Federal agencies. Permitting access to 
records contained in the above-listed system of records would provide 
individuals with significant information concerning the nature of the 
investigation, and this could enable them to avoid detection or 
apprehension in the following ways:
    (A) By discovering the collection of facts which would form the 
basis for their arrest, (B) by enabling them to destroy evidence of 
criminal conduct which would form the basis for their arrest, and (C) by 
learning that the criminal investigators had reason to believe that a 
crime was about to be committed, they could delay the commission of the 
crime or change the scene of the crime to a location which might not be 
under surveillance. Granting access to ongoing or closed investigative 
files would also reveal investigative techniques and procedures, the 
knowledge of which could enable individuals planning criminal activity 
to structure their future operations in such a way as to avoid detection 
or apprehension, thereby neutralizing law enforcement officers' 
established investigative tools and procedures. Further, granting access 
to investigative files and records could disclose the identity of 
confidential sources and other informers and the nature of the 
information which they supplied, thereby endangering the life or 
physical safety of those sources of information by exposing them to 
possible reprisals for having provided information relating to the 
criminal activities of those individuals who are the subjects of the 
investigative files and records; confidential sources and other 
informers might refuse to provide criminal investigators with valuable 
information if they could not be secure in the knowledge that their 
identities would not be revealed through disclosure of either their 
names or the nature of the information they supplied, and this would 
seriously impair the ability of the Federal Emergency Management Agency 
to carry out its mandate to enforce criminal and related laws. 
Additionally, providing access to records contained in the above-listed 
system of records could reveal the identities of undercover law 
enforcement personnel who compiled information regarding individual's 
criminal activities, thereby endangering the life or physical safety of 
those undercover personnel or their families by exposing them to 
possible reprisals.

[[Page 58]]

    (iii) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which 
are dependent upon access having been granted to records pursuant to the 
provisions cited in paragraph (b)(2)(ii) of this section, enable 
individuals to contest (seek amendment to) the content of records 
contained in a system of rec ords and require an agency to note an 
amended record and to provide a copy of an individual's statement (of 
disagreement with the agency's refusal to amend a record) to persons or 
other agencies to whom the record has been disclosed. The Federal 
Emergency Management Agency believes that the reasons set forth in 
paragraph (b)(2)(ii) of this section are equally applicable to this 
paragraph and, accordingly, those reasons are hereby incorporated herein 
by reference.
    (iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request; such accountings must state the date, nature and purpose 
of each disclosure of a record and the name and address of the 
recipient. The Federal Emergency Management Agency believes that 
application of this provision to the above-listed system of rec ords 
would impair the ability of other law enforcement agencies to make 
effective use of information provided by the Federal Emergency 
Management Agency in connection with the investigation, detection and 
apprehension of violators of the criminal laws enforced by those other 
law enforcement agencies. Making accountings of disclosure available to 
violators or possible violators would alert those individuals to the 
fact that another agency is conducting an investigation into their 
criminal activities, and this could reveal the geographic location of 
the other agency's investigation, the nature and purpose of that 
investigation, and the dates on which that investigation was active. 
Violators possessing such knowledge would thereby be able to take 
appropriate measures to avoid detection or apprehension by altering 
their operations, by transferring their criminal activities to other 
geographic areas or by destroying or concealing evidence which would 
form the basis for their arrest. In addition, providing violators with 
accountings of disclosure would alert those individuals to the fact that 
the Federal Emergency Management Agency has information regarding their 
criminal activities and could inform those individuals of the general 
nature of that information; this, in turn, would afford those 
individuals a better opportunity to take appropriate steps to avoid 
detection or apprehension for violations of criminal and related laws.
    (v) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with 5 U.S.C. 552a(d) of any record that has been 
disclosed to the person or agency if an accounting of the disclosure was 
made. Since this provision is dependent on an individual's having been 
provided an opportunity to contest (seek amendment to) records 
pertaining to him/her, and since the above-listed system of records is 
proposed to be exempt from those provisions of 5 U.S.C. 552a relating to 
amendments of records as indicated in paragraph (b)(2)(iii) of this 
section, the Federal Emergency Management Agency believes that this 
provision should not be applicable to the above system of records.
    (vi) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public 
notice listing the categories of sources for information contained in a 
system of rec ords. The categories of sources of this system of records 
have been published in the Federal Register in broad generic terms in 
the belief that this is all that subsection (e)(4)(I) of the Act 
requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (vii) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required

[[Page 59]]

to be accomplished by statute or executive order. The term maintain as 
defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.'' 
At the time that information is collected by the Federal Emergency 
Management Agency, there is often insufficient time to determine whether 
the information is relevant and necessary to accomplish a purpose of the 
Federal Emergency Management Agency; in many cases information collected 
may not be immediately susceptible to a determination of whether the 
information is relevant and necessary, particularly in the early stages 
of an investigation, and in many cases, information which initially 
appears to be irrelevant or unnecessary may, upon further evaluation or 
upon continuation of the investigation, prove to have particular 
relevance to an enforcement program of the Federal Emergency Management 
Agency. Further, not all violations of law discovered during a criminal 
investigation fall within the investigative jurisdiction of the Federal 
Emergency Management Agency; in order to promote effective law 
enforcement, it often becomes necessary and desirable to disseminate 
information pertaining to such violations to other law enforcement 
agencies which have jurisdiction over the offense to which the 
information relates. The Federal Emergency Management Agency should not 
be placed in a position of having to ignore information relating to 
violations of law not within its jurisdiction when that information 
comes to the attention of the Federal Emergency Management Agency 
through the conduct of a lawful FEMA investigation. The Federal 
Emergency Management Agency, therefore, believes that it is appropriate 
to exempt the above-listed system of records from the provisions of 5 
U.S.C. 552a(e)(1).
    (viii) 5 U.S.C. 552a(e)(2) requires that an agency collect 
information to the greatest extent practicable directly from the subject 
individual when the information may result in adverse determinations 
about an individual's rights, benefits, and privileges under Federal 
programs. The Federal Emergency Management Agency believes that 
application of this provision to the above-listed system of records 
would impair the ability of the Federal Emergency Management Agency to 
conduct investigations and to identify or detect violators of criminal 
or related laws for the following reasons:
    (A) Most information collected about an individual under criminal 
investigations is obtained from third parties such as witnesses and 
informers, and it is usually not feasible to rely upon the subject of 
the investigation as a source for information regarding his/her criminal 
activities, (B) an attempt to obtain information from the subject of a 
criminal investigation will often alert that individual to the existence 
of an investigation, thereby affording the individual an opportunity to 
attempt to conceal his/her criminal activities so as to avoid 
apprehension, (C) in certain instances, the subject of a criminal 
investigation is not required to supply information to criminal 
investigators as a matter of legal duty, and (D) during criminal 
investigations it is often a matter of sound investigative procedures to 
obtain information from a variety of sources in order to verify 
information already obtained.
    (ix) 5 U.S.C. 552a(e)(3) requires that an agency inform each 
individual whom it asks to supply information, either on the form which 
the agency uses to collect the information or on a separate form which 
can be retained by the individual, with the following information: The 
authority which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary; the 
principal purposes for which the information is intended to be used; the 
routine uses which may be made of the information; and the effects on 
the individual of not providing all or part of the requested 
information. The Federal Emergency Management Agency believes that the 
above-listed system of records should be exempted from this provision in 
order to avoid adverse effects on its ability to identify or detect 
violators of criminal or related laws. In many cases, information is 
obtained by confidential sources, other informers or undercover law 
enforcement officers under circumstances where it is necessary that the 
true purpose of their actions be kept secret so as to avoid

[[Page 60]]

alerting the subject of the investigation or his/her associates that a 
criminal investigation is in process. Further, if it became known that 
the undercover officer was assisting in a criminal investigation, that 
officer's life or physical safety could be endangered through reprisal, 
and, under such circumstances it may not be possible to continue to 
utilize that officer in the investigation. In many cases, individuals, 
for personal reasons, would feel inhibited in talking to a person 
representing a criminal law enforcement agency but would be willing to 
talk to a confidential source or undercover officer who they believe is 
not involved in law enforcement activities. In addition, providing a 
source of information with written evidence that he was a source, as 
required by this provision, could increase the likelihood that the 
source of information would be the subject of retaliatory action by the 
subject of the investigation. Further, application of this provision 
could result in an unwarranted invasion of the personal privacy of the 
subject of the criminal investigation, particularly where further 
investigation would result in a finding that the subject was not 
involved in any criminal activity.
    (x) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records 
used by the agency in making any determination about any individual with 
such accuracy, relevance, timeliness and completeness as is reasonably 
necessary to assure fairness to the individual in the determination. 
Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include ``collect'' 
and ``disseminate,'' application of this provision to the above-listed 
system of records would hinder the initial collection of any information 
which could not, at the moment of collection, be determined to be 
accurate, relevant, timely and complete. Similarly, application of this 
provision would seriously restrict the necessary flow of information 
from the Federal Emergency Management Agency to other law enforcement 
agencies when a FEMA investigation revealed information pertaining to a 
violation of law which was under investigative jurisdiction of another 
agency. In collecting information during the course of a criminal 
investigation, it is not possible or feasible to determine accuracy, 
relevance, timeliness or completeness prior to collection of the 
information; in disseminating information to other law enforcement 
agencies it is often not possible to determine accuracy, relevance, 
timeliness or completeness prior to dissemination because the 
disseminating agency may not have the expertise with which to make such 
determinations. Further, information which may initially appear to be 
inaccurate, irrelevant, untimely or incomplete may, when gathered, 
grouped, and evaluated with other available information, become more 
pertinent as an investigation progresses. In addition, application of 
this provision could seriously impede criminal investigators and 
intelligence analysts in the exercise of their judgment in reporting on 
results obtained during criminal investigations. The Federal Emergency 
Management Agency believes that it is appropriate to exempt the above-
listed system of records from the provisions of 5 U.S.C. 552a(e)(5).
    (xi) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable 
effort to serve notice on an individual when any record on the 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. The Federal 
Emergency Management Agency believes that the above-listed system of 
records should be exempt from this provision in order to avoid revealing 
investigative techniques and procedures outlined in those records and in 
order to prevent revelation of the existence on an on-going 
investigation where there is a need to keep the existence of the 
investigation secret.
    (xii) 5 U.S.C. 552a(g) provides civil remedies to an individual for 
an agency's refusal to amend a record or to make a review of a request 
for amendment; for an agency's refusal to grant access to a record; for 
an agency's failure to maintain accurate, relevant, timely and complete 
records which are used to make a determination which is adverse to the 
individual; and for an agency's failure to comply with any other 
provision of 5 U.S.C. 552a in such a way as to have an adverse effect on 
an individual. The Federal Emergency Management Agency believes that the

[[Page 61]]

above-listed system of records should be exempted from this provision to 
the extent that the civil remedies provided therein may relate to 
provisions of 5 U.S.C. 552a from which the above-listed system of 
records is proposed to be exempt. Since the provisions of 5 U.S.C. 552a 
enumerated in paragraphs (b)(2)(i) through (xi) of this section are 
proposed to be inapplicable to the above-listed systems of records for 
the reasons stated therein, there should be no corresponding civil 
remedies for failure to comply with the requirements of those provisions 
to which the exemption is proposed to apply. Further, the Federal 
Emergency Management Agency believes that application of this provision 
to the above-listed system of records would adversely affect its ability 
to conduct criminal investigations by exposing to civil court action 
every stage of the criminal investigative process in which information 
is compiled or used in order to identify, detect, or otherwise 
investigate persons suspected or known to be engaged in criminal 
conduct.
    (xiii) Individuals may not have access to another agency's records, 
which are contained in files maintained by the Federal Emergency 
Management Agency, when that other agency's regulations provide that 
such records are subject to general exemption under 5 U.S.C. 552a(j). If 
such exempt records are within a request for access, FEMA will advise 
the individual of their existence and of the name and address of the 
source agency. For any further information concerning the record and the 
exemption, the individual must contact that source agency.

[45 FR 64580, Sept. 30, 1980]



Sec. 6.87  Specific exemptions.

    (a) Exempt under 5 U.S.C. 552a(k)(1). The Director, Federal 
Emergency Management Agency has determined that certain systems of 
records may be exempt from the requirements of (c)(3) and (d) pursuant 
to 5 U.S.C. 552a(k)(1) to the extent that the system contains any 
information properly classified under Executive Order 12356 or any 
subsequent Executive order and which are required to be kept secret in 
the interest of national defense or foreign policy. To the extent that 
this occurs, such records in the following systems would be exempt:

Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-1)--Limited Access
Security Management Information System (FEMA/SEC-1)--Limited Access

    (b) Exempt under 5 U.S.C. 552a(k)(2) from the requirements of 5 
U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f). The 
Federal Emergency Management Agency will not deny individuals access to 
information which has been used to deny them a right, privilege, or 
benefit to which they would otherwise be entitled.
    (1) Exempt systems. The following systems of records, which contain 
information of the type described in 5 U.S.C. 552a(k)(2), shall be 
exempt from the provisions of 5 U.S.C. 552a(k)(2) listed in paragraph 
(b) of this section.

Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-1)--Limited Access
Equal Employment Opportunity Complaints of Discrimination Files (FEMA/
PER-2)--Limited Access

    (2) Reasons for exemptions. (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1) 
enable individuals to be notified whether a system of records contains 
records pertaining to them. The Federal Emergency Management Agency 
believes that application of these provisions to the above-listed 
systems of records would impair the ability of FEMA to successfully 
complete investigations and inquiries of suspected violators of civil 
and criminal laws and regulations under its jurisdiction. In many cases 
investigations and inquiries into violations of civil and criminal laws 
and regulations involve complex and continuing patterns of behavior. 
Individuals, if informed, that they have been identified as suspected 
violators of civil or criminal laws and regulations, would have an 
opportunity to take measures to prevent detection of illegal action so 
as to avoid prosecution or the imposition of civil sanctions. They would 
also be able to learn the nature and location of

[[Page 62]]

the investigation or inquiry, the type of surveillance being utilized, 
and they would be able to transmit this knowledge to co-conspirators. 
Finally, violators might be given the opportunity to destroy evidence 
needed to prove the violation under investigation or inquiry.
    (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable 
individuals to gain access to records pertaining to them. The Federal 
Emergency Management Agency believes that application of these 
provisions to the above-listed systems of records would impair its 
ability to complete or continue civil or criminal investigations and 
inquiries and to detect violators of civil or criminal laws. Permitting 
access to records contained in the above-listed systems of records would 
provide violators with significant information concerning the nature of 
the civil or criminal investigation or inquiry. Knowledge of the facts 
developed during an investigation or inquiry would enable violators of 
criminal and civil laws and regulations to learn the extent to which the 
investigation or inquiry has progressed, and this could provide them 
with an opportunity to destroy evidence that would form the basis for 
prosecution or the imposition of civil sanctions. In addition, knowledge 
gained through access to investigatory material could alert a violator 
to the need to temporarily postpone commission of the violation or to 
change the intended point where the violation is to be committed so as 
to avoid detection or apprehension. Further, access to investigatory 
material would disclose investigative techniques and procedures which, 
if known, could enable violators to structure their future operations in 
such a way as to avoid detection or apprehension, thereby neutralizing 
investigators' established and effective investigative tools and 
procedures. In addition, investigatory material may contain the identity 
of a confidential source of information or other informer who would not 
want his/her identity to be disclosed for reasons of personal privacy or 
for fear of reprisal at the hands of the individual about whom he/she 
supplied information. In some cases mere disclosure of the information 
provided by an informer would reveal the identity of the informer either 
through the process of elimination or by virtue of the nature of the 
information supplied. If informers cannot be assured that their 
identities (as sources for information) will remain confidential, they 
would be very reluctant in the future to provide information pertaining 
to violations of criminal and civil laws and regulations, and this would 
seriously compromise the ability of the Federal Emergency Management 
Agency to carry out its mission. Further, application of 5 U.S.C. 552a 
(d)(1), (e)(4)(H) and (f)(2), (3) and (5) to the above-listed systems of 
records would make available attorney's work product and other documents 
which contain evaluations, recommendations, and discussions of on-going 
civil and criminal legal proceedings; the availability of such documents 
could have a chilling effect on the free flow of information and ideas 
within the Federal Emergency Management Agency which is vital to the 
agency's predecisional deliberative process, could seriously prejudice 
the agency's or the Government's position in a civil or criminal 
litigation, and could result in the disclosure of investigatory material 
which should not be disclosed for the reasons stated above. It is the 
belief of the Federal Emergency Management Agency that, in both civil 
actions and criminal prosecutions, due process will assure that 
individuals have a reasonable opportunity to learn of the existence of, 
and to challenge, investigatory records and related materials which are 
to be used in legal proceedings.
    (iii) 5 U.S.C. 552a (d)(2), (3) and (4), (e)(4)(H) and (f)(4) which 
are dependent upon access having been granted to records pursuant to the 
provisions cited in paragraph (b)(2)(ii) of this section, enable 
individuals to contest (seek amendment to) the content of records 
contained in a system of rec ords and require an agency to note an 
amended record and to provide a copy of an individual's statement (of 
disagreement with the agency's refusal to amend a record) to persons or 
other agencies to whom the record has been disclosed. The Federal 
Emergency Management Agency believes that the reasons set forth in 
paragraphs (b)(2)(i)

[[Page 63]]

of this section are equally applicable to this paragraph, and, 
accordingly, those reasons are hereby incorporated herein by reference.
    (iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request; such accountings must state the date, nature, and purpose 
of each disclosure of a record and the name and address of the 
recipient. The Federal Emergency Management Agency believes that 
application of this provision to the above-listed systems of rec ords 
would impair the ability of the Federal Emergency Management Agency and 
other law enforcement agencies to conduct investigations and inquiries 
into civil and criminal violations under their respective jurisdictions. 
Making accountings available to violators would alert those individuals 
to the fact that the Federal Emergency Management Agency or another law 
enforcement authority is conducting an investigation or inquiry into 
their activities, and such accountings could reveal the geographic 
location of the investigation or inquiry, the nature and purpose of the 
investigation or inquiry and the nature of the information disclosed, 
and the date on which that investigation or inquiry was active. 
Violators possessing such knowledge would thereby be able to take 
appropriate measures to avoid detection or apprehension by altering 
their operations, transferring their activities to other locations or 
destroying or concealing evidence which would form the basis for 
prosecution or the imposition of civil sanctions.
    (v) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required to be 
accomplished by statute or executive order. The term maintain as defined 
in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.'' At the 
time that information is collected by the Federal Emergency Management 
Agency there is often insufficient time to determine whether the 
information is relevant and necessary to accomplish a purpose of the 
Federal Emergency Management Agency; in many cases information collected 
may not be immediately susceptible to a determination of whether the 
information is relevant and necessary, particularly in the early stages 
of investigation or inquiry, and in many cases information which 
initially appears to be irrelevant or unnecessary may, upon further 
evaluation or upon continuation of the investigation or inquiry, prove 
to have particular relevance to an enforcement program of the Federal 
Emergency Management Agency. Further, not all violations of law 
uncovered during a Federal Emergency Management Agency inquiry fall 
within the civil or criminal jurisdiction of the Federal Emergency 
Management Agency; in order to promote effective law enforcement, it 
often becomes necessary and desirable to disseminate information 
pertaining to such violations to other law enforcement agencies which 
have jurisdiction over the offense to which the information relates. The 
Federal Emergency Management Agency should not be placed in a position 
of having to ignore information relating to violations of law not within 
its jurisdiction when that information comes to the attention of the 
Federal Emergency Management Agency through the conduct of a lawful 
FEMAs civil or criminal investigation or inquiry. The Federal Emergency 
Management Agency therefore believes that it is appropriate to exempt 
the above-listed systems of records from the provisions of 5 U.S.C. 
552a(e)(1).
    (c) Exempt under 5 U.S.C. 552a(k)(5). The Director, Federal 
Emergency Management Agency has determined that certain systems of 
records are exempt from the requirements of (c)(3) and (d) of 5 U.S.C. 
552a.
    (1) Exempt systems. The following systems of records, which contain 
information of the type described in 5 U.S.C. 552a(k)(5), shall be 
exempted from the provisions of 5 U.S.C. 552a listed in paragraph (c) of 
this section.

Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-2)--Limited Access
Security Management Information Systems (FEMA/SEC-1)--Limited Access


[[Page 64]]


    (2) Reasons for exemptions. All information about individuals in 
these records that meet the criteria stated in 5 U.S.C. 552a(k)(5) is 
exempt from the requirements of 5 U.S.C. 552a (c)(3) and (d). These 
provisions of the Privacy Act relate to making accountings of disclosure 
available to the subject and access to and amendment of records. These 
exemptions are claimed because the system of records entitled, FEMA/SEC-
1, Security Management Information System, contains investigatory 
material compiled solely for the purpose of determining suitability, 
eligibility, or qualifications for access to classified information or 
classified Federal contracts, but only to the extent that the disclosure 
would reveal the identity of a source who furnished information to the 
Government under an express promise or, prior to September 27, 1975, 
under an implied promise that the identity of the source would be held 
in confidence. During the litigation process and investigations, it is 
possible that certain records from the system of records entitled, FEMA/
SEC-1, Security Management System may be necessary and relevant to the 
litigation or investigation and included in these systems of records. To 
the extent that this occurs, the Director, FEMA, has determined that the 
records would also be exempted from subsections (c)(3) and (d) pursuant 
to 5 U.S.C. 552a(k)(5) to protect such records. A determination will be 
made at the time of the request for a record concerning whether specific 
information would reveal the identity of a source. This exemption is 
required in order to protect the confidentiality of the sources of 
information compiled for the purpose of determining access to classified 
information. This confidentiality helps maintain the Government's 
continued access to information from persons who would otherwise refuse 
to give it.

[45 FR 64580, Sept. 30, 1980, as amended at 47 FR 54816, Dec. 6, 1982; 
52 FR 5114, Feb. 19, 1987]



PART 7_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS (FEMA REG. 5)
--Table of Contents




      Subpart A_Nondiscrimination in FEMA-Assisted Programs_General

Sec.
7.1 Purpose.
7.2 Definitions.
7.3 Application of this regulation.
7.4 Further application of this regulation.
7.5 Specific discriminatory actions prohibited.
7.6 Life, health, and safety.
7.7 Assurances required.
7.8 Elementary and secondary schools.
7.9 Assurances from institutions.
7.10 Compliance information.
7.11 Conduct of investigations.
7.12 Procedure for effecting compliance.
7.13 Hearings.
7.14 Decisions and notices.
7.15 Judicial review.
7.16 Effect on other regulations; forms and instructions.

Subparts B-D [Reserved]

     Subpart E_Nondiscrimination on the Basis of Age in Programs or 
       Activities Receiving Federal Financial Assistance From FEMA

                                 General

7.910 What is the purpose of the Age Discrimination Act of 1975?
7.911 What is the purpose of FEMA's age discrimination regulation?
7.912 To what programs or activities does this regulation apply?
7.913 Definition of terms used in this regulation.

              Standards for Determining Age Discrimination

7.920 Rules against age discrimination.
7.921 Exceptions to the rules against age discrimination: Normal 
          operation or statutory objective of any program or activity.
7.922 Exceptions to the rules against age discrimination: Reasonable 
          factors other than age.
7.923 Burden of proof for exceptions.
7.924 Affirmative action by recipient.
7.925 Special benefits for children and the elderly.
7.926 Age distinctions contained in FEMA regulations.

                        Duties of FEMA Recipients

7.930 General responsibilities.
7.931 Notice to subrecipients and beneficiaries.

[[Page 65]]

7.932 Assurance of compliance and recipient assessment of age 
          distinctions.
7.933 Information requirement.

         Investigation, Conciliation, and Enforcement Procedures

7.940 Compliance reviews.
7.941 Complaints.
7.942 Mediation.
7.943 Investigation.
7.944 Prohibition against intimidation or retaliation.
7.945 Compliance procedure.
7.946 Hearings, decisions, post-termination proceedings.
7.947 Remedial action by recipient.
7.948 Alternate funds disbursal procedure.
7.949 Exhaustion of administrative remedies.

    Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted. 
Redesignated at 45 FR 44575, July 1, 1980.



      Subpart A_Nondiscrimination in FEMA-Assisted Programs_General

    Authority: FEMA Reg. 5 issued under sec. 602, 78 Stat. 252; 42 
U.S.C. 2000 d-1; 42 U.S.C. 1855-1885g; 50 U.S.C. 404.

    Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted. 
Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 
55 FR 23078, June 6, 1990.



Sec. 7.1  Purpose.

    The purpose of this regulation is to effectuate the provisions of 
title VI of the Civil Rights Act of 1964 (hereafter referred to as the 
``Act'') to the end that no person in the United States shall, on the 
ground of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be otherwise subjected 
to discrimination under any program or activity receiving Federal 
financial assistance from the Federal Emergency Management Agency.



Sec. 7.2  Definitions.

    As used in this regulation:
    (a) The term responsible agency official with respect to any program 
receiving Federal financial assistance means the Director of the Federal 
Emergency Management Agency or other official of the agency who by law 
or by delegation has the principal responsibility within the agency for 
the administration of the law extending such assistance.
    (b) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.
    (c) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) the grant or donation of Federal property 
and interests in property, (3) the detail of Federal personnel, (4) the 
sale and lease of, and the permission to use (on other than a casual or 
transient basis), Federal property or any interest in such property 
without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (d) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (d)(1) through (4) of 
this section, any part of which is extended Federal financial 
assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or

[[Page 66]]

    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (d)(1), (2), or (3) of this section.
    (e) The term facility includes all or any portion of structure, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (f) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, including any 
successor, assign, or transferee thereof, but such term does not include 
any ultimate beneficiary.
    (g) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (h) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible agency 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]



Sec. 7.3  Application of this regulation.

    No person in the United States shall, on the ground of race, color, 
or national origin, be excluded from participation in, be denied the 
benefits of, or be otherwise subjected to discrimination under any 
program to which this regulation applies.

[68 FR 51379, Aug. 26, 2003]



Sec. 7.4  Further application of this regulation.

    This regulation applies to any program for which Federal financial 
assistance is authorized under a law administered by the Federal 
Emergency Management Agency. It applies to money paid, property 
transferred, or other Federal financial assistance extended after the 
effective date of the regulation pursuant to an application approved 
prior to such effective date. This regulation does not apply to (a) any 
Federal financial assistance by way of insurance or guaranty contracts, 
(b) money paid, property transferred, or other assistance extended 
before the effective date of this regulation, (c) any assistance to any 
individual who is the ultimate beneficiary, or (d) any employment 
practice, under such program, of any employer, employment agency, or 
labor organization.

(Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, as 
amended at 48 FR 44543, Sept. 29, 1983; 68 FR 51379, Aug. 26, 2003]



Sec. 7.5  Specific discriminatory actions prohibited.

    (a) A recipient to which this regulation applies may not, directly 
or through contractual or other arrangements, on ground of race, color, 
or national origin:
    (1) Deny any individual any service, financial aid, or other benefit 
provided under the program;
    (2) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (5) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment,

[[Page 67]]

quota, eligibility, membership or other requirement or condition which 
individuals must meet in order to be provided any service, financial 
aid, or other benefit provided under the program;
    (6) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program.
    (b) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respect individuals 
of a particular race, color, or national origin.
    (c) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (d) The enumeration of specific forms of prohibited discrimination 
in this section does not limit the generality of the prohibition in 
section 4.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]



Sec. 7.6  Life, health, and safety.

    Notwithstanding the provisions of section 5, a recipient of Federal 
financial assistance shall not be deemed to have failed to comply with 
section 3, if immediate provision of a service or other benefit to an 
individual is necessary to prevent his death or serious impairment of 
his health or safety.



Sec. 7.7  Assurances required.

    Every application for Federal financial assistance to which this 
regulation applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this regulation. In the case of 
an application for Federal financial assistance to provide real property 
or structures thereon, the assurance shall obligate the recipient, or, 
in the case of a subsequent transfer, the transferee, for the period 
during which the real property or structures are used for a purpose for 
which the Federal financial assistance is extended or for another 
purpose involving the provision of similar services or benefits. In the 
case of personal property the assurance shall obligate the recipient for 
the period during which he retains ownership or possession of the 
property. In all other cases the assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended 
pursuant to the application. The responsible agency official shall 
specify the form of the foregoing assurances and the extent to which 
like assurances will be required of subgrantee, contractors and 
subcontractors, transferees, successors in interest, and other 
participants. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]



Sec. 7.8  Elementary and secondary schools.

    The requirements of section 7 with respect to any elementary or 
secondary school or school system shall be deemed to be satisfied if 
such school or school system (a) is subject to a final order of a court 
of the United States for the desegregation of such school or school 
system, and provides an assurance that it will comply with such

[[Page 68]]

order, including any future modification of such order, or (b) submits a 
plan for the desegregation of such school or school system which the 
United States Commissioner of Education determines is adequate to 
accomplish the purpose of the Act and this regulation, and provides 
reasonable assurance that it will carry out such plans; in any case of 
continuing Federal financial assistance the responsible agency official 
may reserve the right to redetermine, after such period as may be 
specified by him, the adequacy of the plan to accomplish the purposes of 
the Act and this regulation. In any case to which a final order of a 
court of the United States for the desegregation of such school or 
school system is entered after submission of such a plan, such plan 
shall be revised to conform to such final order, including any future 
modification of such order.



Sec. 7.9  Assurances from institutions.

    (a) In the case of any application for Federal financial assistance 
to an institution of higher education, the assurance required by section 
7 shall extend to admission practices and to all other practices 
relating to the treatment of students.
    (b) The assurances required with respect to an institution of higher 
education, hospital, or any other institution, insofar as the assurance 
relates to the institution's practices with respect to admission or 
other treatment of individuals as students, patients, or clients of the 
institutions or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]



Sec. 7.10  Compliance information.

    (a) Cooperation and assistance. The responsible official in the 
Federal Emergency Management Agency shall to the fullest extent 
practicable seek the cooperation of recipients in obtaining compliance 
with this regulation and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this regulation.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible agency official or his designee timely, 
complete, and accurate compliance reports at such times, and in such 
form and containing such information, as the responsible agency official 
or his designee may determine to be necessary to enable him to ascertain 
whether the recipient has complied or is complying with this regulation. 
In the case in which a primary recipient extends Federal financial 
assistance to any other recipient, such other recipient shall also 
submit such compliance reports to the primary recipient as may be 
necessary to enable the primary recipient to carry out its obligations 
under this regulation.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible agency official or his designee during normal 
business hours to such of its books, records, accounts, and other 
sources of information, and its facilities as may be pertinent to 
ascertain compliance with this regulation. Where any information 
required of a recipient is in the exclusive possession of any other 
agency, institution or person and this agency, institution or person 
shall fail or refuse to furnish this information, the recipient shall so 
certify in its report and shall set forth what efforts it has made to 
obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
regulation and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible agency official 
finds necessary to apprise such persons of the protection against 
discrimination assured them by the Act and this regulation.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]



Sec. 7.11  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible agency official or 
his designee shall from time to time review

[[Page 69]]

the practices of recipients to determine whether they are complying with 
this regulation.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this regulation may by himself or by a representative file a written 
complaint with the National Headquarters or any Regional Office of the 
Federal Emergency Management Agency. A complaint must be filed not later 
than 180 days from the date of the alleged discrimination, unless the 
time for filing is extended by the responsible agency official or his 
designee.
    (c) Investigations. The responsible agency official or his designee 
will make a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with this regulation. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this regulation occurred, and other factors relevant to a determination 
as to whether the recipient has failed to comply with this regulation.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
regulation, the responsible agency official or his designee will so 
inform the recipient and the matter will be resolved by informal means 
whenever possible. If it has been determined that the matter cannot be 
resolved by informal means, action will be taken as provided for in 
section 12.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible agency official or his 
designee will so inform the recipient and the complainant, if any, in 
writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this regulation, or 
because he has made a complaint, testified, assisted, or participated in 
any manner in an investigation, proceeding, or hearing under this 
regulation. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of this 
regulation, including the conduct of any investigation, hearing, or 
judicial proceeding arising thereunder.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990, as amended at 64 FR 
38309, July 16, 1999]



Sec. 7.12  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this regulation, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this regulation may be effected by the suspension or termination of or 
refusal to grant or to continue Federal financial assistance or by any 
other means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under state 
or local law.
    (b) Noncompliance with section 7. If an applicant fails or refuses 
to furnish an assurance required under section 7 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The agency shall not be 
required to provide assistance in such a case during the pendency of the 
administrative proceedings under such paragraph except that the agency 
shall continue assistance during the pendency of such proceedings where 
such assistance is due and payable pursuant to an application thereof 
approved prior to the effective date of this regulation.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating or

[[Page 70]]

refusing to grant or continue Federal financial assistance shall become 
effective until (1) the responsible agency official has advised the 
applicant or recipient of his failure to comply and has determined that 
compliance cannot be secured by voluntary means, (2) there has been an 
express finding on the record, after opportunity for hearing, of a 
failure by the applicant or recipient to comply with a requirement 
imposed by or pursuant to this regulation, (3) the action has been 
approved by the Director of the Federal Emergency Management Agency 
pursuant to section 14, and (4) the expiration of 30 days after the 
Director has filed with the committee of the House and the committee of 
the Senate having legislative jurisdiction over the program involved, a 
full written report of the circumstances and the grounds for such 
action. Any action to suspend or terminate or to refuse to grant or to 
continue Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible agency official has determined that compliance cannot be 
secured by voluntary means, (2) the action has been approved by the 
Director of the Federal Emergency Management Agency, (3) the recipient 
or other person has been notified of its failure to comply and of the 
action to be taken to effect compliance, and (4) the expiration of at 
least 10 days from the mailing of such notice to the recipient or other 
person. During this period of at least 10 days additional efforts shall 
be made to persuade the recipient or other person to comply with the 
regulation and to take such corrective action as may be appropriate.



Sec. 7.13  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by section 12(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the responsible 
agency official that the matter be scheduled for hearing or (2) advise 
the applicant or recipient that the matter in question has been set down 
for hearing at a stated place and time. The time and place so fixed 
shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this subsection or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
section 12(c) of this regulation and consent to the making of a decision 
on the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the 
National Headquarters of the Federal Emergency Management Agency in 
Washington, DC, at a time fixed by the responsible agency official 
unless he determines that the convenience of the applicant or recipient 
or of the agency requires that another place be selected. Hearings shall 
be held before the responsible agency official or, at his discretion, 
before a hearing examiner designated in accordance with section 11 of 
the Administrative Procedure Act.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the agency shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
sections 5-8 of the Administrative Procedure Act, and in accordance with 
such rules of

[[Page 71]]

procedure as are proper (and not inconsistent with this section) 
relating to the conduct of the hearing, giving of notices subsequent to 
those provided for in paragraph (a) of this section, taking of 
testimony, exhibits, arguments and briefs, requests for findings, and 
other related matters. Both the agency and the applicant or recipient 
shall be entitled to introduce all relevant evidence on the issues as 
stated in the notice for hearing or as determined by the officer 
conducting the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this regulation, but rules or principles designed 
to assure production of the most credible evidence available and to 
subject testimony to test by cross-examination shall be applied where 
reasonably necessary by the officer conducting the hearing. The hearing 
officer may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record shall be open to examination by the parties and opportunity shall 
be given to refute facts and arguments advanced on either side of the 
issues. A transcript shall be made of the oral evidence except to the 
extent the substance thereof is stipulated for the record. All decisions 
shall be based upon the hearing record and written findings shall be 
made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this 
regulation with respect to two or more Federal statutes, authorities, or 
other means by which Federal financial assistance is extended and to 
which this regulation applies, or noncompliance with this regulation and 
the regulations of one or more other Federal departments or agencies 
issued under title VI of the Act, the Director of the Federal Emergency 
Management Agency may, by agreement with such other departments or 
agencies where applicable, provide for the conduct of consolidated or 
joint hearings, and for the application to such hearings of rules of 
procedures not inconsistent with this regulation. Final decisions in 
such cases, insofar as this regulation is concerned, shall be made in 
accordance with section 14.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]



Sec. 7.14  Decisions and notices.

    (a) Decision by person other than the responsible agency official. 
If the hearing is held by a hearing examiner such hearing examiner shall 
either make an initial decision, if so authorized, or certify the entire 
record including his recommended findings and proposed decision to the 
responsible agency official for a final decision, and a copy of such 
initial decision or certification shall be mailed to the applicant or 
recipient. Where the initial decision is made by the hearing examiner 
the applicant or recipient may within 30 days of the mailing of such 
notice of initial decision file with the responsible agency official his 
exceptions to the initial decision, with his reasons therefor. In the 
absence of exceptions, the responsible agency official may on his own 
motion within 45 days after the initial decision serve on the applicant 
or recipient a notice that he will review the decision. Upon the filing 
of such exceptions or of such notice of review the responsible agency 
official shall review the initial decision and issue his own decision 
thereon including the reasons therefor. In the absence of either 
exceptions or a notice of review the initial decision shall constitute 
the final decision of the responsible agency official.
    (b) Decisions on record or review by the responsible agency 
official. Whenever a record is certified to the responsible agency 
official for decision or he reviews the decision of a hearing examiner 
pursuant to paragraph (a) of this section, or whenever he conducts the 
hearing, the applicant or recipient shall be given reasonable 
opportunity to file with him briefs or other written statements of its 
contentions, and a copy of his final decision shall be given in writing 
to the applicant or recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to section 13(a) a decision

[[Page 72]]

shall be made by the responsible agency official on the record and a 
copy of such decision shall be given in writing to the applicant or 
recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
responsible agency official shall set forth his ruling on each finding, 
conclusion, or exception presented, and shall identify the requirement 
or requirements imposed by or pursuant to this regulation with which it 
is found that the applicant or recipient has failed to comply.
    (e) Approval by Director. Any final decision of a responsible agency 
official (other than the Director of the agency) which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this regulation or the Act, shall promptly be 
transmitted to the Director of the Federal Emergency Management Agency 
who may approve such decision, may vacate it, or remit or mitigate any 
sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
regulation, including provisions designed to assure that no Federal 
financial assistance to which this regulation applies will thereafter be 
extended to the applicant or recipient determined by such decision to be 
in default in its performance of an assurance given by it pursuant to 
this regulation, or to have otherwise failed to comply with this 
regulation, unless and until it corrects its noncompliance and satisfies 
the Director of the Federal Emergency Management Agency that it will 
fully comply with this regulation.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]



Sec. 7.15  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 7.16  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Federal Emergency 
Management Agency which impose requirements designed to prohibit any 
discrimination against individuals on the ground of race, color, or 
national origin under any program to which this regulation applies, and 
which authorize the suspension or termination of or refusal to grant or 
to continue Federal financial assistance to any applicant for or 
recipient of such assistance for failure to comply with such 
requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this regulation, except that nothing in 
this regulation shall be deemed to relieve any person of any obligation 
assumed or imposed under any such superseded regulation, order, 
instruction, or like direction prior to the effective date of this 
regulation. Nothing in this regulation, however, shall be deemed to 
supersede Executive Orders 10925 and 11114 (including future amendments 
thereof) and regulations issued thereunder, or any other regulations or 
instructions, insofar as such regulations or instructions prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this regulation is inapplicable, or 
prohibit discrimination on any other ground.
    (b) Forms and instructions. Each responsible agency official shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this regulation as 
applied to programs to which this regulation applies and for which he is 
responsible.
    (c) Supervision and coordination. The Director of the Federal 
Emergency Management Agency may from time to time assign to officials of 
other departments or agencies of the Government with the consent of such 
departments

[[Page 73]]

or agencies, responsibilities in connection with the effectuation of the 
purposes of title VI of the Act and this regulation (other than 
responsibility for final decision as provided in section 14), including 
the achievement of effective coordination and maximum uniformity within 
the agency and within the Executive Branch of the Government in the 
application of title VI and this regulation to similar programs and in 
similar situations.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 
2003]

Subparts B-D [Reserved]



     Subpart E_Nondiscrimination on the Basis of Age in Programs or 
       Activities Receiving Federal Financial Assistance From FEMA

    Authority: Age Discrimination Act of 1975, as amended (42 U.S.C. 
6101 et seq.); 45 CFR part 90.

    Source: 55 FR 23078, June 6, 1990, unless otherwise noted.

                                 General



Sec. 7.910  What is the purpose of the Age Discrimination Act of 1975?

    The Age Discrimination Act of 1975 (the ``Act''), as amended, is 
designed to prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act also permits 
federally-assisted programs or activities, and recipients of Federal 
funds, to continue to use certain age distinctions and factors other 
than age which meet the requirements of the Act and this regulation.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.911  What is the purpose of FEMA's age discrimination regulation?

    The purpose of this regulation is to set out FEMA's policies and 
procedures under the Age Discrimination Act of 1975 and the general 
governmentwide regulations, 45 CFR part 90. The Act and the general 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
general regulations permit federally-assisted programs or activities, 
and recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.912  To what programs or activities does this regulation apply?

    (a) The Act and this regulation apply to each FEMA recipient and to 
each program or activity operated by the recipient which receives 
Federal financial assistance provided by FEMA.
    (b) The Act and this regulation do not apply to:
    (1) An age distinction contained in that part of a Federal, State or 
local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment under the Job 
Training Partnership Act (29 U.S.C. 150, et seq.)

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.913  Definition of terms used in this regulation.

    As used in this regulation, the term Act means the Age 
Discrimination Act of 1975 as amended (title III of Pub. L. 94-135).
    Action means any act, activity, policy, rule, standard, or method of 
administration; or the use of any policy, rule, standard or method of 
administration.
    Age means how old a person is, or the number of years from the date 
of a person's birth.

[[Page 74]]

    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, children, older persons, 
but not student).
    Agency means the Federal Emergency Management Agency.
    Director means the Director of the Federal Emergency Management 
Agency.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the agency provides or otherwise makes available assistance in the form 
of:
    (a) Funds; or
    (b) Services or Federal personnel; or
    (c) Real and personal property or any interest in or use of 
property, including:
    (1) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (2) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government.
    Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objective.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this definition, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, institution, 
organization, or other entity, or any person to which Federal financial 
assistance is extended, directly or through another recipient. Recipient 
includes any successor, assignee, or transferee, but excludes the 
ultimate beneficiary of the assistance.
    Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute or local statute 
or ordinance adopted by an elected, general purpose legislative body.
    Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    United States includes the States of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, 
Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands 
and all other territories and possessions of the

[[Page 75]]

United States. The term ``State'' also includes any one of the 
foregoing.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]

              Standards for Determining Age Discrimination



Sec. 7.920  Rules against discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. Sec. 7.921 and 7.922 of these regulations.
    (a) General rule: No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules: A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance. The specific forms of age discrimination listed in paragraph 
(b) of this section do not necessarily constitute a complete list.



Sec. 7.921  Exceptions to the rules against age discrimination: Normal 
operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. 7.920, if the action reasonably takes into account age as a factor 
necessary to the normal operation of the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.



Sec. 7.922  Exceptions to the rules against age discrimination: Reasonable 
factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 7.920 which is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages 
only if the factor bears a direct and substantial relationship to the 
normal operation of the program or activity or to the achievement of a 
statutory objective.



Sec. 7.923  Burden of proof for exceptions.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec. 7.921 and 7.922 is on the 
recipient of Federal financial assistance.



Sec. 7.924  Affirmative action by recipient.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in the limited participation in the recipient's program or 
activity on the basis of age.



Sec. 7.925  Special benefits for children and the elderly.

    If a recipient operating a program or activity provides special 
benefits to the elderly or to children, such use of age distinctions 
shall be presumed to be necessary to the normal operation of the program 
or activity, notwithstanding the provisions of Sec. 7.921.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.926  Age distinctions contained in FEMA regulations.

    Any age distinctions contained in a rule or regulation issued by 
FEMA shall be presumed to be necessary to the achievement of a statutory 
objective of the program or activity to

[[Page 76]]

which the rule or regulation applies, notwithstanding the provisions of 
Sec. 7.921.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]

                        Duties of FEMA Recipients



Sec. 7.930  General responsibilities.

    Each FEMA recipient has primary responsibility to ensure that its 
programs or activities are in compliance with the Act and this 
regulation, and shall take steps to eliminate violations of the Act. A 
recipient also has responsibility to maintain records, provide 
information, and to afford FEMA access to its records to the extent FEMA 
finds necessary to determine whether the recipient is in compliance with 
the Act and this regulation.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.931  Notice to subrecipients and beneficiaries.

    (a) Where a recipient passes on Federal financial assistance from 
FEMA to subrecipients, the recipient shall provide the subrecipients 
written notice of their obligations under the Act and this regulation.
    (b) Each recipient shall make necessary information about the Act 
and this regulation available to its beneficiaries in order to inform 
them about the protection against discrimination provided by the Act and 
this regulation.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.932  Assurance of compliance and recipient assessment of age 
distinctions.

    (a) Each recipient of Federal financial assistance from FEMA shall 
sign a written assurance as specified by FEMA that it will comply with 
Act and this regulation.
    (b) Recipient assessment of age distinctions. (1) As part of the 
compliance review under Sec. 7.940 or complaint investigation under 
Sec. 7.943, FEMA may require a recipient employing the equivalent of 
fifteen or more employees to complete written evaluation, in a manner 
specified by the responsible Agency official, of any age distinction 
imposed in its program or activity receiving Federal financial 
assistance from FEMA to assess the recipient's compliance with the Act.
    (2) Whenever an assessment indicates a violation of the Act and the 
FEMA regulations, the recipient shall take corrective action.



Sec. 7.933  Information requirement.

    Each recipient shall:
    (a) Keep records in a form acceptable to FEMA and containing 
information which FEMA determines are necessary to ascertain whether the 
recipient is complying with the Act and this regulation.
    (b) Provide to FEMA, upon request, information and reports which 
FEMA determines are necessary to ascertain whether the recipient is 
complying with the Act and this regulation.
    (c) Permit FEMA reasonable access to the books, records, accounts, 
and other recipient facilities and sources of information to the extent 
FEMA determines is necessary to ascertain whether the recipient is 
complying with the Act and this regulation.

         Investigation, Conciliation, and Enforcement Procedures



Sec. 7.940  Compliance reviews.

    (a) FEMA may conduct compliance reviews and preaward reviews or use 
other similar procedures that will permit it to investigate and correct 
violations of the Act and this regulation. FEMA may conduct these 
reviews even in the absence of a complaint against a recipient. The 
reviews may be as comprehensive as necessary to determine whether a 
violation of the Act and this regulation has occurred.
    (b) If a compliance review or preaward review indicates a violation 
of the Act or this regulation, FEMA will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, 
FEMA will arrange for enforcement as described in Sec. 7.945.



Sec. 7.941  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with FEMA,

[[Page 77]]

alleging discrimination prohibited by the Act or these regulations 
occurring after the date of final adoption of this rule. A complainant 
shall file a complaint within 180 days from the date the complainant 
first had knowledge of the alleged act of discrimination. However, for 
good cause showing, FEMA may extend this time limit.
    (b) FEMA will consider the date a complaint is filed to be the date 
upon which the complaint is sufficient to be processed. A complaint is 
deemed ``sufficient'' when it contains particulars (e.g., names, 
addresses, and telephone numbers of parties involved; date(s) of alleged 
discrimination; kind(s) of alleged discrimination) upon which to begin 
an investigation.
    (c) FEMA will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures:
    (1) Accepting as a sufficient complaint any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact FEMA for information and 
assistance regarding the complaint resolution process.
    (d) FEMA will return to the complainant any complaint outside the 
jurisdiction of this regulation, and will state the reason(s) why it is 
outside the jurisdiction of this regulation.



Sec. 7.942  Mediation.

    (a) FEMA will promptly refer to a mediation agency designated by the 
Director all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and this regulation, 
unless the age distinction complained of is clearly within an exception; 
and,
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or for 
the mediator to make an informed judgment that an agreement is not 
possible.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to FEMA. FEMA will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with FEMA. Mediation ends if:
    (1) Sixty days elapse from the time the complaint is filed; or
    (2) Prior to the end of that 60 day period, an agreement is reached; 
or
    (3) Prior to the end of that 60 day period, the mediator determines 
that an agreement cannot be reached. This 60 day period may be extended 
by the mediator, with the concurrence of FEMA, for not more than 30 days 
if the mediator determines agreement will likely be reached during such 
extended period.
    (f) The mediator shall return unresolved complaints to FEMA.



Sec. 7.943  Investigation.

    (a) Informal investigation. (1) FEMA will investigate complaints 
that are unresolved after mediation or are reopened because of a 
violation of a mediation agreement.
    (2) As part of the initial investigation, FEMA will use informal 
fact finding methods, including joint or separate discussion with the 
complainant

[[Page 78]]

and recipient, to establish the facts and, if possible, settle the 
complaint on terms that are mutually agreeable to the parties. FEMA may 
seek the assistance of any involved state agency.
    (3) FEMA will put any agreement in writing and have it signed by the 
parties and an authorized official at FEMA.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of FEMA, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If FEMA cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of this regulation, FEMA will attempt to obtain 
voluntary compliance, it will begin enforcement as described in Sec. 
7.945.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.944  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or this 
regulation; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of FEMA's investigation, conciliation and enforcement process.



Sec. 7.945  Compliance procedure.

    (a) FEMA may enforce the Act and this regulation through:
    (1) Termination of a recipient's Federal financial assistance from 
FEMA under the program or activity involved where the recipient has 
violated the Act or this regulation. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or this regulation.
    (ii) Use of any requirement of or referral to any Federal, State or 
local government agency that will have the effect of correcting a 
violation of the Act or this regulation.
    (b) FEMA will limit any termination under Sec. 7.945(a)(1) to the 
particular recipient and particular program or activity or part of such 
program or activity FEMA finds in violation of this regulation. FEMA 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient which does not receive Federal 
financial assistance from FEMA.
    (c) FEMA will take no action under paragraph (a) until:
    (1) The Director has advised the recipient of its failure to comply 
with the Act and this regulation and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have elapsed after the Director has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the program or 
activity involved. The Director will file a report whenever any action 
is taken under paragraph (a).
    (d) FEMA also may defer granting new Federal financial assistance 
from FEMA to a recipient when a hearing under Sec. 7.945(a)(1) is 
initiated.
    (1) New Federal financial assistance from FEMA includes all 
assistance for which FEMA requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from FEMA does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec. 7.945(a)(1).
    (2) FEMA will not begin a deferral until the recipient has received 
a notice of an opportunity for a hearing under Sec. 7.945(a)(1). FEMA 
will not continue a deferral for more than 60 days unless a hearing has 
begun within that time or the time for beginning the hearing has been 
extended by mutual consent of the recipient for more than

[[Page 79]]

30 days after the close of the hearing, unless the hearing results in a 
finding against the recipient.
    (3) FEMA will limit any deferral to the particular recipient and 
particular program or activity or part of such program or activity FEMA 
finds in violation of this regulation. FEMA will not base any part of a 
deferral on a finding with respect to any program or activity of the 
recipient which does not and would not, in connection with new funds, 
receive Federal financial assistance from FEMA.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.946  Hearings, decisions, post-termination proceedings.

    Certain FEMA procedural provisions applicable to title VI of the 
Civil Rights Act of 1964 apply to FEMA enforcement of this regulation. 
They are found at 44 CFR 7.10 through 7.16.



Sec. 7.947  Remedial action by recipient.

    Where FEMA finds a recipient has discriminated on the basis of age, 
the recipient shall take any remedial action that FEMA may require to 
overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that had discriminated, FEMA may 
require both recipients to take remedial action.



Sec. 7.948  Alternate funds disbursal procedure.

    (a) When FEMA withholds funds from recipient under this regulation, 
the Director may, if allowable under the statute governing the 
assistance, disburse the withheld funds directly to an alternate 
recipient: Any public or nonprofit private organization or agency, or 
State or political subdivision of the State.
    (b) The Director will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with this regulation; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.

[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 7.949  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and FEMA had made no finding with regard to the complaint; or
    (2) FEMA issues any finding in favor of the recipient.
    (b) If FEMA fails to make a finding within 180 days or issues a 
finding in favor of the recipient, FEMA shall:
    (1) Promptly advise the complainant in writing of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant:
    (i) That the complainant may bring a civil action only in a United 
States District Court for the district in which the recipient is located 
or transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fees, but that the complainant must demand these costs in the complaint 
at the time it is filed.
    (iii) That before commencing the action, the complainant shall give 
30 days notice by registered mail to the Director, the Attorney General 
of the United States, and the recipient;
    (iv) That the notice must state: The alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing the 
action; and whether or not attorney's fees are demanded in the event the 
complainant prevails; and
    (v) That the complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court (Federal or State) of the United States.



PART 8_NATIONAL SECURITY INFORMATION--Table of Contents




Sec.
8.1 Purpose.
8.2 Original classification authority.

[[Page 80]]

8.3 Senior FEMA official responsible for the information security 
          program.
8.4 Mandatory declassification review procedures.

    Authority: Reorganization Plan No. 3 of 1978, E.O. 12148 and E.O. 
12356.



Sec. 8.1  Purpose.

    (a) Section 5.3(b) of Executive Order (EO) 12356, ``National 
Security Information'' requires agencies to promulgate implementing 
policies and regulations. To the extent that these regulations affect 
members of the public, these policies are to be published in the Federal 
Register.
    (b) This regulation provides public notification of the FEMA 
procedures for processing requests for the mandatory review of 
classified information pursuant to section 3.4(d) of E.O. 12356.

[49 FR 24518, June 14, 1984, as amended at 49 FR 38119, Sept. 27, 1984; 
50 FR 40006, Oct. 1, 1985]



Sec. 8.2  Original classification authority.

    (a) The Director, Federal Emergency Management Agency (FEMA), has 
the authority to classify information originally as TOP SECRET, as 
designated by the President in the Federal Register, Vol 47, No. 91, May 
11, 1982, in accordance with section 1.2(a)(2), E.O. 12356.
    (b) In accordance with section 1.2(d)(2), E.O. 12356, the following 
positions have been delegated ORIGINAL TOP SECRET CLASSIFICATION 
AUTHORITY by the Director, FEMA:
    (1) Deputy Director, FEMA
    (2) Associate Director, National Preparedness Directorate
    (3) Director, Office of Security
    (c) The positions delegated original Top Secret Classification 
Authority in paragraph (b) of this section, are also delegated Original 
Secret and Confidential Classification Authority by virtue of this 
delegation. The following positions have been delegated Original Secret 
and Original Confidential Classification Authority:
    (1) Associate Director, State and Local Programs and Support.
    (2) Regional Directors.

Any further delegation of original classification authority, for any 
classification level, will be accomplished only by the Director of the 
Federal Emergency Management Agency.
    (d) The positions delegated ORIGINAL TOP SECRET CLASSIFICATION 
AUTHORITY in paragraph (b) of this section, are also delegated ORIGINAL 
SECRET and CONFIDENTIAL CLASSIFICATION AUTHORITY by virtue of this 
delegation. The positions delegated ORIGINAL SECRET CLASSIFICATION 
AUTHORITY in paragraph (c) of this section, are also delegated ORIGINAL 
CONFIDENTIAL CLASSIFICATION AUTHORITY by virtue of this delegation. Any 
further delegation of original classification authority, for any 
classification level, will be accomplished only by the Director of FEMA.

[49 FR 24518, June 14, 1984 as amended at 51 FR 34605, Sept. 30, 1986; 
53 FR 47210, Nov. 22, 1989; 56 FR 32328, July 16, 1991]



Sec. 8.3  Senior FEMA official responsible for the information security 
program.

    The Director of Security, FEMA, has been designated as the senior 
official to direct and administer the FEMA information security program, 
in accordance with section 5.3(a), E.O. 12356.

[49 FR 24518, June 14, 1984]



Sec. 8.4  Mandatory declassification review procedures.

    (a) All information classified by FEMA under E.O. 12356 or 
predecessor orders shall be subject to a review for declassification if 
such a review is requested by a United States citizen or permanent 
resident alien, a Federal agency or a State or local government.
    (b) Requests for declassification review shall be submitted to the 
Office of Security, Federal Emergency Management Agency, Washington, DC 
20472. All requests shall be in writing and reasonably describe the 
information sought with sufficient clarity to enable the appropriate 
FEMA component to identify the information sought. Any requests that do 
not sufficiently identify the information sought shall be returned to 
the requestor and he or she shall be asked to clarify the request and/or 
provide additional information.

[[Page 81]]

    (c) If within 30 days the requestor does not respond to the agency's 
request for clarification or additional information, the FEMA Office of 
Security shall notify the requestor that no further action can be taken 
on the request. If the requestor's response to the agency's request for 
clarification and/or additional information is inadequate, the Office of 
Security shall notify him or her that no further action will be taken 
until such time as the agency is provided with adequate information 
concerning the request. In addition, the agency's response will set 
forth the agency's explanation of the deficiencies of the request.
    (d) Once a request meets the foregoing requirements for processing, 
it will be acted upon as follows:
    (1) Receipt of all requests shall be acknowledged within ten (10) 
working days.
    (2) FEMA action upon a request shall be completed within sixty (60) 
calendar days.
    (e) The Director of Security shall designate a FEMA component to 
conduct the declassification review. This will normally be the 
originating component. The designated program or staff office shall 
conduct the review and forward its recommendation(s) to the Office of 
Security. Information no longer requiring protection under E.O. 12356 
shall be declassified and released unless withholding is otherwise 
authorized under applicable law. When information cannot be declassified 
in its entirety, FEMA will make a reasonable effort to release those 
declassified portions of the requested information that constitute a 
coherent segment. If the information may not be released in whole or 
part, the requestor shall be given a brief statement as to the reason 
for the denial, a notice of the right to appeal the determination to the 
Director of FEMA and a notice that such an appeal must be filed within 
sixty (60) calendar days to be considered.
    (f) If the request requires the rendering of services for which fees 
may be charged under 31 U.S.C. 9701, such fees may be imposed in 
accordance with the provisions of 44 CFR part 5, subpart C.
    (g) The following procedures shall be followed when denials of 
requests for declassification are appealed:
    (1) The Director shall, within fifteen (15) working days of receipt 
of the appeal, convene a meeting of the FEMA Information Security 
Oversight Committee (ISOC). Representation on the FEMA ISOC shall 
include the Director of Security or his/her representative, a 
representative of the component that denied the original request, a 
representative from the Office of General Counsel, a representative from 
the Office of External Affairs and the Chief of Staff or his/her 
representative.
    (2) If the ISOC upholds the appeal in its entirety, the information 
will be released in accordance with the provisions of paragraph (e) of 
this section.
    (3) If the ISOC denies the appeal, in part or in its entirety, then 
it will forward the appeal with its recommendation(s) to the Director of 
FEMA, for a final determination. A reply will be forwarded to the 
requestor enclosing the declassified releasable information if any, and 
an explanation for denying the request in whole or in part.
    (4) Final action on appeals shall be completed within thirty (30) 
working days of receipt of appeal.

[49 FR 24518, June 14, 1984, as amended at 49 FR 38119, Sept. 27, 1984; 
50 FR 40006, Oct. 1, 1985; 51 FR 34605, Sept. 30, 1986]



PART 9_FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS--Table of Contents




Sec.
9.1 Purpose of part.
9.2 Policy.
9.3 Authority.
9.4 Definitions.
9.5 Scope.
9.6 Decision-making process.
9.7 Determination of proposed action's location.
9.8 Public notice requirements.
9.9 Analysis and reevaluation of practicable alternatives.
9.10 Identify impacts of proposed actions.
9.11 Mitigation.
9.12 Final public notice.
9.13 Particular types of temporary housing.
9.14 Disposal of Agency property.
9.15 Planning programs affecting land use.
9.16 Guidance for applicants.
9.17 Instructions to applicants.
9.18 Responsibilities.

Appendix A to Part 9--Decision-Making Process for E.O. 11988


[[Page 82]]


    Authority: E.O. 11988 of May 24, 1977. 3 CFR, 1977 Comp., p. 117; 
E.O. 11990 of May 24 1977, 3 CFR, 1977 Comp. p. 121; Reorganization Plan 
No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of 
March 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148 of 
July 20, 1979, 44 FR 43239, 3 CFR, 1979 Comp., p. 412, as amended.; E.O. 
12127; E.O. 12148; 42 U.S.C. 5201.

    Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.



Sec. 9.1  Purpose of part.

    This regulation sets forth the policy, procedure and 
responsibilities to implement and enforce Executive Order 11988, 
Floodplain Management, and Executive Order 11990, Protection of 
Wetlands.



Sec. 9.2  Policy.

    (a) FEMA shall take no action unless and until the requirements of 
this regulation are complied with.
    (b) It is the policy of the Agency to provide leadership in 
floodplain management and the protection of wetlands. Further, the 
Agency shall integrate the goals of the Orders to the greatest possible 
degree into its procedures for implementing NEPA. The Agency shall take 
action to:
    (1) Avoid long- and short-term adverse impacts associated with the 
occupancy and modification of floodplains and the destruction and 
modification of wetlands;
    (2) Avoid direct and indirect support of floodplain development and 
new construction in wetlands wherever there is a practicable 
alternative;
    (3) Reduce the risk of flood loss;
    (4) Promote the use of nonstructural flood protection methods to 
reduce the risk of flood loss;
    (5) Minimize the impact of floods on human health, safety and 
welfare;
    (6) Minimize the destruction, loss or degradation of wetlands;
    (7) Restore and preserve the natural and beneficial values served by 
floodplains;
    (8) Preserve and enhance the natural values of wetlands;
    (9) Involve the public throughout the floodplain management and 
wetlands protection decision-making process;
    (10) Adhere to the objectives of the Unified National Program for 
Floodplain Management; and
    (11) Improve and coordinate the Agency's plans, programs, functions 
and resources so that the Nation may attain the widest range of 
beneficial uses of the environment without degradation or risk to health 
and safety.



Sec. 9.3  Authority.

    The authority for these regulations is (a) Executive Order 11988, 
May 24, 1977, which replaced Executive Order 11296, August 10, 1966, (b) 
Executive Order 11990, May 24, 1977, (c) Reorganization Plan No. 3 of 
1978 (43 FR 41943); and (d) Executive Order 12127, April 1, 1979 (44 FR 
1936). E.O. 11988 was issued in furtherance of the National Flood 
Insurance Act of 1968, as amended (Pub. L. 90-488); the Flood Disaster 
Protection Act of 1973, as amended (Pub. L. 93-234); and the National 
Environmental Policy Act of 1969 (NEPA) (Pub. L. 91-190). Section 2(d) 
of Executive Order 11988 requires issuance of new or amended regulations 
and procedures to satisfy its substantive and procedural provisions. 
E.O. 11990 was issued in furtherance of NEPA, and at section 6 required 
issuance of new or amended regulations and procedures to satisfy its 
substantive and procedural provisions.

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 44543, Sept. 29, 1983]



Sec. 9.4  Definitions.

    The following definitions shall apply throughout this regulation.
    Action means any action or activity including: (a) Acquiring, 
managing and disposing of Federal lands and facilities; (b) providing 
federally undertaken, financed or assisted construction and 
improvements; and (c) conducting Federal activities and programs 
affecting land use, including, but not limited to, water and related 
land resources, planning, regulating and licensing activities.
    Actions Affecting or Affected by Floodplains or Wetlands means 
actions which have the potential to result in the long- or short-term 
impacts associated with (a) the occupancy or modification of 
floodplains, and the direct or indirect support of floodplain 
development, or (b) the destruction and modification of wetlands and the 
direct or indirect support of new construction in wetlands.

[[Page 83]]

    Agency means the Federal Emergency Management Agency (FEMA).
    Agency Assistance means grants for projects or planning activities, 
loans, and all other forms of financial or technical assistance provided 
by the Agency.
    Associate Director means the head of any Office or Administration of 
the Federal Emergency Management Agency, who has programmatic 
responsibility for a particular action.
    Base Flood means the flood which has a one percent chance of being 
equalled or exceeded in any given year (also known as a 100-year flood). 
This term is used in the National Flood Insurance Program (NFIP) to 
indicate the minimum level of flooding to be used by a community in its 
floodplain management regulations.
    Base Floodplain means the 100-year floodplain (one percent chance 
floodplain).
    Coastal High Hazard Area means the areas subject to high velocity 
waters including but not limited to hurricane wave wash or tsunamis. On 
a Flood Insurance Rate Map (FIRM), this appears as zone V1-30, VE or V.
    Critical Action means an action for which even a slight chance of 
flooding is too great. The minimum floodplain of concern for critical 
actions is the 500-year floodplain, i.e., critical action floodplain. 
Critical actions include, but are not limited to, those which create or 
extend the useful life of structures or facilities:
    (a) Such as those which produce, use or store highly volatile, 
flammable, explosive, toxic or water-reactive materials;
    (b) Such as hospitals and nursing homes, and housing for the 
elderly, which are likely to contain occupants who may not be 
sufficiently mobile to avoid the loss of life or injury during flood and 
storm events;
    (c) Such as emergency operation centers, or data storage centers 
which contain records or services that may become lost or inoperative 
during flood and storm events; and
    (d) Such as generating plants, and other principal points of utility 
lines.
    Direct Impacts means changes in floodplain or wetland values and 
functions and changes in the risk to lives and property caused or 
induced by an action or related activity. Impacts are caused whenever 
these natural values and functions are affected as a direct result of an 
action. An action which would result in the discharge of polluted storm 
waters into a floodplain or wetland, for example, would directly affect 
their natural values and functions. Construction-related activities, 
such as dredging and filling operations within the floodplain or a 
wetland would be another example of impacts caused by an action.
    Director means the Director of the Federal Emergency Management 
Agency (FEMA).
    Emergency Actions means emergency work essential to save lives and 
protect property and public health and safety performed under sections 
305 and 306 of the Disaster Relief Act of 1974 (42 U.S.C. 5145 and 
5146). See 44 CFR part 205, subpart E.
    Enhance means to increase, heighten, or improve the natural and 
beneficial values associated with wetlands.
    Facility means any man-made or man-placed item other than a 
structure.
    FEMA means the Federal Emergency Management Agency.
    FIA means the Federal Insurance Administration.
    Five Hundred Year Floodplain (the 500-year floodplain or 0.2 percent 
change floodplain) means that area, including the base floodplain, which 
is subject to inundation from a flood having a 0.2 percent chance of 
being equalled or exceeded in any given year.
    Flood or flooding means a general and temporary condition of partial 
or complete inundation of normally dry land areas from the overflow of 
inland and/or tidal waters, and/or the unusual and rapid accumulation or 
runoff of surface waters from any source.
    Flood Fringe means that portion of the floodplain outside of the 
floodway (often referred to as ``floodway fringe'').
    Flood Hazard Boundary Map (FHBM) means an offical map of a 
community, issued by the Director, where the boundaries of the flood, 
mudslide (i.e., mudflow) and related erosion areas having special 
hazards have been designated as Zone A, M, or E.

[[Page 84]]

    Flood Insurance Rate Map (FIRM) means an official map of a community 
on which the Director has delineated both the special hazard areas and 
the risk premium zones applicable to the community.
    Flood Insurance Study (FIS) means an examination, evaluation and 
determination of flood hazards and, if appropriate, corresponding water 
surface elevations or an examination, evaluation and determination of 
mudslide (i.e., mudflow) and/or flood-related erosion hazards.
    Floodplain means the lowland and relatively flat areas adjoining 
inland and coastal waters including, at a minimum, that area subject to 
a one percent or greater chance of flooding in any given year. Wherever 
in this regulation the term ``floodplain'' is used, if a critical action 
is involved, ``floodplain'' shall mean the area subject to inundation 
from a flood having a 0.2 percent chance of occurring in any given year 
(500-year floodplain). ``Floodplain'' does not include areas subject 
only to mudflow until FIA adopts maps identifying ``M'' Zones.
    Floodproofing means the modification of individual structures and 
facilities, their sites, and their contents to protect against 
structural failure, to keep water out, or to reduce effects of water 
entry.
    Floodway means that portion of the floodplain which is effective in 
carrying flow, within which this carrying capacity must be preserved and 
where the flood hazard is generally highest, i.e., where water depths 
and velocities are the greatest. It is that area which provides for the 
discharge of the base flood so the cumulative increase in water surface 
elevation is no more than one foot.
    Functionally Dependent Use means a use which cannot perform its 
intended purpose unless it is located or carried out in close proximity 
to water, (e.g., bridges, and piers).
    Indirect Impacts means an indirect result of an action whenever the 
action induces or makes possible related activities which effect the 
natural values and functions of floodplains or wetlands or the risk to 
lives and property. Such impacts occur whenever these values and 
functions are potentially affected, either in the short- or long-term, 
as a result of undertaking an action.
    Minimize means to reduce to the smallest amount or degree possible.
    Mitigation means all steps necessary to minimize the potentially 
adverse effects of the proposed action, and to restore and preserve the 
natural and beneficial floodplain values and to preserve and enhance 
natural values of wetlands.
    Natural Values of Floodplains and Wetlands means the qualities of or 
functions served by floodplains and wetlands which include but are not 
limited to: (a) Water resource values (natural moderation of floods, 
water quality maintenance, groundwater recharge); (b) living resource 
values (fish, wildlife, plant resources and habitats); (c) cultural 
resource values (open space, natural beauty, scientific study, outdoor 
education, archeological and historic sites, recreation); and (d) 
cultivated resource values (agriculture, aquaculture, forestry).
    New Construction means the construction of a new structure 
(including the placement of a mobile home) or facility or the 
replacement of a structure or facility which has been totally destroyed.
    New Construction in Wetlands includes draining, dredging, 
channelizing, filling, diking, impounding, and related activities and 
any structures or facilities begun or authorized after the effective 
dates of the Orders, May 24, 1977.
    Orders means Executive Orders 11988, Floodplain Management, and 
11990, Protection of Wetlands.
    Practicable means capable of being done within existing constraints. 
The test of what is practicable depends upon the situation and includes 
consideration of all pertinent factors, such as environment, cost and 
technology.
    Preserve means to prevent alterations to natural conditions and to 
maintain the values and functions which operate the floodplains or 
wetlands in their natural states.
    Regional Director means the Regional Director of the Federal 
Emergency Management Agency for the Region in which FEMA is acting or 
the Disaster Recovery Manager when one is designated.

[[Page 85]]

    Regulatory Floodway means the area regulated by federal, State or 
local requirements to provide for the discharge of the base flood so the 
cumulative increase in water surface elevation is no more than a 
designated amount (not to exceed one foot as set by the National Flood 
Insurance Program).
    Restore means to reestablish a setting or environment in which the 
natural functions of the floodplain can again operate.
    SLPS means the State and Local Programs and Support Directorate.
    Structures means walled or roofed buildings, including mobile homes 
and gas or liquid storage tanks.
    Substantial Improvement means any repair, reconstruction or other 
improvement of a structure or facility, which has been damaged in excess 
of, or the cost of which equals or exceeds, 50% of the market value of 
the structure or replacement cost of the facility (including all 
``public facilities'' as defined in the Disaster Relief Act of 1974) (a) 
before the repair or improvement is started, or (b) if the structure or 
facility has been damaged and is proposed to be restored, before the 
damage occurred. If a facility is an essential link in a larger system, 
the percentage of damage will be based on the relative cost of repairing 
the damaged facility to the replacement cost of the portion of the 
system which is operationally dependent on the facility. The term 
``substantial improvement'' does not include any alteration of a 
structure or facility listed on the National Register of Historic Places 
or a State Inventory of Historic Places.
    Support means to encourage, allow, serve or otherwise facilitate 
floodplain or wetland development. Direct support results from actions 
within a floodplain or wetland, and indirect support results from 
actions outside of floodplains or wetlands.
    Wetlands means those areas which are inundated or saturated by 
surface or ground water with a frequency sufficient to support, or that 
under normal hydrologic conditions does or would support, a prevalence 
of vegetation or aquatic life typically adapted for life in saturated or 
seasonally saturated soil conditions. Examples of wetlands include, but 
are not limited to, swamps, fresh and salt water marshes, estuaries, 
bogs, beaches, wet meadows, sloughs, potholes, mud flats, river 
overflows and other similar areas. This definition includes those 
wetlands areas separated from their natural supply of water as a result 
of activities such as the construction of structural flood protection 
methods or solid-fill road beds and activities such as mineral 
extraction and navigation improvements. This definition is intended to 
be consistent with the definition utilized by the U.S. Fish and Wildlife 
Service in the publication entitled Classification of Wetlands and Deep 
Water Habitats of the United States (Cowardin, et al., 1977).

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
50 FR 40006, Oct. 1, 1985]



Sec. 9.5  Scope.

    (a) Applicability. (1) These regulations apply to all Agency actions 
which have the potential to affect floodplains or wetlands or their 
occupants, or which are subject to potential harm by location in 
floodplains or wetlands.
    (2) The basic test of the potential of an action to affect 
floodplains or wetlands is the action's potential (both by itself and 
when viewed cumulatively with other proposed actions) to result in the 
long- or short-term adverse impacts associated with:
    (i) The occupancy or modification of floodplains, and the direct and 
indirect support of floodplain development; or
    (ii) The destruction or modification of wetlands and the direct or 
indirect support of new construction in wetlands.
    (3) This regulation applies to actions that were, on the effective 
date of the Orders (May 24, 1977), ongoing, in the planning and/or 
development stages, or undergoing implementation, and are incomplete as 
of the effective date of these regulations. The regulation also applies 
to proposed (new) actions. The Agency shall:
    (i) Determine the applicable provisions of the Orders by analyzing 
whether the action in question has progressed beyond critical stages in 
the floodplain management and wetlands protection decision-making 
process, as

[[Page 86]]

set out below in Sec. 9.6. This determination need only be made at the 
time that followup actions are being taken to complete or implement the 
action in question; and
    (ii) Apply the provisions of the Orders and of this regulation to 
all such actions to the fullest extent practicable.
    (b) Limited exemption of ongoing actions involving wetlands located 
outside the floodplains. (1) Executive Order 11990, Protection of 
Wetlands, contains a limited exemption not found in Executive Order 
11988, Floodplain Management. Therefore, this exemption applies only to 
actions affecting wetlands which are located outside the floodplains, 
and which have no potential to result in harm to or within floodplains 
or to support floodplain development.
    (2) The following proposed actions that impact wetlands located 
outside of floodplains are exempt from this regulation:
    (i) Agency-assisted or permitted projects which were under 
construction before May 24, 1977; and
    (ii) Projects for which the Agency has proposed a draft of a final 
environmental impact statement (EIS) which adequately analyzes the 
action and which was filed before October 1, 1977. Proposed actions that 
impact wetlands outside of floodplains are not exempt if the EIS:
    (A) Only generally covers the proposed action;
    (B) Is devoted largely to related activities; or
    (C) Treats the project area or program without an adequate and 
specific analysis of the floodplain and wetland implications of the 
proposed action.
    (c) Decision-making involving certain categories of actions. The 
provisions set forth in this regulation are not applicable to the 
actions enumerated below except that the Regional Directors shall comply 
with the spirit of the Order to the extent practicable. For any action 
which is excluded from the actions enumerated below, the full 8-step 
process applies (see Sec. 9.6) (except as indicated at paragraphs (d), 
(f) and (g) of this section regarding other categories of partial or 
total exclusions). The provisions of these regulations do not apply to 
the following (all references are to the Disaster Relief Act of 1974, 
Pub. L. 93-288, as amended, except as noted):
    (1) Assistance provided for emergency work essential to save lives 
and protect property and public health and safety performed pursuant to 
sections 305 and 306;
    (2) Emergency Support Teams (section 304);
    (3) Unemployment Assistance (section 407);
    (4) Emergency Communications (section 415);
    (5) Emergency Public Transportation (section 416);
    (6) Fire Management Assistance (Section 420);
    (7) Community Disaster Loans (section 414), except to the extent 
that the proceeds of the loan will be used for repair of facilities or 
structures or for construction of additional facilities or structures;
    (8) The following Individual and Family Grant Program (section 408) 
actions:
    (i) Housing needs or expenses, except for restoring, repairing or 
building private bridges, purchase of mobile homes and provision of 
structures as minimum protective measures;
    (ii) Personal property needs or expenses;
    (iii) Transportation expenses;
    (iv) Medical/dental expenses;
    (v) Funeral expenses;
    (vi) Limited home repairs;
    (vii) Flood insurance premium;
    (viii) Cost estimates;
    (ix) Food expenses; and
    (x) Temporary rental accommodations.
    (9) Mortgage and rental assistance under section 404(b);
    (10) Use of existing resources in the temporary housing assistance 
program [section 404(a)], except that Step 1 (Sec. 9.7) shall be 
carried out;
    (11) Minimal home repairs [section 404(c)];
    (12) Debris removal (section 403), except those grants involving 
non-emergency disposal of debris within a floodplain or wetland;
    (13) Repairs or replacements under section 402, of less than $5,000 
to damaged structures or facilities.

[[Page 87]]

    (14) Placement of families in existing resources and Temporary 
Relocation Assistance provided to those families so placed under the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980, Public Law 96-510.
    (d) For each action enumerated below, the Regional Director shall 
apply steps 1, 2, 4, 5 and 8 of the decision-making process (Sec. Sec. 
9.7, 9.8, 9.10 and 9.11, see Sec. 9.6). Steps 3 and 6 (Sec. 9.9) shall 
be carried out except that alternative sites outside the floodplain or 
wetland need not be considered. After assessing impacts of the proposed 
action on the floodplain or wetlands and of the site on the proposed 
action, alternative actions to the proposed action, if any, and the ``no 
action'' alternative shall be considered. The Regional Director may also 
require certain other portions of the decision-making process to be 
carried out for individual actions as is deemed necessary. For any 
action which is excluded from the actions listed below. (except as 
indicated in paragraphs (c), (f) and (g) of this section regarding other 
categories of partial or total exclusion), the full 8-step process 
applies (see Sec. 9.6). The references are to the Disaster Relief Act 
of 1974, Public Law 93-288, as amended.
    (1) Actions performed under the Individual and Family Grant Program 
(section 408) for restoring or repairing a private bridge, except where 
two or more individuals or families are authorized to pool their grants 
for this purpose.
    (2) Small project grants (section 419), except to the extent that 
Federal funding involved is used for construction of new facilities or 
structures.
    (3) Replacement of building contents, materials and equipment. 
(sections 402 and 419).
    (4) Repairs under section 402 to damaged facilities or structures, 
except any such action for which one or more of the following is 
applicable:
    (i) FEMA estimated cost of repairs is more than 50% of the estimated 
reconstruction cost of the entire facility or structure, or is more than 
$100,000, or
    (ii) The action is located in a floodway or coastal high hazard 
area, or
    (iii) The facility or structure is one which has previously 
sustained structural damage from flooding due to a major disaster or 
emergency or on which a flood insurance claim has been paid, or
    (iv) The action is a critical action.
    (e) Other categories of actions. Based upon the completion of the 8-
step decision-making process (Sec. 9.6), the Director may find that a 
specific category of actions either offers no potential for carrying out 
the purposes of the Orders and shall be treated as those actions listed 
in Sec. 9.5(c), or has no practicable alternative sites and shall be 
treated as those actions listed in Sec. 9.5(d), or has no practicable 
alternative actions or sites and shall be treated as those actions 
listed in Sec. 9.5(g). This finding will be made in consultation with 
the Federal Insurance Administration and the Council on Environmental 
Quality as provided in section 2(d) of E.O. 11988. Public notice of each 
of these determinations shall include publication in the Federal 
Register and a 30-day comment period.
    (f) The National Flood Insurance Program (NFIP). (1) Most of what is 
done by FIA or SLPS, in adminstering the National Flood Insurance 
Program is performed on a program-wide basis. For all regulations, 
procedures or other issuances making or amending program policy, FIA or 
SLPS, shall apply the 8-step decision-making process to that program-
wide action. The action to which the 8-step process must be applied is 
the establishment of programmatic standards or criteria, not the 
application of programmatic standards or criteria to specific 
situations. Thus, for example, FIA or SLPS, would apply the 8-step 
process to a programmatic determination of categories of structures to 
be insured, but not to whether to insure each individual structure. The 
two prime examples of where FIA or SLPS, does take site specific actions 
which would require individual application of the 8-step process are 
property acquisition under section 1362 of the National Flood Insurance 
Act of 1968, as amended, and the issuance of an exception to a community 
under 44 CFR 60.6(b). (See also Sec. 9.9(e)(6) and Sec. 9.11(e).)

[[Page 88]]

    (2) The provisions set forth in this regulation are not applicable 
to the actions enumerated below except that the Federal Insurance 
Administrator or the Associate Director, SLPS, as appropriate shall 
comply with the spirit of the Orders to the extent practicable:
    (i) The issuance of individual flood insurance policies and policy 
interpretations;
    (ii) The adjustment of claims made under the Standard Flood 
Insurance Policy;
    (iii) The hiring of independent contractors to assist in the 
implementation of the National Flood Insurance Program;
    (iv) The issuance of individual flood insurance maps, Map 
Information Facility map determinations, and map amendments; and
    (v) The conferring of eligibility for emergency or regular program 
(NFIP) benefits upon communities.
    (g) For the action listed below, the Regional Director shall apply 
steps 1, 4, 5 and 8 of the decision-making process (Sec. Sec. 9.7, 9.10 
and 9.11). For any action which is excluded from the actions listed 
below, (except as indicated in paragraphs (c), (d) and (f) of this 
section regarding other categories of partial or total exclusion), the 
full 8-step process applies (See Sec. 9.6). The Regional Director may 
also require certain other portions of the decision-making process to be 
carried out for individual actions as is deemed necessary. The 
references are to the Disaster Relief Act of 1974, Public Law 93-288. 
The above requirements apply to repairs, under section 402, between 
$5,000 and $25,000 to damaged structures of facilities except for:
    (1) Actions in a floodway or coastal high hazard area; or
    (2) New or substantially improved structures or facilities; or
    (3) Facilities or structures which have previously sustained 
structural damage from flooding due to a major disaster or emergency.

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
49 FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 39531, 
Oct. 29, 1986; 66 FR 57347, Nov. 14, 2001]



Sec. 9.6  Decision-making process.

    (a) Purpose. The purpose of this section is to set out the 
floodplain management and wetlands protection decision-making process to 
be followed by the Agency in applying the Orders to its actions. While 
the decision-making process was initially designed to address the 
floodplain Order's requirements, the process will also satisfy the 
wetlands Order's provisions due to the close similarity of the two 
directives. The numbering of Steps 1 through 8 does not firmly require 
that the steps be followed sequentially. As information is gathered 
throughout the decision-making process and as additional information is 
needed, reevaluation of lower numbered steps may be necessary.
    (b) Except as otherwise provided in Sec. 9.5 (c), (d), (f), and (g) 
regarding categories of partial or total exclusion when proposing an 
action, the Agency shall apply the 8-step decision-making process. FEMA 
shall:
    Step 1. Determine whether the proposed action is located in a 
wetland and/or the 100-year floodplain (500-year floodplain for critical 
actions); and whether it has the potential to affect or be affected by a 
floodplain or wetland (see Sec. 9.7);
    Step 2. Notify the public at the earliest possible time of the 
intent to carry out an action in a floodplain or wetland, and involve 
the affected and interested public in the decision-making process (see 
Sec. 9.8);
    Step 3. Identify and evaluate practicable alternatives to locating 
the proposed action in a floodplain or wetland (including alternative 
sites, actions and the ``no action'' option) (see Sec. 9.9). If a 
practicable alternative exists outside the floodplain or wetland FEMA 
must locate the action at the alternative site.
    Step 4. Identify the potential direct and indirect impacts 
associated with the occupancy or modification of floodplains and 
wetlands and the potential direct and indirect support of floodplain and 
wetland development that could result from the proposed action (see 
Sec. 9.10);
    Step 5. Minimize the potential adverse impacts and support to or 
within floodplains and wetlands to be identified under Step 4, restore 
and preserve the natural and beneficial values served by floodplains, 
and preserve and

[[Page 89]]

enhance the natural and beneficial values served by wetlands (see Sec. 
9.11);
    Step 6. Reevaluate the proposed action to determine first, if it is 
still practicable in light of its exposure to flood hazards, the extent 
to which it will aggravate the hazards to others, and its potential to 
disrupt floodplain and wetland values and second, if alternatives 
preliminarily rejected at Step 3 are practicable in light of the 
information gained in Steps 4 and 5. FEMA shall not act in a floodplain 
or wetland unless it is the only practicable location (see Sec. 9.9);
    Step 7. Prepare and provide the public with a finding and public 
explanation of any final decision that the floodplain or wetland is the 
only practicable alternative (see Sec. 9.12); and
    Step 8. Review the implementation and post-implementation phases of 
the proposed action to ensure that the requirements stated in Sec. 9.11 
are fully implemented. Oversight responsibility shall be integrated into 
existing processes.

[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 35583, Sept. 10, 1984; 
50 FR 40006, Oct. 1, 1985]



Sec. 9.7  Determination of proposed action's location.

    (a) The purpose of this section is to establish Agency procedures 
for determining whether any action as proposed is located in or affects 
(1) the base floodplain (the Agency shall substitute the 500-year 
floodplain for the base floodplain where the action being proposed 
involves a critical action), or (2) a wetland.
    (b) Information needed. The Agency shall obtain enough information 
so that it can fulfill the requirements of the Orders to (1) avoid 
floodplain and wetland locations unless they are the only practicable 
alternatives; and (2) minimize harm to and within floodplains and 
wetlands. In all cases, FEMA shall determine whether the proposed action 
is located in a floodplain or wetland. In the absence of a finding to 
the contrary, FEMA may assume that a proposed action involving a 
facility or structure that has been flooded is in the floodplain. 
Information about the 100-year and 500-year floods and location of 
floodways and coastal high hazard areas may also be needed to comply 
with these regulations, especially Sec. 9.11. The following additional 
flooding characteristics shall be identified by the Regional Director as 
appropriate:
    (i) Velocity of floodwater;
    (ii) Rate of rise of floodwater;
    (iii) Duration of flooding;
    (iv) Available warning and evacuation time and routes;
    (v) Special problems:
    (A) Levees;
    (B) Erosion;
    (C) Subsidence;
    (D) Sink holes;
    (E) Ice jams;
    (F) Debris load;
    (G) Pollutants;
    (H) Wave heights;
    (I) Groundwater flooding;
    (J) Mudflow.
    (c) Floodplain determination. (1) In the search for flood hazard 
information, FEMA shall follow the sequence below:
    (i) The Regional Director shall consult the FEMA Flood Insurance 
Rate Map (FIRM) the Flood Boundary Floodway Map (FBFM) and the Flood 
Insurance Study (FIS).
    (ii) If a detailed map (FIRM or FBFM) is not available, the Regional 
Director shall consult an FEMA Flood Hazard Boundary Map (FHBM) . If 
data on flood elevations, floodways, or coastal high hazard areas are 
needed, or if the map does not delineate the flood hazard boundaries in 
the vicinity of the proposed site, the Regional Director shall seek the 
necessary detailed information and assistance from the sources listed 
below.

                Sources of Maps and Technical Information

Department of Agriculture: Soil Conservation Service
Department of the Army: Corps of Engineers
Department of Commerce: National Oceanic and Atmospheric Administration
Federal Insurance Administration
FEMA Regional Offices/Natural and Technological Hazards Division
Department of the Interior:
    Geological Survey
    Bureau of Land Management
    Bureau of Reclamation
Tennessee Valley Authority
Delaware River Basin Commission
Susquehanna River Basin Commission
States


[[Page 90]]


    (iii) If the sources listed do not have or know of the information 
necessary to comply with the Orders' requirements, the Regional Director 
shall seek the services of a Federal or other engineer experienced in 
this type of work.
    (2) If a decision involves an area or location within extensive 
Federal or state holdings or a headwater area, and an FIS, FIRM, FBFM, 
or FHBM is not available, the Regional Director shall seek information 
from the land administering agency before information and/or assistance 
is sought from the sources listed in this section. If none of these 
sources has information or can provide assistance, the services of an 
experienced Federal or other engineer shall be sought as described 
above.
    (d) Wetland determination. The following sequence shall be followed 
by the Agency in making the wetland determination.
    (1) The Agency shall consult with the U.S. Fish and Wildlife Service 
(FWS) for information concerning the location, scale and type of 
wetlands within the area which could be affected by the proposed action.
    (2) If the FWS does not have adequate information upon which to base 
the determination, the Agency shall consult wetland inventories 
maintained by the Army Corps of Engineers, the Environmental Protection 
Agency, various states, communities and others.
    (3) If state or other sources do not have adequate information upon 
which to base the determination, the Agency shall carry out an on-site 
analysis performed by a representative of the FWS or other qualified 
individual for wetlands characteristics based on the performance 
definition of what constitutes a wetland.
    (4) If an action is in a wetland but not in a floodplain, and the 
action is new construction, the provisions of this regulation shall 
apply. Even if the action is not in a wetland, the Regional Director 
shall determine if the action has the potential to result in indirect 
impacts on wetlands. If so, all adverse impacts shall be minimized. For 
actions which are in a wetland and the floodplain, completion of the 
decision-making process is required. (See Sec. 9.6.) In such a case the 
wetland will be considered as one of the natural and beneficial values 
of floodplain.

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
49 FR 33879, Aug. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, 
Sept. 30, 1986]



Sec. 9.8  Public notice requirements.

    (a) Purpose. The purpose of this section is to establish the initial 
notice procedures to be followed when proposing any action in or 
affecting floodplains or wetlands.
    (b) General. The Agency shall provide adequate information to enable 
the public to have impact on the decision outcome for all actions having 
potential to affect, adversely, or be affected by floodplains or 
wetlands that it proposes. To achieve this objective, the Agency shall:
    (1) Provide the public with adequate information and opportunity for 
review and comment at the earliest possible time and throughout the 
decision-making process; and upon completion of this process, provide 
the public with an accounting of its final decisions (see Sec. 9.12); 
and
    (2) Rely on its environmental assessment processes, to the extent 
possible, as vehicles for public notice, involvement and explanation.
    (c) Early public notice. The Agency shall provide opportunity for 
public involvement in the decision-making process through the provision 
of public notice upon determining that the proposed action can be 
expected to affect or be affected by floodplains or wetlands. Whenever 
possible, notice shall precede major project site identification and 
analysis in order to preclude the foreclosure of options consistent with 
the Orders.
    (1) For an action for which an environmental impact statement is 
being prepared, the Notice of Intent to File an EIS is adequate to 
constitute the early public notice, if it includes the information 
required under paragraph (c)(5) of this section.
    (2) For each action having national significance for which notice is 
being provided, the Agency shall use the Federal Register as the minimum 
means for notice, and shall provide notice by mail to national 
organizations reasonably expected to be interested in the

[[Page 91]]

action. The additional notices listed in paragraph (c)(4) of this 
section shall be used in accordance with the determination made under 
paragraph (c)(3) of this section.
    (3) The Agency shall base its determination of appropriate notices, 
adequate comment periods, and whether to issue cumulative notices 
(paragraphs (c)(4), (6) and (7) of this section) on factors which 
include, but are not limited to:
    (i) Scale of the action;
    (ii) Potential for controversy;
    (iii) Degree of public need;
    (iv) Number of affected agencies and individuals; and
    (v) Its anticipated potential impact.
    (4) For each action having primarily local importance for which 
notice is being provided, notice shall be made in accordance with the 
criteria under paragraph (c)(3) of this section, and shall entail as 
appropriate:
    (i) [Reserved]
    (ii) Notice to Indian tribes when effects may occur on reservations.
    (iii) Information required in the affected State's public notice 
procedures for comparable actions.
    (iv) Publication in local newspapers (in papers of general 
circulation rather than legal papers).
    (v) Notice through other local media.
    (vi) Notice to potentially interested community organizations.
    (vii) Publication in newsletters that may be expected to reach 
potentially interested persons.
    (viii) Direct mailing to owners and occupants of nearby or affected 
property.
    (ix) Posting of notice on and off site in the area where the action 
is to be located.
    (x) Holding a public hearing.
    (5) The notice shall include:
    (i) A description of the action, its purpose and a statement of the 
intent to carry out an action affecting or affected by a floodplain or 
wetland;
    (ii) Based on the factors in paragraph (c)(3) of this section, a map 
of the area or other indentification of the floodplain and/or wetland 
areas which is of adequate scale and detail so that the location is 
discernible; instead of publication of such map, FEMA may state that 
such map is available for public inspection, including the location at 
which such map may be inspected and a telephone number to call for 
information;
    (iii) Based on the factors in paragraph (c)(3) of this section, a 
description of the type, extent and degree of hazard involved and the 
floodplain or wetland values present; and
    (iv) Identification of the responsible official or organization for 
implementing the proposed action, and from whom further information can 
be obtained.
    (6) The Agency shall provide for an adequate comment period.
    (7) In a post-disaster situation in particular, the requirement for 
early public notice may be met in a cumulative manner based on the 
factors set out in paragraph (c)(3) of this section. Several actions may 
be addressed in one notice or series of notices. For some actions 
involving limited public interest a single notice in a local newspaper 
or letter to interested parties may suffice.
    (d) Continuing public notice. The Agency shall keep the public 
informed of the progress of the decision-making process through 
additional public notices at key points in the process. The preliminary 
information provided under paragraph (c)(5) of this section shall be 
augmented by the findings of the adverse effects of the proposed actions 
and steps necessary to mitigate them. This responsibility shall be 
performed for actions requiring the preparation of an EIS, and all other 
actions having the potential for major adverse impacts, or the potential 
for harm to the health and safety of the general public.

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]



Sec. 9.9  Analysis and reevaluation of practicable alternatives.

    (a) Purpose. (1) The purpose of this section is to expand upon the 
directives set out in Sec. 9.6, of this part, in order to clarify and 
emphasize the Orders' key requirements to avoid floodplains and wetlands 
unless there is no practicable alternative.
    (2) Step 3 is a preliminary determination as to whether the 
floodplain is the only practicable location for the action. It is a 
preliminary determination

[[Page 92]]

because it comes early in the decision-making process when the Agency 
has a limited amount of information. If it is clear that there is a 
practicable alternative, or the floodplain or wetland is itself not a 
practicable location, FEMA shall then act on that basis. Provided that 
the location outside the floodplain or wetland does not indirectly 
impact floodplains or wetlands or support development therein (see Sec. 
9.10), the remaining analysis set out by this regulation is not 
required. If such location does indirectly impact floodplains or 
wetlands or support development therein, the remaining analysis set out 
by this regulation is required. If the preliminary determination is to 
act in the floodplain, FEMA shall gather the additional information 
required under Steps 4 and 5 and then reevaluate all the data to 
determine if the floodplain or wetland is the only practicable 
alternative.
    (b) Analysis of practicable alternatives. The Agency shall identify 
and evaluate practicable alternatives to carrying out a proposed action 
in floodplains or wetlands, including:
    (1) Alternative sites outside the floodplain or wetland;
    (2) Alternative actions which serve essentially the same purpose as 
the proposed action, but which have less potential to affect or be 
affected by the floodplain or wetlands; and
    (3) No action. The floodplain and wetland site itself must be a 
practicable location in light of the factors set out in this section.
    (c) The Agency shall analyze the following factors in determining 
the practicability of the alternatives set out in paragraph (b) of this 
section:
    (1) Natural environment (topography, habitat, hazards, etc.);
    (2) Social concerns (aesthetics, historical and cultural values, 
land patterns, etc.);
    (3) Economic aspects (costs of space, construction, services, and 
relocation); and
    (4) Legal constraints (deeds, leases, etc.).
    (d) Action following the analysis of practicable alternatives. (1) 
The Agency shall not locate the proposed action in the floodplain or in 
a wetland if a practicable alternative exists outside the floodplain or 
wetland.
    (2) For critical actions, the Agency shall not locate the proposed 
action in the 500-year floodplain if a practicable alternative exists 
outside the 500-year floodplain.
    (3) Even if no practicable alternative exists outside the floodplain 
or wetland, in order to carry out the action the floodplain or wetland 
must itself be a practicable location in light of the review required in 
this section.
    (e) Reevaluation of alternatives. Upon determination of the impact 
of the proposed action to or within the floodplain or wetland and of 
what measures are necessary to comply with the requirement to minimize 
harm to and within floodplains and wetlands (Sec. 9.11), FEMA shall:
    (1) Determine whether:
    (i) The action is still practicable at a floodplain or wetland site 
in light of the exposure to flood risk and the ensuing disruption of 
natural values;
    (ii) The floodplain or wetland site is the only practicable 
alternative;
    (iii) There is a potential for limiting the action to increase the 
practicability of previously rejected non-floodplain or wetland sites 
and alternative actions; and
    (iv) Minimization of harm to or within the floodplain can be 
achieved using all practicable means.
    (2) Take no action in a floodplain unless the importance of the 
floodplain site clearly outweighs the requirement of E.O. 11988 to:
    (i) Avoid direct or indirect support of floodplain development;
    (ii) Reduce the risk of flood loss;
    (iii) Minimize the impact of floods on human safety, health and 
welfare; and
    (iv) Restore and preserve floodplain values.
    (3) Take no action in a wetland unless the importance of the wetland 
site clearly outweighs the requirements of E.O. 11990 to:
    (i) Avoid the destruction or modification of the wetlands;
    (ii) Avoid direct or indirect support of new construction in 
wetlands;
    (iii) Minimize the destruction, loss or degradation of wetlands; and
    (iv) Preserve and enhance the natural and beneficial values of 
wetlands.

[[Page 93]]

    (4) In carrying out this balancing process, give the factors in 
paragraphs (e)(2) and (3) of this section, the great weight intended by 
the Orders.
    (5) Choose the ``no action'' alternative where there are no 
practicable alternative actions or sites and where the floodplain or 
wetland is not itself a practicable alternative. In making the 
assessment of whether a floodplain or wetland location is itself a 
practicable alternative, the practicability of the floodplain or wetland 
location shall be balanced against the practicability of not carrying 
out the action at all. That is, even if there is no practicable 
alternative outside of the floodplain or wetland, the floodplain or 
wetland itself must be a practicable location in order for the action to 
be carried out there. To be a practicable location, the importance of 
carrying out the action must clearly outweigh the requirements of the 
Orders listed in paragraphs (e)(2) and (e)(3) of this section. Unless 
the importance of carrying out the action clearly outweighs those 
requirements, the ``no action'' alternative shall be selected.
    (6) In any case in which the Regional Director has selected the ``no 
action'' option, FIA may not provide a new or renewed contract of flood 
insurance for that structure.

    Effective Date Note: At 45 FR 79070, Nov. 28, 1980, Sec. 9.9(e)(6) 
was temporarily suspended until further notice.



Sec. 9.10  Identify impacts of proposed actions.

    (a) Purpose. The purpose of this section is to ensure that the 
effects of proposed Agency actions are identified.
    (b) The Agency shall identify the potential direct and indirect 
adverse impacts associated with the occupancy and modification of 
floodplains and wetlands and the potential direct and indirect support 
of floodplain and wetland development that could result from the 
proposed action. Such identification of impacts shall be to the extent 
necessary to comply with the requirements of the Orders to avoid 
floodplain and wetland locations unless they are the only practicable 
alternatives and to minimize harm to and within floodplains and 
wetlands.
    (c) This identification shall consider whether the proposed action 
will result in an increase in the useful life of any structure or 
facility in question, maintain the investment at risk and exposure of 
lives to the flood hazard or forego an opportunity to restore the 
natural and beneficial values served by floodplains or wetlands. 
Regional Offices of the U.S. Fish and Wildlife Service may be contacted 
to aid in the identification and evaluation of potential impacts of the 
proposed action on natural and beneficial floodplain and wetland values.
    (d) In the review of a proposed or alternative action, the Regional 
Director shall specifically consider and evaluate: impacts associated 
with modification of wetlands and floodplains regardless of its 
location; additional impacts which may occur when certain types of 
actions may support subsequent action which have additional impacts of 
their own; adverse impacts of the proposed actions on lives and property 
and on natural and beneficial floodplain and wetland values; and the 
three categories of factors listed below:
    (1) Flood hazard-related factors. These include for example, the 
factors listed in Sec. 9.7(b)(2);
    (2) Natural values-related factors. These include, for example, the 
following: Water resource values (natural moderation of floods, water 
quality maintenance, and ground water recharge); living resource values 
(fish and wildlife and biological productivity); cultural resource 
values (archeological and historic sites, and open space recreation and 
green belts); and agricultural, aquacultural and forestry resource 
values.
    (3) Factors relevant to a proposed action's effects on the survival 
and quality of wetlands. These include, for example, the following: 
Public health, safety, and welfare, including water supply, quality, 
recharge and discharge; pollution; flood and storm hazards; and sediment 
and erosion; maintenance of natural systems, including conservation and 
long term productivity of existing flora and fauna, species and habitat 
diversity and stability, hydrologic utility, fish, wildlife, timber, and 
food and fiber resources; and other uses of wetlands in the public 
interest, including

[[Page 94]]

recreational, scientific, and cultural uses.



Sec. 9.11  Mitigation.

    (a) Purpose. The purpose of this section is to expand upon the 
directives set out in Sec. 9.6 of this part, and to set out the 
mitigative actions required if the preliminary determination is made to 
carry out an action that affects or is in a floodplain or wetland.
    (b) General provisions. (1) The Agency shall design or modify its 
actions so as to minimize harm to or within the floodplain;
    (2) The Agency shall minimize the destruction, loss or degradation 
of wetlands;
    (3) The Agency shall restore and preserve natural and beneficial 
floodplain values; and
    (4) The Agency shall preserve and enhance natural and beneficial 
wetland values.
    (c) Minimization provisions. The Agency shall minimize:
    (1) Potential harm to lives and the investment at risk from the base 
flood, or, in the case of critical actions, from the 500-year flood;
    (2) Potential adverse impacts the action may have on others; and
    (3) Potential adverse impact the action may have on floodplain and 
wetland values.
    (d) Minimization Standards. In its implementation of the Disaster 
Relief Act of 1974, the Agency shall apply at a minimum, the following 
standards to its actions to comply with the requirements of paragraphs 
(b) and (c), of this section, (except as provided in Sec. 9.5 (c), (d), 
and (g) regarding categories of partial or total exclusion). Any Agency 
action to which the following specific requirements do not apply, shall 
nevertheless be subject to the full 8-step process (Sec. 9.6) including 
the general requirement to minimize harm to and within floodplains:
    (1) There shall be no new construction or substantial improvement in 
a floodway, and no new construction in a coastal high hazard area, 
except for:
    (i) A functionally dependent use; or
    (ii) A structure or facility which facilitates an open space use.
    (2) For a structure which is a functionally dependent use, or which 
facilitates an open space use, the following applies. There shall be no 
construction of a new or substantially improved structure in a coastal 
high hazard area unless it is elevated on adequately anchored pilings or 
columns, and securely anchored to such piles or columns so that the 
lowest portion of the structural members of the lowest floor (excluding 
the pilings or columns) is elevated to or above the base flood level 
(the 500-year flood level for critical actions) (including wave height). 
The structure shall be anchored so as to withstand velocity waters and 
hurricane wave wash. The Regional Director shall be responsible for 
determining the base flood level, including the wave height, in all 
cases. Where there is a FIRM in effect, it shall be the basis of the 
Regional Director's determination. If the FIRM does not reflect wave 
heights, or if there is no FIRM in effect, the Regional Director is 
responsible for delineating the base flood level, including wave 
heights.
    (3) Elevation of structures. (i) There shall be no new construction 
or substantial improvement of structures unless the lowest floor of the 
structures (including basement) is at or above the level of the base 
flood.
    (ii) There shall be no new construction or substantial improvement 
of structures involving a critical action unless the lowest floor of the 
structure (including the basement) is at or above the level of the 500-
year flood.
    (iii) If the subject structure is nonresidential, FEMA may, instead 
of elevating the structure to the 100-year or 500-year level, as 
appropriate, approve the design of the structure and its attendant 
utility and sanitary facilities so that below the flood level the 
structure is water tight with walls substantially impermeable to the 
passage of water and with structural components having the capability of 
resisting hydrostatic and hydrodynamic loads and effects of buoyancy.
    (iv) The provisions of paragraphs (d)(3)(i), (ii), and (iii) of this 
section do not apply to the extent that the Federal Insurance 
Administration has granted an exception under 44 CFR Sec. 60.6(b) 
(formerly 24 CFR 1910.6(b)), or the community has granted a variance

[[Page 95]]

which the Regional Director determines is consistent with 44 CFR 60.6(a) 
(formerly 24 CFR 1910.6(a)). In a community which does not have a FIRM 
in effect, FEMA may approve a variance from the standards of paragraphs 
(d)(3)(i), (ii), and (iii) of this section, after compliance with the 
standards of 44 CFR 60.6(a).
    (4) There shall be no encroachments, including fill, new 
construction, substantial improvements of structures or facilities, or 
other development within a designated regulatory floodway that would 
result in any increase in flood levels within the community during the 
occurrence of the base flood discharge. Until a regulatory floodway is 
designated, no new construction, substantial improvements, or other 
development (including fill) shall be permitted within the base 
floodplain unless it is demonstrated that the cumulative effect of the 
proposed development, when combined with all other existing and 
anticipated development, will not increase the water surface elevation 
of the base flood more than one foot at any point within the community.
    (5) Even if an action is a functionally dependent use or facilitates 
open space uses (under paragraph (d) (1) or (2) of this section) and 
does not increase flood heights (under paragraph (d)(4) of this 
section), such action may only be taken in a floodway or coastal high 
hazard area if:
    (i) Such site is the only practicable alternative; and
    (ii) Harm to and within the floodplain is minimized.
    (6) In addition to standards (d)(1) through (d)(5) of this section, 
no action may be taken if it is inconsistent with the criteria of the 
National Flood Insurance Program (44 CFR part 59 et seq.) or any more 
restrictive Federal, State or local floodplain management standards.
    (7) New construction and substantial improvement of structures shall 
be elevated on open works (walls, columns, piers, piles, etc.) rather 
than on fill, in all cases in coastal high hazard areas and elsewhere, 
where practicable.
    (8) To minimize the effect of floods on human health, safety and 
welfare, the Agency shall:
    (i) Where appropriate, integrate all of its proposed actions in 
floodplains into existing flood warning and preparedness plans and 
ensure that available flood warning time is reflected;
    (ii) Facilitate adequate access and egress to and from the site of 
the proposed action; and
    (iii) Give special consideration to the unique hazard potential in 
flash flood, rapid-rise or tsunami areas.
    (9) In the replacement of building contents, materials and 
equipment, the Regional Director shall require as appropriate, disaster 
proofing of the building and/or elimination of such future losses by 
relocation of those building contents, materials and equipment outside 
or above the base floodplain or the 500-year floodplain for critical 
actions.
    (e) In the implementation of the National Flood Insurance Program. 
(1) The Federal Insurance Administration shall make identification of 
all coastal high hazard areas a priority;
    (2) Beginning October 1, 1981, the Federal Insurance Administration 
of FEMA may only provide flood insurance for new construction or 
substantial improvements in a coastal high hazard area if:
    (i) Wave heights have been designated for the site of the structure 
either by the Director of FEMA based upon data generated by FEMA or by 
another source, satisfactory to the Director; and
    (ii) The structure is rated by FEMA-FIA based on a system which 
reflects the capacity to withstand the effects of the 100-year frequency 
flood including, but not limited to, the following factors:
    (A) Wave heights;
    (B) The ability of the structure to withstand the force of waves.
    (3)(i) FEMA shall accept and take fully into account information 
submitted by a property owner indicating that the rate for a particular 
structure is too high based on the ability of the structure to withstand 
the force of waves. In order to obtain a rate adjustment, a property 
owner must submit to FEMA specific information regarding the structure 
and its immediate environment. Such information must be certified by a 
registered professional

[[Page 96]]

architect or engineer who has demonstrable experience and competence in 
the fields of foundation, soils, and structural engineering. Such 
information should include:
    (A) Elevation of the structure (bottom of lowest floor beam) in 
relation to the Base Flood Elevation including wave height;
    (B) Distance of the structure from the shoreline;
    (C) Dune protection and other environmental factors;
    (D) Description of the building support system; and
    (E) Other relevant building details.

Adequate completion of the ``V-Zone Risk Factor Rating Form'' is 
sufficient for FEMA to determine whether a rate adjustment is 
appropriate. The form is available from and applications for rate 
adjustments should be submitted to:

National Flood Insurance Program
Attention: V-Zone Underwriting Specialist
9901-A George Palmer Highway
Lanham, MD 20706


Pending a determination on a rate adjustment, insurance will be issued 
at the class rate. If the rate adjustment is granted, a refund of the 
appropriate portion of the premium will be made. Unless a property owner 
is seeking an adjustment of the rate prescribed by FEMA-FIA, this 
information need not be submitted.
    (ii) FIA shall notify communities with coastal high hazard areas and 
federally related lenders in such communities, of the provisions of this 
paragraph. Notice to the lenders may be accomplished by the Federal 
instrumentalities to which the lenders are related.
    (4) In any case in which the Regional Director has been, pursuant to 
Sec. 9.11(d)(1), precluded from providing assistance for a new or 
substantially improved structure in a floodway, FIA may not provide a 
new or renewed policy of flood insurance for that structure.
    (f) Restore and preserve. (1) For any action taken by the Agency 
which affects the floodplain or wetland and which has resulted in, or 
will result in, harm to the floodplain or wetland, the Agency shall act 
to restore and preserve the natural and beneficial values served by 
floodplains and wetlands.
    (2) Where floodplain or wetland values have been degraded by the 
proposed action, the Agency shall identify, evaluate and implement 
measures to restore the values.
    (3) If an action will result in harm to or within the floodplain or 
wetland, the Agency shall design or modify the action to preserve as 
much of the natural and beneficial floodplain and wetland values as is 
possible.

[45 FR 59526, Sept. 9, 1980, as amended at 46 FR 51752, Oct. 22, 1981; 
48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584, 
Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]

    Effective Date Note: At 45 FR 79070, Nov. 28, 1980, Sec. 9.11(e)(4) 
was temporarily suspended until further notice.



Sec. 9.12  Final public notice.

    If the Agency decides to take an action in or affecting a floodplain 
or wetland, it shall provide the public with a statement of its final 
decision and shall explain the relevant factors considered by the Agency 
in making this determination.
    (a) In addition, those sent notices under Sec. 9.8 shall also be 
provided the final notice.
    (b) For actions for which an environmental impact statement is being 
prepared, the FEIS is adequate to constitute final notice in all cases 
except where:
    (1) Significant modifications are made in the FEIS after its initial 
publication;
    (2) Significant modifications are made in the development plan for 
the proposed action; or
    (3) Significant new information becomes available in the interim 
between issuance of the FEIS and implementation of the proposed action.

If any of these situations develop, the Agency shall prepare a separate 
final notice that contains the contents of paragraph (e) of this section 
and shall make it available to those who received the FEIS. A minimum of 
15 days shall, without good cause shown, be allowed for comment on the 
final notice.
    (c) For actions for which an environmental assessment was prepared, 
the Notice of No Significant Impact is adequate to constitute final 
public notice,

[[Page 97]]

if it includes the information required under paragraph (e) of this 
section.
    (d) For all other actions, the finding shall be made in a document 
separate from those described in paragraphs (a), (b), and (c) of this 
section. Based on an assessment of the following factors, the 
requirement for final notice may be met in a cumulative manner:
    (1) Scale of the action;
    (2) Potential for controversy;
    (3) Degree of public need;
    (4) Number of affected agencies and individuals;
    (5) Its anticipated potential impact; and
    (6) Similarity of the actions, i.e., to the extent that they are 
susceptible of common descriptions and assessments.

When a damaged structure or facility is already being repaired by the 
State or local government at the time of the Damage Survey Report, the 
requirements of Steps 2 and 7 (Sec. Sec. 9.8 and 9.12) may be met by a 
single notice. Such notice shall contain all the information required by 
both sections.
    (e) The final notice shall include the following:
    (1) A statement of why the proposed action must be located in an 
area affecting or affected by a floodplain or a wetland;
    (2) A description of all significant facts considered in making this 
determination;
    (3) A list of the alternatives considered;
    (4) A statement indicating whether the action conforms to applicable 
state and local floodplain protection standards;
    (5) A statement indicating how the action affects or is affected by 
the floodplain and/or wetland, and how mitigation is to be achieved;
    (6) Identification of the responsible official or organization for 
implementation and monitoring of the proposed action, and from whom 
further information can be obtained; and
    (7) A map of the area or a statement that such map is available for 
public inspection, including the location at which such map may be 
inspected and a telephone number to call for information.
    (f) After providing the final notice, the Agency shall, without good 
cause shown, wait at least 15 days before carrying out the action.

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]



Sec. 9.13  Particular types of temporary housing.

    (a) The purpose of this section is to set forth the procedures 
whereby the Agency will provide certain specified types of temporary 
housing.
    (b) Prior to providing the types of temporary housing enumerated in 
paragraph (c) of this section, the Agency shall comply with the 
provisions of this section. For all temporary housing not enumerated 
below, the full 8-step process (see Sec. 9.6) applies.
    (c) The following temporary housing actions are subject to the 
provisions of this section and not the full 8-step process:
    (1) [Reserved]
    (2) Placing a mobile home or readily fabricated dwelling on a 
private or commercial site, but not a group site.
    (d) The actions set out in paragraph (c) of this section are subject 
to the following decision-making process:
    (1) The temporary housing action shall be evaluated in accordance 
with the provisions of Sec. 9.7 to determine if it is in or affects a 
floodplain or wetland.
    (2) No mobile home or readily fabricated dwelling may be placed on a 
private or commercial site in a floodway or coastal high hazard area.
    (3) An individual or family shall not be housed in a floodplain or 
wetland unless the Regional Director has complied with the provisions of 
Sec. 9.9 to determine that such site is the only practicable 
alternative. The following factors shall be substituted for the factors 
in Sec. 9.9 (c) and (e) (2) through (4):
    (i) Speedy provision of temporary housing;
    (ii) Potential flood risk to the temporary housing occupant;
    (iii) Cost effectiveness;
    (iv) Social and neighborhood patterns;
    (v) Timely availability of other housing resources; and
    (vi) Potential harm to the floodplain or wetland.
    (4) An individual or family shall not be housed in a floodplain or 
wetland (except in existing resources) unless

[[Page 98]]

the Regional Director has complied with the provisions of Sec. 9.11 to 
minimize harm to and within floodplains and wetlands. The following 
provisions shall be substituted for the provisions of Sec. 9.11(d) for 
mobile homes:
    (i) No mobile home or readily fabricated dwelling may be placed on a 
private or commercial site unless it is elevated to the fullest extent 
practicable up to the base flood level and adequately anchored.
    (ii) No mobile home or readily fabricated dwelling may be placed if 
such placement is inconsistent with the criteria of the National Flood 
Insurance Program (44 CFR part 59 et seq.) or any more restrictive 
Federal, State or local floodplain management standard. Such standards 
may require elevation to the base flood level in the absence of a 
variance.
    (iii) Mobile homes shall be elevated on open works (walls, columns, 
piers, piles, etc.) rather than on fill where practicable.
    (iv) To minimize the effect of floods on human health, safety and 
welfare, the Agency shall:
    (A) Where appropriate, integrate all of its proposed actions in 
placing mobile homes for temporary housing in floodplains into existing 
flood warning and preparedness plans and ensure that available flood 
warning time is reflected;
    (B) Provide adequate access and egress to and from the proposed site 
of the mobile home; and
    (C) Give special consideration to the unique hazard potential in 
flash flood and rapid-rise areas.
    (5) FEMA shall comply with Step 2 Early Public Notice (Sec. 9.8(c)) 
and Step 7 Final Public Notice (Sec. 9.12). In providing these notices, 
the emergency nature of temporary housing shall be taken into account.
    (e) FEMA shall not sell or otherwise dispose of mobile homes or 
other readily fabricated dwellings which would be located in floodways 
or coastal high hazard areas. FEMA shall not sell or otherwise dispose 
of mobile homes or other readily fabricated dwellings which would be 
located in floodplains or wetlands unless there is full compliance with 
the 8-step process. Given the vulnerability of mobile homes to flooding, 
a rejection of a non-floodplain location alternative and of the no-
action alternative shall be based on (1) a compelling need of the family 
or individual to buy a mobile home for permanent housing, and (2) a 
compelling requirement to locate the unit in a floodplain. Further, FEMA 
shall not sell or otherwise dispose of mobile homes or other readily 
fabricated dwellings in a floodplain unless they are elevated at least 
to the level of the 100-year flood. The Regional Director shall notify 
the Associate Director for State and Local Programs and Support of each 
instance where a floodplain location has been found to be the only 
practicable alternative for a mobile home sale.

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]



Sec. 9.14  Disposal of Agency property.

    (a) The purpose of this section is to set forth the procedures 
whereby the Agency shall dispose of property.
    (b) Prior to its disposal by sale, lease or other means of disposal, 
property proposed to be disposed of by the Agency shall be reviewed 
according to the decision-making process set out in Sec. 9.6 of this 
part, as follows:
    (1) The property shall be evaluated in accordance with the 
provisions of Sec. 9.7 to determine if it affects or is affected by a 
floodplain or wetland;
    (2) The public shall be notified of the proposal and involved in the 
decision-making process in accordance with the provisions of Sec. 9.8;
    (3) Practicable alternatives to disposal shall be evaluated in 
accordance with the provisions of Sec. 9.9. For disposals, this 
evaluation shall focus on alternative actions (conveyance for an 
alternative use that is more consistent with the floodplain management 
and wetland protection policies set out in Sec. 9.2 than the one 
proposed, e.g., open space use for park or recreational purposes rather 
than high intensity uses), and on the ``no action'' option (retain the 
property);
    (4) Identify the potential impacts and support associated with the 
disposal of the property in accordance with Sec. 9.10;

[[Page 99]]

    (5) Identify the steps necessary to minimize, restore, preserve and 
enhance in accordance with Sec. 9.11. For disposals, this analysis 
shall address all four of these components of mitigation where 
unimproved property is involved, but shall focus on minimization through 
floodproofing and restoration of natural values where improved property 
is involved;
    (6) Reevaluate the proposal to dispose of the property in light of 
its exposure to the flood hazard and its natural values-related impacts, 
in accordance with Sec. 9.9. This analysis shall focus on whether it is 
practicable in light of the findings from Sec. Sec. 9.10 and 9.11 to 
dispose of the property, or whether it must be retained. If it is 
determined that it is practicable to dispose of the property, this 
analysis shall identify the practicable alternative that best achieves 
all of the components of the Orders' mitigation responsibility;
    (7) To the extent that it would decrease the flood hazard to lives 
and property, the Agency shall, wherever practicable, dispose of the 
properties according to the following priorities:
    (i) Properties located outside the floodplain;
    (ii) Properties located in the flood fringe; and
    (iii) Properties located in a floodway, regulatory floodway or 
coastal high hazard area.
    (8) The Agency shall prepare and provide the public with a finding 
and public explanation in accordance with Sec. 9.12.
    (9) The Agency shall ensure that the applicable mitigation 
requirements are fully implemented in accordance with Sec. 9.11.
    (c) At the time of disposal, for all disposed property, the Agency 
shall reference in the conveyance uses that are restricted under 
existing Federal, State and local floodplain management and wetland 
protection standards relating to flood hazards and floodplain and 
wetland values.



Sec. 9.15  Planning programs affecting land use.

    The Agency shall take floodplain management into account when 
formulating or evaluating any water and land use plans. No plan may be 
approved unless it:
    (a) Reflects consideration of flood hazards and floodplain 
management and wetlands protection; and
    (b) Prescribes planning procedures to implement the policies and 
requirements of the Orders and this regulation.



Sec. 9.16  Guidance for applicants.

    (a) The Agency shall encourage and provide adequate guidance to 
applicants for agency assistance to evaluate the effects of their plans 
and proposals in or affecting floodplains and wetlands.
    (b) This shall be accomplished primarily through amendment of all 
Agency instructions to applicants, e.g., program handbooks, contracts, 
application and agreement forms, etc., and also through contact made by 
agency staff during the normal course of their activities, to fully 
inform prospective applicants of:
    (1) The Agency's policy on floodplain management and wetlands 
protection as set out in Sec. 9.2;
    (2) The decision-making process to be used by the Agency in making 
the determination of whether to provide the required assistance as set 
out in Sec. 9.6;
    (3) The nature of the Orders' practicability analysis as set out in 
Sec. 9.9;
    (4) The nature of the Orders' mitigation responsibilities as set out 
in Sec. 9.11;
    (5) The nature of the Orders' public notice and involvement process 
as set out in Sec. Sec. 9.8 and 9.12; and
    (6) The supplemental requirements applicable to applications for the 
lease or other disposal of Agency owned properties set out in Sec. 
9.14.
    (c) Guidance to applicants shall be provided where possible, prior 
to the time of application in order to minimize potential delays in 
process application due to failure of applicants to recognize and 
reflect the provisions of the Orders and this regulation.



Sec. 9.17  Instructions to applicants.

    (a) Purpose. In accordance with Executive Orders 11988 and 11990, 
the Federal executive agencies must respond to a number of floodplain 
management and wetland protection responsibilities

[[Page 100]]

before carrying out any of their activities, including the provision of 
Federal financial and technical assistance. The purpose of this section 
is to put applicants for Agency assistance on notice concerning both the 
criteria that it is required to follow under the Orders, and applicants' 
responsibilities under this regulation.
    (b) Responsibilities of Applicants. Based upon the guidance provided 
by the Agency under Sec. 9.16, that guidance included in the U.S. Water 
Resources Council's Guidance for Implementing E.O. 11988, and based upon 
the provisions of the Orders and this regulation, applicants for Agency 
assistance shall recognize and reflect in their application:
    (1) The Agency's policy on floodplain management and wetlands 
protection as set out in Sec. 9.2;
    (2) The decision-making process to be used by the Agency in making 
the determination of whether to provide the requested assistance as set 
out in Sec. 9.6;
    (3) The nature of the Orders' practicability analysis as set out in 
Sec. 9.9;
    (4) The nature of the Orders' mitigation responsibilities as set out 
in Sec. 9.11;
    (5) The nature of the Orders' public and involvement process as set 
out in Sec. Sec. 9.8 and 9.12; and
    (6) The supplemental requirements for application for the lease or 
other disposal of Agency-owned properties, as set out in Sec. 9.13.
    (c) Provision of supporting information. Applicants for Agency 
assistance may be called upon to provide supporting information relative 
to the various responsibilities set out in paragraph (b) of this section 
as a prerequisite to the approval of their applications.
    (d) Approval of applications. Applications for Agency assistance 
shall be reviewed for the recognition and reflection of the provisions 
of this regulation in addition to the Agency's existing approval 
criteria.



Sec. 9.18  Responsibilities.

    (a) Regional Directors' responsibilities. Regional Directors shall, 
for all actions falling within their respective jurisdictions:
    (1) Implement the requirements of the Orders and this regulation. 
Anywhere in Sec. Sec. 9.2, 9.6 through 9.13, and 9.15 where a direction 
is given to the Agency, it is the responsibility of the Regional 
Director.
    (2) Consult with the General Counsel regarding any question of 
interpretation concerning this regulation or the Orders.
    (b) Associate Directors' responsibilities. Associate Directors/
Administrators shall ensure that the offices/administrations under their 
jurisdiction:
    (1) Implement the requirements of the Orders and this regulation. 
When a decision of a Regional Director relating to disaster assistance 
is appealed, the Associate Director for State and Local Programs and 
Support may make determinations under these regulations on behalf of the 
Agency.
    (2) Identify within ninety (90) days of the effective date of this 
regulation:
    (i) The modifications that are necessary to make their existing 
floodplain management and wetlands protection procedures adequate to 
meet the directives of the Orders;
    (ii) Which of these modifications should be made a part of this 
regulation;
    (iii) Which of these modifications are to be included in program 
regulations other than this one; and
    (iv) The steps being taken to prepare and implement these 
modifications.
    (3) Are in full compliance with the Orders' provisions through the 
modification of their processes in accordance with paragraphs (b) (1) 
and (2) of this section.
    (4) Prepare and submit to the Office of General Counsel reports to 
the Office of Management and Budget in accordance with section 2(b) of 
E.O. 11988 and section 3 of E.O. 11990. If a proposed action is to be 
located in a floodplain or wetland, any requests to the Office of 
Management and Budget for new authorizations or appropriations shall be 
accompanied by a report indicating whether the proposed action is in 
accord with the Orders and these regulations.

[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 33879, Aug. 27, 1984]

[[Page 101]]

      Appendix A to Part 9--Decision-making Process for E.O. 11988
[GRAPHIC] [TIFF OMITTED] TC02FE91.074



PART 10_ENVIRONMENTAL CONSIDERATIONS--Table of Contents




                            Subpart A_General

Sec.
10.1 Background and purpose.
10.2 Applicability and scope.
10.3 Definitions.
10.4 Policy.

                Subpart B_Agency Implementing Procedures

10.5 Responsibilities.
10.6 Making or amending policy.
10.7 Planning.
10.8 Determination of requirement for environmental review.
10.9 Preparation of environmental assessments.
10.10 Preparation of environmental impact statements.
10.11 Environmental information.
10.12 Pre-implementation actions.
10.13 Emergencies.
10.14 Flood plains and wetlands.

    Authority: 42 U.S.C. 4321 et seq.; E.O. 11514 of March 7, 1970, 35 
FR 4247, as amended by E. O. 11991 of March 24, 1977, 3 CFR, 1977 Comp., 
p. 123; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 
Comp., p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 3 CFR, 1979 
Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 CFR, 1979 
Comp., p. 412, as amended.

    Source: 45 FR 41142, June 18, 1980, unless otherwise noted.



                            Subpart A_General



Sec. 10.1  Background and purpose.

    (a) This part implements the Council on Environmental Quality (CEQ) 
regulations (National Environmental Policy Act Regulations, 43 FR 55978 
(1978)) and provides policy and procedures to

[[Page 102]]

enable Federal Emergency Management Agency (FEMA) officials to be 
informed of and take into account environmental considerations when 
authorizing or approving major FEMA actions that significantly affect 
the environment in the United States. The Council on Environmental 
Quality Regulations implement the procedural provisions, section 102(2), 
of the National Environmental Policy Act of 1969, as amended 
(hereinafter NEPA) (Pub. L. 91-190, 42 U.S.C. 4321 et seq.), and 
Executive Order 11991, 42 FR 26967 (1977).
    (b) Section 1507.3, Council on Environmental Quality Regulations 
(National Environmental Policy Act Regulations, 43 FR 55978 (1978)) 
directs that Federal agencies shall adopt procedures to supplement the 
CEQ regulations. This regulation provides detailed FEMA implementing 
procedures to supplement the CEQ regulations.
    (c) The provisions of this part must be read together with those of 
the CEQ regulations and NEPA as a whole when applying the NEPA process.



Sec. 10.2  Applicability and scope.

    The provisions of this part apply to the Federal Emergency 
Management Agency, (hereinafter referred to as FEMA) including any 
office or administration of FEMA, and the FEMA regional offices.



Sec. 10.3  Definitions.

    (a) Regional Director means the Regional Director of the Federal 
Emergency Management Agency for the region in which FEMA is acting.
    (b) The other terms used in this part are defined in the CEQ 
regulations (40 CFR part 1508).
    (c) Environmental Officer means the Chief, Public Assistance 
Division, Office of Disaster Assistance Programs, State and Local 
Programs and Support Directorate.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
50 FR 40006, Oct. 1, 1985]



Sec. 10.4  Policy.

    (a) FEMA shall act with care to assure that, in carrying out its 
responsibilities, including disaster planning, response and recovery and 
hazard mitigation and flood insurance, it does so in a manner consistent 
with national environmental policies. Care shall be taken to assure, 
consistent with other considerations of national policy, that all 
practical means and measures are used to protect, restore, and enhance 
the quality of the environment, to avoid or minimize adverse 
environmental consequences, and to attain the objectives of:
    (1) Achieving use of the environment without degradation, or 
undesirable and unintended consequences;
    (2) Preserving historic, cultural and natural aspects of national 
heritage and maintaining, wherever possible, an environment that 
supports diversity and variety of individual choice;
    (3) Achieving a balance between resource use and development within 
the sustained carrying capacity of the ecosystem involved; and
    (4) Enhancing the quality of renewable resources and working toward 
the maximum attainable recycling of depletable resources.
    (b) FEMA shall:
    (1) Assess environmental consequences of FEMA actions in accordance 
with Sec. Sec. 10.9 and 10.10 of this part and parts 1500 through 1508 
of the CEQ regulations;
    (2) Use a systematic, interdisciplinary approach that will ensure 
the integrated use of the natural and social sciences, and environmental 
considerations, in planning and decisionmaking where there is a 
potential for significant environmental impact;
    (3) Ensure that presently unmeasured environmental amenities are 
considered in the decisionmaking process;
    (4) Consider reasonable alternatives to recommended courses of 
action in any proposal that involves conflicts concerning alternative 
uses of resources; and
    (5) Make available to States, counties, municipalities, institutions 
and individuals advice and information useful in restoring, maintaining, 
and enhancing the quality of the environment.

[[Page 103]]



                Subpart B_Agency Implementing Procedures



Sec. 10.5  Responsibilities.

    (a) The Regional Directors shall, for each action not categorically 
excluded from this regulation and falling within their respective 
jurisdictions:
    (1) Prepare an environmental assessment and submit such assessment 
to the Environmental Officer and the Office of General Counsel (OGC);
    (2) Prepare a finding of no significant impact, or prepare an 
environmental impact statement;
    (3) Coordinate and provide information regarding environmental 
review with applicants for FEMA assistance;
    (4) Prepare and maintain an administrative record for each proposal 
that is determined to be categorically excluded from this regulation;
    (5) Involve environmental agencies, applicants, and the public to 
the extent practicable in preparing environmental assessments;
    (6) Prepare, as required, a supplement to either the draft or final 
environmental impact statement;
    (7) Circulate draft and final environmental impact statements;
    (8) Ensure that decisions are made in accordance with the policies 
and procedures of NEPA and this part, and prepare a concise public 
record of such decisions;
    (9) Consider mitigating measures to avoid or minimize environmental 
harm, and, in particular, harm to and within floodplains and wetlands; 
and
    (10) Review and comment upon, as appropriate, environmental 
assessments and impact statements of other Federal agencies and of State 
and local entities within their respective regions.
    (b) The Environmental Officer shall:
    (1) Determine, on the basis of the environmental assessment whether 
an environmental impact statement is required, or whether a finding of 
no significant impact shall be prepared;
    (2) Review all proposed changes or additions to the list of 
categorical exclusions;
    (3) Review all findings of no significant impact;
    (4) Review all proposed draft and final environmental statements;
    (5) Publish the required notices in the Federal Register;
    (6) Provide assistance in the preparation of environmental 
assessments and impact statements and assign lead agency responsibility 
when more than one FEMA office or administration is involved;
    (7) Direct the preparation of environmental documents for specific 
actions when required;
    (8) Comply with the requirements of this part when the Director of 
FEMA promulgates regulations, procedures or other issuances making or 
amending Agency policy;
    (9) Provide, when appropriate, consolidated FEMA comments on draft 
and final impact statements prepared for the issuance of regulations and 
procedures of other agencies;
    (10) Review FEMA issuances that have environmental implications;
    (11) Maintain liaison with the Council on Environmental Quality, the 
Environmental Protection Agency, the Office of Management and Budget, 
other Federal agencies, and State and local groups, with respect to 
environmental analysis for FEMA actions affecting the environment.
    (c) The Heads of the Office and Administrations of FEMA shall:
    (1) Assess environmental consequences of proposed and on-going 
programs within their respective organizational units;
    (2) Prepare and process environmental assessments and environmental 
impact statements for all regulations, procedures and other issuances 
making or amending program policy related to actions which do not 
qualify for categorical exclusions;
    (3) Integrate environmental considerations into their decisionmaking 
processes;
    (4) Ensure that regulations, procedures and other issuances making 
or amending program policy are reviewed for consistency with the 
requirements of this part;
    (5) Designate a single point of contact for matters pertaining to 
this part;
    (6) Provide applicants for FEMA assistance with technical assistance 
regarding FEMA's environmental review process.

[[Page 104]]

    (d) The Office of General Counsel of FEMA shall:
    (1) Provide advice and assistance concerning the requirements of 
this part;
    (2) Review all proposed changes or additions to the list of 
categorical exclusions;
    (3) Review all findings of no significant impact; and
    (4) Review all proposed draft and final environmental impact 
statements.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.6  Making or amending policy.

    For all regulations, procedures, or other issuances making or 
amending policy, the head of the FEMA office or administration 
establishing such policy shall be responsible for application of this 
part to that action. This does not apply to actions categorically 
excluded. For all policy-making actions not categorically excluded, the 
head of the office or administration shall comply with the requirements 
of this part. Thus, for such actions, the office or administration head 
shall assume the responsibilities that a Regional Director assumes for a 
FEMA action in his/her respective region. For such policy-making actions 
taken by the Director of FEMA, the Environmental Officer shall assume 
the responsibilities that a Regional Director assumes for a FEMA action 
in his/her respective region.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.7  Planning.

    (a) Early planning. The Regional Director shall integrate the NEPA 
process with other planning at the earliest possible time to ensure that 
planning decisions reflect environmental values, to avoid delays later 
in the process, and to head off potential conflicts.
    (b) Lead agency. To determine the lead agency for policy-making in 
which more than one FEMA office or administration is involved or any 
action in which another Federal agency is involved, FEMA offices and 
administrations shall apply criteria defined in Sec. 1501.5 of the CEQ 
regulation. If there is disagreement, the FEMA offices and/or 
administrations shall forward a request for lead agency determination to 
the Environmental Officer;
    (1) The Environmental Officer will determine lead agency 
responsibility among FEMA offices and administration.
    (2) In those cases involving a FEMA office or administration and 
another Federal agency, the Environmental Officer will attempt to 
resolve the differences. If unsuccessful, the Environmental Officer will 
file the request with the Council on Environmental Quality for 
determination.
    (c) Technical assistance to applicants. (1) Section 1501.2(d) of the 
CEQ regulations requires agencies to provide for early involvement in 
actions which, while planned by private applicants or other non-Federal 
entities, require some form of Federal approval. To implement the 
requirements of Sec. 1501.2(d),
    (i) The heads of the FEMA offices and administration shall prepare 
where practicable, generic guidelines describing the scope and level of 
environmental information required from applicants as a basis for 
evaluating their proposed actions, and make these guidelines available 
upon request.
    (ii) The Regional Director shall provide such guidance on a project-
by-project basis to applicants seeking assistance from FEMA.
    (iii) Upon receipt of an application for agency approval, or 
notification that an application will be filed, the Regional Director 
shall consult as required with other appropriate parties to initiate and 
coordinate the necessary environmental analyses.
    (2) To facilitate compliance with the requirements of paragraph (a) 
of this section, applicants and other non-Federal entities are expected 
to:
    (i) Contact the Regional Director as early as possible in the 
planning process for guidance on the scope and level of environmental 
information required to be submitted in support of their application;
    (ii) Conduct any studies which are deemed necessary and appropriate 
by FEMA to determine the impact of the proposed action on the human 
environment;
    (iii) Consult with appropriate Federal, regional, State, and local 
agencies

[[Page 105]]

and other potentially interested parties during preliminary planning 
stages to ensure that all environmental factors are identified;
    (iv) Submit applications for all Federal, regional, State, and local 
approv als as early as possible in the planning process;
    (v) Notify the Regional Director as early as possible of all other 
Federal, regional, State, local, and Indian tribe actions required for 
project completion so that FEMA may coordinate all Federal environmental 
reviews; and
    (vi) Notify the Regional Director of all known parties potentially 
affected by or interested in the proposed action.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.8  Determination of requirement for environmental review.

    The first step in applying the NEPA process is to determine whether 
to prepare an environmental assessment or an environmental impact 
statement. Early determination will help ensure that necessary 
environmental documentation is prepared and integrated into the 
decision-making process. Environmental impact statements will be 
prepared for all major Agency actions (see 40 CFR 1508.18) significantly 
(see 40 CFR 1508.27) affecting the quality of the human environment.
    (a) In determining whether to prepare an environmental impact 
statement (EIS) the Regional Director will first determine whether the 
proposal is one which:
    (1) Normally requires an environmental impact statement; or
    (2) Normally does not require either an environmental impact 
statement or an environmental assessment (categorical exclusion).
    (b) Actions that normally require an EIS. (1) In some cases, it will 
be readily apparent that a proposed action will have significant impact 
on the environment. In that event, the Regional Director will, pursuant 
to Sec. 10.9(g) of this part, submit the notice of preparation of an 
environmental impact statement to the Environmental Officer.
    (2) To assist in determining those actions that normally do require 
an environmental impact statement, the following criteria apply:
    (i) If an action will result in an extensive change in land use or 
the commitment of a large amount of land;
    (ii) If an action will result in a land use change which is 
incompatible with the existing or planned land use of the surrounding 
area;
    (iii) If many people will be affected;
    (iv) If the environmental impact of the project is likely to be 
controversial;
    (v) If an action will affect, in large measure, wildlife populations 
and their habitats, important natural resources, floodplains, wetlands, 
estuaries, beaches, dunes, unstable soils, steep slopes, aquifer 
recharge areas, or delicate or rare ecosystems, including endangered 
species;
    (vi) If an action will result in a major adverse impact upon air or 
water quality;
    (vii) If an action will adversely affect a property listed on the 
National Register of Historic Places or eligible for listing on the 
Register if, after consultation with the Advisory Council on Historic 
Preservation an environmental assessment is not deemed sufficient;
    (viii) If an action is one of several actions underway or planned 
for an area and the cumulative impact of these projects is considered 
significant in terms of the above criteria;
    (ix) If an action holds potential for threat or hazard to the 
public; or
    (x) If an action is similar to previous actions determined to 
require an environmental impact statement.
    (3) In any case involving an action that normally does require an 
environmental impact statement, the Regional Director may prepare an 
environmental assessment to determine if an environmental impact 
statement is required.
    (c) Statutory exclusions. The following actions are statutorily 
excluded from NEPA and the preparation of environmental impact 
statements and environmental assessments by section 316 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as 
amended, 42 U.S.C. 5159;
    (1) Action taken or assistance provided under sections 402, 403, 
407, or 502 of the Stafford Act; and

[[Page 106]]

    (2) Action taken or assistance provided under section 406 of the 
Stafford Act that has the effect of restoring facilities substantially 
as they existed before a major disaster or emergency.
    (d) Categorical Exclusions (CATEXs). CEQ regulations at 40 CFR 
1508.4 provide for the categorical exclusion of actions that do not 
individually or cumulatively have a significant impact on the human 
environment and for which, therefore, neither an environmental 
assessment nor an environmental impact statement is required. Full 
implementation of this concept will help FEMA avoid unnecessary or 
duplicate effort and concentrate resources on significant environmental 
issues.
    (1) Criteria. The criteria used for determination of those 
categories of actions that normally do not require either an 
environmental impact statement or an environmental assessment include:
    (i) Minimal or no effect on environmental quality;
    (ii) No significant change to existing environmental conditions; and
    (iii) No significant cumulative environmental impact.
    (2) List of exclusion categories. FEMA has determined that the 
following categories of actions have no significant effect on the human 
environment and are, therefore, categorically excluded from the 
preparation of environmental impact statements and environmental 
assessments except where extraordinary circumstances as defined in 
paragraph (d)(5) of this section exist. If the action is of an emergency 
nature as described in Sec. 316 of the Stafford Act (42 U.S.C. 5159), 
it is statutorily excluded and is noted with [SE].
    (i) Administrative actions such as personnel actions, travel, 
procurement of supplies, etc., in support of normal day-to-day 
activities and disaster related activities;
    (ii) Preparation, revision, and adoption of regulations, directives, 
manuals, and other guidance documents related to actions that qualify 
for categorical exclusions;
    (iii) Studies that involve no commitment of resources other than 
manpower and associated funding;
    (iv) Inspection and monitoring activities, granting of variances, 
and actions to enforce Federal, state, or local codes, standards or 
regulations;
    (v) Training activities and both training and operational exercises 
utilizing existing facilities in accordance with established procedures 
and land use designations;
    (vi) Procurement of goods and services for support of day-to-day and 
emergency operational activities, and the temporary storage of goods 
other than hazardous materials, so long as storage occurs on previously 
disturbed land or in existing facilities;
    (vii) The acquisition of properties and the associated demolition/
removal [see paragraph (d)(2)(xii) of this section] or relocation of 
structures [see paragraph (d)(2)(xiii) of this section] under any 
applicable authority when the acquisition is from a willing seller, the 
buyer coordinated acquisition planning with affected authorities, and 
the acquired property will be dedicated in perpetuity to uses that are 
compatible with open space, recreational, or wetland practices.
    (viii) Acquisition or lease of existing facilities where planned 
uses conform to past use or local land use requirements;
    (ix) Acquisition, installation, or operation of utility and 
communication systems that use existing distribution systems or 
facilities, or currently used infrastructure rights-of-way;
    (x) Routine maintenance, repair, and grounds-keeping activities at 
FEMA facilities;
    (xi) Planting of indigenous vegetation;
    (xii) Demolition of structures and other improvements or disposal of 
uncontaminated structures and other improvements to permitted off-site 
locations, or both;
    (xiii) Physical relocation of individual structures where FEMA has 
no involvement in the relocation site selection or development;
    (xiv) Granting of community-wide exceptions for floodproofed 
residential basements meeting the requirements of 44 CFR 60.6(c) under 
the National Flood Insurance Program;
    (xv) Repair, reconstruction, restoration, elevation, retrofitting, 
upgrading to current codes and standards, or replacement of any facility 
in a manner

[[Page 107]]

that substantially conforms to the preexisting design, function, and 
location; [SE, in part]
    (xvi) Improvements to existing facilities and the construction of 
small scale hazard mitigation measures in existing developed areas with 
substantially completed infrastructure, when the immediate project area 
has already been disturbed, and when those actions do not alter basic 
functions, do not exceed capacity of other system components, or modify 
intended land use; provided the operation of the completed project will 
not, of itself, have an adverse effect on the quality of the human 
environment;
    (xvii) Actions conducted within enclosed facilities where all 
airborne emissions, waterborne effluent, external radiation levels, 
outdoor noise, and solid and bulk waste disposal practices comply with 
existing Federal, state, and local laws and regulations;
    (xviii) The following planning and administrative activities in 
support of emergency and disaster response and recovery:
    (A) Activation of the Emergency Support Team and convening of the 
Catastrophic Disaster Response Group at FEMA headquarters;
    (B) Activation of the Regional Operations Center and deployment of 
the Emergency Response Team, in whole or in part;
    (C) Deployment of Urban Search and Rescue teams;
    (D) Situation Assessment including ground and aerial reconnaissance;
    (E) Information and data gathering and reporting efforts in support 
of emergency and disaster response and recovery and hazard mitigation; 
and
    (xix) The following emergency and disaster response, recovery and 
hazard mitigation activities under the Stafford Act:
    (A) General Federal Assistance (Sec. 402); [SE]
    (B) Essential Assistance (Sec. 403); [SE]
    (C) Debris Removal (Sec. 407) [SE]
    (D) Temporary Housing (Sec. 408), except locating multiple mobile 
homes or other readily fabricated dwellings on sites, other than private 
residences, not previously used for such purposes;
    (E) Unemployment Assistance (Sec. 410);
    (F) Individual and Family Grant Programs (Sec. 411), except for 
grants that will be used for restoring, repairing or building private 
bridges, or purchasing mobile homes or other readily fabricated 
dwellings;
    (G) Food Coupons and Distribution (Sec. 412);
    (H) Food Commodities (Sec. 413);
    (I) Legal Services (Sec. 415);
    (J) Crisis Counseling Assistance and Training (Sec. 416);
    (K) Community Disaster Loans (Sec. 417);
    (L) Emergency Communications (Sec. 418);
    (M) Emergency Public Transportation (Sec. 419);
    (N) Fire Management Assistance Grants; and
    (O) Federal Emergency Assistance (Sec. 502) [SE].
    (3) Extraordinary circumstances. If extraordinary circumstances 
exist within an area affected by an action, such that an action that is 
categorically excluded from NEPA compliance may have a significant 
adverse environmental impact, an environmental assessment shall be 
prepared. Extraordinary circumstances that may have a significant 
environmental impact include:
    (i) Greater scope or size than normally experienced for a particular 
category of action;
    (ii) Actions with a high level of public controversy;
    (iii) Potential for degradation, even though slight, of already 
existing poor environmental conditions;
    (iv) Employment of unproven technology with potential adverse 
effects or actions involving unique or unknown environmental risks;
    (v) Presence of endangered or threatened species or their critical 
habitat, or archaeological, cultural, historical or other protected 
resources;
    (vi) Presence of hazardous or toxic substances at levels which 
exceed Federal, state or local regulations or standards requiring action 
or attention;
    (vii) Actions with the potential to affect special status areas 
adversely or other critical resources such as wetlands, coastal zones, 
wildlife refuge and

[[Page 108]]

wilderness areas, wild and scenic rivers, sole or principal drinking 
water aquifers;
    (viii) Potential for adverse effects on health or safety; and
    (ix) Potential to violate a Federal, State, local or tribal law or 
requirement imposed for the protection of the environment.
    (x) Potential for significant cumulative impact when the proposed 
action is combined with other past, present and reasonably foreseeable 
future actions, even though the impacts of the proposed action may not 
be significant by themselves.
    (4) Documentation. The Regional Director will prepare and maintain 
an administrative record of each proposal that is determined to be 
categorically excluded from the preparation of an environmental impact 
statement or an environmental assessment.
    (5) Revocation. The Regional Director shall revoke a determination 
of categorical exclusion and shall require a full environmental review 
if, subsequent to the granting an exclusion, the Regional Director 
determines that due to changes in the proposed action or in light of new 
findings, the action no longer meets the requirements for a categorical 
exclusion.
    (6) Changes to the list of exclusion categories. (i) The FEMA list 
of exclusion categories will be continually reviewed and refined as 
additional categories are identified and experience is gained in the 
categorical exclusion process. An office, directorate, or administration 
of FEMA may, at any time, recommend additions or changes to the FEMA 
list of exclusion categories.
    (ii) Offices, directorates, and administrations of FEMA are 
encouraged to develop additional categories of exclusions necessary to 
meet their unique operational and mission requirements.
    (iii) If an office, directorate, or administration of FEMA proposes 
to change or add to the list of exclusion categories, it shall first:
    (A) Obtain the approval of the Environmental Officer and the Office 
of the General Counsel; and
    (B) Publish notice of such proposed change or addition in the 
Federal Register at least 60 days before the effective date of such 
change or addition.
    (e) Actions that normally require an environmental assessment. When 
a proposal is not one that normally requires an environmental impact 
statement and does not qualify as a categorical exclusion, the Regional 
Director shall prepare an environmental assessment.
    (f) Documentation. The Regional Director will prepare and maintain 
an administrative record of each proposal that is determined to be 
categorically excluded from the preparation of an environmental impact 
statement or an environmental assessment.
    (g) Actions that normally require an environmental assessment. When 
a proposal is not one that normally requires an environmental impact 
statement and does not qualify as a categorical exclusion, the Regional 
Director shall prepare an environmental assessment.

[45 FR 41142, June 18, 1980, as amended at 46 FR 2049, Jan. 8, 1981; 46 
FR 54346, Nov. 3, 1981; 47 FR 13149, Mar. 29, 1982; 52 FR 5285, Feb. 20, 
1987; 59 FR 954, Jan. 7, 1994; 61 FR 4230, Feb. 5, 1996; 61 FR 10688, 
Mar. 15, 1996; 66 FR 57347, Nov. 14, 2001]



Sec. 10.9  Preparation of environmental assessments.

    (a) When to prepare. The Regional Director shall begin preparation 
of an environmental assessment as early as possible after the 
determination that an assessment is required. The Regional Director may 
prepare an environmental assessment at any time to assist planning and 
decision-making.
    (b) Content and format. The environmental assessment is a concise 
public document to determine whether to prepare an environmental impact 
statement, aiding in compliance with NEPA when no EIS is necessary, and 
facilitating preparation of a statement when one is necessary. 
Preparation of an environmental assessment generally will not require 
extensive research or lengthy documentation. The environmental 
assessment shall contain brief discussion of the following:
    (1) Purpose and need for the proposed action.
    (2) Description of the proposed action.
    (3) Alternatives considered.
    (4) Environmental impact of the proposed action and alternatives.

[[Page 109]]

    (5) Listing of agencies and persons consulted.
    (6) Conclusion of whether to prepare an environmental impact 
statement.
    (c) Public participation. The Regional Director shall involve 
environmental agencies, applicants, and the public, to the extent 
practicable, in preparing environmental assessments. In determining ``to 
the extent practicable,'' the Regional Director shall consider:
    (1) Magnitude of the proposal;
    (2) Likelihood of public interest;
    (3) Need to act quickly;
    (4) Likelihood of meaningful public comment;
    (5) National security classification issues;
    (6) Need for permits; and
    (7) Statutory authority of environmental agency regarding the 
proposal.
    (d) When to prepare an EIS. The Regional Director shall prepare an 
environmental impact statement for all major Agency actions 
significantly affecting the quality of the human environment. The test 
of what is a ``significant'' enough impact to require an EIS is found in 
the CEQ regulations at 40 CFR 1508.27.
    (e) Finding of No Significant Impact. If the Regional Director 
determines on the basis of the environmental assessment not to prepare 
an environmental impact statement, the Regional Director shall prepare a 
finding of no significant impact in accordance with 40 CFR 1501.4(e) of 
the CEQ regulations. The assessment and the finding shall be submitted 
to the Environmental Officer and the Office of General Counsel (OGC) for 
approval. If Environmental Officer and OGC approval is obtained, the 
Regional Director shall then make the finding of no significant impact 
available to the public as specified in Sec. 1506.6 of the CEQ 
regulations. A finding of no significant impact is not required when the 
decision not to prepare an environmental impact statement is based on a 
categorical exclusion.
    (f) Environmental Officer or OGC Disallowance. If the Environmental 
Officer or OGC disagrees with the finding of no significant impact, the 
Regional Director shall prepare an environmental impact statement. Prior 
to preparation of an EIS, the Regional Director shall forward a notice 
of intent to prepare the EIS to the Environmental Officer who shall 
publish such notice in the Federal Register.
    (g) EIS determination of Regional Director. The Regional Director 
may decide on his/her own to prepare an environmental impact statement. 
In such case, the Regional Director shall forward a notice of intent to 
prepare the EIS to the Environmental Officer who shall publish such 
notice in the Federal Register. The notice of intent shall be published 
before initiation of the scoping process.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.10  Preparation of environmental impact statements.

    (a) Scoping. After determination that an environmental impact 
statement will be prepared and publication of the notice of intent, the 
Regional Director will initiate the scoping process in accordance with 
Sec. 1501.7 of the CEQ regulations.
    (b) Preparation. Based on the scoping process, the Regional Director 
will begin preparation of the environmental impact statement. Detailed 
procedures for preparation of the environmental impact statement are 
provided in part 1502 of the CEQ regulations.
    (c) Supplemental Environmental Impact Statements. The Regional 
Director may at any time supplement a draft or final environmental 
impact statement. The Regional Director shall prepare a supplement to 
either the draft or final environmental impact statement when required 
under the criteria set forth in Sec. 1502.9(2). The Regional Director 
will prepare, circulate, and file a supplement to a statement in the 
same fashion (exclusive of scoping) as a draft or final statement and 
will introduce the supplement into their formal administrative record.
    (d) Circulation of Environmental Impact Statements. The Regional 
Director shall circulate draft and final environmental impact statements 
as prescribed in Sec. 1502.19 of CEQ regulations. Prior to signing off 
on a draft or final impact statement, the Regional Director shall obtain 
the approval of the Environmental Officer and OGC.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]

[[Page 110]]



Sec. 10.11  Environmental information.

    Interested persons may contact the Environmental Officer or the 
Regional Director for information regarding FEMA's compliance with NEPA.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.12  Pre-implementation actions.

    (a) Decision-making. The Regional Director shall ensure that 
decisions are made in accordance with the policies and procedures of the 
Act and that the NEPA process is integrated into the decision-making 
process. Because of the diversity of FEMA, it is not feasible to 
describe in this part the decision-making process for each of the 
various FEMA programs. Proposals and actions may be initiated at any 
level. Similarly, review and approval authority may be exercised at 
various levels depending on the nature of the action, available funding, 
and statutory authority. FEMA offices and administrations shall provide 
further guidance, commensurate with their programs and organization, for 
integration of environmental considerations into the decision-making 
process. The Regional Director shall:
    (1) Consider all relevant environmental documents in evaluating 
proposals for Agency action;
    (2) Make all relevant environmental documents, comments, and 
responses part of the record in formal rulemaking or adjudicatory 
proceedings;
    (3) Ensure that all relevant environmental documents, comments and 
responses accompany the proposal through existing Agency review 
processes;
    (4) Consider only those alternatives encompassed by the range of 
alternatives discussed in the relevant environmental documents when 
evaluating proposals for Agency action;
    (5) Where an EIS has been prepared, consider the specific 
alternatives analyzed in the EIS when evaluating the proposal which is 
the subject of the EIS.
    (b) Record of decision. In those cases requiring environmental 
impact statements, the Regional Director at the time of his/her 
decision, or if appropriate, his/her recommendation to Congress, shall 
prepare a concise public record of that decision. The record of decision 
is not intended to be an extensive, detailed document for the purpose of 
justifying the decision. Rather it is a concise document that sets forth 
the decision and describes the alternatives and relevant factors 
considered as specified in 40 CFR 1505.2. The record of decision will 
normally be less than three pages in length.
    (c) Mitigation. Throughout the NEPA process, the Regional Director 
shall consider mitigating measures to avoid or minimize environmental 
harm and, in particular, harm to or within flood plains and wetlands. 
Mitigation measures or programs will be identified in the environmental 
impact statement and made available to decision-makers. Mitigation and 
other conditions established in the environmental impact statement or 
during its review and committed as part of the decision shall be 
implemented by the Regional Director.
    (d) Monitoring. If a Regional Director determines that monitoring is 
applicable for established mitigation, a monitoring program will be 
adopted to assure the mitigation measures are accomplished. The Regional 
Director shall provide monitoring information, upon request, as 
specified in 40 CFR 1505.3. This does not, however, include standing or 
blanket requests for periodic reporting.



Sec. 10.13  Emergencies.

    In the event of an emergency, the Regional Director may be required 
to take immediate action with significant environmental impact. The 
Regional Director shall notify the Environmental Officer of the 
emergency action at the earliest possible time so that the Environmental 
Officer may consult with the Council on Environmental Quality. In no 
event shall any Regional Director delay an emergency action necessary to 
the preservation of human life for the purpose of complying with the 
provision of this directive or the CEQ regulations.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]

[[Page 111]]



Sec. 10.14  Flood plains and wetlands.

    For any action taken by FEMA in a flood plain or wetland, the 
provisions of this part are supplemental to, and not instead of, the 
provisions of the FEMA regulation implementing Executive Order 11988, 
Flood Plain Management, and Executive Order 11990, Protection of 
Wetlands (44 CFR part 9).



PART 11_CLAIMS--Table of Contents




                            Subpart A_General

Sec.
11.1 General collection standards.
11.2 Delegations of authority.

      Subpart B_Administrative Claims Under Federal Tort Claims Act

11.10 Scope of regulation.
11.11 Administrative claim; when presented; appropriate FEMA office.
11.12 Administrative claim; who may file.
11.13 Investigations.
11.14 Administrative claim; evidence and information to be submitted.
11.15 Authority to adjust, determine, compromise and settle.
11.16 Limitations on authority.
11.17 Referral to Department of Justice.
11.18 Final denial of claim.
11.19 Action on approved claim.

     Subpart C_Collection of Debts by the Government Under the Debt 
                         Collection Act of 1982

11.30 Scope of regulations.
11.31 Adoption of joint standards.
11.32 Subdivision and joining of debts.
11.33 Authority of offices to attempt collection of debts.
11.34 Referral of debts to the Chief Financial Officer, Federal 
          Emergency Management Agency.
11.35 Authority of offices to compromise debts or suspend or terminate 
          collection action.
11.36 Debt collection files.
11.37 [Reserved]
11.38 Annual reports to the Director, Office of Management and Budget, 
          and the Secretary of the Treasury.
11.40 Records retention.
11.41 Suspension or revocation of eligibility.
11.42 Demand for payment of debts.
11.43 Collection by administrative offset.
11.44 [Reserved]
11.45 Collection by salary offset.
11.46 Liquidation of collateral.
11.47 Collection in installments.
11.48 Interest, penalties, and administrative charges.
11.49 Omission not a defense.
11.50 Standards for compromise of debts.
11.51 Standards for suspension or termination of collection.
11.52 Referral of delinquent debtors to consumer reporting agencies.
11.53 Securing debtor addresses from the Department of Treasury.
11.54 Contracts with debt collection agencies.
11.55 Referral to GAO or Justice Department.
11.56 Analysis of costs.
11.57 Automation.
11.58 Prevention of overpayments, delinquencies, and defaults.
11.59 Office of General Counsel.
11.60 Sale of debts due the United States arising under programs 
          administered by the Agency.
11.61 Referral of delinquent debts to Department of the Treasury for 
          offsets against tax refunds.
11.62 Administrative charges incurred in referrals for tax refund 
          offset.
11.63 Notice to debtor before tax refund offset.
11.64 Review within Federal Emergency Management Agency.
11.65 Stay of tax refund offset action.

                 Subpart D_Personnel Claims Regulations

11.70 Scope and purpose.
11.71 Claimants.
11.72 Time limitations.
11.73 Allowable claims.
11.74 Claims not allowed.
11.75 Claims involving carriers and insurers.
11.76 Claims procedures.
11.77 Settlement of claims.
11.78 Computation of amount of award.
11.79 Attorney's fees.

    Authority: 31 U.S.C. 3701 et seq.

    Source: 45 FR 15930, Mar. 12, 1980, unless otherwise noted.



                            Subpart A_General



Sec. 11.1  General collection standards.

    The general standards and procedures governing the collection, 
compromise, termination and referral to the Department of Justice of 
claims for money and property that are prescribed in the regulations 
issued jointly by the General Accounting Office and the Department of 
Justice pursuant to the Federal Claims Collection Act of 1966 (4 CFR 
part 101 et seq.), apply to the administrative claim collection 
activities

[[Page 112]]

of the Federal Emergency Management Agency (FEMA).



Sec. 11.2  Delegations of authority.

    Any and all claims that arise under subchapter III of chapter 83, 
chapter 87 and chapter 88 of title 5, the United States Code, the 
Retired Federal Employees Health Benefits Act (74 Stat. 849), the Panama 
Canal Construction Annuity Act (58 Stat. 257), and the Lighthouse 
Service Widow's Annuity Act (64 Stat. 465) shall be referred to the 
Director of the Bureau of Retirement and Insurance, Office of Personnel 
Management, for handling. The General Counsel, FEMA shall act on all 
other claims against FEMA for money and property.



      Subpart B_Administrative Claims Under Federal Tort Claims Act



Sec. 11.10  Scope of regulation.

    This regulation applies to claims asserted under the Federal Tort 
Claims Act against the Federal Emergency Management Agency (FEMA). It 
does not include any contractor with FEMA.



Sec. 11.11  Administrative claim; when presented; appropriate FEMA office.

    (a) For the purpose of this part, and the provisions of the Federal 
Tort Claims Act a claim is deemed to have been presented when FEMA 
receives, at a place designated in paragraph (b) or (c) of this section, 
an executed ``Claim for Damage or Injury,'' Standard Form 95, or other 
written notification of an incident, accompanied by a claim for money 
damages in a sum certain for injury to or loss of property, for personal 
injury, or for death alleged to have occurred by reason of the incident. 
A claim which should have been presented to FEMA, but which was 
mistakenly addressed to or filed with another Federal agency, is deemed 
to be presented to FEMA as of the date that the claim is received by 
FEMA. If a claim is mistakenly addressed to or filed with FEMA, the 
claim shall forthwith be transferred to the appropriate Federal Agency, 
if ascertainable, or returned to the claimant.
    (b) Except as provided in paragraph (c) of this section, a claimant 
shall mail or deliver his or her claim to the Office of General Counsel, 
Federal Emergency Management Agency, Washington, DC, 20472.
    (c) When a claim is for $200 or less, does not involve a personal 
injury, and involves a FEMA regional employee, the claimant shall mail 
or deliver the claim to the Director of the FEMA Regional Office in 
which is employed the FEMA employee whose negligence or wrongful act or 
omission is alleged to have caused the loss or injury complained of. The 
addresses of the Regional Offices of FEMA are set out in part 2 of this 
chapter.
    (d) A claim presented in compliance with paragraph (a) of this 
section may be amended by the claimant at any time prior to final FEMA 
action or prior to the exercise of the claimant's option under 28 U.S.C. 
2675(a). Amendments shall be submitted in writing and signed by the 
claimant or his or her duly authorized agent or legal representative. 
Upon the timely filing of an amendment to a pending claim, FEMA shall 
have six months in which to make a final disposition of the claim as 
amended and the claimant's option under 28 U.S.C. 2675(a) shall not 
accrue until six months after the filing of an amendment.

[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983; 49 
FR 33879, Aug. 27, 1984]



Sec. 11.12  Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property interest which is the subject of the claim, 
his or her authorized agent, or legal representative.
    (b) A claim for personal injury may be presented by the injured 
person or, his or her authorized agent or legal representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decedent's estate or by any other person legally 
entitled to assert such a claim under applicable State law.
    (d) A claim for loss wholly compensated by an insurer with the 
rights of a subrogee may be presented by the

[[Page 113]]

insurer or the insured individually, as their respective interests 
appear, or jointly. When an insurer presents a claim asserting the 
rights of a subrogee, he or she shall present with the claim appropriate 
evidence that he or she has the rights of a subrogee.
    (e) A claim presented by an agent or legal representative shall be 
presented in the name of the claimant, be signed by the agent or legal 
representative, show the title of legal capacity of the person signing, 
and be accompanied by evidence of his or her authority to present a 
claim on behalf of the claimant as agent, executor, administrator, 
parent, guardian, or other representative.



Sec. 11.13  Investigations.

    FEMA may investigate, or may request any other Federal agency to 
investigate, a claim filed under this part.



Sec. 11.14  Administrative claim; evidence and information to be submitted.

    (a) Death. In support of a claim based on death the claimant may be 
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at time of death, including 
his or her monthly or yearly salary or earnings (if any), and the 
duration of his or her last employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status 
of the decedent's survivors, including identification of those survivors 
who were dependent for support on the decedent at the time of his or her 
death.
    (4) Degree of support afforded by the decedent to each survivor 
dependent on him or her for support at the time of death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills or medical and burial expenses incurred by reason 
of the incident causing death, or itemized receipts of payment for such 
expenses.
    (7) If damages for pain and suffering before death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain, and the 
decedent's physical condition in the interval between injury and death.
    (8) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the death or the 
amount of damages claimed.
    (b) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by his or her attending physician or dentist 
setting forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, and any diminished earning 
capacity. In addition, the claimant may be required to submit to a 
physical or mental examination by a physician employed by FEMA or 
another Federal agency. FEMA shall make available to the claimant a copy 
of the report of the examining physician on written request by the 
claimant, if he or she has, on request, furnished the report referred to 
in the first sentence of this subparagraph and has made or agrees to 
make available to FEMA any other physician's reports previously or 
thereafter made of the physical or mental condition which is the subject 
matter of the claim.
    (2) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payment of such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a 
statement of expected expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from the employer showing actual time lost from employment, 
whether he or she is a full- or part-time employee, and wages or salary 
actually lost.
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually 
lost.
    (6) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for

[[Page 114]]

the personal injury or the damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership of the property interest which is the subject 
of the claim.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price, and 
salvage value, where repair is not economical.
    (5) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the injury to or loss 
of property or the damages claimed.



Sec. 11.15  Authority to adjust, determine, compromise and settle.

    (a) The General Counsel of FEMA, or a designee of the General 
Counsel, is delegated authority to consider, ascertain, adjust, 
determine, compromise, and settle claims under the provisions of section 
2672 of title 28, United States Code, and this part.
    (b) Notwithstanding the delegation of authority in paragraph (a) of 
this section, a Regional Director is delegated authority to be exercised 
in his or her discretion, to consider, ascertain, adjust, determine, 
compromise, and settle under the provisions of section 2672 of title 28, 
United States Code, and this part, any claim for $200 or less which is 
based on alleged negligence or wrongful act or omission of an employee 
of the appropriate Region, except when:
    (1) There are personal injuries to either Government personnel or 
individuals not employed by the Government; or
    (2) All damage to Government property or to property being used by 
FEMA, or both, is more than $200, or all damage to non-Government 
property being used by individuals not employed by the Government is 
more than $200.

[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983]



Sec. 11.16  Limitations on authority.

    (a) An award, compromise, or settlement of a claim under this part 
in excess of $25,000 may be effected only with the advance written 
approval of the Attorney General or his or her designee. For the purpose 
of this paragraph, a principal claim and any derivative or subrogated 
claim shall be treated as a single claim.
    (b) An administrative claim may be adjusted, determined, 
compromised, or settled under this part only after consultation with the 
Department of Justice, when, in the opinion of the General Counsel of 
FEMA or his or her designee:
    (1) A new precedent or a new point of law is involved; or
    (2) A question of policy is or may be involved; or
    (3) The United States is or may be entitled to indemnity or 
contribution from a third party and FEMA is unable to adjust the third 
party claim; or
    (4) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined, compromised 
or settled under this part only after consultation with the Department 
of Justice when FEMA is informed or is otherwise aware that the United 
States or an employee, agent or cost-type contractor of the United 
States is involved in litigation based on a claim arising out of the 
same incident or transaction.



Sec. 11.17  Referral to Department of Justice.

    When Department of Justice approval or consultation is required 
under Sec. 11.16, the referral or request shall be transmitted to the 
Department of Justice by the General Counsel or his or her designee.

[[Page 115]]



Sec. 11.18  Final denial of claim.

    (a) Final denial of an administrative claim under this part shall be 
in writing and sent to the claimant, his or her attorney, or legal 
representative by certified or registered mail. The notification of 
final denial may include a statement of the reasons for the denial and 
shall include a statement that, if the claimant is dissatisfied with the 
FEMA action, he or she may file suit in an appropriate U.S. District 
Court not later than 6 months after the date of mailing of the 
notification.
    (b) Prior to the commencement of suit and prior to the expiration of 
the 6-month period provided in 28 U.S.C. 2401(b), a claimant, his or her 
duly authorized agent, or legal representative, may file a written 
request with FEMA for reconsideration of a final denial of a claim under 
paragraph (a) of this section. Upon the timely filing of a request for 
reconsideration the FEMA shall have 6 months from the date of filing in 
which to make a final FEMA disposition of the claim and the claimant's 
option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the 
filing of a request for reconsideration. Final FEMA action on a request 
for reconsideration shall be effected in accordance with the provisions 
of paragraph (a) of this section.



Sec. 11.19  Action on approved claim.

    (a) Payment of a claim approved under this part is contingent on 
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard 
Form 95, or a claims settlement agreement, and (2) a ``Voucher for 
Payment,'' Standard Form 1145, as appropriate. When a claimant is 
represented by an attorney, the voucher for payment shall designate both 
the claimant and his or her attorney as payees, and the check shall be 
delivered to the attorney, whose address shall appear on the voucher.
    (b) Acceptance by the claimant, his or her agenct, or legal 
representative, of an award, compromise, or settlement made under 
section 2672 or 2677 of title 28, United States Code, is final and 
conclusive on the claimant, his or her agent or legal representative, 
and any other person on whose behalf or for whose benefit the claim has 
been presented, and constitutes a complete release of any claim against 
the United States and against any employee of the Government whose act 
or omission gave rise to the claim, by reason of the same subject 
matter.



     Subpart C_Collection of Debts by the Government Under the Debt 
                         Collection Act of 1982

    Authority: 31 U.S.C. 3711 et seq.

    Source: 49 FR 38267, Sept. 28, 1984, unless otherwise noted.



Sec. 11.30  Scope of regulations.

    (a) Scope. This regulation implements policies used by FEMA to 
collect debts under the Debt Collection Act of 1982, as amended, 31 
U.S.C. 3701 et seq. As amended, this Act:
    (1) Requires the Director or designee to attempt collection of all 
debts owed to the United States for money or property arising out of 
activities of the Agency; and
    (2) Authorizes the Director or his designee, for debts not exceeding 
$100,000 or such higher limit prescribed by the Attorney General of the 
United States, under the provisions of 31 U.S.C. 3711(a)(2), exclusive 
of interest, penalty, and administrative charges, to compromise such 
debts or terminate collection action where it appears that no person is 
liable on such debt or has the present or prospective financial ability 
to pay a significant sum thereon or that the cost of collecting such 
debt is likely to exceed the amount of the recovery.
    (b) Definitions. For purposes of this subpart, the following 
definitions apply:
    (1) Office means any of the following:
    (i) United States Fire Administration.
    (ii) Federal Insurance Administration.
    (iii) National Preparedness Directorate.
    (iv) State & Local Programs & Support Directorate.
    (v) U.S. Fire Academy/National Emergency Training Center.
    (vi) Office of Financial Management, which for purposes of this 
subpart shall include all FEMA Headquarters elements not included in 
paragraphs

[[Page 116]]

(b)(1)(ii) through (b)(1)(iv) of this section.
    (vii) FEMA Special Facility.
    (2) Employee means those persons defined in 5 U.S.C. 2104, members 
of and retirees from the uniformed services of the United States and 
employees of and retirees from the United States Postal Service and the 
Postal Rate Commission.

[57 FR 54714, Nov. 20, 1992]



Sec. 11.31  Adoption of joint standards.

    All administrative actions to collect debts arising out of 
activities of the Agency shall be performed in accordance with the 
applicable standards prescribed either in 4 CFR parts 101 through 105 or 
any standards promulgated jointly by the Attorney General and the 
Comptroller General. Such standards are adopted as a part of this 
subpart and are supplemented in this subpart. Additional guidance will 
be found in the GAO Policy and Procedures Manual for Guidance of Federal 
Agencies and in the Treasury Fiscal Requirements Manual.



Sec. 11.32  Subdivision and joining of debts.

    (a) A debtor's liability arising from a particular transaction or 
contract shall be considered as a single debt in determining whether the 
debt is one not exceeding $100,000 or such higher limit prescribed by 
the Attorney General in accordance with 31 U.S.C. 3711(a)(2) exclusive 
of interest for the purpose of compromise or termination of collection 
action. Such a debt may not be subdivided to avoid the monetary ceiling 
established by the Act.
    (b) Joining of two or more single debts in a demand upon a 
particular debtor for payment totaling more than $100,000 or such higher 
limit prescribed by the Attorney General in accordance with 31 U.S.C. 
3711(a)(2) does not preclude compromise or termination of collection 
action with respect to any one of such debts that do not exceed $100,000 
or such higher limit prescribed by the Attorney General in accordance 
with 31 U.S.C. 3711(a)(2) exclusive of interest.

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54714, Nov. 20, 1992]



Sec. 11.33  Authority of offices to attempt collection of debts.

    The head of each office and each regional director shall designate a 
debt collections officer (DCO) who shall attempt to collect in full all 
debts of the Agency for money or property arising out of the activities 
of such office. Each DCO shall establish and currently maintain a file 
with regard to each debt for which collection activities are undertaken. 
Insofar as it is feasible, debt collection personnel shall have personal 
interviews or telephone contact with the debtor.



Sec. 11.34  Referral of debts to the Chief Financial Officer, Federal 
Emergency Management Agency.

    (a) Authority of the Chief Financial Officer (CFO), Federal 
Emergency Management Agency.
    (1) The Chief Financial Officer, Federal Emergency Management 
Agency, is designated as the Agency Collections Officer (ACO). In this 
capacity he or she shall exercise such powers and perform duties of the 
Director in collecting debts owed FEMA. In this regard, the ACO may, 
after consultation with the Office of the General Counsel, compromise, 
suspend or terminate collection action on the debts owed the Agency, not 
exceeding $100,000, or such higher limit prescribed by the Attorney 
General in accordance with 31 U.S.C. 3711(a)(2), exclusive of interest, 
except as provided in Sec. 11.35 and paragraph (b) of this section. In 
addition, the CFO is delegated all authority which may be exercised by 
the Director, Federal Emergency Management Agency in relation to:
    (i) Disclosure to a consumer reporting agency in accordance with 31 
U.S.C. 3711(f),
    (ii) Instituting salary offset procedures in accordance with 5 
U.S.C. 5514(a),
    (iii) Instituting administrative offset procedures in accordance 
with 31 U.S.C. 3716,
    (iv) Charging of interest and penalties in accordance with 31 U.S.C. 
3717,
    (v) Entering into contracts for collection of debts in accordance 
with 31 U.S.C. 3718, except that the execution and administration of 
such contracts is

[[Page 117]]

delegated to Federal Emergency Management Agency contracting officers 
appointed under provisions of 48 CFR 1.603-3,
    (vi) Prescribe debt collection procedures and manage debt collection 
activities within the Agency.
    (2) When initial attempts at collection by the office originating 
such debt have not been fully successful, the debt file shall be 
forwarded to the ACO for further administrative collection procedures. 
Debts shall be referred to the ACO well within the applicable statute of 
limitations (28 U.S.C. 2415 and 2416).
    (b) Exclusions. There shall be no compromised or terminated 
collection action with respect to any debt: (1) As to which there is an 
indication of fraud, the presentation of a false claim, or 
misrepresentation on the part of the debtor or any other party having an 
interest in the claim; (2) based in whole or in part on conduct in 
violation of the anti-trust laws; (3) based on tax statutes; or (4) 
arising from an exception made by the General Accounting Office in the 
account of an accountable officer. Such a debt shall be promptly 
referred to the Justice Department, or GAO, as appropriate, after ACO 
has consulted with the Inspector General and the Office of General 
Counsel.
    (c) Delegation. The ACO may delegate his or her authority in the 
FEMA debt collection program and under this subpart to a Deputy or to 
others in the FEMA Office of Financial Management. However, the ACO must 
personally approve any compromise, suspension or termination of 
collection efforts on debts exceeding $10,000.00.

[49 FR 38267, Sept. 28, 1984, as amended at 50 FR 40007, Oct. 1, 1985; 
53 FR 47211, Nov. 22, 1988; 57 FR 54714, Nov. 20, 1992]



Sec. 11.35  Authority of offices to compromise debts or suspend or 
terminate collection action.

    Where it appears that the cost of collecting a debt of $2,500 or 
less will exceed the amount of recovery, the DCO is authorized to 
compromise the debt or to terminate collection action. Further, DCO's 
are authorized to compromise a debt or terminate or suspend collection 
action for debts of $2,500 or less where:
    (a) Debtor cannot be located despite vigorous efforts, including but 
not limited to, use of skip tracing services, have failed to ascertain 
the debtor's current address.
    (b) Debtor is financially unable to pay in full or in part. DCO's 
must obtain a financial statement from the debtor in such cases.
    (c) The debt is without merit or cannot be substantiated by 
evidence. In such cases, debt collection officers should secure the 
advice of counsel. DCO's must document the debt file to show all 
evidence and reasons for compromise or termination of such debts. The 
DCO must prepare a narrative report and forward a copy of the report to 
the ACO.

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47211, Nov. 22, 1988]



Sec. 11.36  Debt collection files.

    Each DCO is responsible for obtaining current credit data about each 
person against whom a debt is pending in his office. The files shall be 
kept up-to-date by the ACO for claims referred to his/her office for 
collection. Such credit data may take the form of:
    (a) A commercial credit report, showing the debtor's assets and 
liabilities and his income and expenses,
    (b) The individual debtor's own financial statement, executed under 
penalty for false claim, reflecting his assets and liabilities and his 
income and expenses, or
    (c) An audited balance sheet of a corporate debtor.

The file should also contain a checklist or brief summary of action 
taken to collect or compromise a debt. All debts files relating to debts 
owed by individuals are to be safeguarded in accordance with 5 U.S.C. 
552a, popularly known as the ``Privacy Act of 1974''; 31 U.S.C. 3711 et 
seq., popularly known at the ``Debt Collection Act of 1982''; 44 CFR 
part 6 and this subpart. Each DCO is responsible for maintaining files 
on debtors with information sufficient to enable the Government to 
effectuate administrative or judicial collection.

(Approved by the Office of Management and Budget under control number 
3067-0122)

[[Page 118]]



Sec. 11.37  [Reserved]



Sec. 11.38  Annual reports to the Director, Office of Management and 
Budget, and the Secretary of the Treasury.

    (a) The ACO shall gather data on loans, accounts receivable, and 
debts which are required by 31 U.S.C. 3719 and shall transmit them to 
the Director, Federal Emergency Management Agency. Such data shall 
include:
    (1) The total amount of loans and accounts receivable owed to the 
Agency and when the funds owed to the Agency are due to be repaid;
    (2) The total amount of receivables and number of debts that are at 
least thirty days past due;
    (3) Total amount written off as uncollectable, actual, and allowed 
for;
    (4) The rate of interest charged for overdue debts and the amount of 
interest charged and collected on debts;
    (5) The total number of debts and total amount collected;
    (6) The number of debts and the total amount of debts referred to 
the Department of Justice for settlement or collection and the total 
number of debts and the total amount of debts settled or collected by 
that Department;
    (7) For each program or activity administered by the Agency, the 
data described in paragraphs (a) (1) through (6) of this section; and
    (8) Such other data as the Director, Office of Management and 
Budget, shall prescribe by regulations issued under authority of 31 
U.S.C. 3719.
    (b) Data described in paragraph (a) of this section shall be 
collected on a calendar year basis and transmitted to the Director, FEMA 
not later than the end of January of the year following the year for 
which the data described in paragraph (a) of this section, were 
collected. The Director, FEMA, shall report these data to the Secretary 
of the Treasury and the Director, Office of Management and Budget in 
accordance with 31 U.S.C. 3719. If the Secretary of the Treasury and the 
Director, Office of Management and Budget prescribe, by regulation, a 
different annual reporting cycle, the Agency's reporting cycle, 
described in the first sentence of this subsection shall be changed to 
conform with the cycle prescribed by the Department of the Treasury and 
Office of Management and Budget regulation.



Sec. 11.40  Records retention.

    The file of each debt on which administrative collection action has 
been completed shall be retained by the appropriate officer not less 
than 1 year after the applicable statute of limitations has run.



Sec. 11.41  Suspension or revocation of eligibility.

    (a) Where a contractor, grantee, or other participant in programs 
sponsored by the Agency fails to pay his debts to the Agency within a 
reasonable time after demand, the fact shall be reported by the ACO to 
the Inspector General and to the Office of Acquisition Management, which 
shall place such defaulting participant's name on the Agency's list of 
debarred, suspended and ineligible contractors and grantees. The 
participant will be so advised. Suspension or revocation of eligibility 
may be waived in whole or in part in the case of grants for disaster 
programs administered by FEMA, if the Director FEMA, so directs.
    (b) The failure of any surety to honor its obligations in accordance 
with 6 U.S.C. 11 is to be reported at once to the ACO, who shall so 
advise the Treasury Department. That Department will notify this Agency 
when a surety's certificate of authority to do business with the 
Government has been revoked or forfeited.
    (c) Failure by a recipient of FEMA financial or nonfinancial 
assistance to pay a substantial debt or a number of outstanding debts 
being collected under this subpart may be ground for Government-wide 
debarment and suspension as described in 44 CFR 17.305(c)(3).

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]



Sec. 11.42  Demand for payment of debts.

    (a) Initial demand. An initial demand shall be made in writing and 
sent by certified mail, return receipt requested, or delivered by hand 
to the debtor identifying the debt and advising that the full amount due 
should be paid by a specified date, not less than 30 days from the date 
of mailing or the

[[Page 119]]

hand delivery. If the debtor is other than a State or local government 
or an agency of the United States, the initial demand notice shall also 
advise the debtor that interest, calculated at rates provided by 31 
U.S.C. 3717(a), shall be assessed if the debt is not paid in full by the 
due date. Interest shall be charged on the outstanding balance due at 
the rate prescribed by the Secretary of the Treasury in accordance with 
31 U.S.C. 3717(a), beginning on the date that the first notice was 
mailed to the debtor. The debtor shall also be advised that if any 
portion of the debt remains unpaid for 90 days after the due date, 
without a repayment schedule satisfactory to the Agency being arranged, 
then additional penalties, as described in 31 U.S.C. 3717(e)(2), of 6 
percent per year shall be charged on the unpaid balance of principal and 
interest.
    (b) Subsequent demands. If the debt is not paid by the due date or 
if a repayment program acceptable to the ACO, has not been arranged with 
the debtor, then an initial demand shall be made followed by two 
progressively stronger written demands at not more than 30-day 
intervals, will be made unless a response to the initial or subsequent 
demands indicates that further demands would be futile and that the 
debtor's response does not require rebuttal.
    (c) Debts arising from contracts executed on or before October 25, 
1982. If the claim arises from a contract executed before October 25, 
1982, then the initial and subsequent demands shall mention nothing 
about the imposition of penalties or interest, prior to rendering of 
judgment by a court of competent jurisdiction.
    (d) Waiver of subsequent written demands. If there is valid reason, 
the sending of second and third demand letters may be waived. Such 
reasons may include, but are not be limited to, statute of limitations 
being about to run.

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47211, Nov. 22, 1988; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.43  Collection by administrative offset.

    (a) General. The Agency Collections Officer (ACO) or the ACO's 
designee may collect debts owed to the United States by means of offsets 
against monies due from the United States under provisions of 31 U.S.C. 
3716 and the procedures set forth below. Under provisions of 31 U.S.C. 
3716(h)(1) and reciprocal agreements entered into by the Secretary of 
the Treasury and the States concerned, the ACO or the ACO's designee may 
institute administrative offsets covered in this section to collect 
debts that are owed to States and which arise under programs 
administered by FEMA. The procedures prescribed by this section shall 
not be used if the debtor has executed a written agreement satisfactory 
to the ACO or the ACO's designee for the payment of the debt so long as 
the debtor adheres to the provisions of the agreement. Before using the 
procedures of this section, the ACO or the ACO's designee shall examine 
the debt to determine whether the likelihood of collecting such a debt 
and the best interests of the United States justify the use of 
administrative offset. If the debt is over 6 years old but is not 10 
years old, the ACO or the ACO's designee shall examine the debt and 
decide whether using these procedures is cost effective. Further, FEMA 
shall not use administrative offset procedures on debts existing for 
more than 10 years after the Government's right to collect the debt 
first accrued unless facts material to the Government's right to collect 
the debt were not known and could not have been known by the officials 
of the Government who were charged with responsibility to discover and 
collect the debt. FEMA may refer debts to the Department of the Treasury 
for Government-wide administrative offset under the provisions of 31 
U.S.C. 3716(c) and for offsets against Federal tax refunds under 
provisions of 31 U.S.C. 3720A.
    (b) Written notice. After the ACO or the ACO's designee has examined 
the debt under procedures set forth in paragraph (a) of this section, 
FEMA shall hand deliver or send by mail a notice to the debtor advising 
the debtor of:
    (1) Nature and amount of the debt determined by the Agency to be 
due, and of intention to collect by administrative offset;

[[Page 120]]

    (2) Rights available under this section;
    (3) Opportunity to inspect and copy the records relating to the 
debt;
    (4) Opportunity for review within the Agency with respect to the 
debt; and
    (5) Opportunity to enter into an agreement with the ACO with respect 
to the debt. Such agreement may include voluntary but nonrevocable 
withholding of monies due from the United States to the debtor.
    (c) Review within the Federal Emergency Management Agency. The 
debtor may request, within sixty calendar days after mailing or hand-
delivery of the written notice specified in paragraph (b) of this 
section, review within the Agency as to the existence or amount of the 
debt or terms of repayment. An attorney in the Office of General 
Counsel, acting as an Administrative Review Official (ARO), shall 
conduct the review. The ARO may determine that no debt is due, that the 
amount of the debts should be reduced, that terms of repayment should be 
set, or that the demanded amount should be paid in full.
    (1) If the debtor has made a timely request for a review within the 
Agency, then FEMA shall stay any offsets until the ARO has rendered a 
decision. However, interest, penalties and administrative charges, as 
specified in Sec. 11.48, shall continue to accrue during the pendency 
of the review within the Agency. If the debtor files a request for a 
review within the Agency after the 60 days specified above, then FEMA 
shall continue with the offset action. However, if the ARO finds that 
the debtor owes less than the amount offset, then FEMA will refund the 
amount over-withheld. For purposes of determining whether the debtor has 
filed a timely request for administrative review, the date of FEMA's 
receipt of the debtor's request establishes the time of filing.
    (2) The ARO shall transmit the decision on the debtor's request for 
review within the Agency. The ARO may contact the debtor directly to 
request additional information and data in order to allow the ARO to 
reach a knowledgeable decision. The ARO's decision shall be final 
insofar as FEMA's administrative processing of the debt is concerned.
    (3) FEMA shall use procedures in this section to decide debtors' 
requests for review within FEMA under the provisions of Sec. 11.64(d).
    (d) If the debtor does not execute a written agreement, if the 
debtor does not request review within the Agency, or if the review 
within the Agency determines that a debt is due, then FEMA shall use 
administrative offset against monies payable by the United States in 
accordance with this section and appropriate regulations. However, if a 
statute or FEMA agreement either prohibits or explicitly provides for 
collection through administrative offset for the debt or the type of 
debt involved then the provisions of that statute or FEMA agreement 
rather than the provisions of this section shall be used for such 
offset.
    (e) If the debtor has a judgment against the United States, then 
notice shall be provided to the General Accounting Office for offset in 
accordance with 31 U.S.C. 3728.
    (f) In addition to administrative offset remedies described above, 
FEMA may use its rights to collect debts by offsets conducted under 
principles of common law.
    (g) The debtor's failure to receive notice, described in paragraph 
(b) of this section, mailed by FEMA to the debtor's last-known address, 
shall not impair the validity of offsets taken under this section.
    (h) If FEMA or any other Federal department or agency incurs costs 
in taking offsets to collect delinquent debts, then the debtor shall be 
liable for such costs as administrative costs in accordance with section 
11.48(d).

[63 FR 1066, Jan. 8, 1998]



Sec. 11.44  [Reserved]



Sec. 11.45  Collection by salary offset.

    (a) General. Where an individual is an employee of the Federal 
Government or a member of the Armed Forces or a reserve component of the 
Armed Forces or is receiving retired or retainer pay for service as a 
Federal employee and where the individual is indebted to the United 
States and where the individual fails to satisfy his indebtedness 
voluntarily after the Agency has made demands in accordance

[[Page 121]]

with Sec. 11.42 of this part, the ACO may institute collection action 
by salary or pay offset procedures in accordance with 5 U.S.C. 5514, 5 
CFR 550.1101 through 550.1106, 5 CFR part 845, 5 CFR 831.1301 et seq., 
and the procedures described below.
    (b) Notice to debtor. At least 30 days prior to initiating salary 
offset, the ACO or his designee shall send notice by certified mail, 
return receipt requested, to the debtor advising him of:
    (1) Nature, origin and amount of indebtedness determined by the 
Agency to be due, the date that the debt was due, and a statement that 
FEMA has complied with applicable statutes, regulations and procedures,
    (2) Agency intention to initiate proceedings to collect the debt by 
deductions from pay,
    (3) Rights available under 5 U.S.C. 5514(a),
    (4) Debtor's opportunity to inspect and copy Government records 
relating to the debt,
    (5) Opportunity to enter into a written agreement, under terms 
satisfactory to the ACO, to establish terms for the repayment of the 
debt, and
    (6) Opportunity for a hearing, described in paragraph (c) of this 
section, concerning the existence or the amount of the debt or, if no 
repayment schedule has been established (in accordance with paragraph 
(b)(1) of this section) concerning the terms of the repayment schedule,
    (7) If there is a statutory provision authorizing waiver, remission, 
or forgiveness of the debt due the United States; the individual will be 
notified as to:
    (i) Nature of the provision,
    (ii) Explanation of the conditions under which the waiver shall be 
granted,
    (iii) Reasonable opportunity to request a waiver,
    (iv) If waiver is requested, then a written response will be given 
to the request.
    (c) Hearing. The debtor shall file a written petition for hearing or 
for a waiver (if applicable) on or before the twentieth calendar day 
after receipt of notice, referred to in paragraph (b) of this section, 
addressed to the Agency Collections Officer, Federal Emergency 
Management Agency, Washington, DC 20472. The postmark or receipt date, 
if mail is not used, shall establish the date of petition.
    (1) The hearing official shall be an Administrative Law Judge or a 
person of grade GS/GM-14 or higher, not under the supervision or control 
of the Director, FEMA. The Director may enter into interagency support 
agreements with other Federal agencies or departments for providing 
hearing officials.
    (2) The hearing shall be informal but the debtor shall be given the 
basic safeguards of due process. The debtor shall have the right to be 
represented by an attorney. A summary record shall be made of the 
proceedings at the hearing. The hearing shall, insofar as possible, be 
conducted at a location and time convenient to the debtor.
    (3) As soon as practicable, but in no event later than 60 days after 
the filing of the petition for hearing, the hearing official shall 
render a final decision. If a hearing is requested, no further action 
shall be taken to collect the debt until the final decision is rendered.
    (d) Amount deducted. The amount deducted from pay for any period 
shall not exceed 15 percent of disposable pay. However, the debtor may 
voluntarily agree to the deduction of a greater amount of pay. 
Disposable pay means that part of pay of any individual remainng after 
the deduction from those earnings of any amounts required by law to be 
withheld. However, installment payments of less than $25.00 will be 
accepted only in the most unusual circumstances. Disposable pay is 
defined in 5 CFR 550.1103 and 5 CFR 581.105(b) through (f).
    (e) Procedural requirements specified in paragraph (c) of this 
section shall not be used in cases of collections of such obligations as 
changes in coverage under a Federal benefits program or resulting from 
ministerial adjustments pay and allowances which cannot be placed in 
effect immediately because of normal processing delays.
    (f) When an employee, who is subject to salary offset in accordance 
with this section and who is making repayment in installments, finds 
that total repayment of the debt is about to be made, then the employee 
must notify the employee's payroll office, at least two pay

[[Page 122]]

periods before the final payment, that final payment is being made.
    (g) Debts arising from travel advances provided under 5 U.S. C. 5705 
and for travel and transportation expenses for transferred employees 
under 5 U.S.C. 5724 may be collected by taking offsets in accordance 
with 44 CFR 11.43.

[49 FR 38267, Sept. 28, 1984, as amended at 50 FR 40007, Oct. 1, 1985; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.46  Liquidation of collateral.

    Where FEMA holds security or collateral that may be liquidated and 
the proceeds applied on debts due it through the exercise of a power of 
sale in the security instrument or a nonjudicial foreclosure, such 
procedures should be followed if the debtor fails to pay his debt within 
a reasonable time after demand, unless the cost of disposing of the 
collateral will be disproportionate to its value or special 
circumstances require judicial foreclosure.



Sec. 11.47  Collection in installments.

    Debts with accrued interest and penalties should be collected in 
full in one lump sum whenever this is possible. However, if the debtor 
is financially unable to pay the indebtedness in one lump sum, payment 
with applicable interest may be accepted in regular installments in 
accordance with a written agreement approved by the ACO or his designee. 
If possible, installment payments shall be sufficiently large to 
complete collection in the three years. Installment payments should not 
be less than $50.00 per month unless there are most unusual 
circumstances. The Agency may require the debtor to execute a confess-
judgment, negotiable note for the amount of the indebtedness. The ACO or 
DCO may require the debtor to provide a statement as to financial 
condition.



Sec. 11.48  Interest, penalties, and administrative charges.

    (a) Definition. In Sec. Sec. 11.30 through 11.65 of this part, a 
debt is deemed to be delinquent if the debtor has not paid the debt by 
the collection due date and if the debtor has not entered into a 
repayment agreement satisfactory to FEMA. A debt is also deemed 
delinquent if the debtor has not made payment by the date specified in 
the applicable agreement.
    (b) Interest. FEMA's delinquent debtors shall be charged interest on 
the outstanding principal balance due on debts owed the United States at 
the rate published by the Secretary of the Treasury under provisions of 
31 U.S.C. 3717(a). The interest rate in effect at the time that FEMA 
first mailed or hand delivered to the debtor written notice, stating 
that the debt was due and that interest would be assessed on the debt, 
shall be the rate applied throughout the duration of the debt until the 
debt is paid in full.
    (1) However, if the debtor defaults on a debt repayment agreement 
made with the ACO or the ACO's designee, then interest shall accrue at 
the rate published by the Secretary of the Treasury under the provisions 
of 31 U.S.C. 3717(a)(1) that was in effect when the debtor defaulted on 
the repayment agreement. Interest shall accrue either from the date that 
FEMA first informed the debtor that the Agency would assess interest on 
the debt or some subsequent date specified in the written notice given 
by FEMA to the debtor stating that interest would be assessed.
    (2) However, where FEMA first sent the notice of indebtedness prior 
to October 25, 1982, interest shall run from the date on or after that 
date when FEMA first sent the debtor a letter notifying the debtor that 
the Agency would assess interest.
    (c) Exceptions to interest charges. However, no interest, described 
in paragraph (a) of this section, shall be charged if:
    (1) The amount due is paid in full within 30 days of the mailing of 
the demand. However, the ACO or the ACO's designee, as documented by a 
memorandum in the debt collection file, may extend this 30-day period on 
a case-by-case basis for good cause shown in accordance with the Federal 
Claims Collection Standards (4 CFR 102.13(g)), or
    (2) The applicable statute, regulation required by statute, loan 
agreement or contract either prohibits the charging of interest or 
explicitly fixes interest

[[Page 123]]

or charges, which apply to the debt involved.
    (d) Penalty charges. Except in the situation described in paragraph 
(c) of this section, the debtor shall be liable for a penalty of 6% 
annually on the unpaid principal, interest, and administrative charges 
if the debtor fails to pay the debt in full within 90 days of the date 
after the first written notice by FEMA that FEMA would assess penalty 
charges. However, if the debtor enters into a repayment agreement, 
satisfactory to the ACO or the ACO's designee within the 90-day period, 
then FEMA will not assess penalty so long as the debtor adheres to the 
provisions of the agreement. Penalty shall accrue starting on and 
including the day of FEMA's first written notice where FEMA mentioned 
that it would assess penalty charges on the debt. Penalty will not be 
assessed against Federal agencies. Penalty charges shall accrue on 
administrative charges, starting on the day that FEMA incurred the 
administrative charge. However, if the debtor pays the debt in full 
within 90 days of FEMA's first notice that the Agency would assess 
penalty charges or if the debtor enters into a repayment agreement 
satisfactory to the ACO or the ACO's designee within that time, then 
FEMA will not assess penalty on accrued administrative charges.
    (e) Administrative costs for processing delinquent debts. Debtors 
shall pay the United States for costs incurred by the Government in 
collecting the debt in accordance with 31 U.S.C. 3717(e)(1). 
Administrative cost calculations will be based upon actual costs 
incurred by FEMA or upon analyses establishing an average of actual 
costs incurred by FEMA in processing debts in similar stages of 
delinquency.
    (f) Standards for waiver of interest, penalties, and administrative 
charges. (1) The ACO or the ACO's designee may waive interest, penalties 
and administrative charges, either in whole or in part, if the ACO or 
the ACO's designee finds that:
    (i) The debtor is financially unable to pay;
    (ii) The Agency's enforcement policy will be adequately served if 
there is a waiver in whole or in part;
    (iii) The debtor has shown good cause, satisfactory to the ACO, that 
the claim was not timely paid. If waiver is granted, the administrative 
claims file shall be adequately documented; or
    (iv) The ACO or the ACO's designee may waive imposition of interest 
in accordance with standards set forth in 4 CFR 102.13 and Sec. Sec. 
11.50 and 11.51 of this subpart.
    (2) The ACO, with the concurrence of the General Counsel, may waive 
interest, penalties and administrative costs based on criteria set forth 
in paragraphs (f)(3) through (f)(5) of this section. When such charges 
are waived, the Agency Collections Officer or the ACO's designee shall 
prepare a memorandum for the debt collection file stating the reasons 
for not collecting such charges.
    (3) If the costs of collection exceed the projected recovery then 
interest, penalties and administrative costs may be waived.
    (4) If FEMA determines that the debtor is unable to pay, as shown by 
complete and sworn statements as to his or her assets and projected 
income, then the ACO or the ACO's designee may waive interest, penalties 
and administrative charges in whole or in part. If the principal 
outstanding amount of the debt exceeds $5,000, the determination shall 
be made by the ACO. If the principal outstanding amount of the debt is 
$5,000 or less, the determination may be made by the DCO, the ACO, or a 
person designated by the ACO.
    (5) The ACO or the ACO's designee may waive assessing interest, 
penalty, and administrative charges if such assessment would be against 
equity and good conscience or not in the best interests of the United 
States. Examples include, but are not limited to:
    (i) FEMA's undue delay in rendering a decision where the debtor had 
requested an administrative review or review within the Agency. Under 
these circumstances, interest and penalty would be waived during the 
period of undue delay.
    (ii) The amount of interest is so large, in relation to the debtor's 
ability to pay that assessment of interest

[[Page 124]]

would leave the debtor perpetually indebted to the United States.
    (g) Nonapplicability. The provisions of this section do not apply to 
debts owed by Federal agencies.
    (h) Installment collections or partial payments. When a debtor pays 
a debt either partially or in installments, the payments shall first be 
applied to administrative costs, second to penalty charges, third to 
accrued interest, and finally to principal. Partial payments shall be 
deemed to be made when received at the FEMA office designated to receive 
the payments. If the debtor owes more than one debt, then the ACO or the 
ACO's designee will apply the partial payment to the oldest debt first 
unless the debtor is making a voluntary installment payment. Under 
voluntary circumstances, the debtor may designate to which debt the 
payment is to be applied.
    (i) Collection of interest, penalties, and administrative charges 
while an appeal is pending. If the debtor requests administrative review 
of the existence or the amount of the debt, interest, penalties, and 
administrative charges may be waived or suspended by the ACO or the 
ACO's designee under the following circumstances:
    (1) If a State or local government requests review within the Agency 
of a proposed referral to the Treasury Offset Program or an 
administrative review of a proposed administrative offset, then the ACO 
or the ACO's designee may waive interest, penalty or administrative 
charges if the State or local government shows to the satisfaction of 
the ACO or the ACO's designee that its taxes and other revenues would be 
insufficient to allow the State or local government to provide essential 
public services if FEMA were to collect interest, penalty, 
administrative charges, or any two or more, either in whole or in part. 
The ACO or the ACO's designee may require that the State or local 
government provide FEMA with such economic, accounting, financial or 
demographic data as the ACO or the ACO's designee may deem necessary to 
reach an informed decision as to waiver.
    (2) If a debtor notes an appeal or requests an administrative review 
that is mandated by law, then FEMA shall not assess interest and 
penalties while the appeal is pending from the time that the debtor 
requests an administrative review or an appeal until the Agency has 
taken final action on the administrative review or the appeal.
    (3) When a debtor notes an appeal or requests an administrative 
review that is permissive under statute or regulation, then interest, 
penalties and administrative charges may be waived if:
    (i) There is no fault or lack of good faith on the part of the 
debtor and if the amount of interest, penalties and administrative 
charges is so high in relation to affordable installment repayments that 
the debt would never be repaid. In determining whether interest and 
penalties should be waived, the ACO, the ACO's designee, or the DCO may 
demand that the debtor provide such financial data as he or she may 
determine is necessary to reach an informed decision.
    (ii) FEMA unreasonably delays in rendering a decision on a debtor's 
request for an administrative review or review within the Agency, then 
the ACO or the ACO's designee may waive assessment of interest, penalty, 
and administrative charge during the period of the unreasonable delay.
    (iii) The ACO or the ACO's designee may waive or suspend the 
collection of interest, penalty and administrative charges, for good 
cause shown and if such waiver or suspension would serve FEMA's 
interests. The FEMA official making such a waiver shall prepare a 
memorandum describing the circumstances and stating the reasons for the 
grant of a waiver or suspension.
    (j) Accrual of interest and penalty. Interest and penalty will 
accrue on delinquent FEMA debts until FEMA receives payment at the 
address designated by the ACO or the ACO's designee.

[63 FR 1067, Jan. 8, 1998]



Sec. 11.49  Omission not a defense.

    Failure to comply with any standard prescribed in 4 CFR chapter 11, 
or in this subpart shall not be available as a defense to any debtor.

[[Page 125]]



Sec. 11.50  Standards for compromise of debts.

    (a) Compromise. (1) A debt may be compromised if:
    (i) The debtor is not able to pay the full amount within a 
reasonable period of time;
    (ii) If the debtor refuses to pay the debt in full and the Agency is 
unable to enforce collection within a reasonable time by enforced 
collection proceeding;
    (iii) If there is real doubt concerning the Agency's ability to 
prove its case in court for the full amount claimed;
    (iv) If the cost of collecting the debt does not justify the 
enforced collection of the full amount;
    (v) If, in connection with statutory penalties or forfeitures 
established as an aid to enforcement and to compel compliance, the 
Agency's enforcement policy will be adequately served by acceptance of 
the sum to be agreed upon; or
    (vi) For other reasons deemed valid by the ACO after consultation 
with the General Counsel. The Standards set forth in 4 CFR 103.3 through 
103.9 should be used.
    (2) Inability to pay. If a debtor is unable to pay the full amount 
of the debt within a reasonable time or if the debtor refuses to pay and 
the Government is unable to collect the amount of the debt through 
enforcement proceedings then the Agency may compromise the claim either 
in whole or in part. The ACO may require that the debtor provide sworn 
information as to assets, actual or potential sources of income, 
liabilities and other financial data. The standards set forth in the 
GAO, Department of Justice guidelines prescribed in 4 CFR 103.2 should 
be used.
    (3) Compromises payable in installments will not normally be 
permitted by the Agency only if the debtor shows that full, immediate 
payment is impossible.
    (4) Litigative probabilities. If there is a bona fide dispute as to 
facts or if there is a valid legal defense raised which may limit or 
eliminate the possibility of recovery, then the Agency Collections 
Officer may, after receiving a legal analysis from the General Counsel, 
compromise the action in whole or in part.
    (b) Documentary evidence of compromise. No compromise of a debt 
shall be final or binding on the Agency unless it is in writing and 
signed by the appropriate officer who has authority to compromise the 
claim pursuant to this subpart.
    (c) Authority. Only the ACO may compromise debts of more than 
$2,500. Debts of $2,500 or less may be compromised by the ACO or the 
DCO. Debts exceeding $100,000 or such other limit prescribed by the 
Attorney General in accordance with 31 U.S.C. 3711(a)(2) may be 
compromised only after approval by the Department of Justice in 
accordance with 4 CFR 103.1(b).

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47212, Nov. 22, 1988; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.51  Standards for suspension or termination of collection.

    (a) Suspension of collection action. (1) Collection action shall be 
suspended temporarily on a debt when the debtor cannot be located after 
diligent effort but there is reason to believe that future collection 
action may be sufficently productive to justify periodic review and 
action on the claim, making consideration for its size and the amount 
which may be realized. Collection action may be suspended temporarily on 
a debt when the debtor owns no subsantial equity in realty and is 
presently unable to make payment on the Agency's debt or effect a 
compromise, but his future prospects justify retention of the claim for 
periodic review and action, and, (i) the applicable statute of 
limitations has been tolled or started anew, or (ii) future collection 
can be effected by offset notwithstanding the statute of limitations. 
Suspension as to a particular debtor should not defer the early 
liquidation of security for the debt. Standards prescribed in 4 CFR part 
104 shall be used in making determinations as to suspension as 
termination of collection efforts.
    (2) No substantial recovery possible. If, at the time that 
collection is attempted, debtor is without assets or actual or potential 
income or if the debtor may have exemptions under the bankruptcy laws 
which make enforced

[[Page 126]]

collection of the debt not cost-effective, then collection action may be 
suspended. However, interest and other charges will accumulate unless 
waived.
    (3) Debtor cannot be located. If the debtor cannot be located or is 
outside the United States, then collection action may be suspended until 
the debtor is located. The statute of limitations will be tolled during 
those periods that the debtor is outside the United States.
    (b) Termination of collection action. (1) Collection action may be 
terminated and the Agency file closed for the following reasons: (i) No 
substantial amount can be collected; (ii) the debtor cannot be located; 
(iii) the cost will exceed recovery; (iv) the claim is legally without 
merit; or (v) the claim cannot be substantiated by evidence.
    (2) No substantial recovery possible. If there is little likelihood 
that collection efforts will result in any substantial recovery, then 
collection efforts may be terminated. Costs of recovery may be a factor 
in determining whether any recovery would be substantial. Normally, 
costs of recovery would be more important in cases of small debts than 
in cases of large ones.
    (3) Debtor cannot be located. Every effort, including, but not 
limited to, use of governmental records, Internal Revenue Service 
taxpayer information, private contractor skip tracer and credit 
agencies, shall be made to locate debtors in advance of the runnning of 
the statute of limitations. If the debtor cannot be located, then the 
Agency Collections Officer may determine, with the concurrence of the 
General Counsel, that collection efforts may be terminated.
    (4) Litigative possibilities. The criteria and procedures of Sec. 
11.50(a)(4) of this subpart may be used to terminate collection efforts 
if it appears unlikely that the Government would prevail if it were to 
litigate collection of the debt.
    (c) Debts exceeding $100,000. Debts exceeding $100,000 or higher 
limits prescribed by the Attorney General in accordance with 31 U.S.C. 
3711(a)(2) (exclusive of interest, penalty charges and administrative 
charges) shall not be compromised by FEMA unless the proposed compromise 
has been referred for approval by the Department of Justice in 
accordance with 4 CFR 104.1(b). Such proposed compromises shall be 
referred to the Office of General Counsel, which shall review the 
proposal before being forwarded to the Department of Justice. However, 
where a debt claim is of no legal merit, the ACO may compromise such a 
debt without referral to the Department of Justice but only with the 
concurrence of the Office of General Counsel.
    (d) Enforcement policy. Statutory penalties and forfeitures are used 
as an aid to secure compliance with FEMA requirements and to compel 
payment. These may be waived if the Agency's enforcement policy in terms 
of securing payment and securing compliance with FEMA regulations would 
be sreved by accepting a sum agreed upon. Mere accidental or technical 
violations will be dealt with less severly than willful or substantial 
violations.

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47212, Nov. 22, 1988; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.52  Referral of delinquent debtors to consumer reporting agencies.

    (a) General. This section implements 31 U.S.C. 3711(f) concerning 
reporting of debtors having overdue debts to consumer reporting 
agencies.
    (b) Procedures. When a debt is unpaid for 120 days after the initial 
demand letter has been sent and where the debtor has not repaid the 
amount due nor has the debtor entered into an agreement for repayment 
satisfactory to the ACO or his designee, or the debt is not subject to 
administrative offset (as described in Sec. 11.43), the ACO may report 
the claim to consumer reporting agencies if:
    (1) The Agency Collections Officer or his designee has determined 
that the debt is overdue,
    (2) Notice has been sent certified mail, return receipt requested, 
to debtor informing him that:
    (i) Payment of the debt is overdue,
    (ii) The Agency intends to disclose the debtor's debt records to a 
consumer reporting agency within a stated period, not less than 60 days 
after the mailing of such debt,
    (iii) Specified items of information being released shall be listed 
in the notice. Such items will normally include

[[Page 127]]

the debtor's name, taxpayer account number, last known address, other 
information necessary to establish the identity of the individual, the 
nature, amount and status of the outstanding claim, and programs under 
which the claim arose, and
    (iv) The debtor has a right to a full explanation of the debt, to 
dispute any information in the records concerning the debt, and to have 
an administrative review. If the debtor petitions for administrative 
review, then no further action on referring debtor information to 
consumer reporting agencies shall be undertaken until the administrative 
review is completed.
    (c) Administrative review. The debtor shall send with his petition 
arguments in writing and documentary evidence to the Agency Collection 
Officer, Office of Financial Management, Federal Emergency Management 
Agency, Washington, DC 20472. These shall be reviewed by the ACO or an 
official designated by him. The reviewing official shall prepare a 
reply, within 60 days after receipt of the petition, either accepting 
the debtor's assertions in whole or is part or rejecting them. If the 
debtor's assertions are rejected in whole or in part, then the debt 
data, described in paragraph (b)(2)(iii) of this section (with 
correction made as indicated by the reviewing official) shall be sent to 
consumer reporting agencies.
    (d) Information released. Information released to consumer reporting 
agencies shall be limited to the following items:
    (1) Name of debtor, address, taxpayer identification number, and 
other information necessary to establish the identity of the debtor,
    (2) Amount, status and history of the debt and
    (3) Program under which the debt arose.

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]



Sec. 11.53  Securing debtor addresses from the Department of Treasury.

    (a) If the ACO is unable to obtain a current address for the debtor, 
then a written request shall be sent to the Secretary of the Treasury 
asking for the debtor's most current mailing address from the Department 
of the Treasury taxpayer identity information files for Agency use in 
collecting claims. Any information so received from the Secretary of the 
Treausury shall be safeguarded in accordance with provisions of 26 
U.S.C. 6103(p)(4) and 26 CFR parts 301 and 601.
    (b) Taxpayer identity information (which includes IRS current 
address and social security number) shall be released to consumer 
reporting agencies only for the purpose of preparation of commercial 
credit reports for use by Federal agencies in accordance with section 3 
of the Debt Collection Act (31 U.S.C. 3711(f)). A notice to this effect 
shall be placed on each page containing taxpayer identitiy information 
which is sent to consumer reporting agencies.



Sec. 11.54  Contracts with debt collection agencies.

    (a) General. FEMA shall utilize mandatory, government-wide debt 
collection agency contracts negotiated by the General Services 
Administration or the Department of the Treasury to effect collection of 
debts owed FEMA.
    (b) Debt collection contract provisions. Contracts entered into 
under authority of this secion shall have provisions relating to:
    (1) Protection of data relating to individuals which shall not be 
less than that provided under the terms of the Privacy Act (5 U.S.C. 
552a).
    (2) Protection of data derived from Department of the Treasury 
taxpayer identity information files shall in accordance with 26 U.S.C. 
6103(p)(4) and 26 CFR parts 301 and 601.
    (3) Authority to terminate collection action, settle or compromise 
claims shall remain with the Director of the Agency or the ACO rather 
than with the Contracting Officer.
    (4) Resolution of disputes relating to the claim shall remain with 
the ACO or the Agency Director. Resolution of disputes arising under the 
contract or with the contractor shall remain with the Agency Contracting 
Officer who shall handle such disputes in accordance with the Contract 
Disputes Act (Pub. L. 95-563).
    (5) Judicial enforcement of the claim shall be handled by the U.S. 
Department of Justice.

[[Page 128]]

    (6) The contractor shall adhere to Federal and State laws and 
regulations pertaining to debt collection practices including the Fair 
Debt Collection Practices Act (15 U.S.C. 1692 et seq.)
    (7) Contracts, entered into under provisions of this section, shall 
be subject to competition to the maximum practicable extent.
    (8) The contractor shall be required to strictly account for all 
amounts collected.
    (c) Collection fees. Contracts entered into under this section may 
provide that fees payable to the contractor may be paid only from the 
amounts collected from the debtor as determined by the Contracting 
Officer. However, such contracts shall be funded only from funds 
available for the time period in which the contract is executed.

(Approved by the Office of Management and Budget under control number 
3067-0122)

[49 FR 38267, Sept. 28, 1984; 50 FR 40007, Oct. 1, 1985; 50 FR 42023, 
Oct. 17, 1985; 51 FR 34605, Sept. 30, 1986; 53 FR 47212, Nov. 22, 1988]



Sec. 11.55  Referral to GAO or Justice Department.

    (a) Referral to the Department of Justice. With the exception of 
debts described in paragraph (b), of this section, those debts which 
cannot be collected or compromised or terminated in accordance with 3 
CFR parts 103 and 104 and Sec. Sec. 11.50 and 11.51, shall be referred 
to the Department of Justice for collection action. All such referrals 
shall be done by the ACO, who shall consult with the FEMA Office of 
General Counsel. The referral shall be accompanied by a copy of the 
complete debt collection file. In addition, the following information 
shall be provided:
    (1) Current address of debtor. Effort shall be made to locate the 
debtor if he is missing. If the debtor is a corporation, then the name 
and address of the agent upon whom service of process may be made, shall 
be provided.
    (2) Credit data which may be in the form of a credit report or a 
statement, under oath, of the debtor's assets and liabilities.
    (3) History of prior collection actions.
    (4) Data required by the GAO Claims Collection Litigation Report 
form. If the debt is less than $600, exclusive of interest, then 
referral shall not be made to the Department of Justice, except in 
unusual cases.
    (b) Referral to the General Accounting Office. Debts arising from 
audits exceptions taken by the General Accounting Office (GAO) shall be 
referred to GAO before referring such debts to the Department of 
Justice. If the merits of the debt or the propriety of a proposed 
compromise, suspension or termination are in doubt, then the matter 
should be referred to GAO prior to referral to the Department of 
Justice.
    (c) Prompt referral. Such referrals shall be made as early as 
possible consistent with aggressive collection action, and, in any 
event, well within the statute of limitation for bringing suit against 
the debtor. Ordinarily, debt collection referrals will be made to the 
Department of Justice within six months after FEMA has determined that a 
debt is owing in an amount certain.



Sec. 11.56  Analysis of costs.

    The ACO shall provide for periodic comparison of costs incurred and 
amounts collected. Data on costs and corresponding recovery rates for 
debts of different types and in various dollar ranges should be used to 
compare the cost effectiveness of alternative collection techniques, 
establish guidelines with respect to the points at which costs of 
further collection efforts are likely to exceed recoveries, assist in 
evaluating offers in compromise, and establish minimum debt amounts 
below which collection efforts need not be taken. Cost and recovery data 
should also be useful in justifying adequate resources for an effective 
collection action.



Sec. 11.57  Automation.

    The ACO shall work to automate the Agency's debt collection 
operations to the extent that it is cost effective and feasible.



Sec. 11.58  Prevention of overpayments, delinquencies, and defaults.

    The ACO shall establish procedures to identify the causes of 
overpayments,

[[Page 129]]

delinquencies, and defaults and the corrective actions needed. All debts 
or loans, when first established, may be reported to commercial credit 
bureaus.



Sec. 11.59  Office of General Counsel.

    The Office of General Counsel shall provide legal advice on claims 
collection matters to all debt collection officers and the Agency 
Collection Officer, as needed.



Sec. 11.60  Sale of debts due the United States arising under programs 
administered by the Agency.

    Where debts due the United States arising under programs 
administered by the Agency prove to be uncollectable or unresolvable 
through procedures described in Sec. Sec. 11.33 through 11.35, 11.41 
through 11.48, and 11.50 through 11.55 and where the stated value of the 
debt is less than $100,000 or such higher limit prescribed by the 
Attorney General in accordance with 31 U.S.C. 3711(a)(2), excluding 
penalties and interest, then the Agency may contract to sell or assign 
such debts under competitive sales procedures. The Agency may sell or 
assign debts valued at $600, or less, excluding penalties and interest, 
after decision by the ACO. Where the debt exceeds $600, but is less than 
$100,000 or such higher limit prescribed by the Attorney General in 
accordance with 31 U.S.C. 3711(a)(2), exclusive of interest and 
penalties, the Agency may sell or assign such debts only after the ACO 
has coordinated such action with the Department of Justice and the 
General Accounting Office.

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]



Sec. 11.61  Referral of delinquent debts to Department of the Treasury 
for offsets against tax refunds.

    (a) FEMA may refer delinquent debts to the Department of the 
Treasury for offset against tax refunds in accordance with 31 U.S.C. 
3720A and that Department's implementing regulations.
    (b) FEMA will provide information to the Department of the Treasury 
within time limits prescribed by the Secretary of the Treasury or his or 
her designee and in accordance with agreements entered into between FEMA 
and the Department of the Treasury and its constituent agencies.
    (1) Information submitted to the Department of the Treasury shall 
include a description of:
    (i) The size and age of FEMA's inventory of delinquent debts; and
    (ii) The prior collection efforts that the inventory reflects; and
    (2) In accordance with time limits and record transmission 
requirements established by the Department of the Treasury or its 
constituent agencies, FEMA may submit magnetic media containing 
information on debtors being referred to that Department for tax refund 
offset. FEMA may use the electronic data transmissions facilities of 
other federal agencies in transmitting data on debtors or for referral 
of debts to the Department of the Treasury.
    (c) FEMA shall establish a collect-call or toll-free telephone 
number that the Department of the Treasury or its constituent agencies 
will furnish to debtors whose refunds have been offset to obtain 
information from FEMA concerning the offsets taken.
    (d) Tax refund offset procedures described in Sec. Sec. 11.61 
through 11.64 shall apply to debts owed to the United States that are 
past-due and legally enforceable, and
    (1) Except in the case of a judgment debt, the debt has been 
delinquent for at least three months but has not been delinquent for 
more than ten years at the time the offset is made; and
    (2) Where FEMA has given the debtor at least 60 days from the date 
of mailing of the notification (described in Sec. 11.63 of this part) 
to request a review within FEMA and to present evidence that all or part 
of the debt is not past-due or legally enforceable. If the debtor has 
requested a review and presented evidence, then FEMA has considered the 
debtor's evidence and reasons and has determined that all or a part of 
the debt is past-due and legally enforceable; and
    (3) With respect to which FEMA has notified or has made a reasonable 
attempt to notify the debtor that the debt is past-due and, unless 
repaid within 60 days of the mailing of the notification the debt will 
be referred to

[[Page 130]]

the Department of the Treasury for offset against any overpayment of 
tax; and
    (4) Is at least $25.00; and
    (5) Meets all other requirements of 31 U.S.C. 3720A and the 
Department of the Treasury regulations relating to the eligibility of a 
debt for tax refund offset have been satisfied.

[63 FR 1068, Jan. 8, 1998]



Sec. 11.62  Administrative charges incurred in referrals for tax refund 
offset.

    In accordance with Sec. 11.48(e), all administrative costs incurred 
in connection with the referral of the debts to the Department of the 
Treasury for collection by tax refund offset shall be added to the 
amount owed by the debtor. Such costs will include, but not be limited 
to, a pro-rata share of total costs of taking offsets incurred by the 
Department of the Treasury in accordance with agreements executed by 
FEMA, the Department of the Treasury and the Department's constituent 
agencies.

[63 FR 1069, Jan. 8, 1998]



Sec. 11.63  Notice to debtor before tax refund offset.

    (a) FEMA will refer a debt to the Department of the Treasury for tax 
refund offset only after FEMA:
    (1) Makes a determination that the debt is owed to the United 
States;
    (2) Sends the debtor a notice of FEMA's intent to use Department of 
the Treasury tax refund offset that provides the debtor with items of 
information described in paragraphs (a)(2) (i) through (vii) as follows:
    (i) Debtor owes FEMA an amount due; and
    (ii) The debt is past due; and
    (iii) Unless the debt is repaid within 60 days of the date of FEMA's 
mailing the notice of intent described above, FEMA intends to collect 
the debt by requesting the Department of the Treasury to take offset to 
reduce the debtor's federal tax refund by the amount of the principal 
amount of the debt and all accumulated interest, penalty, and other 
charges; and
    (iv) Debtor has an opportunity to present arguments and evidence 
within 60 days of mailing of the notice of intent that all or a part of 
the debt is not due. A debtor requesting a review within the Agency 
shall send these arguments to the FEMA office that sent the notice of 
intent under Sec. 11.63(a)(2); and
    (v) Debtor has had an opportunity to arrange to inspect and copy 
records relating to the debt by mailing a request to the FEMA office 
sending the notice of intent under Sec. 11.63(a)(2); and
    (vi) If no reply is received from the debtor within 60 days of 
mailing of the notice, FEMA may refer the debt to the U.S. Department of 
the Treasury after reviewing the file and determining that the debt is 
due; and
    (vii) Debtor may negotiate a repayment agreement, satisfactory to 
FEMA, for the repayment of the debt.
    (b) If the debtor has presented evidence and arguments as described 
in subsection (a)(2)(iv) FEMA will refer the debt to the Department of 
the Treasury only after the FEMA Office of General Counsel has rendered 
a decision under provisions of Sec. Sec. 11.64 and 11.65 of this 
subpart concerning the debtor's arguments and evidence, if any, and has 
determined that the debt is due either in whole or in part. If the 
debtor has submitted evidence in accordance with paragraph (a)(2)(iv)(g) 
of this section, the FEMA Office of General Counsel shall notify the 
debtor of the Agency's final determination.
    (c) If the debtor has questions concerning the debt or procedures 
being used, the debtor may contact FEMA at an address and telephone 
number provided in the notice of intent under Sec. 11.63(a)(2).

[63 FR 1069, Jan. 8, 1998]



Sec. 11.64  Review within Federal Emergency Management Agency.

    (a) Notification by debtor. A debtor receiving notice of intent 
under Sec. 11.63(a)(2) has the right to present evidence and arguments 
within 60 days of mailing of the notice of intent that all of the debt 
is not past-due or not legally enforceable. To exercise this right, the 
debtor must:
    (1) Send a written request for review of evidence to the FEMA office 
sending the notice of intent; and

[[Page 131]]

    (2) State in the request the amount disputed and the reasons why the 
debtor believes that the debt is not past-due or is not legally 
enforceable; and
    (3) Include in the request any documents that the debtor wishes to 
be considered, or state that additional information will be submitted 
within the remainder of the 60-day period. FEMA is not obligated to 
consider any of debtor's evidence received after the 60-day period, 
except as specified in paragraph (c) of this section.
    (b) Submission of evidence. The debtor may submit evidence that all 
or part of the debt is not past due or legally enforceable along with 
the notification required by paragraph (a) of this section. Debtor's 
failure to submit the notification and evidence within the 60-day period 
may result in FEMA's referral of the debt to the Department of the 
Treasury with only a review by the ACO or the ACO's designee that FEMA's 
records show that the debt is actually due FEMA.
    (c) Late filed requests for review within FEMA. If the debtor 
submits a request for review after the 60-day time limit in paragraph 
(a) of this section, FEMA shall render a decision as described in 
paragraph (d) of this section, but FEMA shall not stay offset action as 
described in Sec. 11.65. However, if FEMA, after the review of the 
debtor's evidence and arguments, determines that the debtor owes less 
than the amounts that FEMA has taken through offset, then FEMA shall 
refund any difference between any amounts offset and amounts that the 
review within the Agency determines is actually owed.
    (d) Review of the evidence. FEMA will review the debtor's arguments 
and evidence in accordance with procedures set forth in Sec. 11.43(c).

[63 FR 1069, Jan. 8, 1998]



Sec. 11.65  Stay of tax refund offset action.

    If the debtor notifies FEMA that the debtor is exercising rights 
described in Sec. 11.64 and submits evidence within time limits 
specified in Sec. 11.64, any notice to the Department of the Treasury 
concerning tax refund offset will be stayed until the issuance of a 
written decision that sustains, amends, or ends collection action 
resulting from FEMA's original debt collection decision.

[63 FR 1069, Jan. 8, 1998]



                 Subpart D_Personnel Claims Regulations

    Authority: 31 U.S.C. 3721.

    Source: 50 FR 8112, Feb. 28, 1985.



Sec. 11.70  Scope and purpose.

    (a) The Director, Federal Emergency Management Agency (FEMA), is 
authorized by 31 U.S.C. 3721 to settle and pay (including replacement in 
kind) claims of officers and employees of FEMA, amounting to not more 
than $25,000 for damage to or loss of personal property incident to 
their service. Property may be replaced in-kind at the option of the 
Government. Claims are payable only for such types, quantities, or 
amounts of tangible personal property (including money) as the approving 
authority shall determine to be reasonable, useful, or proper under the 
circumstances existing at the time and place of the loss. In determining 
what is reasonable, useful, or proper, the approving authority will 
consider the type and quantity of property involved, circumstances 
attending acquisition and use of the property, and whether possession or 
use by the claimant at the time of damage or loss was incident to 
service.
    (b) The Government does not underwrite all personal property losses 
that a claimant may sustain and it does not underwrite individual 
tastes. While the Government does not attempt to limit possession of 
property by an individual, payment for damage or loss is made only to 
the extent that the possession of the property is determined to be 
reasonable, useful, or proper. If individuals possess excessive 
quantities of items, or expensive items, they should have such property 
privately insured. Failure of the claimant to comply with these 
procedures may reduce or preclude payment of the claim under this 
subpart.



Sec. 11.71  Claimants.

    (a) A claim pursuant to this subpart may only be made by: (1) An 
employee of FEMA; (2) a former employee of

[[Page 132]]

FEMA whose claim arises out of an incident occurring before his/her 
separation from FEMA; (3) survivors of a person named in paragraph (a) 
(1) or (2) of this section, in the following order of precedence: (i) 
Spouse; (ii) children; (iii) father or mother, or both or (iv) brothers 
or sisters, or both; (4) the authorized agent or legal representative of 
a person named in paragraphs (a) (1), (2), and (3) of this section.
    (b) A claim may not be presented by or for the benefit of a 
subrogee, assignee, conditional vendor, or other third party.



Sec. 11.72  Time limitations.

    (a) A claim under this part may be allowed only if it is in writing, 
specifies a sum certain and is received in the Office of General 
Counsel, Federal Emergency Management Agency, Washington, DC 20472: (1) 
Within 2 years after it accrues; (2) or if it cannot be filed within the 
time limits of paragraph (a)(1) of this section because it accrues in 
time of war or in time of armed conflict in which any armed force of the 
United States is engaged or if such a war or armed conflict intervenes 
within 2 years after the claim accrues, when the claimant shows good 
cause, the claim may be filed within 2 years after the cause ceases to 
exist but not more than 2 years after termination of the war or armed 
conflict.
    (b) For purposes of this subpart, a claim accrues at the time of the 
accident or incident causing the loss or damage, or at such time as the 
loss or damage should have been discovered by the claimant by the 
exercise of due diligence.



Sec. 11.73  Allowable claims.

    (a) A claim may be allowed only if: (1) The damage or loss was not 
caused wholly or partly by the negligent or wrongful act of the 
claimant, his/her agent, the members of his/her family, or his/her 
private employee (the standard to be applied is that of reasonable care 
under the circumstances); and (2) the possession of the property lost or 
damaged and the quantity possessed is determined to have been 
reasonable, useful, or proper under the circumstances; and (3) the claim 
is substantiated by proper and convincing evidence.
    (b) Claims which are otherwise allowable under this subpart shall 
not be disallowed solely because the property was not in the possession 
of the claimant at the time of the damage or loss, or solely because the 
claimant was not the legal owner of the property for which the claim is 
made. For example, borrowed property may be the subject of a claim.
    (c) Subject to the conditions in paragraph (a) of this section, and 
the other provisions of this subpart, any claim for damage to, or loss 
of, personal property incident to service with FEMA may be considered 
and allowed. The following are examples of the principal types of claims 
which may be allowed, unless excluded by Sec. 11.74.
    (1) Property loss or damage in quarters or other authorized places. 
Claims may be allowed for damage to, or loss of, property arising from 
fire, flood, hurricane, other natural disaster, theft, or other unusual 
occurrence, while such property is located at:
    (i) Quarters within the 50 states or the District of Columbia that 
were assigned to the claimant or otherwise provided in-kind by the 
United States; or
    (ii) Any warehouse, office, working area, or other place (except 
quarters) authorized for the reception or storage of property.
    (2) Transportation or travel losses. Claims may be allowed for 
damage to, or loss of, property incident to transportation or storage 
pursuant to orders, or in connection with travel under orders, including 
property in the custody of a carrier, an agent or agency of the 
Government, or the claimant.
    (3) Motor vehicles. Claims may be allowed for automobiles and other 
motor vehicles damaged or lost by overseas shipments provided by the 
Government. ``Shipments provided by the Government'' means via 
Government vessels, charter of commercial vessels, or by Government 
bills of lading on commercial vessels, and includes storage, unloading, 
and offloading incident thereto. Other claims for damage to or loss of 
automobiles and other major vehicles may be allowed when use of the 
vehicles on a nonreimbursable basis

[[Page 133]]

was required by the claimant's supervisor, but these claims shall be 
limited to a maximum of $1,000.00.
    (4) Mobile homes. Claims may be allowed for damage to or loss of 
mobile homes and their content under the provisions of paragraph (c)(2) 
of this section. Claims for structural damage to mobile homes resulting 
from such structural damage must contain conclusive evidence that the 
damage was not caused by structural deficiency of the mobile home and 
that it was not overloaded. Claims for damage to or loss of tires 
mounted on mobile homes may be allowed only in cases of collision, 
theft, or vandalism.
    (5) Money. Claims for money in an amount that is determined to be 
reasonable for the claimant to possess at the time of the loss are 
payable:
    (i) Where personal funds were accepted by responsible Government 
personnel with apparent authority to receive them for safekeeping, 
deposit, transmittal, or other authorized disposition, but were neither 
applied as directed by the owner nor returned;
    (ii) When lost incident to a marine or aircraft disaster;
    (iii) When lost by fire, flood, hurricane, or other natural 
disaster;
    (iv) When stolen from the quarters of the claimant where it is 
conclusively shown that the money was in a locked container and that the 
quarters themselves were locked. Exceptions to the foregoing ``double 
lock'' rule are permitted when the adjudicating authority determines 
that the theft loss was not caused wholly or partly by the negligent or 
wrongful act of the claimant, their agent, or their employee. The 
adjudicating authority should use the test of whether the claimant did 
their best under the circumstances to protect the property; or
    (v) When taken by force from the claimant's person.
    (6) Clothing. Claims may be allowed for clothing and accessories 
customarily worn on the person which are damaged or lost:
    (i) During the performance of official duties in an unusual or 
extraordinary-risk situation;
    (ii) In cases involving emergency action required by natural 
disaster such as fire, flood, hurricane, or by enemy or other 
belligerent action;
    (iii) In cases involving faulty equipment or defective furniture 
maintained by the Government and used by the claimant required by the 
job situation; or
    (iv) When using a motor vehicle.
    (7) Property used for benefit of the Government. Claims may be 
allowed for damage to or loss of property (except motor vehicles, see 
Sec. Sec. 11.73(c)(3) and 11.74(b)(13)) used for the benefit of the 
Government at the request of, or with the knowledge and consent of, 
superior authority or by reason of necessity.
    (8) Enemy action or public service. Claims may be allowed for damage 
to or loss of property as a direct consequence of:
    (i) Enemy action or threat thereof, or combat, guerrilla, 
brigandage, or other belligerent activity, or unjust confiscation by a 
foreign power or its nation:
    (ii) Action by the claimant to quiet a civil disturbance or to 
alleviate a public disaster; or
    (iii) Efforts by the claimant to save human life or Government 
property.
    (9) Marine or aircraft disaster. Claims may be allowed for personal 
property damaged or lost as a result of marine or aircraft disaster or 
accident.
    (10) Government property. Claims may be allowed for property owned 
by the United States only when the claimant is financially responsible 
to an agency of the Government other than FEMA.
    (11) Borrowed property. Claims may be allowed for borrowed property 
that has been damaged or lost.
    (12)(i) A claim against the Government may be made for not more than 
$40,000 by an officer or employee of the agency for damage to, or loss 
of, personal property in a foreign country that was incurred incident to 
service, and--
    (A) The officer, or employee was evacuated from the country on a 
recommendation or order of the Secretary of State or other competent 
authority that was made in responding to an incident of political unrest 
or hostile act by people in that country; and the damage or loss 
resulted from the evacuation, incident, or hostile act; or

[[Page 134]]

    (B) The damage or loss resulted from a hostile act directed against 
the Government or its officers, or employees.
    (ii) On paying the claim under this section, the Government is 
subrogated for the amount of the payment to a right or claim that the 
claimant may have against the foreign country for the damage or loss for 
which the Government made the payment.
    (iii) Amounts may be obligated or expended for claims under this 
section only to the extent provided in advance in appropriation laws.



Sec. 11.74  Claims not allowed.

    (a) A claim is not allowable if:
    (1) The damage or loss was caused wholly or partly by the negligent 
or wrongful act of the claimant, claimant's agent, claimant's employee, 
or a member of claimant's family;
    (2) The damage or loss occurred in quarters occupied by the claimant 
within the 50 states and the District of Columbia that were not assigned 
to the claimant or otherwise provided in-kind by the United States;
    (3) Possession of the property lost or damaged was not incident to 
service or not reasonable or proper under the circumstances.
    (b) In addition to claims falling within the categories of paragraph 
(a) of this section, the following are examples of claims which are not 
payable:
    (1) Claims not incident to service. Claims which arose during the 
conduct of personal business are not payable.
    (2) Subrogation claims. Claims based upon payment or other 
consideration to a proper claimant are not payable.
    (3) Assigned claims. Claims based upon assignment of a claim by a 
proper claimant are not payable.
    (4) Conditional vendor claims. Claims asserted by or on behalf of a 
conditional vendor are not payable.
    (5) Claims by improper claimants. Claims by persons not designated 
in Sec. 11.71 are not payable.
    (6) Articles of extraordinary value. Claims are not payable for 
valuable or expensive articles, such as cameras, watches, jewelry, furs, 
or other articles of extraordinary value, when shipped with household 
goods or as unaccompanied baggage (shipment includes storage). This 
prohibition does not apply to articles in the personal custody of the 
claimant or articles properly checked, provided that reasonable 
protection or security measures have been taken, by the claimant.
    (7) Articles acquired for other persons. Claims are not payable for 
articles intended directly or indirectly for persons other than the 
claimant or members of the claimants' immediate household. This 
prohibition includes articles acquired at the request of others and 
articles for sale.
    (8) Property used for business. Claims are not payable for property 
normally used for business or profit.
    (9) Unserviceable property. Claims are not payable for wornout or 
unserviceable property.
    (10) Violation of law or directive. Claims are not payable for 
property acquired, possessed, or transported in violation of law, 
regulation, or other directive. This does not apply to limitation 
imposed on the weight of shipments of household goods.
    (11) Intangible property. Claims are not payable for intangible 
property such as bank books, checks, promissory notes, stock 
certificates, bonds, bills of lading, warehouse receipts, baggage 
checks, insurance policies, money orders, and traveler's checks.
    (12) Government property. Claims are not payable for property owned 
by the United States unless the claimant is financially responsible for 
the property to an agency of the Government other than FEMA.
    (13) Motor vehicles. Claims for motor vehicles, except as provided 
for by Sec. 11.73(c)(3), will ordinarily not be paid. However, in 
exceptional cases, meritorious claims for damage to or loss of motor 
vehicles, limited to a maximum of $1,000.00, may be recommended to the 
Office of General Counsel for consideration and approval for payment.
    (14) Enemy property. Claims are not payable for enemy property, 
including war trophies.
    (15) Losses recoverable from carrier, insurer or contractor. Claims 
are not payable for losses, or any portion thereof, which have been 
recovered or are recoverable from a carrier, insurer or under contract 
except as permitted under Sec. 11.75.

[[Page 135]]

    (16) Fees for estimates. Claims are not normally payable for fees 
paid to obtain estimates of repair in conjunction with submitting a 
claim under this subpart. However, where, in the opinion of the 
adjudicating authority, the claimant could not obtain an estimate 
without paying a fee, such a claim may be considered in an amount 
reasonable in relation to the value for the cost of repairs of the 
articles involved, provided that the evidence furnished clearly 
indicates that the amount of the fee paid will not be deducted from the 
cost of repairs if the work is accomplished by the estimator.
    (17) Items fraudulently claimed. Claims are not payable for items 
fraudulently claimed. When investigation discloses that a claimant, 
claimant's agent, claimant's employee, or member of claimant's family 
has intentionally misrepresented an item claimed as to cost, condition, 
costs to repair, etc., the item will be disallowed in its entirety even 
though some actual damage has been sustained. However, if the remainder 
of the claim is proper, it may be paid. This does not preclude 
appropriate disciplinary action if warranted.
    (18) Minimum amount. Loss or damage amounting to less than $10.



Sec. 11.75  Claims involving carriers and insurers.

    In the event the property which is the subject of a claim was lost 
or damaged while in the possession of a carrier or was insured, the 
following procedures will apply:
    (a) Whenever property is damaged, lost, or destroyed while being 
shipped pursuant to authorized travel orders, the owner must file a 
written claim for reimbursement with the last commercial carrier known 
or believed to have handled the goods, or the carrier known to be in 
possession of the property when the damage or loss occurred, according 
to the terms of its bill of lading or contract, before submitting a 
claim against the Government under this subpart.
    (1) If more than one bill of lading or contract was issued, a 
separate demand should be made against the last carrier on each such 
document.
    (2) The demand should be made within the time limit provided in the 
policy and prior to the filing of a claim against the Government.
    (3) If it is apparent that the damage or loss is attributable to 
packing, storage, or unpacking while in the custody of the Government, 
no demand need be made against the carrier.
    (b) Whenever property which is damaged, lost, or destroyed incident 
to the claimant's service is insured in whole or in part, the claimant 
must make demand in writing against the insurer for reimbursement under 
terms and conditions of the insurance coverage, prior to the filing of 
the concurrent claim against the Government.
    (c) Failure to make a demand on a carrier or insurer or to make all 
reasonable efforts to protect and prosecute rights available against a 
carrier or insurer and to collect the amount recoverable from the 
carrier or insurer may result in reducing the amount recoverable from 
the Government by the maximum amount which would have been recoverable 
from the carrier or insurer, had the claim been timely or diligently 
prosecuted. However, no deduction will be made where the circumstances 
of the claimant's service preclude reasonable filing of such a claim or 
diligent prosecution, or the evidence indicates a demand was 
impracticable or would have been unavailing.
    (d) Following the submission of the claim against the carrier or 
insurer, the claimant may immediately submit a claim against the 
Government in accordance with the provisions of this subpart, without 
waiting until either final approval or denial of the claim is made by 
the carrier or insurer.
    (1) Upon submission of a claim to the Government, the claimant must 
certify in the claim that no recovery (or the amount of recovery) has 
been gained from a carrier or insurer, and enclose all correspondence 
pertinent thereto.
    (2) If the carrier or insurer has not taken final action on the 
claim against them, by the time the claimant submits a claim to the 
Government, the claimant will immediately notify them to address all 
correspondence in regard to the claim to him/her, in care of the General 
Counsel of FEMA.
    (3) The claimant shall timely advise the General Counsel in writing, 
of any

[[Page 136]]

action which is taken by the carrier or insurer on the claim. On 
request, the claimant also will furnish such evidence as may be required 
to enable the United States to enforce the claim.
    (e) When a claim is paid by FEMA, the claimant will assign to the 
United States, to the extent of any payment on the claim accepted by 
claimant, all rights, title, and interest in any claim against the 
carrier, insurer, or other party arising out of the incident on which 
the claim against the Government is based. After payment of the claim by 
the Government, the claimant will, upon receipt of any payment from a 
carrier or insurer, pay the proceeds to the United States to the extent 
of the payment received by the claimant from the United States.
    (f) When a claimant recovers for the loss from the carrier or 
insurer before the claim against the Government under this subpart is 
settled, the amount or recovery shall be applied to the claim as 
follows:
    (1) When the amount recovered from a carrier, insurer, or other 
third party is greater than or equal to the claimant's total loss as 
determined under this subpart, no compensation is allowable under this 
subpart.
    (2) When the amount recovered is less than such total loss, the 
allowable amount is determined by deducting the recovery from the amount 
of such total loss;
    (3) For the purpose of this paragraph (f) the claimant's total loss 
is to be determined without regard to the $25,000 maximum set forth 
above. However, if the resulting amount, after making this deduction, 
exceeds $25,000, the claimant will be allowed only $25,000.



Sec. 11.76  Claims procedures.

    (a) Filing a claim. Applicants shall file claims in writing with the 
General Counsel, Federal Emergency Management Agency, Washington, DC 
20472. Each written claim shall contain, as a minimum:
    (1) Name, address, and place of employment of the claimant;
    (2) Place and date of the damage or loss:
    (3) A brief statement of the facts and circumstances surrounding the 
damage or loss;
    (4) Cost, date, and place of acquisition of each price of property 
damaged or lost;
    (5) Two itemized repair estimates, or value estimates, whichever is 
applicable;
    (6) Copies of police reports, if applicable;
    (7) A statement from the claimant's supervisor that the loss was 
incident to service;
    (8) A statement that the property was or was not insured;
    (9) With respect to claims involving thefts or losses in quarters or 
other places where the property was reasonably kept, a statement as to 
what security precautions were taken to protect the property involved;
    (10) With respect to claims involving property being used for the 
benefit of the Government, a statement by the claimant's supervisor that 
the claimant was required to provide such property or that the 
claimant's providing it was in the interest of the Government; and
    (11) Other evidence as may be required.
    (b) Single claim. A single claim shall be presented for all lost or 
damaged property resulting from the same incident. If this procedure 
causes a hardship, the claimant may present an initial claim with notice 
that it is a partial claim, an explanation of the circumstances causing 
the hardship, and an estimate of the balance of the claim and the date 
it will be submitted. Payment may be made on a partial claim if the 
adjudicating authority determines that a genuine hardship exists.
    (c) Loss in quarters. Claims for property loss in quarters or other 
authorized places should be accompanied by a statement indicating:
    (1) Geographical location;
    (2) Whether the quarters were assigned or provided in-kind by the 
Government;
    (3) Whether the quarters are regularly occupied by the claimant;
    (4) Names of the authority, if any, who designated the place of 
storage of the property if other than quarters;
    (5) Measures taken to protect the property; and
    (6) Whether the claimant is a local inhabitant.

[[Page 137]]

    (d) Loss by theft or robbery. Claims for property loss by theft or 
robbery should be accompanied by a statement indicating:
    (1) Geographical location;
    (2) Facts and circumstances surrounding the loss, including evidence 
of the crime such as breaking and entering, capture of the thief or 
robber, or recovery of part of the stolen goods; and
    (3) Evidence that the claimant exercised due care in protecting the 
property prior to the loss, including information as to the degree of 
care normally exercised in the locale of the loss due to any unusual 
risks involved.
    (e) Transportation losses. Claims for transportation losses should 
be accompanied by the following:
    (1) Copies of orders authorizing the travel, transportation, or 
shipment or a certificate explaining the absence of orders and stating 
their substance;
    (2) Statement in cases where property was turned over to a shipping 
officer, supply officer, or contract packer indicating:
    (i) Name (or designation) and address of the shipping officer, 
supply officer, or contract packer indicating;
    (ii) Date the property was turned over;
    (iii) Inventoried condition when the property was turned over;
    (iv) When and where the property was packed and by whom;
    (v) Date of shipment;
    (vi) Copies of all bills of lading, inventories, and other 
applicable shipping documents;
    (vii) Date and place of delivery to the claimant;
    (viii) Date the property was unpacked by the carrier, claimant, or 
Government;
    (ix) Statement of disinterested witnesses as to the condition of the 
property when received and delivered, or as to handling or storage;
    (x) Whether the negligence of any Government employee acting within 
the scope of his/her employment caused the damage or loss;
    (xi) Whether the last common carrier or local carrier was given a 
clear receipt, except for concealed damages;
    (xii) Total gross, tare, and new weight of shipment;
    (xiii) Insurance certificate or policy if losses are privately 
insured;
    (xiv) Copy of the demand on carrier or insured, or both, when 
required, and the reply, if any;
    (xv) Action taken by the claimant to locate missing baggage or 
household effects, including related correspondence.
    (f) Marine or aircraft disaster. Claims for property losses due to 
marine or aircraft disaster should be accompanied by a copy of orders or 
other evidence to establish the claimant's right to be, or to have 
property on board.
    (g) Enemy action, public disaster, or public service. Claims for 
property losses due to enemy action, public disaster, or public service 
should be accompanied by:
    (1) Copies of orders or other evidence establishing the claimant's 
required presence in the area involved; and
    (2) A detailed statement of facts and circumstances showing an 
applicable case enumerated in Sec. 11.73(c)(8).
    (h) Money. Claims for loss of money deposited for safekeeping, 
transmittal, or other authorized disposition should be accompanied by:
    (1) Name, grade, and address of the person or persons who received 
money and any others involved;
    (2) Name and designation of the authority who authorized such person 
or persons to accept personal funds and the disposition required; and
    (3) Receipts and written sworn statements explaining the failure to 
account for funds or return them to the claimant.
    (i) Motor vehicles or mobile homes in transit. Claims for damage to 
motor vehicles or mobile homes in transit should be accompanied by a 
copy of orders or other available evidence to establish the claimant's 
lawful right to have the property shipped and evidence to establish 
damage in transit.



Sec. 11.77  Settlement of claims.

    (a) The General Counsel, FEMA, is authorized to settle (consider, 
ascertain, adjust, determine, and dispose of, whether by full or partial 
allowance or disallowance) any claim under this subpart.

[[Page 138]]

    (b) The General Counsel may formulate such procedures and make such 
redelegations as may be required to fulfill the objectives of this 
subpart.
    (c) The General Counsel shall conduct or request the Office of 
Inspector General to conduct such investigation as may be appropriate in 
order to determine the validity of a claim.
    (d) The General Counsel shall notify a claimant in writing of action 
taken on their claim, and if partial or full disallowance is made, the 
reasons therefor.
    (e) In the event a claim submitted against a carrier under Sec. 
11.75 has not been settled, before settlement of the claim against the 
Government pursuant to this subpart, the General Counsel shall notify 
such carrier or insurer to pay the proceeds of the claim to FEMA to the 
extent FEMA has paid such to claimant in settlement.
    (f) The settlement of a claim under this subpart, whether by full or 
partial allowance or disallowance, is final and conclusive.



Sec. 11.78  Computation of amount of award.

    (a) The amount allowed for damage to or loss of any items of 
property may not exceed the cost of the item (either the price paid in 
cash or property, or the value at the time of acquisition if not 
acquired by purchase or exchange), and there will be no allowance for 
replacement cost or for appreciation in the value of the property. 
Subject to these limitations, the amount allowable is either:
    (1) The depreciated value, immediately prior to the loss or damage, 
of property lost or damaged beyond economical repair, less any salvage 
value; or
    (2) The reasonable cost or repairs, when property is economically 
repairable, provided that the cost of repairs does not exceed the amount 
allowable under paragraph (a)(1) of this section.
    (b) Depreciation in value is determined by considering the type of 
article involved, its costs, its conditions when damaged or lost, and 
the time elapsed between the date of acquisition and the date of damage 
or loss.
    (c) Replacement of lost or damaged property may be made in-kind 
whenever appropriate.



Sec. 11.79  Attorney's fees.

    No more than 10 per centum of the amount paid in settlement of each 
individual claim submitted and settled under this subpart shall be paid 
or delivered to or received by any agent or attorney on account of 
services rendered in connection with that claim. A person violating this 
section shall be fined not more than $1,000.

(Information collection approved by Office of Management and Budget 
under Control No. 3067-0167)



PART 12_ADVISORY COMMITTEES--Table of Contents




Sec.
12.1 Purpose and applicability.
12.2 Definitions.
12.3 Policy.
12.4 Interpretations.
12.5 Advisory committee management officer.
12.6 Establishment of advisory committees.
12.7 Charter.
12.8 Meetings.
12.9 Closed meetings.
12.10 Designated Federal officer or employee.
12.11 Public notice.
12.12 Minutes.
12.13 Transcripts of the advisory committee meetings and agency 
          proceedings.
12.14 Annual comprehensive review.
12.15 Termination and renewal of advisory committees.
12.16 Reports about the advisory committees.
12.17 Availability of documents and information on advisory committees.
12.18 Uniform pay guidelines.
12.19 Fiscal and administrative responsibilities.

    Authority: Federal Advisory Committee Act, 5 U.S.C. app. 1; 
Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148; E.O. 12024.

    Source: 45 FR 64180, Sept. 29, 1980, unless otherwise noted.



Sec. 12.1  Purpose and applicability.

    (a) The regulations in this part implement the Federal Advisory 
Committee Act, Executive Order 12024 and General Services Administration 
Regulation 41 CFR part 101-6. The provisions of the Federal Advisory 
Committee Act in this part shall apply to all advisory

[[Page 139]]

committees established by the Federal Emergency Management Agency 
(FEMA), including advisory committees created pursuant to any act of 
Congress relating to the United States Fire Administration, Federal 
Insurance Administration, or any other component of the Federal 
Emergency Management Agency, except to the extent that any act of 
Congress establishing an advisory committee reporting to the agencies 
specifically provides otherwise.
    (b) This part does not apply to inter-agency advisory committees or 
advisory committees established by the President unless specifically 
made applicable by the establishing authority.
    (c) This part does not apply to any local group, contractor, 
grantee, or other organization whose primary function is to render 
public service with respect to a Federal program, or any state or local 
committee, counsel, board, commission, or similar group established to 
advise or make recommendations to State or local officials or agencies.

[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983; 
50 FR 40007, Oct. 1, 1985]



Sec. 12.2  Definitions.

    As used in this part--
    Act means the Federal Advisory Committee Act (86 Stat. 770).
    Advisory Committee is used as per the meaning set forth in section 
3(2) of the Act.
    Agency means the Federal Emergency Management Agency, established by 
Presidential Reorganization Plan No. 3 of 1978, or any component 
thereof.
    Administrator, GSA means the Administrator of General Services.
    Director means the Director of the Federal Emergency Management 
Agency.
    FEMA means the Federal Emergency Management Agency.
    GSA means the General Services Administration.
    Presidential Advisory Committee means an advisory committee which 
advises the President of the United States.
    Secretariat means the Committee Management Secretariat of the 
General Services Administration.
    Any officer of the Federal Government means any agency official or 
employee of the Federal government designated to perform duties with 
respect to an advisory committee established under this part.
    Nonstatutory advisory committee means an advisory committee not 
established by statute or reorganization plan.



Sec. 12.3  Policy.

    In determining whether an advisory committee should be created, and 
in reviewing the functions of operating advisory committees, the Agency 
will:
    (a) Establish new advisory committees only when they are determined 
to be essential, keeping their number to the minimum necessary to 
accomplish the assigned mission of the agency or its components;
    (b) Provide standards and uniform procedures to govern the 
establishment, operation, administration, and duration of the advisory 
committees;
    (c) Terminate the advisory committees when they are no longer 
necessary to carry out the purposes for which they were established; and
    (d) Keep the Congress and the public informed with respect to the 
number, purpose, membership, activity, and cost of the advisory 
committees.



Sec. 12.4  Interpretations.

    Except as specifically authorized in writing by the Director, 
including internal instructions, no interpretation of the meaning of the 
regulations in this part by any employee or officer of the Agency, other 
than a written interpretation by the General Counsel, will be recognized 
to be binding upon the Agency.



Sec. 12.5  Advisory committee management officer.

    (a) The Director will designate as advisory committee management 
officer the Chief, Staff Planning and Evaluation, Office of 
Administrative Support, who shall:
    (1) Exercise control and supervision over the establishment, 
procedures, and accomplishments of the advisory committees established 
by the Director; and
    (2) Assemble and maintain the reports, records, and other papers of 
any

[[Page 140]]

advisory committee during its existence.
    (b) The name of the Advisory Committee Management Officer designated 
in accordance with this part shall be provided to the Secretariat.

[45 FR 64180, Sept. 29, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984]



Sec. 12.6  Establishment of advisory committees.

    (a) No advisory committee shall be established under this part 
unless such establishment is:
    (1) Specifically authorized by statute or the President of the 
United States; or
    (2) Determined as a matter of formal record by the Director after 
consultation with the Secretariat, with timely notice published in the 
Federal Register as a matter of the public interest, in connection with 
the performance of duties imposed on the agency by law.
    (b) The determination required by paragraph (a)(2) of this section 
shall:
    (1) Contain a clearly defined purpose for the advisory committee;
    (2) Require the membership of the advisory committee to be fairly 
balanced in terms of the points of view represented in the functions 
performed by the advisory committee;
    (3) Contain appropriate provisions to assure that the advice and 
recommendations of the advisory committee will not be inappropriately 
influenced by the appointing authority or by any special interest, but 
will instead be the result of the advisory committee's independent 
judgment;
    (4) Contain provisions dealing with the date for submission of 
reports (if any), the duration of the advisory committee, and the 
publication of reports and other materials, to the extent that the 
agency determines the provisions of Sec. 12.16 of this part to be 
inadequate; and
    (5) Contain provisions which will assure that the advisory committee 
will have adequate staff (either supplied by the Agency or employed by 
it), will be provided adequate quarters, and will have funds available 
to meet its other necessary expenses.
    (c) Consultation with the Secretariat may be in the form of a letter 
from the Agency describing the nature and purpose of the proposed 
advisory committee, including an explanation of why the functions of the 
proposed committee could not be performed by FEMA or by an existing 
committee. The letter should describe the Agency's plan to attain 
balanced membership on the proposed committee, as prescribed in 
paragraph (b)(2) of this section. If the Secretariat is satisfied that 
the establishment of the advisory committee will be in accord with the 
Act, the Agency shall certify in writing that creation of the advisory 
committee is in the public interest.
    (d) Unless otherwise specifically provided by statute or 
Presidential directive, advisory committees shall be utilized solely for 
advisory functions.



Sec. 12.7  Charter.

    (a) No advisory committee established under this part shall meet or 
take any action until an advisory committee charter has been filed with 
the Agency and the standing Committee or Committees of the Senate and 
House of Representatives having legislative jurisdiction over the FEMA 
component to which the advisory committee renders its advice.
    (b) The charter required by paragraph (a) of this section shall 
contain at least the following information:
    (1) The committee's official designations;
    (2) The committee's objectives and the scope of its activities;
    (3) The period of time necessary for the committee to carry out its 
purposes;
    (4) The FEMA component and official to whom the committee reports;
    (5) The FEMA component responsible for providing the necessary 
support for the committee;
    (6) A description of the duties for which the committee is 
responsible, and, if such duties are not solely advisory, specification 
of the authority for such functions;
    (7) The estimated annual operating cost in dollars and man years for 
the committee;
    (8) The estimated number in frequency of committee meetings;

[[Page 141]]

    (9) The committee's termination date, if less than 2 years from the 
date of committee's establishment; and
    (10) The date the charter is filed.
    (c) A copy of the charter required by paragraph (a) of this section 
shall also be furnished at the time of filing to the Library of 
Congress, Exchange and Gift Division, Federal Advisory Committee, 
Washington, DC 20540.
    (d) An amendment to the charter may be filed whenever there is a 
substantial change regarding matters stated in the original charter.
    (e) The requirements of this section shall also apply to committees 
utilized as advisory committees, even though not expressly established 
for that purpose.



Sec. 12.8  Meetings.

    (a) Advisory committees established under this part shall not hold 
any meetings, nor shall they render any advice, except at the call of, 
or with the advice and approval of, the Federal Officer or employee 
designated in accordance with Sec. 12.10 of this part, who shall also 
approve the agenda of such meetings. Timely notice of each meeting shall 
be provided in accordance with Sec. 12.11 of this part.
    (b) The agenda required by paragraph (a) of this section shall list 
the matters to be considered at the meeting. It shall also indicate when 
any part of the meeting will concern matters within the exceptions of 
the (Government) Sunshine Act, 5 U.S.C. 552b, and Sec. 12.9 of this 
part.
    (c) Subject to the provisions of Sec. 12.9 of this part, each 
advisory committee meeting shall be open to the public. Meetings which 
are completely or partly open to the public shall be held at reasonable 
times and at such a place that is reasonably accessible to the public. 
The size of the meeting room should be determined by such factors as the 
size of the committee, the number of members of the public who could 
reasonably be expected to attend, the number of persons who attended 
similar meetings in the past, and the resource facilities available.
    (d) Any member of the public shall be permitted to file a written 
statement with the committee related to any meeting that is completely 
or partly open to the public. Interested persons may also be permitted 
by the committee chairman to speak at such meetings in accordance with 
the procedures established by the committee.



Sec. 12.9  Closed meetings.

    (a) The requirements of Sec. 12.8 (c) and (d) of this part that 
meetings shall be open to the public and that the public shall be 
afforded an opportunity to participate in such meetings shall not apply 
to any advisory committee meeting which the President or the Director 
determines is concerned with matters listed in 5 U.S.C. 552b(c).
    (b) An advisory committee which seeks to have all or part of its 
meetings closed shall notify the Director before the scheduled date of 
the meeting. The notification shall be in writing and shall specify the 
reasons why any part of the meeting should be closed.
    (c) A request that the meeting be closed will be granted upon 
determination by the Director that the request is in accordance with the 
policies of this part. The Director's determination will be in writing 
and will state the specific reasons for closing all or part of the 
meeting. The determination will be made available to the public upon 
request.
    (d) The Director may delegate responsibility for making the 
determination required by paragraph (c) of this section. In any case 
where the determination to close the meeting is made by the Director's 
delegate, the determination will be reviewed by the General Counsel.
    (e) When a meeting is closed to the public, the advisory committee 
shall issue a report, at least annually, setting forth a summary of its 
activities in such meetings, addressing those related matters as would 
be informative to the public and consistent with the policy of 5 U.S.C. 
552b(c) and of this part. Notice of the availability of such annual 
reports shall be published in accordance with Sec. 12.11 of this part.



Sec. 12.10  Designated Federal officer or employee.

    (a) The Agency will designate an officer or employee of the Federal 
Government to chair or attend each meeting

[[Page 142]]

of each advisory committee established under this part.
    (b) No advisory committee shall conduct any meeting in the absence 
of the Federal employee or officer designated in accordance with 
paragraph (a) of this section.
    (c) The Federal officer or employee designated in accordance with 
paragraph (a) of this section is authorized, whenever he/she determines 
it to be in the public interest, to adjourn any committee meeting he/she 
is designated to chair or attend.



Sec. 12.11  Public notice.

    (a) The Agency's determination procedure described by Sec. 12.6 of 
this part for the creation of the advisory committee, and a description 
of the nature and purpose of the committee, should be published in the 
Federal Register at least 15 days prior to the filing of the committee's 
charter, unless the Secretariat, for good cause, authorizes a shorter 
period of time between publication of the notice and the filing of the 
charter.
    (b) Except when the Administrator GSA determines contrarily for 
reasons of national security, timely notice of each advisory committee 
meeting, whether open or closed to the public, shall be published in the 
Federal Register at least 15 days before the meeting date. Such notice 
should state the name of the advisory committee, the time, place and 
purpose of the meeting, and should include, where appropriate, a summary 
of the meeting agenda. Notice ordinarily should state that the meeting 
is open to the public or explain why the meeting or any portion of the 
meeting is to be closed. Notices shorter than the time prescribed by 
this paragraph may be provided in emergency situations, and the reasons 
for such emergency exceptions should be made part of the meeting notice. 
Due to the emergency nature of FEMA's many programs, it is contemplated 
that advisory committees may have to be established or meetings called 
on fairly short notice; however, every effort should be made to comply 
with the notice requirement, except in cases where delay may result in 
harm to individuals or damage to property. A request for a determination 
that notice of a meeting should not be published for reasons of national 
security shall be submitted to the Administrator GSA with a statement of 
reasons supporting such request at least 30 days before the meeting is 
scheduled. Where, however, there is a significant likelihood of severe 
damage to property or injury to individuals, the notice period may be 
reduced as necessary to minimize such damage or injury.
    (c) In addition to the notice required by paragraph (b) of this 
section, other forms of notice such as public releases and notices by 
mail should be used to inform the public of advisory committee meetings.
    (d) The Committee Management Officer, in coordination with the 
Office of Public Affairs, should, where practical, maintain lists of 
people and organizations interested in advisory committees and notify 
them of meetings by mail.
    (e) Notice of the availability of the annual reports required by 
Sec. 12.9(e) of this part will be published in the Federal Register no 
later than 60 days after their completion. Notice will include 
instructions which will allow the public access to the reports.



Sec. 12.12  Minutes.

    (a) Detailed minutes of each advisory committee meeting shall be 
kept and shall contain a record of the persons present, a complete 
summary of matters discussed and conclusions reached, and copies of all 
reports received, issued, or approved by the advisory committee. The 
record of persons present shall include the time and place of the 
meeting, a list of advisory committee members and staff and agency 
employees present at the meeting, a list of members of the public who 
presented oral or written statements, and an estimated number of members 
of the public who attended the meeting. The minutes shall describe the 
extent to which the meeting was open to the public and the extent of 
public participation. If it is impracticable to attach to the minutes of 
the meeting any report received, issued, or approved by the advisory 
committee, then the minutes will describe the report in sufficient 
detail to enable any person requesting the report to readily identify 
it.

[[Page 143]]

    (b) The accuracy of all minutes shall be certified by the 
chairperson of the advisory committee concerned, except in the case of a 
subcommittee or subgroup of the advisory committee, in which case the 
accuracy of the minutes shall be certified by the chairperson of the 
subcommittee or subgroup concerned and co-signed by the chairperson of 
the advisory committee.



Sec. 12.13  Transcripts of the advisory committee meetings and agency 
proceedings.

    Copies of transcripts of advisory committee meetings which have been 
prepared will be made available to any person at the actual cost of 
duplication, as prescribed in Sec. 12.17 of this part.



Sec. 12.14  Annual comprehensive review.

    (a) The Agency will conduct an annual comprehensive review of the 
activities and responsibilities of each advisory committee to determine:
    (1) Whether such committee is carrying out its purpose;
    (2) Whether, consistent with the provisions of applicable statutes, 
the responsibilities assigned to it should be revised;
    (3) Whether it should be merged with any other advisory committee or 
committees; or
    (4) Whether it should be abolished.
    (b) Pertinent factors to be considered in the comprehensive review 
required by paragraph (a) of this section includes the following:
    (1) The number of times the committee has met in the past year;
    (2) The number of reports or recommendations submitted by the 
committee;
    (3) An evaluation of the substance of the reports or recommendations 
submitted by the committee, regarding the Agency's programs or 
operations;
    (4) An evaluation of the utilization by the Agency of the 
committee's policy formation recommendations in: program planning, 
decision making, more effective achievement of program objectives, and 
more economical accomplishment of programs in general, with emphasis in 
such evaluation on the preceding 12 month period of the committee's 
work;
    (5) Whether information or recommendations could be obtained from 
sources within the Agency or from other advisory committees already in 
existence;
    (6) The degree of duplication of effort by the committee as compared 
with that of other parts of the Agency or other advisory committees; and
    (7) The estimated annual cost of the committee.
    (c) The annual review required by this section shall be conducted on 
a calendar year basis, and results of the review shall be included in 
the annual report to the Secretariat required by Sec. 12.16(b) of this 
part. The report shall contain a justification of each advisory 
committee which the Agency determines should be continued, making 
reference, as appropriate, to the factors specified in paragraph (b) of 
this section.
    (d) The review will examine all advisory committees, and committees 
found to be no longer needed shall be terminated. Advisory committees 
established by act of Congress or the President of the United States 
will be reviewed, and if appropriate, their termination will be 
recommended.



Sec. 12.15  Termination and renewal of advisory committees.

    (a) Each advisory committee shall terminate not later than the 
expiration of the 2 year period beginning on the date of its 
establishment, unless:
    (1) In the case of an advisory committee established by the 
President or an officer of the Federal Government, such advisory 
committee is renewed by the President or such officer by appropriate 
action prior to the end of such period; or
    (2) In the case of an advisory committee established by an Act of 
Congress, its duration is otherwise provided by law.
    (b) Any advisory committee which is renewed by the President or any 
officer of the Federal Government may be continued only for successive 
2-year periods by appropriate action taken by the President or such 
officer prior to the date on which the advisory committee would 
otherwise terminate.
    (c) Before it renews a non-statutory advisory committee in 
accordance with

[[Page 144]]

paragraph (a) or (b) of this section, the Agency will inform the 
Secretariat by letter, not more than 60 days nor less than 30 days 
before the committee expires, of the following:
    (1) Its determination that a renewal is necessary and is in the 
public interest;
    (2) The reasons for its determination;
    (3) The Agency's plan to attain balanced membership on the 
committee;
    (4) An explanation of why the committee's functions cannot be 
performed by the Agency or by an existing advisory committee.
    (d) After concurrence by the Secretariat, the Agency will certify in 
writing that the renewal of the advisory committee is in the public 
interest, and will publish a notice of the renewal in the Federal 
Register, and will file a new charter in accordance with Sec. 12.7 of 
this part.
    (e) Any advisory committee established by an Act of Congress shall 
file a charter in accordance with Sec. 12.7 of this part upon the 
expiration of each successive 2-year period following the date of 
enactment of the Act establishing such advisory committee.
    (f) No advisory committee required under this section to file a 
charter shall take any action, other than preparation and filing of such 
charter, between the date the new charter is required and the date on 
which such charter is actually filed.



Sec. 12.16  Reports about the advisory committees.

    (a) The Agency will furnish a report of the activities of the FEMA 
advisory committees annually to the Administrator, General Services 
Administration, in accordance with the Federal Property Management 
Regulations.
    (b) The Agency will furnish a report of the activities of FEMA 
advisory committees annually to the Secretariat.
    (c) The Agency will inform the Secretariat, by letter, of the 
termination of, or other significant changes with respect to, its 
advisory committees no later than 10 working days following the end of 
the month in which the committee is changed. If no changes are made 
during any given month the report of the Secretariat is not required.

[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983]



Sec. 12.17  Availability of documents and information on advisory committees.

    (a) Subject to the provisions of Sec. Sec. 12.12 and 12.13 of this 
part, the records, reports, transcripts, minutes, appendices, working 
papers, drafts, studies, agenda, or other documents which were made 
available to or prepared for by each advisory committee shall be 
available for public inspection and copying at a single location in the 
FEMA Headquarters, Washington, DC, in accordance with the regulations in 
part 5 of this chapter.
    (b) The Agency will maintain systematic information on the nature, 
functions, and operations of each of its advisory committees. A complete 
set of the charters of the Agency's advisory committees and copies of 
the annual reports required by Sec. 12.16 will be maintained for public 
inspection in the FEMA Headquarters.

[45 FR 64180, Sept. 29, 1980, as amended at 47 FR 13150, Mar. 29, 1982]



Sec. 12.18  Uniform pay guidelines.

    (a) Members. Subject to the provisions of this section, the pay of 
any member of an advisory committee shall be fixed at the daily 
equivalent rate of the FEMA general salary schedule unless the member is 
appointed as a consultant, to be compensated as provided in paragraph 
(c) of this section. In determining an appropriate rate of pay for the 
members of an advisory committee, consideration shall be given to the 
significance, scope and technical complexity of the matters with which 
the advisory committee is concerned, and the qualifications required of 
the members of the advisory committee. The pay of the members of an 
advisory committee shall not be fixed at a rate higher than the daily 
equivalent of the maximum rate for GS-15 unless the Director has 
determined that, under the factors set forth in this paragraph, a higher 
rate of pay is justified and necessary. Such a determination will be 
reviewed annually by the Director.

[[Page 145]]

    (b) Advisory committee staff. The pay of each member of the staff of 
an advisory committee shall be fixed at a rate of the general salary 
schedule in which the staff member's position would be appropriately 
compensated for in the FEMA evaluation system applicable to the 
position. Pay of the member of the staff of an advisory committee shall 
not be fixed at a rate higher than the daily equivalent of the maximum 
rate for a GS-15 unless the Director or his designee has determined 
that, under its evaluation system, the staff member's position would 
appropriately be placed in the General Salary Schedule at a grade higher 
than GS-15. Such a determination will be reviewed by the Director 
annually.
    (c) Consultants. The rate of pay of a consultant to an advisory 
committee shall not exceed the maximum rate of pay which FEMA may pay 
experts and consultants under 5 U.S.C. 3109. Consideration shall be 
given to the qualifications required of the consultant and the 
significance, scope, and technical complexity of the work in fixing the 
rate of pay for the consultants.
    (d) Voluntary services. The provisions of this section shall not 
prevent FEMA from accepting the voluntary services of a member of an 
advisory committee, or a member of the staff of an advisory committee, 
provided that FEMA has the authority to accept such services without 
compensation.
    (e) Reimbursable travel expenses. The members of an advisory 
committee and the staff thereof, while engaged in the performance of 
their duties away from their home or regular places of business, may be 
allowed travel expenses, including per diem and in lieu of subsistences, 
as authorized by 5 U.S.C. 5703 for persons employed intermittently in 
the government service.



Sec. 12.19  Fiscal and administrative responsibilities.

    (a) The Comptroller, FEMA, shall keep such records as will fully 
disclose the disposition of any funds which may be at the disposal of 
any FEMA advisory committee.
    (b) The FEMA Advisory Committee management officer or designee shall 
keep such records as are necessary to fully disclose the nature and 
extent of the activities of the FEMA advisory committees.
    (c) Support services shall be provided by FEMA for each advisory 
committee established by or reporting to it, unless the establishing 
authority provides otherwise. Where such advisory committee reports to 
more than one agency, only one agency or component thereof shall be 
responsible for support services at any one time, and the establishing 
authority shall designate the agency responsible for providing such 
services.

[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983]



PART 13_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
13.1 Purpose and scope of this part.
13.2 Scope of subpart.
13.3 Definitions.
13.4 Applicability.
13.5 Effect on other issuances.
13.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

13.10 Forms for applying for grants.
13.11 State plans.
13.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

13.20 Standards for financial management systems.
13.21 Payment.
13.22 Allowable costs.
13.23 Period of availability of funds.
13.24 Matching or cost sharing.
13.25 Program income.
13.26 Non-Federal audit.

                    Changes, Property, and Subawards

13.30 Changes.
13.31 Real property.
13.32 Equipment.
13.33 Supplies.
13.34 Copyrights.
13.35 Subawards to debarred and suspended parties.
13.36 Procurement.
13.37 Subgrants.

[[Page 146]]

               Reports, Records Retention, and Enforcement

13.40 Monitoring and reporting program performance.
13.41 Financial reporting.
13.42 Retention and access requirements for records.
13.43 Enforcement.
13.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

13.50 Closeout.
13.51 Later disallowances and adjustments.
13.52 Collection of amounts due.

Subpart E--Entitlement [Reserved]

    Authority: Reorganization Plan No. 3 of 1978; 43 FR 41943, 3 CFR, 
1978 Comp., p. 329; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412.

    Source: 53 FR 8078, 8087, Mar. 11, 1988, unless otherwise noted.

    Editorial Note: For additional information, see related documents 
published at 49 FR 24958, June 18, 1984; 52 FR 20178, May 29, 1987; and 
53 FR 8028, Mar. 11, 1988.



                            Subpart A_General



Sec. 13.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 13.2  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec. 13.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subgrantees, 
subcontractors, and other payees; and
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required, such as annuities, insurance 
claims, and other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from ``programmatic'' 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs

[[Page 147]]

of a federally assisted project or program not borne by the Federal 
Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded 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.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.

[[Page 148]]

    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of grant in this part.
    Subgrantee means the 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.
    Supplies means all tangible personal property other than equipment 
as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. ``Termination'' does not include: (1) 
Withdrawal of funds awarded on the basis of the grantee's underestimate 
of the unobligated balance in a prior period; (2) Withdrawal of the 
unobligated balance as of the expiration of a grant; (3) Refusal to 
extend a grant or award additional funds, to make a competing or 
noncompeting continuation, renewal, extension, or supplemental award; or 
(4) voiding of a grant upon determination that the award was obtained 
fraudulently, or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 13.4  Applicability.

    (a) General. Subparts A through D of this part apply to all grants 
and subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of section 13.6, or:

[[Page 149]]

    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, subtitle D, Chapter 2, 
Section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and Part C of title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (Title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (Title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 13.4(a) (3) through (8) are subject to subpart E.



Sec. 13.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 13.6.



Sec. 13.6  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.

[[Page 150]]

    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B_Pre-Award Requirements



Sec. 13.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 13.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive Order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 13.12  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or

[[Page 151]]

    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec. 13.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and

[[Page 152]]

attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec. 13.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or

[[Page 153]]

    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 13.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec. 13.22  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OBM Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec. 13.23  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 13.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:

[[Page 154]]

    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 13.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 13.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.

[[Page 155]]

    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-Federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 13.22, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-Federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the

[[Page 156]]

grantee. This requirement will also be imposed by the grantee on 
subgrantees.



Sec. 13.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. During the grant period is the time between the 
effective date of the award and the ending date of the award reflected 
in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 13.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 13.31 
and 13.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec. 13.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by

[[Page 157]]

an independent auditor in accordance with generally accepted government 
auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 13.36 
shall be followed.

[53 FR 8079, 887, Mar. 11, 1988, as amended at 62 FR 45939, 45945, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 13.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 13.22) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any

[[Page 158]]

fund or budget transfer from nonconstruction to construction or vice 
versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 13.36 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 13.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 13.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.

[[Page 159]]

    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec. 13.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 13.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying

[[Page 160]]

the current market value or proceeds from sale by the awarding agency's 
share of the equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec. 13.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 13.33  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.



Sec. 13.34  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 13.35  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec. 13.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms,

[[Page 161]]

conditions, and specifications of their contracts or purchase orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for

[[Page 162]]

that of the grantee or subgrantee unless the matter is primarily a 
Federal concern. Violations of law will be referred to the local, State, 
or Federal authority having proper jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of section 13.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures

[[Page 163]]

are those relatively simple and informal procurement methods for 
securing services, supplies, or other property that do not cost more 
than the simplified acquisition threshold fixed at 41 U.S.C. 403(11) 
(currently set at $100,000). If small purchase procedures are used, 
price or rate quotations shall be obtained from an adequate number of 
qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 13.36(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids

[[Page 164]]

or competitive proposals and one of the following circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 13.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.

[[Page 165]]

    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.

[[Page 166]]

    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8078, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 
19, 1995]



Sec. 13.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;

[[Page 167]]

    (3) Ensure that a provision for compliance with Sec. 13.42 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 13.10;
    (2) Section 13.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 13.21; and
    (4) Section 13.50.

               Reports, Records Retention, and Enforcement



Sec. 13.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.

[[Page 168]]

    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 13.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with paragraph (e)(2)(iii) of this section.
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual

[[Page 169]]

basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
paragraph (b)(3) of this section.
    (e) Outlay report and request for reimbursement for construction 
programs. (1) Grants that support construction activities paid by 
reimbursement method.
    (i) Requests for reimbursement under construction grants will be 
submitted on Standard Form 271, Outlay Report and Request for 
Reimbursement for Construction Programs. Federal agencies may, however, 
prescribe the Request for Advance or Reimbursement form, specified in 
paragraph (d) of this section, instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in paragraph (b)(3) of this section.
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance.
    (i) When a construction grant is paid by letter of credit, 
electronic funds transfer or Treasury check advances, the grantee will 
report its outlays to the Federal agency using Standard Form 271, Outlay 
Report and Request for Reimbursement for Construction Programs. The 
Federal agency will provide any necessary special instruction. However, 
frequency and due date shall be governed by paragraphs (b) (3) and (4) 
of this section.
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in paragraph (d) of this section.
    (iii) The Federal agency may substitute the Financial Status Report 
specified in paragraph (b) of this section for the Outlay Report and 
Request for Reimbursement for Construction Programs.

[[Page 170]]

    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
paragraph (b)(2) of this section.



Sec. 13.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 13.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.

[[Page 171]]

    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 13.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to Debarment and Suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 13.35).



Sec. 13.44  Termination for convenience.

    Except as provided in Sec. 13.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of

[[Page 172]]

the award will not accomplish the purposes for which the award was made, 
the awarding agency may terminate the award in its entirety under either 
Sec. 13.43 or paragraph (a) of this section.



                 Subpart D_After-The-Grant Requirements



Sec. 13.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable.)
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:

In accordance with Sec. 13.32(f), a grantee must submit an inventory of 
all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 13.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 13.42;
    (d) Property management requirements in Sec. Sec. 13.31 and 13.32; 
and
    (e) Audit requirements in Sec. 13.26.



Sec. 13.52  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Chapter II). The 
date from which interest is computed is not extended by litigation or 
the filing of any form of appeal.

Subpart E--Entitlement [Reserved]



PART 14_ADMINISTRATION OF GRANTS: AUDITS OF STATE AND LOCAL GOVERNMENTS
--Table of Contents




Sec.
14.1 Scope of part.
14.2 Non-Federal audits.

Appendix A to Part 14--OMB Circular A-128, ``Audits of State and Local 
          Governments''

    Authority: Reorganization Plan No. 3 of 1978; E.O. 12127, E.O. 
12148, 31 U.S.C. 7505.

    Source: 51 FR 24347, July 3, 1986, unless otherwise noted.

[[Page 173]]



Sec. 14.1  Scope of part.

    (a) This part contains standards for non-Federal audits of 
recipients of financial assistance from the Federal Emergency Management 
Agency (herein called recipients). This includes, without limitation, 
assistance under the Disaster Relief Act of 1974 as amended, and the 
Federal Civil Defense Act of 1950, as amended.
    (b) FEMA may not impose on recipients additional requirements 
concerning non-Federal audits. However, it may provide recipients with 
suggestions and assistance on this subject.



Sec. 14.2  Non-Federal audits.

    (a) Governmental recipients. Recipients that are governments shall 
comply with OMB Circular A-128 including any amendments published in the 
Federal Register by OMB. The Circular is codified verbatim as Appendix A 
to this part.
    (b) Grant or contract audits. Recipients of $25,000 or more, but 
less than $100,000 in Federal financial assistance that choose not to 
have an organization wide single audit must conduct individual grant or 
contract audits on all FEMA awards over $25,000.
    (c) Submission of audit reports. All copies of audit reports that a 
recipient is required under OMB Circular A-128 to submit to FEMA shall 
be addressed to the FEMA District Inspector General responsible for the 
FEMA Region in which the recipient is located. The FEMA Office of 
Inspector General will distribute copies as appropriate within the 
Agency. Recipients therefore are not required to send their audit 
reports to any FEMA officials other than the responsible District 
Inspector General.

 Appendix A to Part 14--OMB Circular A-128, ``Audits of State and Local 
                              Governments''

                    EXECUTIVE OFFICE OF THE PRESIDENT

                     Office of Management and Budget

                           CIRCULAR NO. A-128

                             April 12, 1985

To the Heads of Executive Departments and Establishments.
Subject: Audits of State and Local Governments.

    1. Purpose. This Circular is issued pursuant to the Single Audit Act 
of 1984, Public Law 98-502. It establishes audit requirements for State 
and local governments that receive Federal aid, and defines Federal 
responsibilities for implementing and monitoring those requirements.
    2. Supersession. The Circular supersedes Attachment P, ``Audit 
Requirements,'' of Circular A-102, ``Uniform requirements for grants to 
State and local governments.''
    3. Background. The Single Audit Act builds upon earlier efforts to 
improve audits of Federal aid programs. The Act requires State or local 
governments that receive $100,000 or more a year in Federal funds to 
have an audit made for that year. Section 7505 of the Act requires the 
Director of the Office of Management and Budget to prescribe policies, 
procedures and guidelines to implement the Act. It specifies that the 
Director shall designate ``cognizant'' Federal agencies, determine 
criteria for making appropriate charges to Federal programs for the cost 
of audits, and provide procedures to assure that small firms or firms 
owned and controlled by disadvantaged individuals have the opportunity 
to participate in contracts for single audits.
    4. Policy. The Single Audit Act requires the following:
    a. State or local governments that receive $100,000 or more a year 
in Federal financial assistance shall have an audit made in accordance 
with this Circular.
    b. State or local governments that receive between $25,000 and 
$100,000 a year shall have an audit made in accordance with this 
Circular, or in accordance with Federal laws and regulations governing 
the programs they participate in.
    c. State or local governments that receive less than $25,000 a year 
shall be exempt from compliance with the Act and other Federal audit 
requirements. These State and local governments shall be governed by 
audit requirements prescribed by State or local law or regulation.
    d. Nothing in this paragraph exempts State or local governments from 
maintaining records of Federal financial assistance or from providing 
access to such records to Federal agencies, as provided for in Federal 
law or in Circular A-102, ``Uniform requirements for grants to State or 
local governments.''
    5. Definitions. For the purposes of this Circular the following 
definitions from the Single Audit Act apply:
    a. Cognizant agency means the Federal agency assigned by the Office 
of Management and Budget to carry out the responsibilities described in 
paragraph 11 of this Circular.
    b. Federal financial assistance means assistance provided by a 
Federal agency in the

[[Page 174]]

form of grants, contracts, cooperative agreements, loans, loan 
guarantees, property, interest subsidies, insurance, or direct 
appropriations, but does not include direct Federal cash assistance to 
individuals. It includes awards received directly from Federal agencies, 
or indirectly through other units of State and local governments.
    c. Federal agency has the same meaning as the term agency in section 
551(1) of title 5, United States Code.
    d. Generally accepted accounting principles has the meaning 
specified in the generally accepted government auditing standards.
    e. Generally accepted government auditing standards means the 
Standards For Audit of Government Organizations, Programs, Activities, 
and Functions, developed by the Comptroller General, dated Febuary 27, 
1981.
    f. Independent auditor means:
    (1) A State or local government auditor who meets the independence 
standards specified in generally accepted government auditing standards; 
or
    (2) A public accountant who meets such independence standards.
    g. Internal controls means the plan of organization and methods and 
procedures adopted by management to ensure that:
    (1) Resource use is consistent with laws, regulations, and policies;
    (2) Resources are safeguarded against waste, loss, and misuse; and
    (3) Reliable data are obtained, maintained, and fairly disclosed in 
reports.
    h. Indian tribe means any Indian tribe, band, nations, or other 
organized group or community, including any Alaskan Native village or 
regional or village corporations (as defined in, or established under, 
the Alaskan Native Claims Settlement Act) that is recognized by the 
United States as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    i. Local government means any unit of local government within a 
State, including a county, a borough, municipality, city, town, 
township, parish, local public authority, special district, school 
district, intrastate district, council of governments, and any other 
instrumentality of local government.
    j. Major Federal Assistance Program, as defined by Public Law 98-
502, is described in the Attachment to this Circular.
    k. Public accountants means those individuals who meet the 
qualification standards included in generally accepted government 
auditing standards for personnel performing government audits.
    l. State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the Trust Territory of the Pacific Islands, any instrumentality thereof, 
and any multi-State, regional, or interstate entity that has 
governmental functions and any Indian tribe.
    m. Subrecipient means any person or government department, agency, 
or establishment that receives Federal financial assistance to carry out 
a program through a State or local government, but does not include an 
individual that is a beneficiary of such a program. A subrecipient may 
also be a direct recipient of Federal financial assistance.
    6. Scope of audit. The Single Audit Act provides that:
    a. The audit shall be made by an independent auditor in accordance 
with generally accepted government auditing standards covering financial 
and compliance audits.
    b. The audit shall cover the entire operations of a State or local 
government or, at the option of that government, it may cover 
departments, agencies or establishments that received, expended, or 
otherwise administered Federal financial assistance during the year. 
However, if a State or local government receives $25,000 or more in 
General Revenue Sharing Funds in a fiscal year, it shall have an audit 
of its entire operations. A series of audits of individual departments, 
agencies, and establishments for the same fiscal year may be considered 
a single audit.
    c. Public hospitals and public colleges and universities may be 
excluded from State and local audits and the requirements of this 
Circular. However, if such entities are excluded, audits of these 
entities shall be made in accordance with statutory requirements and the 
provisions of Circular A-110, ``Uniform requirements for grants to 
universities, hospitals, and other nonprofit organizations.''
    d. The auditor shall determine whether:
    (1) The financial statements of the government, department, agency 
or establishment present fairly its financial position and the results 
of its financial operations in accordance with generally accepted 
accounting principles;
    (2) The organization has internal accounting and other control 
systems to provide reasonable assurance that it is managing Federal 
financial assistance programs in compliance with applicable laws and 
regulations; and
    (3) The organization has complied with laws and regulations that may 
have material effect on its financial statements and on each major 
Federal assistance program.
    7. Frequency of audit. Audits shall be made annually unless the 
State or local government has, by January 1, 1987, a constitutional or 
statutory requirement for less frequent audits. For those governments, 
the cognizant agency shall permit biennial audits, covering both years, 
if the government so requests. It shall also honor requests for biennial 
audits by governments that have an administrative policy calling for 
audits less

[[Page 175]]

frequent than annual, but only for fiscal years beginning before January 
1, 1987.
    8. Internal control and compliance reviews. The Single Audit Act 
requires that the independent auditor determine and report on whether 
the organization has internal control systems to provide reasonable 
assurance that it is managing Federal assistance programs in compliance 
with applicable laws and regulations.
    a. Internal control review. In order to provide this assurance the 
auditor must make a study and evaluation of internal control systems 
used in administering Federal assistance programs. The study and 
evaluation must be made whether or not the auditor intends to place 
reliance on such systems. As part of this review, the auditor shall:
    (1) Test whether these internal control systems are functioning in 
accordance with prescribed procedures.
    (2) Examine the recipient's system for monitoring subrecipients and 
obtaining and acting on subrecipient audit reports.
    b. Compliance review. The law also requires the auditor to determine 
whether the organization has complied with laws and regulations that may 
have a material effect on each major Federal assistance program.
    (1) In order to determine which major programs are to be tested for 
compliance, State and local governments shall identify in their accounts 
all Federal funds received and expended and the programs under which 
they were received. This shall include funds received directly from 
Federal agencies and through other State and local governments.
    (2) The review must include the selection and testing of a 
representative number of charges from each major Federal assistance 
program. The selection and testing of transactions shall be based on the 
auditor's professional judgment considering such factors as the amount 
of expeditures for the program and the individual awards; the newness of 
the program or changes in its conditions; prior experience with the 
program, particularly as revealed in audits and other evaluations (e.g., 
inspections, program reviews); the extent to which the program is 
carried out through subrecipients; the extent to which the program 
contracts for goods or services; the level to which the program is 
already subject to program reviews or other forms of independent 
oversight; the adequacy of the controls for ensuring compliance; the 
expectation of adherence or lack of adherence to the applicable laws and 
regulations; and the potential impact of adverse findings.
    (a) In making the test of transactions, the auditor shall determine 
whether:

--The amounts reported as expenditures were for allowable services, and
--The records show that those who received services or benefits were 
eligible to receive them.

    (b) In addition to transaction testing, the auditor shall determine 
whether:

--Matching requirements, levels of effort and earmarking limitations 
were met,
--Federal financial reports and claims for advances and reimbursements 
contain information that is supported by the books and records from 
which the basic financial statements have been prepared, and
--Amounts claimed or used for matching were determined in accordance 
with OMB Circular A-87, ``Cost principles for State and local 
governments,'' and Attachment F of Circular A-102, ``Uniform 
requirements for grants to State and local governments.''

    (c) The principal compliance requirements of the largest Federal aid 
programs may be ascertained by referring to the Compliance Supplement 
for Single Audits of State and Local Governments, issued by OMB and 
available from the Government Printing Office. For those programs not 
covered in the Compliance Supplement, the auditor may ascertain 
compliance requirements by researching the statutes, regulations, and 
agreements governing individual programs.
    (3) Transactions related to other Federal assistance programs that 
are selected in connection with examinations of financial statements and 
evaluations of internal controls shall be tested for compliance with 
Federal laws and regulations that apply to such transactions.
    9. Subrecipients. State or local governments that receive Federal 
financial assistance and provide $25,000 or more of it in a fiscal year 
to a subrecipient shall:
    a. Determine whether State or local subrecipients have met the audit 
requirements of this Circular and whether subrecipients covered by 
Circular A-110, ``Uniform requirements for grants to universities, 
hospitals, and other nonprofit organizations,'' have met that 
requirement;
    b. Determine whether the subrecipient spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subrecipient made in 
accordance with this Circular, Circular A-110, or through other means 
(e.g., program reviews) if the subrecipient has not yet had such an 
audit;
    c. Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instances of noncompliance 
with Federal laws and regulations;
    d. Consider whether subrecipient audits necessitate adjustment of 
the recipient's own records; and
    e. Require each subrecipient to permit independent auditors to have 
access to the

[[Page 176]]

records and financial statements as necessary to comply with this 
Circular.
    10. Relation to other audit requirements. The Single Audit Act 
provides that an audit made in accordance with this Circular shall be in 
lieu of any financial or financial compliance audit required under 
individual Federal assistance programs. To the extent that a single 
audit provides Federal agencies with information and assurances they 
need to carry out their overall responsibilities, they shall rely upon 
and use such information. However, a Federal agency shall make any 
additional audits which are necessary to carry out its responsibilities 
under Federal law and regulation. Any additional Federal audit effort 
shall be planned and carried out in such a way as to avoid duplication.
    a. The provisions of this Circular do not limit the authority of 
Federal agencies to make, or contract for audits and evaluations of 
Federal financial assistance programs, nor do they limit the authority 
of any Federal agency Inspector General or other Federal audit official.
    b. The provisions of this Circular do not authorize any State or 
local government or subrecipient thereof to constrain Federal agencies, 
in any manner, from carrying out additional audits.
    c. A Federal agency that makes or contracts for audits in addition 
to the audits made by recipients pursuant to this Circular shall, 
consistent with other applicable laws and regulations, arrange for 
funding the cost of such additional audits. Such additional audits 
include economy and efficiency audits, program results audits, and 
program evaluations.
    11. Cognizant agency responsibilities. The Single Audit Act provides 
for cognizant Federal agencies to oversee the implementation of this 
Circular.
    a. The Office of Management and Budget will assign cognizant 
agencies for States and their subdivisions and larger local governments 
and their subdivisions. Other Federal agencies may participate with an 
assigned cognizant agency, in order to fulfill the cognizance 
responsibilities. Smaller governments not assigned a cognizant agency 
will be under the general oversight of the Federal agency that provides 
them the most funds whether directly or indirectly.
    b. A cognizant agency shall have the following responsibilities:
    (1) Ensure that audits are made and reports are received in a timely 
manner and in accordance with the requirements of this Circular.
    (2) Provide technical advice and liaison to State and local 
governments and independent auditors.
    (3) Obtain or make quality control reviews of selected audits made 
by non-Federal audit organizations, and provide the results, when 
appropriate, to other interested organizations.
    (4) Promptly inform other affected Federal agencies and appropriate 
Federal law enforcement officials of any reported illegal acts or 
irregularities. They should also inform State or local law enforcement 
and prosecuting authorities, if not advised by the recipient, of any 
violation of law within their jurisdiction.
    (5) Advise the recipient of audits that have been found not to have 
met the requirements set forth in this Circular. In such instances, the 
recipient will be expected to work with the auditor to take corrective 
action. If corrective action is not taken, the cognizant agency shall 
notify the recipient and Federal awarding agencies of the facts and make 
recommendations for followup action. Major inadequacies or repetitive 
substandard performance of independent auditors shall be referred to 
appropriate professional bodies for disciplinary action.
    (6) Coordinate, to the extent practicable, audits made by or for 
Federal agencies that are in addition to the audits made pursuant to 
this Circular; so that the additional audits build upon such audits.
    (7) Oversee the resolution of audit findings that affect the 
programs of more than one agency.
    12. Illegal acts or irregularities. If the auditor becomes aware of 
illegal acts or other irregularities, prompt notice shall be given to 
recipient management officials above the level of involvement. (See also 
paragraph 13(a)(3) of this appendix for the auditor's reporting 
responsibilities.) The recipient, in turn, shall promptly notify the 
cognizant agency of the illegal acts or irregularities and of proposed 
and actual actions, if any. Illegal acts and irregularities include such 
matters as conflicts of interest, falsification of records or reports, 
and misappropriations of funds or other assets.
    13. Audit Reports. Audit reports must be prepared at the completion 
of the audit. Reports serve many needs of State and local governments as 
well as meeting the requirements of the Single Audit Act.
    a. The audit report shall state that the audit was made in 
accordance with the provisions of this Circular. The report shall be 
made up of at least:
    (1) The auditor's report on financial statements and on a schedule 
of Federal assistance; the financial statements; and a schedule of 
Federal assistance, showing the total expenditures for each Federal 
assistance program as identified in the Catalog of Federal Domestic 
Assistance. Federal programs or grants that have not been assigned a 
catalog number shall be identified under the caption ``other Federal 
assistance.''
    (2) The auditor's report on the study and evaluation of internal 
control systems must

[[Page 177]]

identify the organization's significant internal accounting controls, 
and those controls designed to provide reasonable assurance that Federal 
programs are being managed in compliance with laws and regulations. It 
must also identify the controls that were evaluated, the controls that 
were not evaluated, and the material weaknesses identified as a result 
of the evaluation.
    (3) The auditor's report on compliance containing:

--A statement of positive assurance with respect to those items tested 
for compliance, including compliance with law and regulations pertaining 
to financial reports and claims for advances and reimbursements;
--Negative assurance on those items not tested;
--A summary of all instances of noncompliance; and
--An identification of total amounts questioned, if any, for each 
Federal assistance award, as a result of noncompliance.

    b. The three parts of the audit report may be bound into a single 
report, or presented at the same time as separate documents.
    c. All fraud abuse, or illegal acts or indications of such acts, 
including all questioned costs found as the result of these acts that 
auditors become aware of, should normally be covered in a separate 
written report submitted in accordance with paragraph 13f of this 
appendix.
    d. In addition to the audit report, the recipient shall provide 
comments on the findings and recommendations in the report, including a 
plan for corrective action taken or planned and comments on the status 
of corrective action taken on prior findings. If corrective action is 
not necessary, a statement describing the reason it is not should 
accompany the audit report.
    e. The reports shall be made available by the State or local 
government for public inspection within 30 days after the completion of 
the audit.
    f. In accordance with generally accepted government audit standards, 
reports shall be submitted by the auditor to the organization audited 
and to those requiring or arranging for the audit. In addition, the 
recipient shall submit copies of the reports to each Federal department 
or agency that provided Federal assistance funds to the recipient. 
Subrecipients shall submit copies to recipients that provided them 
Federal assistance funds. The reports shall be sent within 30 days after 
the completion of the audit, but no later than one year after the end of 
the audit period unless a longer period is agreed to with the cognizant 
agency.
    g. Recipients of more than $100,000 in Federal funds shall submit 
one copy of the audit report within 30 days after issuance to a central 
clearinghouse to be designated by the Office of Management and Budget. 
The clearinghouse will keep completed audits on file and follow up with 
State and local governments that have not submitted required audit 
reports.
    h. Recipients shall keep audit reports on file for three years from 
their issuance.
    14. Audit Resolution. As provided in paragraph 11, the cognizant 
agency shall be responsible for monitoring the resolution of audit 
findings that affect the programs of more than one Federal agency. 
Resolution of findings that relate to the programs of a single Federal 
agency will be the responsibility of the recipient and that agency. 
Alternate arrangements may be made on a case-by-case basis by agreement 
among the agencies concerned.
    Resolution shall be made within six months after receipt of the 
report by the Federal departments and agencies. Corrective action should 
proceed as rapidly as possible.
    15. Audit workpapers and reports. Workpapers and reports shall be 
retained for a minimum of three years from the date of the audit report, 
unless the auditor is notified in writing by the cognizant agency to 
extend the retention period. Audit workpapers shall be made available 
upon request to the cognizant agency or its designee or the General 
Accounting Office, at the completion of the audit.
    16. Audit Costs. The cost of audits made in accordance with the 
provisions of this Circular are allowable charges to Federal assistance 
programs.
    a. The charges may be considered a direct cost or an allocated 
indirect cost, determined in accordance with the provision of Circular 
A-87, ``Cost principles for State and local governments.''
    b. Generally, the percentage of costs charged to Federal assistance 
programs for a single audit shall not exceed the percentage that Federal 
funds expended represent of total funds expended by the recipient during 
the fiscal year. The percentage may be exceeded, however, if appropriate 
documentation demonstrates higher actual cost.
    17. Sanctions. The Single Audit Act provides that no cost may be 
charged to Federal assistance programs for audits required by the Act 
that are not made in accordance with this Circular. In cases of 
continued inability or unwillingness to have a proper audit, Federal 
agencies must consider other appropriate sanctions including:

--Withholding a percentage of assistance payments until the audit is 
completed satisfactorily,
--Withholding or disallowing overhead costs, and
--Suspending the Federal assistance agreement until the audit is made.

    18. Auditor Selection. In arranging for audit services State and 
local governments shall

[[Page 178]]

follow the procurement standards prescribed by Attachment O of Circular 
A-102, ``Uniform requirements for grants to State and local 
governments.'' The standards provide that while recipients are 
encouraged to enter into intergovernmental agreements for audit and 
other services, analysis should be made to determine whether it would be 
more economical to purchase the services from private firms. In 
instances where use of such intergovernmental agreements are required by 
State statutes (e.g., audit services) these statutes will take 
precedence.
    19. Small and Minority Audit Firms. Small audit firms and audit 
firms owned and controlled by socially and economically disadvantaged 
individuals shall have the maximum practicable opportunity to 
participate in contracts awarded to fulfill the requirements of this 
Circular. Recipients of Federal assistance shall take the following 
steps to further this goal:
    a. Assure that small audit firms and audit firms owned and 
controlled by socially and economically disadvantaged individuals are 
used to the fullest extent practicable.
    b. Make information on forthcoming opportunities available and 
arrange timeframes for the audit so as to encourage and facilitate 
participation by small audit firms and audit firms owned and controlled 
by socially and economically disadvantaged individuals.
    c. Consider in the contract process whether firms competing for 
larger audits intend to subcontract with small audit firms and audit 
firms owned and controlled by socially and economically disadvantaged 
individuals.
    d. Encourage contracting with small audit firms or audit firms owned 
and controlled by socially and economically disadvantaged individuals 
which have traditionally audited government programs and, in such cases 
where this is not possible, assure that these firms are given 
consideration for audit subcontracting opportunities.
    e. Encourage contracting with consortiums of small audit firms as 
described in paragraph (a) of section 19 of this appendix when a 
contract is too large for an individual small audit firm or audit firm 
owned and controlled by socially and economically disadvantaged 
individuals.
    f. Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration in the solicitation 
and utilization of small audit firms or audit firms owned and controlled 
by socially and economically disadvantaged individuals.
    20. Reporting. Each Federal agency will report to the Director of 
OMB on or before March 1, 1987, and annually thereafter on the 
effectiveness of State and local governments in carrying out the 
provisions of this Circular. The report must identify each State or 
local government or Indian tribe that, in the opinion of the agency, is 
failing to comply with the Circular.
    21. Regulations. Each Federal agency shall include the provisions of 
this Circular in its regulations implementing the Single Audit Act.
    22. Effective date. This Circular is effective upon publication and 
shall apply to fiscal years of State and local governments that begin 
after December 31, 1984. Earlier implementation is encouraged. However, 
until it is implemented, the audit provisions of Attachment P to 
Circular A-102 shall continue to be observed.
    23. Inquiries. All questions or inquiries should be addressed to 
Financial Management Division, Office of Management and Budget, 
telephone number 202/395-3993.
    24. Sunset review date. This Circular shall have an independent 
policy review to ascertain its effectiveness three years from the date 
of issuance.

                                                      David A. Stockman,
                                                               Director.

                       Attachment--Circular A-128

      Definition of Major Program as Provided in Public Law 98-502

    ``Major Federal Assistance Program,'' for State and local 
governments having Federal assistance expenditures between $100,000 and 
$100,000,000, means any program for which Federal expenditures during 
the applicable year exceed the larger of $300,000, or 3 percent of such 
total expenditures.
    Where total expenditures of Federal assistance exceed $100,000,000, 
the following criteria apply:

------------------------------------------------------------------------
 Total expenditures of Federal financial assistance      Major Federal
                  for all programs                    assistance program
-----------------------------------------------------  means any program
            More than                But less than       that exceeds
------------------------------------------------------------------------
$100 million....................  $1 billion........  $3 million.
$1 billion......................  $2 billion........  $4 million.
$2 billion......................  $3 billion........  $7 million.
$3 billion......................  $4 billion........  $10 million.
$4 billion......................  $5 billion........  $13 million.
$5 billion......................  $6 billion........  $16 million.
$6 billion......................  $7 billion........  $19 million.
Over $7 billion.................  ..................  $20 million.
------------------------------------------------------------------------



PART 15_CONDUCT AT THE MT. WEATHER EMERGENCY ASSISTANCE CENTER AND AT THE 
NATIONAL EMERGENCY TRAINING CENTER--Table of Contents




Sec.
15.1 Applicability.
15.2 Definitions.
15.3 Access to Mt. Weather.
15.4 Inspection.

[[Page 179]]

15.5 Preservation of property.
15.6 Compliance with signs and directions.
15.7 Disturbances.
15.8 Gambling.
15.9 Alcoholic beverages and narcotics.
15.10 Soliciting, vending, and debt collection.
15.11 Distribution of handbills.
15.12 Photographs and other depictions.
15.13 Dogs and other animals.
15.14 Vehicular and pedestrian traffic.
15.15 Weapons and explosives.
15.16 Penalties.
15.17 Other laws.

    Authority: 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; E.O. 12148, 44 FR 13239, 3 CFR, 1979 Comp., p. 412; 
Federal Fire Prevention and Control Act of 1974, 15 U.S.C. 2201 et seq.; 
delegation of authority from the Administrator of General Services, 
dated July 18, 1979; Pub.L. 80-566, approved June 1, 1948, 40 U.S.C. 
318-318d; and the Federal Property and Administrative Services Act of 
1949, 40 U.S.C. 271 et seq.

    Source: 64 FR 31137, June 10, 1999, unless otherwise noted.



Sec. 15.1  Applicability.

    The rules and regulations in this part apply to all persons 
entering, while on, or leaving all the property known as the Mt. Weather 
Emergency Assistance Center (Mt. Weather) located at 19844 Blue Ridge 
Mountain Road, Bluemont, Virginia 20135, and all the property known as 
the National Emergency Training Center (NETC), located on 16825 South 
Seton Avenue in Emmitsburg, Maryland, which the Federal Emergency 
Management Agency (FEMA) owns, operates and controls.



Sec. 15.2  Definitions.

    Terms used in part 15 have these meanings:
    Administrator means the Administrator, United States Fire 
Administration, FEMA.
    Director means the Director of the Federal Emergency Management 
Agency.
    FEMA means the Federal Emergency Management Agency.
    Mt. Weather means the Mt. Weather Emergency Assistance Center, 
Bluemont, VA.
    NETC means the National Emergency Training Center, Emmitsburg, MD.
    Senior Resident Manager means the Senior Resident Manager, Mt. 
Weather Emergency Assistance Center.
    We means the Federal Emergency Management Agency or FEMA.



Sec. 15.3  Access to Mt. Weather.

    Mt. Weather contains classified material and areas that we must 
protect in the interest of national security. The facility is a 
restricted area. We deny access to Mt. Weather to the general public and 
limit access to those persons having official business related to the 
missions and operations of Mt. Weather. The Director or the Senior 
Resident Manager must approve all persons and vehicles entering Mt. 
Weather. All persons must register with the Mt. Weather Police/Security 
Force and must receive a Mt. Weather identification badge and vehicle 
parking decal or permit to enter or remain on the premises. No person 
will enter or remain on Mt. Weather premises unless he or she has 
received permission from the Director or the Senior Resident Manager and 
has complied with these procedures.



Sec. 15.4  Inspection.

    (a) In general. All vehicles, packages, handbags, briefcases, and 
other containers being brought into, while on or being removed from Mt. 
Weather or the NETC are subject to inspection by the Police/Security 
Force and other authorized officials. A full search of a vehicle or 
person may accompany an arrest.
    (b) Inspection at Mt. Weather. We authorize inspection at Mt. 
Weather to prevent the possession and use of items prohibited by these 
rules and regulations or by other applicable laws, to prevent theft of 
property and to prevent the wrongful obtaining of defense information 
under 18 U.S.C. 793. If individuals object to such inspections they must 
tell the officer on duty at the entrance gate before entering Mt. 
Weather. The Police/Security Force and other authorized officials must 
not authorize or allow individuals who refuse to permit an inspection of 
their vehicle or possessions to enter the premises of Mt. Weather.

[[Page 180]]



Sec. 15.5  Preservation of property.

    At both Mt. Weather and NETC we prohibit:
    (a) The improper disposal of rubbish;
    (b) Willful destruction of or damage to property;
    (c) Theft of property;
    (d) Creation of any hazard on the property to persons or things;
    (e) Throwing articles of any kind from or at a building;
    (f) Climbing upon a fence; or
    (g) Climbing upon the roof or any part of a building.



Sec. 15.6  Compliance with signs and directions.

    Persons at Mt. Weather and the NETC must comply at all times with 
official signs that prohibit, regulate, or direct, and with the 
directions of the Police/Security Force and other authorized officials.



Sec. 15.7  Disturbances.

    At both Mt. Weather and NETC we prohibit any unwarranted loitering, 
disorderly conduct, or other conduct at Mt. Weather and NETC that:
    (a) Creates loud or unusual noise or a nuisance;
    (b) Unreasonably obstructs the usual use of classrooms, dormitory 
rooms, entrances, foyers, lobbies, corridors, offices, elevators, 
stairways, roadways or parking lots;
    (c) Otherwise impedes or disrupts the performance of official duties 
by government employees or government contractors;
    (d) Interferes with the delivery of educational or other programs; 
or
    (e) Prevents persons from obtaining in a timely manner the 
administrative services provided at both facilities.



Sec. 15.8  Gambling.

    We prohibit participating in games for money or other personal 
property, including the operation of gambling devices, the conduct of a 
lottery or pool, or the sale or purchase of numbers tickets at both 
facilities.



Sec. 15.9  Alcoholic beverages and narcotics.

    At both Mt. Weather and the NETC we prohibit:
    (a) Operating a motor vehicle by any person under the influence of 
alcoholic beverages, narcotic drugs, hallucinogens, marijuana, 
barbiturates or amphetamines as defined in Title 21 of the Annotated 
Code of Maryland, Transportation, sec. 21-902 or in Title 18.2, ch. 7, 
Art. 2 of the Code of Virginia, secs. 18.2-266 and 18.2-266.1, as 
applicable;
    (b) Entering upon or while on either property being under the 
influence of or using or possessing any narcotic drug, marijuana, 
hallucinogen, barbiturate or amphetamine. This prohibition does not 
apply in cases where a licensed physician has prescribed the drug for 
the person;
    (c) Entering upon either property or being on either property under 
the influence of alcoholic beverages;
    (d) Bringing alcoholic beverages, narcotic drugs, hallucinogens, 
marijuana, barbiturates or amphetamines onto the premises unless the 
Director, the Senior Resident Manager, or the Administrator or designee 
for the NETC authorizes it in writing; and
    (e) Use of alcoholic beverages on the property except:
    (1) In the Balloon Shed Lounge at Mt. Weather and in other locations 
that the Director or the Senior Resident Manager authorizes in writing; 
and
    (2) In the Student Center at the NETC and other locations that the 
Director or the Administrator, or designee, authorizes in writing.



Sec. 15.10  Soliciting, vending, and debt collection.

    (a) We prohibit soliciting alms and contributions, commercial or 
political soliciting and vending of all kinds, displaying or 
distributing commercial advertising, or collecting private debts unless 
the Director for either facility or the Senior Resident Manager approve 
the activities in writing and in advance.
    (b) The prohibitions of this section do not apply to:
    (1) National or local drives for funds for welfare, health, or other 
purposes

[[Page 181]]

as authorized by 5 CFR part 950, Solicitation of Federal Civilian and 
Uniformed Service Personnel for Contributions to Private Voluntary 
Organizations. The Director, or the Senior Resident Manager, or the 
Administrator for the NETC or designee, must approve all such national 
or local drives before they are conducted on either premises;
    (2) Authorized concessions;
    (3) Personal notices posted by employees on authorized bulletin 
boards; and
    (4) Solicitation of labor organization membership or dues authorized 
by occupant agencies under the Civil Service Reform Act of 1978, 5 
U.S.C. 7101 et seq.



Sec. 15.11  Distribution of handbills.

    We prohibit the distribution of materials such as pamphlets, 
handbills or flyers, and the displaying of placards or posting of 
materials on bulletin boards or elsewhere at Mt. Weather and the NETC 
unless the Director, the Senior Resident Manager, or the Administrator 
for the NETC or designee, approves such distribution or display, or when 
such distribution or display is conducted as part of authorized 
government activities.



Sec. 15.12  Photographs and other depictions.

    (a) Photographs and other depictions at Mt. Weather. We prohibit 
taking photographs and making notes, sketches, or diagrams of buildings, 
grounds or other features of Mt. Weather, or the possession of a camera 
while at Mt. Weather except when the Director or the Senior Resident 
Manager approves in advance.
    (b) Photographs and other depictions at the NETC. (1) Photographs 
may be taken inside classroom or office areas of the NETC only with the 
consent of the occupants. Except where security regulations apply or a 
Federal court order or rule prohibits it, photographs may be taken in 
entrances, lobbies, foyers, corridors, or auditoriums when used for 
public meetings.
    (2) Subject to the foregoing prohibitions, photographs for 
advertising and commercial purposes may be taken only with written 
permission of the Assistant Administrator, Management Operations and 
Student Support, United States Fire Administration, Federal Emergency 
Management Agency, Emmitsburg, MD 21727, (telephone) (301) 447-1223, 
(facsimile) (301) 447-1052, or other authorized official where 
photographs are to be taken.



Sec. 15.13  Dogs and other animals.

    Dogs and other animals, except seeing-eye dogs, must not be brought 
onto Mt. Weather grounds or into the buildings at NETC for other than 
official purposes.



Sec. 15.14  Vehicular and pedestrian traffic.

    (a) Drivers of all vehicles entering or while at Mt. Weather or the 
NETC must drive carefully and safely at all times and must obey the 
signals and directions of the Police/Security Force or other authorized 
officials and all posted traffic signs;
    (b) Drivers must comply with NETC parking requirements and vehicle 
registration requirements;
    (c) At both Mt. Weather and the NETC we prohibit:
    (1) Blocking entrances, driveways, walks, loading platforms, or fire 
hydrants on the property; and
    (2) Parking without authority, parking in unauthorized locations or 
in locations reserved for other persons, or parking contrary to the 
direction of posted signs.
    (3) Where warning signs are posted vehicles parked in violation may 
be removed at the owners' risk and expense.
    (d) The Director or the Senior Resident Manager or the Administrator 
for the NETC or designee may issue and post specific supplemental 
traffic directives if needed. When issued and posted supplemental 
traffic directives will have the same force and effect as if they were 
in these rules. Proof that a parked motor vehicle violated these rules 
or directives may be taken as prima facie evidence that the registered 
owner was responsible for the violation.



Sec. 15.15  Weapons and explosives.

    No person entering or while at Mt. Weather or the NETC will carry or 
possess firearms, other dangerous or deadly weapons, explosives or items 
intended to be used or that could reasonably be used to fabricate an 
explosive

[[Page 182]]

or incendiary device, either openly or concealed, except:
    (a) For official purposes if the Director or the Senior Resident 
Manager or the Administrator for the NETC or designee approves; and
    (b) In accordance with FEMA policy governing the possession of 
firearms.



Sec. 15.16  Penalties.

    (a) Misconduct. (1) Whoever is found guilty of violating any of 
these rules and regulations is subject to a fine of not more than $50 or 
imprisonment for not more than 30 days, or both. (See 40 U.S.C. 318c.)
    (2) We will process any misconduct at NETC according to FEMA/NETC 
policy or instructions.
    (b) Parking violations. We may tow at the owner's expense any 
vehicles parked in violation of State law, FEMA, Mt. Weather, or NETC 
instructions.



Sec. 15.17  Other laws.

    Nothing in the rules and regulations in this part will be construed 
to abolish any other Federal laws or any State and local laws and 
regulations applicable to Mt. Weather or NETC premises. The rules and 
regulations in this part supplement penal provisions of Title 18, United 
States Code, relating to Crimes and Criminal Procedure, which apply 
without regard to the place of the offense and to those penal provisions 
that apply in areas under the special maritime and territorial 
jurisdiction of the United States, as defined in 18 U.S.C. 7. They 
supersede provisions of State law, however, that Federal law makes 
criminal offenses under the Assimilated Crimes Act (18 U.S.C. 13) to the 
extent that State laws conflict with these regulations. State and local 
criminal laws apply as such only to the extent that the State reserved 
such authority to itself by the State consent or cession statute or that 
a Federal statute vests such authority in the State.



PART 16_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL EMERGENCY MANAGEMENT 
AGENCY--Table of Contents




Sec.
16.101 Purpose.
16.102 Application.
16.103 Definitions.
16.104-16.109 [Reserved]
16.110 Self-evaluation.
16.111 Notice.
16.112-16.129 [Reserved]
16.130 General prohibitions against discrimination.
16.131-16.139 [Reserved]
16.140 Employment.
16.141-16.148 [Reserved]
16.149 Program accessibility: Discrimination prohibited.
16.150 Program accessibility: Existing facilities.
16.151 Program accessibility: New construction and alterations.
16.152-16.159 [Reserved]
16.160 Communications.
16.161-16.169 [Reserved]
16.170 Compliance procedures.
16.171-16.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25885, July 8, 1988, unless otherwise noted.



Sec. 16.101  Purpose.

    The purpose of this regulation is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 16.102  Application.

    This regulation (Sec. Sec. 16.101 through 16.170) applies to all 
programs or activities conducted by the agency, except for programs or 
activities conducted outside the United States that do not involve 
individuals with handicaps in the United States.



Sec. 16.103  Definitions.

    For purposes of this regulation, the term--

[[Page 183]]

    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive education services from the agency;

[[Page 184]]

    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this regulation by Sec. 16.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this regulation, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 16.104-16.109  [Reserved]



Sec. 16.110  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this regulation and, to the extent modification 
of any such policies and practices is required, the agency shall proceed 
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 16.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this regulation and its 
applicability to the programs or activities conducted by the agency, and 
make such information available to them in such manner as the head of 
the agency finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Sec. Sec. 16.112-16.129  [Reserved]



Sec. 16.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit,

[[Page 185]]

or to reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 16.131-16.139  [Reserved]



Sec. 16.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subject to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Sec. Sec. 16.141-16.148  [Reserved]



Sec. 16.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 16.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.

[[Page 186]]



Sec. 16.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 16.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with handicaps. The agency is 
not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151 through 4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 16.150(a) in historic preservation programs, the agency shall give 
priority to methods that provide physical access to individuals with 
handicaps. In cases where a physical alteration to an historic property 
is not required because of Sec. 16.150(a) (2) or (3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 7, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 6, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by March 6, 1989, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons,

[[Page 187]]

including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the development of the 
transition plan by submitting comments (both oral and written). A copy 
of the transition plan shall be made available for public inspection. 
The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 16.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 16.152-16.159  [Reserved]



Sec. 16.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 16.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
individuals with handicaps receive the

[[Page 188]]

benefits and services of the program or activity.



Sec. Sec. 16.161-16.169  [Reserved]



Sec. 16.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director of Personnel shall be responsible for coordinating 
implementation of this section. Complaints may be sent to Director of 
Personnel, Room 810, Federal Emergency Management Agency, 500 C Street, 
SW., Washington, DC 20472.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by paragraph (g) of this section. The 
agency may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.



Sec. Sec. 16.171-16.999  [Reserved]



PART 17_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND 

GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
--Table of Contents




                            Subpart A_General

Sec.
17.100 Purpose.
17.105 Definitions.
17.110 Coverage.
17.115 Policy.

                       Subpart B_Effect of Action

17.200 Debarment or suspension.
17.205 Ineligible persons.
17.210 Voluntary exclusion.
17.215 Exception provision.
17.220 Continuation of covered transactions.
17.225 Failure to adhere to restrictions.

                           Subpart C_Debarment

17.300 General.
17.305 Causes for debarment.
17.310 Procedures.

[[Page 189]]

17.311 Investigation and referral.
17.312 Notice of proposed debarment.
17.313 Opportunity to contest proposed debarment.
17.314 Debarring official's decision.
17.315 Settlement and voluntary exclusion.
17.320 Period of debarment.
17.325 Scope of debarment.

                          Subpart D_Suspension

17.400 General.
17.405 Causes for suspension.
17.410 Procedures.
17.411 Notice of suspension.
17.412 Opportunity to contest suspension.
17.413 Suspending official's decision.
17.415 Period of suspension.
17.420 Scope of suspension.

       Subpart E_Responsibilities of GSA, Agency and Participants

17.500 GSA responsibilities.
17.505 FEMA responsibilities.
17.510 Participants' responsibilities.

           Subpart F_Drug-Free Workplace Requirements (Grants)

17.600 Purpose.
17.605 Definitions.
17.610 Coverage.
17.615 Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
17.620 Effect of violation.
17.625 Exception provision.
17.630 Certification requirements and procedures.
17.635 Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Part 17--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 17--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Part 17--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: 41 U.S.C. 701 et seq.; E.O. 12549, 51 FR 6370, 3 CFR, 
1986 Comp., p. 189; E.O. 12689, 54 FR 34131, 3 CFR, 1989 Comp., p. 235.

    Source: 53 FR 19199, and 19204, May 26, 1988, unless otherwise 
noted.

    Editorial Note: For additional information, see related documents 
published at 50 FR 8953, Mar. 5, 1985; 52 FR 18768, May 19, 1987; and 52 
FR 45667, Dec. 1, 1987.



                            Subpart A_General



Sec. 17.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by law, Executive departments and agencies shall participate 
in a governmentwide system for nonprocurement debarment and suspension. 
A person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 17.105), and participants who have voluntarily 
excluded themselves from participation in covered transactions;
    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR Part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and

[[Page 190]]

    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.

[60 FR 33040, 33061, June 26, 1995]



Sec. 17.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a business entity organized 
following the suspension or debarment of a person which has the same or 
similar management, ownership, or principal employees as the suspended, 
debarred, ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person from participating in covered 
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    The agency head, or
    An official designated by the agency head.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for exemple, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The term includes 
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if

[[Page 191]]

undeliverable, shall be considered to have been received by the 
addressee five days after being properly sent to the last address known 
by the agency.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with that opposing it, leads to the conclusion that the fact at issue is 
more probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control over a covered transaction, whether or not employed 
by the participant. Persons who have a critical influence on or 
substantive control over a covered transaction are:
    Principal investigators. [Reserved]
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to consider or similar communication by or on behalf of a 
person seeking to participate or to receive a benefit, directly or 
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers that instrumentality to be an agency of the 
State government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    The agency head, or
    An official designated by the agency head.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or limited participation in covered transactions 
assumed by a person pursuant to the terms of a settlement.
    FEMA. Federal Emergency Management Agency.

[53 FR 19199, 19200, and 19204, May 26, 1988, as amended at 60 FR 33041, 
33061, June 26, 1995]



Sec. 17.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably be expected to participate 
in transactions under Federal nonprocurement programs. For purposes of 
these regulations such transactions will be referred to as ``covered 
transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation

[[Page 192]]

agreements and any other nonprocurement transactions between a Federal 
agency and a person. Primary covered transactions also include those 
transactions specially designated by the U.S. Department of Housing and 
Urban Development in such agency's regulations governing debarment and 
suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant and a person under a covered transaction, regardless of 
amount, under which that person will have a critical influence on or 
substantive control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and
    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart B, ``Effect of Action,'' Sec. 17.200, ``Debarment 
or suspension,'' sets forth the consequences of a debarment or 
suspension. Those consequences would obtain only with respect to 
participants and principals in the covered transactions and activities 
described in Sec. 17.110(a). Sections 17.325, ``Scope of debarment,'' 
and 17.420, ``Scope of suspension,'' govern the extent to which a 
specific participant or organizational elements of a participant would 
be automatically included within a debarment or suspension action, and 
the conditions under which affiliates or persons associated with a 
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or after 
August 25, 1995 shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995 shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.

[53 FR 19199, and 19204, May 26, 1988, as amended at 60 FR 33041, 33061, 
June 26, 1995]



Sec. 17.115  Policy.

    (a) In order to protect the public interest, it is the policy of the 
Federal Government to conduct business only with responsible persons. 
Debarment and suspension are discretionary actions that, taken in 
accordance with

[[Page 193]]

Executive Order 12549 and these regulations, are appropriate means to 
implement this policy.
    (b) Debarment and suspension are serious actions which shall be used 
only in the public interest and for the Federal Government's protection 
and not for purposes of punishment. Agencies may impose debarment or 
suspension for the causes and in accordance with the procedures set 
forth in these regulations.
    (c) When more than one agency has an interest in the proposed 
debarment or suspension of a person, consideration shall be given to 
designating one agency as the lead agency for making the decision. 
Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.



                       Subpart B_Effect of Action



Sec. 17.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended shall be excluded from 
primary covered transactions as either participants or principals 
throughout the Executive Branch of the Federal Government for the period 
of their debarment, suspension, or the period they are proposed for 
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall 
enter into primary covered transactions with such excluded persons 
during such period, except as permitted pursuant to Sec. 17.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower tier 
covered transactions (see Sec. 17.110(a)(1)(ii)) for the period of 
their exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, and 
entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.

[60 FR 33041, 33061, June 26, 1995]



Sec. 17.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 17.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 17.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 17.315 are 
excluded in accordance with the terms of their settlements. FEMA shall, 
and participants may, contact the original action agency to ascertain 
the extent of the exclusion.



Sec. 17.215  Exception provision.

    FEMA may grant an exception permitting a debarred, suspended, or 
voluntarily excluded person, or a person proposed for debarment under 48 
CFR part 9, subpart 9.4, to participate in a particular covered 
transaction upon a written determination by the agency head or an 
authorized designee stating the reason(s) for deviating from the 
Presidential policy established by Executive Order 12549 and Sec. 
17.200. However, in accordance with the President's stated intention in 
the Executive Order, exceptions shall be granted

[[Page 194]]

only infrequently. Exceptions shall be reported in accordance with Sec. 
17.505(a).

[60 FR 33041, 33061, June 26, 1995]



Sec. 17.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in Sec. 
17.215.

[60 FR 33041, 33061, June 26, 1995]



Sec. 17.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 17.215 or Sec. 17.220, a 
participant shall not knowingly do business under a covered transaction 
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the 
covered transaction (See Appendix B of these regulations), unless it 
knows that the certification is erroneous. An agency has the burden of 
proof that a participant did knowingly do business with a person that 
filed an erroneous certification.

[60 FR 33041, 33061, June 26, 1995]



                           Subpart C_Debarment



Sec. 17.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 17.305, using procedures established in Sec. Sec. 17.310 through 
17.314. The existence of a cause for debarment, however, does not 
necessarily require that the person be debarred; the seriousness of the 
person's acts or omissions and any mitigating factors shall be 
considered in making any debarment decision.



Sec. 17.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Sec. Sec. 17.300 through 17.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, 
receiving stolen property, making false claims, or obstruction of 
justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or

[[Page 195]]

more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. 17.215 or Sec. 17.220;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted; or
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 17.315 or of any settlement of a 
debarment or suspension action.
    (5) Violation of any requirement of subpart F of this part, relating 
to providing a drug-free workplace, as set forth in Sec. 17.615 of this 
part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[53 FR 19199, and 19204, May 26, 1988, as amended at 54 FR 4963, Jan. 
31, 1989]



Sec. 17.310  Procedures.

    FEMA shall process debarment actions as informally as practicable, 
consistent with the principles of fundamental fairness, using the 
procedures in Sec. Sec. 17.311 through 17.314.



Sec. 17.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from 
any source shall be promptly reported, investigated, and referred, when 
appropriate, to the debarring official for consideration. After 
consideration, the debarring official may issue a notice of proposed 
debarment.



Sec. 17.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 17.305 for proposing 
debarment;
    (d) Of the provisions of Sec. Sec. 17.311 through 17.314, and any 
other FEMA procedures, if applicable, governing debarment 
decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 17.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of proposed debarment, the respondent may submit, in person, in 
writing, or through a representative, information and argument in 
opposition to the proposed debarment.
    (b) Additional proceedings as to disputed material facts. (1) In 
actions not based upon a conviction or civil judgment, if the debarring 
official finds that the respondent's submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents.
    (2) A transcribed record of any additional proceedings shall be made 
available at cost to the respondent, upon request, unless the respondent 
and the agency, by mutual agreement, waive the requirement for a 
transcript.



Sec. 17.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts,

[[Page 196]]

the debarring official shall make a decision on the basis of all the 
information in the administrative record, including any submission made 
by the respondent. The decision shall be made within 45 days after 
receipt of any information and argument submitted by the respondent, 
unless the debarring official extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (c)(1) Standard of proof. In any debarment action, the cause for 
debarment must be established by a preponderance of the evidence. Where 
the proposed debarment is based upon a conviction or civil judgment, the 
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and
    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 17.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.



Sec. 17.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, FEMA may, at any 
time, settle a debarment or suspension action.
    (b) If a participant and the agency agree to a voluntary exclusion 
of the participant, such voluntary exclusion shall be entered on the 
Nonprocurement List (see subpart E).



Sec. 17.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of subpart F of this part generally should not exceed 
three years. Where circumstances warrant, a longer period of debarment 
may be imposed.
    (2) In the case of a debarment for a violation of the requirements 
of subpart F of this part (see 17.305(c)(5)), the period of debarment 
shall not exceed five years.

[54 FR 4963, Jan. 31, 1989]



Sec. 17.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.
    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and an opportunity to respond (see Sec. Sec. 17.311 through 
17.314).

[[Page 197]]

    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall be evidence of such knowledge, approval, or 
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper conduct of a 
participant may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of, or had reason to know of the participant's 
conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant to a joint 
application, or similar arrangement may be imputed to other participants 
if the conduct occurred for or on behalf of the joint venture, grant 
pursuant to a joint application, or similar arrangement may be imputed 
to other participants if the conduct occurred for or on behalf of the 
joint venture, grant pursuant to a joint application, or similar 
arrangement or with the knowledge, approval, or acquiescence of these 
participants. Acceptance of the benefits derived from the conduct shall 
be evidence of such knowledge, approval, or acquiescence.



                          Subpart D_Suspension



Sec. 17.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 17.405 using procedures established in Sec. Sec. 17.410 
through 17.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 17.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 17.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Sec. Sec. 17.400 through 17.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in Sec. 
17.305(a); or
    (2) That a cause for debarment under Sec. 17.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 17.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the suspending official may 
issue a notice of suspension.
    (b) Decisionmaking process. FEMA shall process suspension actions as 
informally as practicable, consistent with principles of fundamental 
fairness, using the procedures in Sec. 17.411 through Sec. 17.413.



Sec. 17.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;

[[Page 198]]

    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 17.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 17.411 through Sec. 17.413 and any 
other FEMA procedures, if applicable, governing suspension 
decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 17.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.



Sec. 17.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 17.320(c) for reasons for reducing the period or 
scope of debarment) or may leave it in force. However, a decision to 
modify or terminate the suspension shall be without prejudice to the 
subsequent imposition of suspension by any other agency or debarment by 
any agency. The decision shall be rendered in accordance with the 
following provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 17.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12

[[Page 199]]

months after the date of the suspension notice, the suspension shall be 
terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an impending termination of a suspension, at least 30 days before the 
12-month period expires, to give that Department an opportunity to 
request an extension.



Sec. 17.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 17.325), except that the procedures of Sec. Sec. 17.410 
through 17.413 shall be used in imposing a suspension.



       Subpart E_Responsibilities of GSA, Agency and Participants



Sec. 17.500  GSA responsibilities.

    (a) In accordance with the OMB guidelines, GSA shall compile, 
maintain, and distribute a list of all persons who have been debarred, 
suspended, or voluntarily excluded by agencies under Executive Order 
12549 and these regulations, and those who have been determined to be 
ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible, 
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for each listing; and
    (6) The agency and name and telephone number of the agency point of 
contact for the action.



Sec. 17.505  FEMA responsibilities.

    (a) The agency shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the agency shall also 
provide GSA and OMB with information concerning all transactions in 
which FEMA has granted exceptions under Sec. 17.215 permitting 
participation by debarred, suspended, or voluntarily excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the agency 
shall advise GSA of the information set forth in Sec. 17.500(b) and of 
the exceptions granted under Sec. 17.215 within five working days after 
taking such actions.
    (c) The agency shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Agency officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (Tel. ).
    (e) Agency officials shall check the Nonprocurement List before 
approving principals or lower tier participants where agency approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 17.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in appendix A to this 
part for it and its principals at the time the participant submits its 
proposal in connection with a primary covered transaction, except that 
States need only complete such certification as to their principals. 
Participants may decide the method and frequency by which they determine 
the eligibility of their principals. In addition, each participant may, 
but is not required to, check the Nonprocurement List for its principals 
(Tel. ). Adverse information on the certification will not 
necessarily result in denial of participation. However, the 
certification, and any additional information pertaining to the 
certification submitted by the participant, shall be considered in the 
administration of covered transactions.

[[Page 200]]

    (b) Certification by participants in lower tier covered 
transactions. (1) Each participant shall require participants in lower 
tier covered transactions to include the certification in Appendix B to 
this part for it and its principals in any proposal submitted in 
connection with such lower tier covered transactions.
    (2) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, ineligible, or voluntarily 
excluded from the covered transaction by any Federal agency, unless it 
knows that the certification is erroneous. Participants may decide the 
method and frequency by which they determine the eligiblity of their 
principals. In addition, a participant may, but is not required to, 
check the Nonprocurement List for its principals and for participants 
(Tel. ).
    (c) Changed circumstances regarding certification. A participant 
shall provide immediate written notice to FEMA if at any time the 
participant learns that its certification was erroneous when submitted 
or has become erroneous by reason of changed circumstances. Participants 
in lower tier covered transactions shall provide the same updated notice 
to the participant to which it submitted its proposals.



           Subpart F_Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21702, May 25, 1990, unless otherwise noted.



Sec. 17.600  Purpose.

    (a) The purpose of this subpart is to carry out the Drug-Free 
Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the agency 
that it will provide a drug-free workplace;
    (2) A grantee who is an individual shall certify to the agency that, 
as a condition of the grant, he or she will not engage in the unlawful 
manufacture, distribution, dispensing, possession or use of a controlled 
substance in conducting any activity with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988 
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, 
and 52.2.



Sec. 17.605  Definitions.

    (a) Except as amended in this section, the definitions of Sec. 
17.105 apply to this subpart.
    (b) For purposes of this subpart--
    (1) Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15;
    (2) Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    (3) Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work 
done in connection with a specific grant at which employees of the 
grantee are prohibited from engaging in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance;
    (5) Employee means the employee of a grantee directly engaged in the 
performance of work under the grant, including:
    (i) All ``direct charge'' employees;
    (ii) All ``indirect charge'' employees, unless their impact or 
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged 
in the performance of work under the grant and who are on the grantee's 
payroll.

This definition does not include workers not on the payroll of the 
grantee (e.g., volunteers, even if used to meet a matching requirement; 
consultants or independent contractors not on the payroll; or employees 
of subrecipients or subcontractors in covered workplaces);

[[Page 201]]

    (6) Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any veterans' benefits to individuals, i.e., any 
benefit to veterans, their families, or survivors by virtue of the 
service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant 
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.



Sec. 17.610  Coverage.

    (a) This subpart applies to any grantee of the agency.
    (b) This subpart applies to any grant, except where application of 
this subpart would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government. A 
determination of such inconsistency may be made only by the agency head 
or his/her designee.
    (c) The provisions of subparts A, B, C, D and E of this part apply 
to matters covered by this subpart, except where specifically modified 
by this subpart. In the event of any conflict between provisions of this 
subpart and other provisions of this part, the provisions of this 
subpart are deemed to control with respect to the implementation of 
drug-free workplace requirements concerning grants.



Sec. 17.615  Grounds for suspension of payments, suspension or termination 
of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this 
subpart if the agency head or his or her official designee determines, 
in writing, that--
    (a) The grantee has made a false certification under Sec. 17.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of subparagraphs (A.) (a)-(g) and/or (B.) of the 
certification (Alternate I to appendix C) or
    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (Alternate II to appendix C); or
    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 17.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in Sec. 
17.615, and in accordance with applicable law, the grantee shall be 
subject to one or more of the following actions:

[[Page 202]]

    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
this part.
    (b) Upon issuance of any final decision under this part requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to exceed five years (see Sec. 17.320(a)(2) of this 
part).



Sec. 17.625  Exception provision.

    The agency head may waive with respect to a particular grant, in 
writing, a suspension of payments under a grant, suspension or 
termination of a grant, or suspension or debarment of a grantee if the 
agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 17.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee 
shall make the appropriate certification to the Federal agency providing 
the grant, as provided in appendix C to this part.
    (2) Grantees are not required to make a certification in order to 
continue receiving funds under a grant awarded before March 18, 1989, or 
under a no-cost time extension of such a grant. However, the grantee 
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the 
required certification for each grant. For mandatory formula grants and 
entitlements that have no application process, grantees shall submit a 
one-time certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in 
each Federal fiscal year. States that previously submitted an annual 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. Except as provided in paragraph (d) of this 
section, this certification shall cover all grants to all State agencies 
from any Federal agency. The State shall retain the original of this 
statewide certification in its Governor's office and, prior to grant 
award, shall ensure that a copy is submitted individually with respect 
to each grant, unless the Federal agency has designated a central 
location for submission.
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own certifications to Federal agencies. The statewide 
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not 
apply, or a State agency in a State that does not have a statewide 
certification, may elect to make one certification in each Federal 
fiscal year. State agencies that previously submitted a State agency 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. The State agency shall retain the original of 
this State agency-wide certification in its central office and, prior to 
grant award, shall ensure that a copy is submitted individually with 
respect to each grant, unless the Federal agency designates a central 
location for submission.
    (3) When the work of a grant is done by more than one State agency, 
the certification of the State agency directly receiving the grant shall 
be deemed to certify compliance for all workplaces, including those 
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration, 
grantees shall have this policy statement and program in place as soon 
as possible, but in any case by a date prior to the date on which 
performance is expected to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have this policy statement and program in place within 30 days 
after award.
    (3) Where extraordinary circumstances warrant for a specific grant, 
the grant officer may determine a different date on which the policy

[[Page 203]]

statement and program shall be in place.



Sec. 17.635  Reporting of and employee sanctions for convictions of 
criminal drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.

(Approved by the Office of Management and Budget under control number 
0991-0002)

 Appendix A to Part 17--Certification Regarding Debarment, Suspension, 
     and Other Responsibility Matters--Primary Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its certification was erroneous when submitted or has become erroneous 
by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or agency to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.

[[Page 204]]

    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them for 
commission of fraud or a criminal offense in connection with obtaining, 
attempting to obtain, or performing a public (Federal, State or local) 
transaction or contract under a public transaction; violation of Federal 
or State antitrust statutes or commission of embezzlement, theft, 
forgery, bribery, falsification or destruction of records, making false 
statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33061, June 26, 1995]

 Appendix B to Part 17--Certification Regarding Debarment, Suspension, 
 Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or 
agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and Coverage 
sections of rules implementing Executive Order 12549. You may contact 
the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with

[[Page 205]]

a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, 
debarred, suspended, declared ineligible, or voluntarily excluded from 
participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an 
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment, declared ineligible, or 
voluntarily excluded from participation in this transaction by any 
Federal department or agency.
    (2) Where the prospective lower tier participant is unable to 
certify to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33061, June 26, 1995]

   Appendix C to Part 17--Certification Regarding Drug-Free Workplace 
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the agency awards the grant. If 
it is later determined that the grantee knowingly rendered a false 
certification, or otherwise violates the requirements of the Drug-Free 
Workplace Act, the agency, in addition to any other remedies available 
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file in its office and make the information available for Federal 
inspection. Failure to identify all known workplaces constitutes a 
violation of the grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant takes place. Categorical descriptions may be used (e.g., all 
vehicles of a mass transit authority or State highway department while 
in operation, State employees in each local unemployment office, 
performers in concert halls or radio studios).
    7. If the workplace identified to the agency changes during the 
performance of the grant, the grantee shall inform the agency of the 
change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812) and as 
further defined by regulation (21 CFR 1308.11 through 1308.15);

[[Page 206]]

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All ``direct charge'' 
employees; (ii) all ``indirect charge'' employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces).

        Certification Reqardinq Druq-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a 
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the grantee's workplace and 
specifying the actions that will be taken against employees for 
violation of such prohibition;
    (b) Establishing an ongoing drug-free awareness program to inform 
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a);
    (d) Notifying the employee in the statement required by paragraph 
(a) that, as a condition of employment under the grant, the employee 
will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a 
violation of a criminal drug statute occurring in the workplace no later 
than five calendar days after such conviction;
    (e) Notifying the agency in writing, within ten calendar days after 
receiving notice under subparagraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction. Employers of convicted 
employees must provide notice, including position title, to every grant 
officer or other designee on whose grant activity the convicted employee 
was working, unless the Federal agency has designated a central point 
for the receipt of such notices. Notice shall include the identification 
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of 
receiving notice under subparagraph (d)(2), with respect to any employee 
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up 
to and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (g) Making a good faith effort to continue to maintain a drug-free 
workplace through implementation of paragraphs (a), (b), (c), (d), (e) 
and (f).
    B. The grantee may insert in the space provided below the site(s) 
for the performance of work done in connection with the specific grant:

    Place of Performance (Street address, city, county, state, zip code)

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

Check [squ] if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include

[[Page 207]]

the identification number(s) of each affected grant.

[55 FR 21702, May 25, 1990]



PART 18_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
18.100 Conditions on use of funds.
18.105 Definitions.
18.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

18.200 Agency and legislative liaison.
18.205 Professional and technical services.
18.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

18.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

18.400 Penalties.
18.405 Penalty procedures.
18.410 Enforcement.

                          Subpart E_Exemptions

18.500 Secretary of Defense.

                        Subpart F_Agency Reports

18.600 Semi-annual compilation.
18.605 Inspector General report.

Appendix A to Part 18--Certification Regarding Lobbying
Appendix B to Part 18--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 5 
U.S.C. 551, 552, 553; 5 U.S.C. 601, et seq.; E.O. 12291. Reorganization 
Plan No. 3 of 1978, E.O. 12127, E.O. 12148, E.O. 12657, E.O. 12699.

    Source: 55 FR 6737 and 6754, Feb. 26, 1990, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                            Subpart A_General



Sec. 18.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.

[[Page 208]]



Sec. 18.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer

[[Page 209]]

or employee for work that is not furnished to, not funded by, or not 
furnished in cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 18.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000, unless such person 
previously filed a certification, and a disclosure form, if required, 
under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,


[[Page 210]]



shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 18.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
18.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 18.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
18.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal,

[[Page 211]]

amendment, or modification of a Federal contract, grant, loan, or 
cooperative agreement if payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 18.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec. 18.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
18.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 18.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a

[[Page 212]]

contract is allowable. However, communications with the intent to 
influence made by a professional (such as a licensed lawyer) or a 
technical person (such as a licensed accountant) are not allowable under 
this section unless they provide advice and analysis directly applying 
their professional or technical expertise and unless the advice or 
analysis is rendered directly and solely in the preparation, submission 
or negotiation of a covered Federal action. Thus, for example, 
communications with the intent to influence made by a lawyer that do not 
provide legal advice or analysis directly and solely related to the 
legal aspects of his or her client's proposal, but generally advocate 
one proposal over another are not allowable under this section because 
the lawyer is not providing professional legal services. Similarly, 
communications with the intent to influence made by an engineer 
providing an engineering analysis prior to the preparation or submission 
of a bid or proposal are not allowable under this section since the 
engineer is providing technical services but not directly in the 
preparation, submission or negotiation of a covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 18.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 18.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803 
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar 
as these provisions are not inconsistent with the requirements herein.



Sec. 18.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure

[[Page 213]]

that the provisions herein are vigorously implemented and enforced in 
that agency.



                          Subpart E_Exemptions



Sec. 18.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 18.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 18.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.

[[Page 214]]

    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

         Appendix A to Part 18--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 215]]

        Appendix B to Part 18--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC02FE91.075


[[Page 216]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.076


[[Page 217]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.077


[[Page 218]]





PART 19_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
19.100 Purpose and effective date.
19.105 Definitions.
19.110 Remedial and affirmative action and self-evaluation.
19.115 Assurance required.
19.120 Transfers of property.
19.125 Effect of other requirements.
19.130 Effect of employment opportunities.
19.135 Designation of responsible employee and adoption of grievance 
          procedures.
19.140 Dissemination of policy.

                           Subpart B_Coverage

19.200 Application.
19.205 Educational institutions and other entities controlled by 
          religious organizations.
19.210 Military and merchant marine educational institutions.
19.215 Membership practices of certain organizations.
19.220 Admissions.
19.225 Educational institutions eligible to submit transition plans.
19.230 Transition plans.
19.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

19.300 Admission.
19.305 Preference in admission.
19.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

19.400 Education programs or activities.
19.405 Housing.
19.410 Comparable facilities.
19.415 Access to course offerings.
19.420 Access to schools operated by LEAs.
19.425 Counseling and use of appraisal and counseling materials.
19.430 Financial assistance.
19.435 Employment assistance to students.
19.440 Health and insurance benefits and services.
19.445 Marital or parental status.
19.450 Athletics.
19.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

19.500 Employment.
19.505 Employment criteria.
19.510 Recruitment.
19.515 Compensation.
19.520 Job classification and structure.
19.525 Fringe benefits.
19.530 Marital or parental status.
19.535 Effect of state or local law or other requirements.
19.540 Advertising.
19.545 Pre-employment inquiries.
19.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

19.600 Notice of covered programs.
19.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52892, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec. 19.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 19.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate,

[[Page 219]]

transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Director, Office of Equal Rights.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a

[[Page 220]]

technical field, whether or not the school or institution offers 
certificates, diplomas, or degrees and whether or not it offers full-
time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec. 
19.100 through 19.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec. 19.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 19.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from

[[Page 221]]

the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 19.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 19.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec. 19.205 through 19.235(a).



Sec. 19.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.

[[Page 222]]



Sec. 19.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 19.135  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 19.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec. 19.300 through 19.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec. 19.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.

[[Page 223]]



                           Subpart B_Coverage



Sec. 19.200  Application.

    Except as provided in Sec. Sec. 19.205 through 19.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec. 19.205  Educational institutions and other entities controlled by 
religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 19.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 19.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 19.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec. 19.225 and 19.230, and Sec. Sec. 19.300 through 
19.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec. 19.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 19.300 
through 19.310 apply to each recipient. A recipient to which Sec. Sec. 
19.300 through 19.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec. 19.300 through 
19.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 19.300 through 19.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec. 19.300 through 19.310 do not apply to any public institution 
of undergraduate higher education that traditionally and continually 
from its establishment has had a policy of admitting students of only 
one sex.



Sec. 19.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 19.300 through 19.310 apply that:

[[Page 224]]

    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec. 19.300 through 
19.310.



Sec. 19.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 19.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 19.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 19.300 through 
19.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 19.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 19.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;

[[Page 225]]

    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 19.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be

[[Page 226]]

subjected to discrimination in admission, by any recipient to which 
Sec. Sec. 19.300 through Sec. Sec. 19.310 apply, except as provided in 
Sec. Sec. 19.225 and Sec. Sec. 19.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec. 19.300 through 19.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec. 19.300 through 19.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 19.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 19.305  Preference in admission.

    A recipient to which Sec. Sec. 19.300 through 19.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec. 19.300 through 19.310.



Sec. 19.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
19.300 through 19.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec. 19.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec. 19.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 19.300 through 19.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec. 19.300 through 19.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 19.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that

[[Page 227]]

receives Federal financial assistance. Sections 19.400 through 19.455 do 
not apply to actions of a recipient in connection with admission of its 
students to an education program or activity of a recipient to which 
Sec. Sec. 19.300 through 19.310 do not apply, or an entity, not a 
recipient, to which Sec. Sec. 19.300 through 19.310 would not apply if 
the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 19.400 
through 19.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 19.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.

[[Page 228]]

    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec. 19.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 19.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 19.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 19.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or

[[Page 229]]

other materials for appraising or counseling students shall not use 
different materials for students on the basis of their sex or use 
materials that permit or require different treatment of students on such 
basis unless such different materials cover the same occupations and 
interest areas and the use of such different materials is shown to be 
essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 19.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 19.450.

[[Page 230]]



Sec. 19.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec. 
19.500 through 19.550.



Sec. 19.440  Health and insurance benefits and services.

    Subject to Sec. 19.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec. 19.500 through 19.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec. 19.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 19.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 19.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill

[[Page 231]]

or the activity involved is a contact sport. However, where a recipient 
operates or sponsors a team in a particular sport for members of one sex 
but operates or sponsors no such team for members of the other sex, and 
athletic opportunities for members of that sex have previously been 
limited, members of the excluded sex must be allowed to try out for the 
team offered unless the sport involved is a contact sport. For the 
purposes of these Title IX regulations, contact sports include boxing, 
wrestling, rugby, ice hockey, football, basketball, and other sports the 
purpose or major activity of which involves bodily contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec. 19.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 19.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec. 19.500 
through 19.550, including relationships with employment and referral 
agencies, with labor unions, and

[[Page 232]]

with organizations providing or administering fringe benefits to 
employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec. 19.500 through 19.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 19.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 19.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec. 19.500 through 19.550.



Sec. 19.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 19.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for

[[Page 233]]

similar jobs, position descriptions, or job requirements that classify 
persons on the basis of sex, unless sex is a bona fide occupational 
qualification for the positions in question as set forth in Sec. 
19.550.



Sec. 19.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 19.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 19.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 19235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 19.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 19.500 through 19.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 19.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.

[[Page 234]]



Sec. 19.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 19.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
19.500 through 19.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F_Procedures



Sec. 19.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 196.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 32 CFR 195.7 through 195.12.

                         PARTS 20-24 [RESERVED]



PART 25_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR 
FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




    Authority: Sec. 213, Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 
U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).



Sec. 25.1  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (title IV 
of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C. 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48026, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989]

                         PARTS 26-49 [RESERVED]

[[Page 235]]



              SUBCHAPTER B_INSURANCE AND HAZARD MITIGATION



                         PARTS 50-54 [RESERVED]

                 National Insurance Development Program

                         PARTS 55-58 [RESERVED]

                    National Flood Insurance Program



PART 59_GENERAL PROVISIONS--Table of Contents




                            Subpart A_General

Sec.
59.1 Definitions.
59.2 Description of program.
59.3 Emergency program.
59.4 References.

                   Subpart B_Eligibility Requirements

59.21 Purpose of subpart.
59.22 Prerequisites for the sale of flood insurance.
59.23 Priorities for the sale of flood insurance under the regular 
          program.
59.24 Suspension of community eligibility.

                   Subpart C_Pilot Inspection Program

59.30 A pilot inspection procedure.

    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.



                            Subpart A_General



Sec. 59.1  Definitions.

    As used in this subchapter--
    Act means the statutes authorizing the National Flood Insurance 
Program that are incorporated in 42 U.S.C. 4001-4128.
    Actuarial rates--see risk premium rates.
    Administrator means the Federal Insurance Administrator.
    Agency means the Federal Emergency Management Agency, Washington DC.
    Alluvial fan flooding means flooding occurring on the surface of an 
alluvial fan or similar landform which originates at the apex and is 
characterized by high-velocity flows; active processes of erosion, 
sediment transport, and deposition; and, unpredictable flow paths.
    Apex means a point on an alluvial fan or similar landform below 
which the flow path of the major stream that formed the fan becomes 
unpredictable and alluvial fan flooding can occur.
    Applicant means a community which indicates a desire to participate 
in the Program.
    Appurtenant structure means a structure which is on the same parcel 
of property as the principal structure to be insured and the use of 
which is incidental to the use of the principal structure.
    Area of future-conditions flood hazard means the land area that 
would be inundated by the 1-percent-annual-chance (100-year) flood based 
on future-conditions hydrology.
    Area of shallow flooding means a designated AO, AH, AR/AO, AR/AH, or 
VO zone on a community's Flood Insurance Rate Map (FIRM) with a 1 
percent or greater annual chance of flooding to an average depth of 1 to 
3 feet where a clearly defined channel does not exist, where the path of 
flooding is unpredictable, and where velocity flow may be evident. Such 
flooding is characterized by ponding or sheet flow.
    Area of special flood-related erosion hazard is the land within a 
community which is most likely to be subject to severe flood-related 
erosion losses. The area may be designated as Zone E on the Flood Hazard 
Boundary Map (FHBM). After the detailed evaluation of the special flood-
related erosion hazard area in preparation for publication of the FIRM, 
Zone E may be further refined.
    Area of special flood hazard is the land in the flood plain within a 
community subject to a 1 percent or greater chance of flooding in any 
given year. The area may be designated as Zone A on the FHBM. After 
detailed ratemaking has been completed in preparation for publication of 
the flood insurance rate map, Zone A usually is refined into Zones A, 
AO, AH, A1-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, or 
V1-30, VE, or V. For purposes of these regulations, the term ``special 
flood hazard area'' is synonymous in

[[Page 236]]

meaning with the phrase ``area of special flood hazard''.
    Area of special mudslide (i.e., mudflow) hazard is the land within a 
community most likely to be subject to severe mudslides (i.e., 
mudflows). The area may be designated as Zone M on the FHBM. After the 
detailed evaluation of the special mudslide (i.e., mudflow) hazard area 
in preparation for publication of the FIRM, Zone M may be further 
refined.
    Base flood means the flood having a one percent chance of being 
equalled or exceeded in any given year.
    Basement'' means any area of the building having its floor subgrade 
(below ground level) on all sides.
    Breakaway wall means a wall that is not part of the structural 
support of the building and is intended through its design and 
construction to collapse under specific lateral loading forces, without 
causing damage to the elevated portion of the building or supporting 
foundation system.
    Building--see structure.
    Chargeable rates mean the rates established by the Administrator 
pursuant to section 1308 of the Act for first layer limits of flood 
insurance on existing structures.
    Chief Executive Officer of the community (CEO) means the official of 
the community who is charged with the authority to implement and 
administer laws, ordinances and regulations for that community.
    Coastal high hazard area means an area of special flood hazard 
extending from offshore to the inland limit of a primary frontal dune 
along an open coast and any other area subject to high velocity wave 
action from storms or seismic sources.
    Community means any State or area or political subdivision thereof, 
or any Indian tribe or authorized tribal organization, or Alaska Native 
village or authorized native organization, which has authority to adopt 
and enforce flood plain management regulations for the areas within its 
jurisdiction.
    Contents coverage is the insurance on personal property within an 
enclosed structure, including the cost of debris removal, and the 
reasonable cost of removal of contents to minimize damage. Personal 
property may be household goods usual or incidental to residential 
occupancy, or merchandise, furniture, fixtures, machinery, equipment and 
supplies usual to other than residential occupancies.
    Criteria means the comprehensive criteria for land management and 
use for flood-prone areas developed under 42 U.S.C. 4102 for the 
purposes set forth in part 60 of this subchapter.
    Critical feature means an integral and readily identifiable part of 
a flood protection system, without which the flood protection provided 
by the entire system would be compromised.
    Curvilinear Line means the border on either a FHBM or FIRM that 
delineates the special flood, mudslide (i.e., mudflow) and/or flood-
related erosion hazard areas and consists of a curved or contour line 
that follows the topography.
    Deductible means the fixed amount or percentage of any loss covered 
by insurance which is borne by the insured prior to the insurer's 
liability.
    Developed area means an area of a community that is:
    (a) A primarily urbanized, built-up area that is a minimum of 20 
contiguous acres, has basic urban infrastructure, including roads, 
utilities, communications, and public facilities, to sustain industrial, 
residential, and commercial activities, and
    (1) Within which 75 percent or more of the parcels, tracts, or lots 
contain commercial, industrial, or residential structures or uses; or
    (2) Is a single parcel, tract, or lot in which 75 percent of the 
area contains existing commercial or industrial structures or uses; or
    (3) Is a subdivision developed at a density of at least two 
residential structures per acre within which 75 percent or more of the 
lots contain existing residential structures at the time the designation 
is adopted.
    (b) Undeveloped parcels, tracts, or lots, the combination of which 
is less than 20 acres and contiguous on at least 3 sides to areas 
meeting the criteria of paragraph (a) at the time the designation is 
adopted.
    (c) A subdivision that is a minimum of 20 contiguous acres that has 
obtained all necessary government approvals, provided that the actual 
``start

[[Page 237]]

of construction'' of structures has occurred on at least 10 percent of 
the lots or remaining lots of a subdivision or 10 percent of the maximum 
building coverage or remaining building coverage allowed for a single 
lot subdivision at the time the designation is adopted and construction 
of structures is underway. Residential subdivisions must meet the 
density criteria in paragraph (a)(3).
    Development means any man-made change to improved or unimproved real 
estate, including but not limited to buildings or other structures, 
mining, dredging, filling, grading, paving, excavation or drilling 
operations or storage of equipment or materials..
    Director means the Director of the Federal Emergency Management 
Agency.
    Eligible community or participating community means a community for 
which the Administrator has authorized the sale of flood insurance under 
the National Flood Insurance Program.
    Elevated building means, for insurance purposes, a nonbasement 
building which has its lowest elevated floor raised above ground level 
by foundation walls, shear walls, posts, piers, pilings, or columns.
    Emergency Flood Insurance Program or emergency program means the 
Program as implemented on an emergency basis in accordance with section 
1336 of the Act. It is intended as a program to provide a first layer 
amount of insurance on all insurable structures before the effective 
date of the initial FIRM.
    Erosion means the process of the gradual wearing away of land 
masses. This peril is not per se covered under the Program.
    Exception means a waiver from the provisions of part 60 of this 
subchapter directed to a community which relieves it from the 
requirements of a rule, regulation, order or other determination made or 
issued pursuant to the Act.
    Existing construction, means for the purposes of determining rates, 
structures for which the ``start of construction'' commenced before the 
effective date of the FIRM or before January 1, 1975, for FIRMs 
effective before that date. ``Existing construction'' may also be 
referred to as ``existing structures.''
    Existing manufactured home park or subdivision means a manufactured 
home park or subdivision for which the construction of facilities for 
servicing the lots on which the manufactured homes are to be affixed 
(including, at a minimum, the installation of utilities, the 
construction of streets, and either final site grading or the pouring of 
concrete pads) is completed before the effective date of the floodplain 
management regulations adopted by a community.
    Existing structures see existing construction.
    Expansion to an existing manfactured home park or subdivision means 
the preparation of additional sites by the construction of facilities 
for servicing the lots on which the manufacturing homes are to be 
affixed (including the installation of utilities, the construction of 
streets, and either final site grading or the pouring of concrete pads).
    Federal agency means any department, agency, corporation, or other 
entity or instrumentality of the executive branch of the Federal 
Government, and includes the Federal National Mortgage Association and 
the Federal Home Loan Mortgage Corporation.
    Federal instrumentality responsible for the supervision, approval, 
regulation, or insuring of banks, savings and loan associations, or 
similar institutions means the Board of Governors of the Federal Reserve 
System, the Federal Deposit Insurance Corporation, the Comptroller of 
the Currency, the Federal Home Loan Bank Board, the Federal Savings and 
Loan Insurance Corporation, and the National Credit Union 
Administration.
    Financial assistance means any form of loan, grant, guaranty, 
insurance, payment, rebate, subsidy, disaster assistance loan or grant, 
or any other form of direct or indirect Federal assistance, other than 
general or special revenue sharing or formula grants made to States.
    Financial assistance for acquisition or construction purposes means 
any form of financial assistance which is intended in whole or in part 
for the acquisition, construction, reconstruction, repair, or 
improvement of any publicly or privately owned building or mobile home,

[[Page 238]]

and for any machinery, equipment, fixtures, and furnishings contained or 
to be contained therein, and shall include the purchase or subsidization 
of mortgages or mortgage loans but shall exclude assistance pursuant to 
the Disaster Relief Act of 1974 other than assistance under such Act in 
connection with a flood. It includes only financial assistance insurable 
under the Standard Flood Insurance Policy.
    First-layer coverage is the maximum amount of structural and 
contents insurance coverage available under the Emergency Program.
    Flood or Flooding means:
    (a) A general and temporary condition of partial or complete 
inundation of normally dry land areas from:
    (1) The overflow of inland or tidal waters.
    (2) The unusual and rapid accumulation or runoff of surface waters 
from any source.
    (3) Mudslides (i.e., mudflows) which are proximately caused by 
flooding as defined in paragraph (a)(2) of this definition and are akin 
to a river of liquid and flowing mud on the surfaces of normally dry 
land areas, as when earth is carried by a current of water and deposited 
along the path of the current.
    (b) The collapse or subsidence of land along the shore of a lake or 
other body of water as a result of erosion or undermining caused by 
waves or currents of water exceeding anticipated cyclical levels or 
suddenly caused by an unusually high water level in a natural body of 
water, accompanied by a severe storm, or by an unanticipated force of 
nature, such as flash flood or an abnormal tidal surge, or by some 
similarly unusual and unforeseeable event which results in flooding as 
defined in paragraph (a)(1) of this definition.
    Flood elevation determination means a determination by the 
Administrator of the water surface elevations of the base flood, that 
is, the flood level that has a one percent or greater chance of 
occurrence in any given year.
    Flood elevation study means an examination, evaluation and 
determination of flood hazards and, if appropriate, corresponding water 
surface elevations, or an examination, evaluation and determination of 
mudslide (i.e., mudflow) and/or flood-related erosion hazards.
    Flood Hazard Boundary Map (FHBM) means an official map of a 
community, issued by the Administrator, where the boundaries of the 
flood, mudslide (i.e., mudflow) related erosion areas having special 
hazards have been designated as Zones A, M, and/or E.
    Flood insurance means the insurance coverage provided under the 
Program.
    Flood Insurance Rate Map (FIRM) means an official map of a 
community, on which the Administrator has delineated both the special 
hazard areas and the risk premium zones applicable to the community.
    Flood Insurance Study see flood elevation study.
    Flood plain or flood-prone area means any land area susceptible to 
being inundated by water from any source (see definition of 
``flooding'').
    Flood plain management means the operation of an overall program of 
corrective and preventive measures for reducing flood damage, including 
but not limited to emergency preparedness plans, flood control works and 
flood plain management regulations.
    Flood plain management regulations means zoning ordinances, 
subdivision regulations, building codes, health regulations, special 
purpose ordinances (such as a flood plain ordinance, grading ordinance 
and erosion control ordinance) and other applications of police power. 
The term describes such state or local regulations, in any combination 
thereof, which provide standards for the purpose of flood damage 
prevention and reduction.
    Flood protection system means those physical structural works for 
which funds have been authorized, appropriated, and expended and which 
have been constructed specifically to modify flooding in order to reduce 
the extent of the area within a community subject to a ``special flood 
hazard'' and the extent of the depths of associated flooding. Such a 
system typically includes hurricane tidal barriers, dams, reservoirs, 
levees or dikes. These specialized flood modifying works are those 
constructed in conformance with sound engineering standards.
    Flood proofing means any combination of structural and non-
structural additions, changes, or adjustments to structures which reduce 
or eliminate

[[Page 239]]

flood damage to real estate or improved real property, water and 
sanitary facilities, structures and their contents.
    Flood-related erosion means the collapse or subsidence of land along 
the shore of a lake or other body of water as a result of undermining 
caused by waves or currents of water exceeding anticipated cyclical 
levels or suddenly caused by an unusually high water level in a natural 
body of water, accompanied by a severe storm, or by an unanticipated 
force of nature, such as a flash flood or an abnormal tidal surge, or by 
some similarly unusual and unforeseeable event which results in 
flooding.
    Flood-related erosion area or flood-related erosion prone area means 
a land area adjoining the shore of a lake or other body of water, which 
due to the composition of the shoreline or bank and high water levels or 
wind-driven currents, is likely to suffer flood-related erosion damage.
    Flood-related erosion area management means the operation of an 
overall program of corrective and preventive measures for reducing 
flood-related erosion damage, including but not limited to emergency 
preparedness plans, flood-related erosion control works, and flood plain 
management regulations.
    Floodway-- see regulatory floodway.
    Floodway encroachment lines mean the lines marking the limits of 
floodways on Federal, State and local flood plain maps.
    Freeboard means a factor of safety usually expressed in feet above a 
flood level for purposes of flood plain management. ``Freeboard'' tends 
to compensate for the many unknown factors that could contribute to 
flood heights greater than the height calculated for a selected size 
flood and floodway conditions, such as wave action, bridge openings, and 
the hydrological effect of urbanization of the watershed.
    Functionally dependent use means a use which cannot perform its 
intended purpose unless it is located or carried out in close proximity 
to water. The term includes only docking facilities, port facilities 
that are necessary for the loading and unloading of cargo or passengers, 
and ship building and ship repair facilities, but does not include long-
term storage or related manufacturing facilities.
    Future-conditions flood hazard area, or future-conditions 
floodplain--see Area of future-conditions flood hazard.
    Future-conditions hydrology means the flood discharges associated 
with projected land-use conditions based on a community's zoning maps 
and/or comprehensive land-use plans and without consideration of 
projected future construction of flood detention structures or projected 
future hydraulic modifications within a stream or other waterway, such 
as bridge and culvert construction, fill, and excavation.
    General Counsel means the General Counsel of the Federal Emergency 
Management Agency.
    Highest adjacent grade means the highest natural elevation of the 
ground surface prior to construction next to the proposed walls of a 
structure.
    Historic Structure means any structure that is:
    (a) Listed individually in the National Register of Historic Places 
(a listing maintained by the Department of Interior) or preliminarily 
determined by the Secretary of the Interior as meeting the requirements 
for individual listing on the National Register;
    (b) Certified or preliminarily determined by the Secretary of the 
Interior as contributing to the historical significance of a registered 
historic district or a district preliminarily determined by the 
Secretary to qualify as a registered historic district;
    (c) Individually listed on a state inventory of historic places in 
states with historic preservation programs which have been approved by 
the Secretary of the Interior; or
    (d) Individually listed on a local inventory of historic places in 
communities with historic preservation programs that have been certified 
either:
    (1) By an approved state program as determined by the Secretary of 
the Interior or
    (2) Directly by the Secretary of the Interior in states without 
approved programs.
    Independent scientific body means a non-Federal technical or 
scientific organization involved in the study of

[[Page 240]]

land use planning, flood plain management, hydrology, geology, 
geography, or any other related field of study concerned with flooding.
    Insurance adjustment organization means any organization or person 
engaged in the business of adjusting loss claims arising under the 
Standard Flood Insurance Policy.
    Insurance company or insurer means any person or organization 
authorized to engage in the insurance business under the laws of any 
State.
    Levee means a man-made structure, usually an earthen embankment, 
designed and constructed in accordance with sound engineering practices 
to contain, control, or divert the flow of water so as to provide 
protection from temporary flooding.
    Levee System means a flood protection system which consists of a 
levee, or levees, and associated structures, such as closure and 
drainage devices, which are constructed and operated in accordance with 
sound engineering practices.
    Lowest Floor means the lowest floor of the lowest enclosed area 
(including basement). An unfinished or flood resistant enclosure, usable 
solely for parking of vehicles, building access or storage in an area 
other than a basement area is not considered a building's lowest floor; 
Provided, that such enclosure is not built so as to render the structure 
in violation of the applicable non-elevation design requirements of 
Sec. 60.3.
    Mangrove stand means an assemblage of mangrove trees which are 
mostly low trees noted for a copious development of interlacing 
adventitious roots above the ground and which contain one or more of the 
following species: Black mangrove (Avicennia Nitida); red mangrove 
(Rhizophora Mangle); white mangrove (Languncularia Racemosa); and 
buttonwood (Conocarpus Erecta).
    Manufactured home means a structure, transportable in one or more 
sections, which is built on a permanent chassis and is designed for use 
with or without a permanent foundation when attached to the required 
utilities. The term ``manufactured home'' does not include a 
``recreational vehicle''.
    Manufactured home park or subdivision'' means a parcel (or 
contiguous parcels) of land divided into two or more manufactured home 
lots for rent or sale.
    Map means the Flood Hazard Boundary Map (FHBM) or the Flood 
Insurance Rate Map (FIRM) for a community issued by the Agency.
    Mean sea level means, for purposes of the National Flood Insurance 
Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other 
datum, to which base flood elevations shown on a community's Flood 
Insurance Rate Map are referenced.
    Mudslide(i.e., mudflow) describes a condition where there is a 
river, flow or inundation of liquid mud down a hillside usually as a 
result of a dual condition of loss of brush cover, and the subsequent 
accumulation of water on the ground preceded by a period of unusually 
heavy or sustained rain. A mudslide (i.e., mudflow) may occur as a 
distinct phenomenon while a landslide is in progress, and will be 
recognized as such by the Administrator only if the mudflow, and not the 
landslide, is the proximate cause of damage that occurs.
    Mudslide (i.e., mudflow) area management means the operation of an 
overall program of corrective and preventive measures for reducing 
mudslide (i.e., mudflow) damage, including but not limited to emergency 
preparedness plans, mudslide control works, and flood plain management 
regulations.
    Mudslide (i.e., mudflow) prone area means an area with land surfaces 
and slopes of unconsolidated material where the history, geology and 
climate indicate a potential for mudflow.
    New construction means, for the purposes of determining insurance 
rates, structures for which the ``start of construction'' commenced on 
or after the effective date of an initial FIRM or after December 31, 
1974, whichever is later, and includes any subsequent improvements to 
such structures. For floodplain management purposes, new construction 
means structures for which the start of construction commenced on or 
after the effective date of a floodplain management regulation adopted 
by a community and includes any subsequent improvements to such 
structures.

[[Page 241]]

    New manufactured home park or subdivision means a manufactured home 
park or subdivision for which the construciton of facilities for 
servicing the lots on which the manufactured homes are to be affixed 
(including at a minimum, the installation of utilities, the construction 
of streets, and either final site grading or the pouring of concrete 
pads) is completed on or after the effective date of floodplain 
management regulations adopted by a community.
    100-year flood see base flood.
    Participating community, also known as an eligible community, means 
a community in which the Administrator has authorized the sale of flood 
insurance.
    Person includes any individual or group of individuals, corporation, 
partnership, association, or any other entity, including State and local 
governments and agencies.
    Policy means the Standard Flood Insurance Policy.
    Premium means the total premium payable by the insured for the 
coverage or coverages provided under the policy. The calculation of the 
premium may be based upon either chargeable rates or risk premium rates, 
or a combination of both.
    Primary frontal dune means a continuous or nearly continuous mound 
or ridge of sand with relatively steep seaward and landward slopes 
immediately landward and adjacent to the beach and subject to erosion 
and overtopping from high tides and waves during major coastal storms. 
The inland limit of the primary frontal dune occurs at the point where 
there is a distinct change from a relatively steep slope to a relatively 
mild slope.
    Principally above ground means that at least 51 percent of the 
actual cash value of the structure, less land value, is above ground.
    Program means the National Flood Insurance Program authorized by 42 
U.S.C. 4001 through 4128.
    Program deficiency means a defect in a community's flood plain 
management regulations or administrative procedures that impairs 
effective implementation of those flood plain management regulations or 
of the standards in Sec. Sec. 60.3, 60.4, 60.5, or 60.6.
    Project cost means the total financial cost of a flood protection 
system (including design, land acquisition, construction, fees, 
overhead, and profits), unless the Federal Insurance Administrator 
determines a given ``cost'' not to be a part of such project cost.
    Recreational vehicle means a vehicle which is:
    (a) Built on a single chassis;
    (b) 400 square feet or less when measured at the largest horizontal 
projection;
    (c) Designed to be self-propelled or permanently towable by a light 
duty truck; and
    (d) Designed primarily not for use as a permanent dwelling but as 
temporary living quarters for recreational, camping, travel, or seasonal 
use.
    Reference feature is the receding edge of a bluff or eroding frontal 
dune, or if such a feature is not present, the normal high-water line or 
the seaward line of permanent vegetation if a high-water line cannot be 
identified.
    Regular Program means the Program authorized by the Act under which 
risk premium rates are required for the first half of available coverage 
(also known as ``first layer'' coverage) for all new construction and 
substantial improvements started on or after the effective date of the 
FIRM, or after December 31, 1974, for FIRM's effective on or before that 
date. All buildings, the construction of which started before the 
effective date of the FIRM, or before January 1, 1975, for FIRMs 
effective before that date, are eligible for first layer coverage at 
either subsidized rates or risk premium rates, whichever are lower. 
Regardless of date of construction, risk premium rates are always 
required for the second layer coverage and such coverage is offered only 
after the Administrator has completed a risk study for the community.
    Regulatory floodway means the channel of a river or other 
watercourse and the adjacent land areas that must be reserved in order 
to discharge the base flood without cumulatively increasing the water 
surface elevation more than a designated height.
    Remedy a violation means to bring the structure or other development 
into compliance with State or local flood plain management regulations, 
or, if

[[Page 242]]

this is not possible, to reduce the impacts of its noncompliance. Ways 
that impacts may be reduced include protecting the structure or other 
affected development from flood damages, implementing the enforcement 
provisions of the ordinance or otherwise deterring future similar 
violations, or reducing Federal financial exposure with regard to the 
structure or other development.
    Risk premium rates mean those rates established by the Administrator 
pursuant to individual community studies and investigations which are 
undertaken to provide flood insurance in accordance with section 1307 of 
the Act and the accepted actuarial principles. ``Risk premium rates'' 
include provisions for operating costs and allowances.
    Riverine means relating to, formed by, or resembling a river 
(including tributaries), stream, brook, etc.
    Sand dunes mean naturally occurring accumulations of sand in ridges 
or mounds landward of the beach.
    Scientifically incorrect. The methodology(ies) and/or assumptions 
which have been utilized are inappropriate for the physical processes 
being evaluated or are otherwise erroneous.
    Second layer coverage means an additional limit of coverage equal to 
the amounts made available under the Emergency Program, and made 
available under the Regular Program.
    Servicing company means a corporation, partnership, association, or 
any other organized entity which contracts with the Federal Insurance 
Administration to service insurance policies under the National Flood 
Insurance Program for a particular area.
    Sheet flow area-- see area of shallow flooding.
    60-year setback means a distance equal to 60 times the average 
annual long term recession rate at a site, measured from the reference 
feature.
    Special flood hazard area-- see ``area of special flood hazard''.
    Special hazard area means an area having special flood, mudslide 
(i.e., mudflow), or flood-related erosion hazards, and shown on an FHBM 
or FIRM as Zone A, AO, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/
A, A99, AH, VO, V1-30, VE, V, M, or E.
    Standard Flood Insurance Policy means the flood insurance policy 
issued by the Federal Insurance Administrator, or an insurer pursuant to 
an arrangement with the Administrator pursuant to Federal statutes and 
regulations.
    Start of Construction (for other than new construction or 
substantial improvements under the Coastal Barrier Resources Act (Pub. 
L. 97-348)), includes substantial improvement, and means the date the 
building permit was issued, provided the actual start of construction, 
repair, reconstruction, rehabilitation, addition placement, or other 
improvement was within 180 days of the permit date. The actual start 
means either the first placement of permanent construction of a 
structure on a site, such as the pouring of slab or footings, the 
installation of piles, the construction of columns, or any work beyond 
the stage of excavation; or the placement of a manufactured home on a 
foundation. Permanent construction does not include land preparation, 
such as clearing, grading and filling; nor does it include the 
installation of streets and/or walkways; nor does it include excavation 
for a basement, footings, piers, or foundations or the erection of 
temporary forms; nor does it include the installation on the property of 
accessory buildings, such as garages or sheds not occupied as dwelling 
units or not part of the main structure. For a substantial improvement, 
the actual start of construction means the first alteration of any wall, 
ceiling, floor, or other structural part of a building, whether or not 
that alteration affects the external dimensions of the building.
    State means any State, the District of Columbia, the territories and 
possessions of the United States, the Commonwealth of Puerto Rico, and 
the Trust Territory of the Pacific Islands.
    State coordinating agency means the agency of the state government, 
or other office designated by the Governor of the state or by state 
statute at the request of the Administrator to assist in the 
implementation of the National Flood Insurance Program in that state.
    Storm cellar means a space below grade used to accommodate occupants

[[Page 243]]

of the structure and emergency supplies as a means of temporary shelter 
against severe tornado or similar wind storm activity.
    Structure means, for floodplain management purposes, a walled and 
roofed building, including a gas or liquid storage tank, that is 
principally above ground, as well as a manufactured home. Structure, for 
insurance purposes, means:
    (1) A building with two or more outside rigid walls and a fully 
secured roof, that is affixed to a permanent site;
    (2) A manufactured home (``a manufactured home,'' also known as a 
mobile home, is a structure: built on a permanent chassis, transported 
to its site in one or more sections, and affixed to a permanent 
foundation); or
    (3) A travel trailer without wheels, built on a chassis and affixed 
to a permanent foundation, that is regulated under the community's 
floodplain management and building ordinances or laws.

For the latter purpose, ``structure'' does not mean a recreational 
vehicle or a park trailer or other similar vehicle, except as described 
in paragraph (3) of this definition, or a gas or liquid storage tank.
    Subsidized rates mean the rates established by the Administrator 
involving in the aggregate a subsidization by the Federal Government.
    Substantial damage means damage of any origin sustained by a 
structure whereby the cost of restoring the structure to its before 
damaged condition would equal or exceed 50 percent of the market value 
of the structure before the damage occurred.
    Substantial improvement means any reconstruction, rehabilitation, 
addition, or other improvement of a structure, the cost of which equals 
or exceeds 50 percent of the market value of the structure before the 
``start of construction'' of the improvement. This term includes 
structures which have incurred ``substantial damage'', regardless of the 
actual repair work performed. The term does not, however, include 
either:
    (1) Any project for improvement of a structure to correct existing 
violations of state or local health, sanitary, or safety code 
specifications which have been identified by the local code enforcement 
official and which are the minimum necessary to assure safe living 
conditions or
    (2) Any alteration of a ``historic structure'', provided that the 
alteration will not preclude the structure's continued designation as a 
``historic structure''.
    30-year setback means a distance equal to 30 times the average 
annual long term recession rate at a site, measured from the reference 
feature.
    Technically incorrect. The methodology(ies) utilized has been 
erroneously applied due to mathematical or measurement error, changed 
physical conditions, or insufficient quantity or quality of input data.
    V Zone--see ``coastal high hazard area.''
    Variance means a grant of relief by a community from the terms of a 
flood plain management regulation.
    Violation means the failure of a structure or other development to 
be fully compliant with the community's flood plain management 
regulations. A structure or other development without the elevation 
certificate, other certifications, or other evidence of compliance 
required in Sec. 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), 
or (e)(5) is presumed to be in violation until such time as that 
documentation is provided.
    Water surface elevation means the height, in relation to the 
National Geodetic Vertical Datum (NGVD) of 1929, (or other datum, where 
specified) of floods of various magnitudes and frequencies in the flood 
plains of coastal or riverine areas.
    Zone of imminent collapse means an area subject to erosion adjacent 
to the shoreline of an ocean, bay, or lake and within a distance equal 
to 10 feet plus 5 times the average annual long-term erosion rate for 
the site, measured from the reference feature.

[41 FR 46968, Oct. 26, 1976]

    Editorial Note: For Federal Register citations affecting Sec. 59.1, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO access.

[[Page 244]]



Sec. 59.2  Description of program.

    (a) The National Flood Insurance Act of 1968 was enacted by title 
XIII of the Housing and Urban Development Act of 1968 (Pub. L. 90-448, 
August 1, 1968) to provide previously unavailable flood insurance 
protection to property owners in flood-prone areas. Mudslide (as defined 
in Sec. 59.1) protection was added to the Program by the Housing and 
Urban Development Act of 1969 (Pub. L. 91-152, December 24, 1969). 
Flood-related erosion (as defined in Sec. 59.1) protection was added to 
the Program by the Flood Disaster Protection Act of 1973 (Pub. L. 93-
234, December 31, 1973). The Flood Disaster Protection Act of 1973 
requires the purchase of flood insurance on and after March 2, 1974, as 
a condition of receiving any form of Federal or federally-related 
financial assistance for acquisition or construction purposes with 
respect to insurable buildings and mobile homes within an identified 
special flood, mudslide (i.e., mudflow), or flood-related erosion hazard 
area that is located within any community participating in the Program. 
The Act also requires that on and after July 1, 1975, or one year after 
a community has been formally notified by the Administrator of its 
identification as community containing one or more special flood, 
mudslide (i.e., mudflow), or flood-related erosion hazard areas, no such 
Federal financial assistance, shall be provided within such an area 
unless the community in which the area is located is then participating 
in the Program, subject to certain exceptions. See FIA published 
Guidelines at Sec. 59.4(c).
    (b) To qualify for the sale of federally-subsidized flood insurance 
a community must adopt and submit to the Administrator as part of its 
application, flood plain management regulations, satisfying at a minimum 
the criteria set forth at part 60 of this subchapter, designed to reduce 
or avoid future flood, mudslide (i.e., mudflow) or flood-related erosion 
damages. These regulations must include effective enforcement 
provisions.
    (c) Minimum requirements for adequate flood plain management 
regulations are set forth in Sec. 60.3 for flood-prone areas, in Sec. 
60.4 for mudslide (i.e., mudflow) areas and in Sec. 60.5 for flood-
related erosion areas. Those applicable requirements and standards are 
based on the amount of technical information available to the community.

[41 FR 46968, Oct. 26, 1976, as amended at 43 FR 7140, Feb. 17, 1978. 
Redesignated at 44 FR 31177, May 31, 1979, and amended at 48 FR 44552, 
Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 59.3  Emergency program.

    The 1968 Act required a risk study to be undertaken for each 
community before it could become eligible for the sale of flood 
insurance. Since this requirement resulted in a delay in providing 
insurance, the Congress, in section 408 of the Housing and Urban 
Development Act of 1969 (Pub. L. 91-152, December 24, 1969), established 
an Emergency Flood Insurance Program as a new section 1336 of the 
National Flood Insurance Act (42 U.S.C. 4056) to permit the early sale 
of insurance in flood-prone communities. The emergency program does not 
affect the requirement that a community must adopt adequate flood plain 
management regulations pursuant to part 60 of this subchapter but 
permits insurance to be sold before a study is conducted to determine 
risk premium rates for the community. The program still requires upon 
the effective date of a FIRM the charging of risk premium rates for all 
new construction and substantial improvements and for higher limits of 
coverage for existing structures.

[43 FR 7140, Feb. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
and amended at 48 FR 44543, Sept. 29, 1983]



Sec. 59.4  References.

    (a) The following are statutory references for the National Flood 
Insurance Program, under which these regulations are issued:
    (1) National Flood Insurance Act of 1968 (title XIII of the Housing 
and Urban Development Act of 1968), Pub. L. 90-448, approved August 1, 
1968, 42 U.S.C. 4001 et seq.
    (2) Housing and Urban Development Act of 1969 (Pub. L. 91-152, 
approved December 24, 1969).
    (3) Flood Disaster Protection Act of 1973 (87 Stat. 980), Public Law 
93-234, approved December 31, 1973.

[[Page 245]]

    (4) Section 816 of the Housing and Community Development Act of 1974 
(87 Stat. 975), Public Law 93-383, approved August 22, 1974.
    (5) Public Law 5-128 (effective October 12, 1977).
    (6) The above statutes are included in 42 U.S.C. 4001 et seq.
    (b) The following are references relevant to the National Flood 
Insurance Program:
    (1) Executive Order 11988 (Floodplain Management, dated May 24, 1977 
(42 FR 26951, May 25, 1977)).
    (2) The Flood Control Act of 1960 (Pub. L. 86-645).
    (3) Title II, section 314 of title III and section 406 of title IV 
of the Disaster Relief Act of 1974 (Pub. L. 93-288).
    (4) Coastal Zone Management Act (Pub. L. 92-583), as amended Public 
Law 94-370.
    (5) Water Resources Planning Act (Pub. L. 89-90), as amended Public 
Law 94-112 (October 16, 1975).
    (6) Title I, National Environmental Policy Act (Pub. L. 91-190).
    (7) Land and Water Conservation Fund Act (Pub. L. 89-578), and 
subsequent amendments thereto.
    (8) Water Resources Council, Principals and Standards for Planning, 
Water and Related Land Resources (38 FR 24778-24869, September 10, 
1973).
    (9) Executive Order 11593 (Protection and Enchancement of the 
Cultural Environment), dated May 13, 1971 (36 FR 8921, May 15, 1971).
    (10) 89th Cong., 2nd Session, H.D. 465.
    (11) Required land use element for comprehensive planning assistance 
under section 701 of the Housing Act of 1954, as amended by the Housing 
and Community Development Act of 1974 (24 CFR 600.72).
    (12) Executive Order 11990 (Protection of Wetlands, dated May 24, 
1977 (42 FR 26951, May 25, 1977)).
    (13) Water Resources Council (Guidance for Floodplain Management) 
(42 FR 52590, September 30, 1977).
    (14) Unified National Program for Floodplain Management of the 
United States Water Resources Council, July 1976.
    (c) The following reference guidelines represent the views of the 
Federal Insurance Administration with respect to the mandatory purchase 
of flood insurance under section 102 of the Flood Disaster Protection 
Act of 1973: Mandatory Purchase of Flood Insurance Guidelines (54 FR 
29666-29695, July 13, 1989).

[41 FR 46968, Oct. 26, 1976, as amended at 43 FR 7140, Feb. 17, 1978. 
Redesignated at 44 FR 31177, May 31, 1979, and amended at 57 FR 19540, 
May 7, 1992]



                   Subpart B_Eligibility Requirements



Sec. 59.21  Purpose of subpart.

    This subpart lists actions that must be taken by a community to 
become eligible and to remain eligible for the Program.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 59.22  Prerequisites for the sale of flood insurance.

    (a) To qualify for flood insurance availability a community shall 
apply for the entire area within its jurisdiction, and shall submit:
    (1) Copies of legislative and executive actions indicating a local 
need for flood insurance and an explicit desire to participate in the 
National Flood Insurance Program;
    (2) Citations to State and local statutes and ordinances authorizing 
actions regulating land use and copies of the local laws and regulations 
cited;
    (3) A copy of the flood plain management regulations the community 
has adopted to meet the requirements of Sec. Sec. 60.3, 60.4 and/or 
Sec. 60.5 of this subchapter. This submission shall include copies of 
any zoning, building, and subdivision regulations, health codes, special 
purpose ordinances (such as a flood plain ordinance, grading ordinance, 
or flood-related erosion control ordinance), and any other corrective 
and preventive measures enacted to reduce or prevent flood, mudslide 
(i.e., mudflow) or flood-related erosion damage;
    (4) A list of the incorporated communities within the applicant's 
boundaries;
    (5) Estimates relating to the community as a whole and to the flood, 
mudslide (i.e., mudflow) and flood-related erosion prone areas 
concerning:
    (i) Population;

[[Page 246]]

    (ii) Number of one to four family residences;
    (iii) Number of small businesses; and
    (iv) Number of all other structures.
    (6) Address of a local repository, such as a municipal building, 
where the Flood Hazard Boundary Maps (FHBM's) and Flood Insurance Rate 
Maps (FIRM's) will be made available for public inspection;
    (7) A summary of any State or Federal activities with respect to 
flood plain, mudslide (i.e., mudflow) or flood-related erosion area 
management within the community, such as federally-funded flood control 
projects and State-administered flood plain management regulations;
    (8) A commitment to recognize and duly evaluate flood, mudslide 
(i.e., mudflow) and/or flood-related erosion hazards in all official 
actions in the areas having special flood, mudslide (i.e., mudflow) and/
or flood-related erosion hazards and to take such other official action 
reasonably necessary to carry out the objectives of the program; and
    (9) A commitment to:
    (i) Assist the Administrator at his/her request, in his/her 
delineation of the limits of the areas having special flood, mudslide 
(i.e., mudflow) or flood-related erosion hazards;
    (ii) Provide such information concerning present uses and occupancy 
of the flood plain, mudslide (i.e., mudflow) or flood-related erosion 
areas as the Administrator may request;
    (iii) Maintain for public inspection and furnish upon request, for 
the determination of applicable flood insurance risk premium rates 
within all areas having special flood hazards identified on a FHBM or 
FIRM, any certificates of floodproofing, and information on the 
elevation (in relation to mean sea level) of the level of the lowest 
floor (including basement) of all new or substantially improved 
structures, and include whether or not such structures contain a 
basement, and if the structure has been floodproofed, the elevation (in 
relation to mean sea level) to which the structure was floodproofed;
    (iv) Cooperate with Federal, State, and local agencies and private 
firms which undertake to study, survey, map, and identify flood plain, 
mudslide (i.e., mudflow) or flood-related erosion areas, and cooperate 
with neighboring communities with respect to the management of adjoining 
flood plain, mud slide (i.e., mudflow) and/or flood-related erosion 
areas in order to prevent aggravation of existing hazards;
    (v) Upon occurrence, notify the Administrator in writing whenever 
the boundaries of the community have been modified by annexation or the 
community has otherwise assumed or no longer has authority to adopt and 
enforce flood plain management regulations for a particular area. In 
order that all FHBM's and FIRM's accurately represent the community's 
bound aries, include within such notification a copy of a map of the 
community suitable for reproduction, clearly delineating the new 
corporate limits or new area for which the community has assumed or 
relinquished flood plain management regulatory authority.
    (b) An applicant shall legislatively:
    (1) Appoint or designate the agency or official with the 
responsibility, authority, and means to implement the commitments made 
in paragraph (a) of this section, and
    (2) Designate the official responsible to submit a report to the 
Administrator concerning the community participation in the Program, 
including, but not limited to the development and implementation of 
flood plain management regulations. This report shall be submitted 
annually or biennially as determined by the Administrator.
    (c) The documents required by paragraph (a) of this section and 
evidence of the actions required by paragraph (b) of this section shall 
be submitted to the Federal Emergency Management Agency, Washington DC 
20472.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979 
and amended at 48 FR 29318, June 24, 1983; 48 FR 44543 and 44552, Sept. 
29, 1983; 49 FR 4751, Feb. 8, 1984; 49 FR 33656, Aug. 24, 1984; 50 FR 
36023, Sept. 4, 1985]



Sec. 59.23  Priorities for the sale of flood insurance under the regular 
program.

    Flood-prone, mudslide (i.e., mudflow) and flood-related erosion 
prone communities are placed on a register of areas eligible for 
ratemaking studies

[[Page 247]]

and then selected from this register for ratemaking studies on the basis 
of the following considerations--
    (a) Recommendations of State officials;
    (b) Location of community and urgency of need for flood insurance;
    (c) Population of community and intensity of existing or proposed 
development of the flood plain, the mud slide (i.e., mudflow) and the 
flood-related erosion area;
    (d) Availability of information on the community with respect to its 
flood, mudslide (i.e., mudflow) and flood-related erosion 
characteristics and previous losses;
    (e) Extent of State and local progress in flood plain, mudslide 
(i.e., mudflow) area and flood-related erosion area management, 
including adoption of flood plain management regulations consistent with 
related ongoing programs in the area.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 59.24  Suspension of community eligibility.

    (a) A community eligible for the sale of flood insurance shall be 
subject to suspension from the Program for failing to submit copies of 
adequate flood plain management regulations meeting the minimum 
requirements of paragraphs (b), (c), (d), (e) or (f) of Sec. 60.3 or 
paragraph (b) of Sec. 60.4 or Sec. 60.5, within six months from the date 
the Administrator provides the data upon which the flood plain 
regulations for the applicable paragraph shall be based. Where there has 
not been any submission by the community, the Administrator shall notify 
the community that 90 days remain in the six month period in order to 
submit adequate flood plain management regulations. Where there has been 
an inadequate submission, the Administrator shall notify the community 
of the specific deficiencies in its submitted flood plain management 
regulations and inform the community of the amount of time remaining 
within the six month period. If, subsequently, copies of adequate flood 
plain management regulations are not received by the Administrator, no 
later than 30 days before the expiration of the original six month 
period the Administrator shall provide written notice to the community 
and to the state and assure publication in the Federal Register under 
part 64 of this subchapter of the community's loss of eligibility for 
the sale of flood insurance, such suspension to become effective upon 
the expiration of the six month period. Should the community remedy the 
defect and the Administrator receive copies of adequate flood plain 
management regulations within the notice period, the suspension notice 
shall be rescinded by the Administrator. If the Administrator receives 
notice from the State that it has enacted adequate flood plain 
management regulations for the community within the notice period, the 
suspension notice shall be rescinded by the Administrator. The 
community's eligibility shall remain terminated after suspension until 
copies of adequate flood plain management regulations have been received 
and approved by the Administrator.
    (b) A community eligible for the sale of flood insurance which fails 
to adequately enforce flood plain management regulations meeting the 
minimum requirements set forth in Sec. Sec. 60.3, 60.4 and/or 60.5 
shall be subject to probation. Probation shall represent formal 
notification to the community that the Administrator regards the 
community's flood plain management program as not compliant with NFIP 
criteria. Prior to imposing probation, the Administrator (1) shall 
inform the community upon 90 days prior written notice of the impending 
probation and of the specific program deficiencies and violations 
relative to the failure to enforce, (2) shall, at least 60 days before 
probation is to begin, issue a press release to local media explaining 
the reasons for and the effects of probation, and (3) shall, at least 90 
days before probation is to begin, advise all policyholders in the 
community of the impending probation and the additional premium that 
will be charged, as provided in this paragraph, on policies sold or 
renewed during the period of probation. During this 90-day period the 
community shall have the opportunity to avoid probation by demonstrating 
compliance with Program requirements, or by correcting Program 
deficiencies and remedying all

[[Page 248]]

violations to the maximum extent possible. If, at the end of the 90-day 
period, the Administrator determines that the community has failed to do 
so, the probation shall go into effect. Probation may be continued for 
up to one year after the community corrects all Program deficiencies and 
remedies all violations to the maximum extent possible. Flood insurance 
may be sold or renewed in the community while it is on probation. Where 
a policy covers property located in a community placed on probation on 
or after October 1, 1986, but prior to October 1, 1992, an additional 
premium of $25.00 shall be charged on each such policy newly issued or 
renewed during the one-year period beginning on the date the community 
is placed on probation and during any successive one-year periods that 
begin prior to October 1, 1992. Where a community's probation begins on 
or after October 1, 1992, the additional premium described in the 
preceding sentence shall be $50.00, which shall also be charged during 
any successive one-year periods during which the community remains on 
probation for any part thereof. This $50.00 additional premium shall 
further be charged during any successive one-year periods that begin on 
or after October 1, 1992, where the preceding one-year probation period 
began prior to October 1, 1992.
    (c) A community eligible for the sale of flood insurance which fails 
to adequately enforce its flood plain management regulations meeting the 
minimum requirements set forth in Sec. Sec. 60.3, 60.4 and/or 60.5 and 
does not correct its Program deficiencies and remedy all violations to 
the maximum extent possible in accordance with compliance deadlines 
established during a period of probation shall be subject to suspension 
of its Program eligibility. Under such circumstances, the Administrator 
shall grant the community 30 days in which to show cause why it should 
not be suspended. The Administrator may conduct a hearing, written or 
oral, before commencing suspensive action. If a community is to be 
suspended, the Administrator shall inform it upon 30 days prior written 
notice and upon publication in the Federal Register under part 64 of 
this subchapter of its loss of eligibility for the sale of flood 
insurance. In the event of impending suspension, the Administrator shall 
issue a press release to the local media explaining the reasons and 
effects of the suspension. The community's eligibility shall only be 
reinstated by the Administrator upon his receipt of a local legislative 
or executive measure reaffirming the community's formal intent to 
adequately enforce the flood plain management requirements of this 
subpart, together with evidence of action taken by the community to 
correct Program deficiencies and remedy to the maximum extent possible 
those violations which caused the suspension. In certain cases, the 
Administrator, in order to evaluate the community's performance under 
the terms of its submission, may withhold reinstatement for a period not 
to exceed one year from the date of his receipt of the satisfactory 
submission or place the community on probation as provided for in 
paragraph (b) of this section.
    (d) A community eligible for the sale of flood insurance which 
repeals its flood plain management regulations, allows its regulations 
to lapse, or amends its regulations so that they no longer meet the 
minimum requirements set forth in Sec. Sec. 60.3, 60.4 and/or 60.5 
shall be suspended from the Program. If a community is to be suspended, 
the Administrator shall inform it upon 30 days prior written notice and 
upon publication in the Federal Register under part 64 of this 
subchapter of its loss of eligibility for the sale of flood insurance. 
The community eligibility shall remain terminated after suspension until 
copies of adequate flood plain management regulations have been received 
and approved by the Administrator.
    (e) A community eligible for the sale of flood insurance may 
withdraw from the Program by submitting to the Administrator a copy of a 
legislative action that explicitly states its desire to withdraw from 
the National Flood Insurance Program. Upon receipt of a certified copy 
of a final legislative action, the Administrator shall withdraw the 
community from the Program and publish in the Federal Register under

[[Page 249]]

part 64 of this subchapter its loss of eligibility for the sale of flood 
insurance. A community that has withdrawn from the Program may be 
reinstated if its submits the application materials specified in Sec. 
59.22(a).
    (f) If during a period of ineligibility under paragraphs (a), (d), 
or (e) of this section, a community has permitted actions to take place 
that have aggravated existing flood plain, mudslide (i.e., mudflow) and/
or flood related erosion hazards, the Administrator may withhold 
reinstatement until the community submits evidence that it has taken 
action to remedy to the maximum extent possible the increased hazards. 
The Administrator may also place the reinstated community on probation 
as provided for in paragraph (b) of this section.
    (g) The Administrator shall promptly notify the servicing company 
and any insurers issuing flood insurance pursuant to an arrangement with 
the Administrator of those communities whose eligibility has been 
suspended or which have withdrawn from the program. Flood insurance 
shall not be sold or renewed in those communities. Policies sold or 
renewed within a community during a period of ineligibility are deemed 
to be voidable by the Administrator whether or not the parties to sale 
or renewal had actual notice of the ineligibility.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
and amended at 48 FR 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 
8, 1984; 50 FR 36023, Sept. 4, 1985; 57 FR 19540, May 7, 1992; 59 FR 
53598, Oct. 25, 1994; 62 FR 55715, Oct. 27, 1997]



                   Subpart C_Pilot Inspection Program



Sec. 59.30  A pilot inspection procedure.

    (a) Purpose. This section sets forth the criteria for implementing a 
pilot inspection procedure in Monroe County and the Village of 
Islamorada, Florida. Areas within Monroe County that become communities 
by incorporating on or after January 1, 1999, are required to implement 
the pilot inspection procedure as a condition of participating in the 
NIP. The criteria will also be used to implement the pilot inspection 
procedure in these communities. The purpose of this inspection procedure 
is to provide the communities participating in the pilot inspection 
procedure with an additional means to identify whether structures built 
in Special Flood Hazard Areas (SFHAs) after the effective date of the 
initial Flood Insurance Rate Map (FIRM) comply with the community's 
floodplain management regulations. The pilot inspection procedure will 
also assist FEMA in verifying that structures insured under the National 
Flood Insurance Program's Standard Flood Insurance Policy are properly 
rated. FEMA will publish notices in the Federal Register when 
communities in Monroe County incorporate, agree to implement the pilot 
inspection procedure, and become eligible for the sale of flood 
insurance.
    (b) Procedures and requirements for implementation. Each community 
must establish procedures and requirements for implementing the pilot 
inspection procedure consistent with the criteria established in this 
section.
    (c) Inspection procedure--(1) Starting and termination dates. The 
Associate Director for Mitigation and the Federal Insurance 
Administrator will establish the starting date and the termination date 
for implementing the pilot inspection procedure upon the recommendation 
of the Regional Director. The Regional Director will consult with each 
community.
    (2) Extension. The Associate Director for Mitigation and the Federal 
Insurance Administrator may extend the implementation of the inspection 
procedure with a new termination date upon the recommendation of the 
Regional Director. The Regional Director will consult with the 
community. An extension will be granted based on good cause.
    (3) Notices. Before the starting date of the inspection procedure, 
each community must publish a notice in a prominent local newspaper and 
publish other notices as appropriate. The Associate Director for 
Mitigation and the Federal Insurance Administrator will publish a notice 
in the Federal Register that the community will undertake an inspection 
procedure. Published notices will include the purpose for implementing 
the inspection procedure and

[[Page 250]]

the effective period of time that the inspection procedure will cover.
    (4) Community reviews. The communities participating in the pilot 
inspection procedure must review a list of all pre-FIRM and post-FIRM 
flood insurance policies in SFHAs to confirm that the start of 
construction or substantial improvement of insured pre-FIRM buildings 
occurred on or before December 31, 1974, and to identify possible 
violations of insured post-FIRM buildings. The community will provide to 
FEMA a list of insured buildings incorrectly rated as pre-FIRM and a 
list of insured post-FIRM buildings that the community identifies as 
possible violations.
    (5) SFIP endorsement. In the communities that undertake the pilot 
inspection procedure, all new and renewed flood insurance policies that 
become effective on and after the date that we and the community 
establish for the start of the inspection procedure will contain an 
endorsement to the Standard Flood Insurance Policy that an inspection 
may be necessary before a subsequent policy renewal [see Part 61, 
Appendices A(4), (5), and (6)].
    (6) Notice from insurer. For a building identified as a possible 
violation under paragraph (c)(4) of this section, the insurer will send 
a notice to the policyholder that an inspection is necessary in order to 
renew the policy and that the policyholder must submit a community 
inspection report as part of the policy renewal process, which includes 
the payment of the premium. The insurer will send this notice about 6 
months before the Standard Flood Insurance Policy expires.
    (7) Conditions for renewal. If a policyholder receives a notice 
under paragraph (c)(6) of this section that an inspection is necessary 
in order to renew the Standard Flood Insurance Policy the following 
conditions apply:
    (i) If the policyholder obtains an inspection from the community and 
the policyholder sends the community inspection report to the insurer as 
part of the renewal process, which includes the payment of the premium, 
the insurer will renew the policy and will verify the flood insurance 
rate, or
    (ii) If the policyholder does not obtain and submit a community 
inspection report the insurer will not renew the policy.
    (8) Community responsibilities. For insured post-FIRM buildings that 
the community inspects and determines to violate the community's 
floodplain management regulations, the community must demonstrate to 
FEMA that the community is undertaking measures to remedy the violation 
to the maximum extent possible. Nothing in this section modifies the 
community's responsibility under the NFIP to enforce floodplain 
management regulations adequately that meet the minimum requirements in 
Sec. 60.3 for all new construction and substantial improvements within 
the community's SFHAs. The community's responsibility also includes the 
insured buildings where the policyholder did not obtain an inspection 
report, and non-insured buildings that this procedure does not cover.
    (d) Restoration of flood insurance coverage. Insurers will not 
provide new flood insurance on any building if a property owner does not 
obtain a community inspection report or if the property owner obtains a 
community inspection report but does not submit the report with the 
renewal premium payment. Flood insurance policies sold on a building 
ineligible in accordance with paragraph (c)(6)(ii) of this section are 
void under the Standard Flood Insurance Policy inspection endorsements 
[44 CFR Part 61, Appendices (A)(4), (A)(5), and (A)(6)]. When the 
property owner applies for a flood insurance policy and submits a 
completed community inspection report by the community with an 
application and renewal premium payment, the insurer will issue a flood 
insurance policy.

(Approved by the Office of Management and Budget under Control Number 
3067-0275)

[65 FR 39748, June 27, 2000, as amended at 67 FR 10633, Mar. 8, 2002]



PART 60_CRITERIA FOR LAND MANAGEMENT AND USE--Table of Contents




      Subpart A_Requirements for Flood Plain Management Regulations

Sec.
60.1 Purpose of subpart.

[[Page 251]]

60.2 Minimum compliance with flood plain management criteria.
60.3 Flood plain management criteria for flood-prone areas.
60.4 Flood plain management criteria for mudslide (i.e., mudflow)-prone 
          areas.
60.5 Flood plain management criteria for flood-related erosion-prone 
          areas.
60.6 Variances and exceptions.
60.7 Revisions of criteria for flood plain management regulations.
60.8 Definitions.

   Subpart B_Requirements for State Flood Plain Management Regulations

60.11 Purpose of this subpart.
60.12 Flood plain management criteria for State-owned properties in 
          special hazard areas.
60.13 Noncompliance.

 Subpart C_Additional Considerations in Managing Flood-Prone, Mudslide 
      (i.e., Mudflow)-Prone, and Flood-Related Erosion-Prone Areas

60.21 Purpose of this subpart.
60.22 Planning considerations for flood-prone areas.
60.23 Planning considerations for mudslide (i.e., mudflow)-prone areas.
60.24 Planning considerations for flood-related erosion-prone areas.
60.25 Designation, duties, and responsibilities of State Coordinating 
          Agencies.
60.26 Local coordination.

    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.

    Source: 41 FR 46975, Oct. 26, 1976, unless otherwise noted. 
Redesignated at 44 FR 31177, May 31, 1979.



      Subpart A_Requirements for Flood Plain Management Regulations



Sec. 60.1  Purpose of subpart.

    (a) The Act provides that flood insurance shall not be sold or 
renewed under the program within a community, unless the community has 
adopted adequate flood plain management regulations consistent with 
Federal criteria. Responsibility for establishing such criteria is 
delegated to the Administrator.
    (b) This subpart sets forth the criteria developed in accordance 
with the Act by which the Administrator will determine the adequacy of a 
community's flood plain management regulations. These regulations must 
be legally-enforceable, applied uniformly throughout the community to 
all privately and publicly owned land within flood-prone, mudslide 
(i.e., mudflow) or flood-related erosion areas, and the community must 
provide that the regulations take precedence over any less restrictive 
conflicting local laws, ordinances or codes. Except as otherwise 
provided in Sec. 60.6, the adequacy of such regulations shall be 
determined on the basis of the standards set forth in Sec. 60.3 for 
flood-prone areas, Sec. 60.4 for mudslide areas and Sec. 60.5 for 
flood-related erosion areas.
    (c) Nothing in this subpart shall be construed as modifying or 
replacing the general requirement that all eligible communities must 
take into account flood, mudslide (i.e., mudflow) and flood-related 
erosion hazards, to the extent that they are known, in all official 
actions relating to land management and use.
    (d) The criteria set forth in this subpart are minimum standards for 
the adoption of flood plain management regulations by flood-prone, 
mudslide (i.e., mudflow)-prone and flood-related erosion-prone 
communities. Any community may exceed the minimum criteria under this 
part by adopting more comprehensive flood plain management regulations 
utilizing the standards such as contained in subpart C of this part. In 
some instances, community officials may have access to information or 
knowledge of conditions that require, particularly for human safety, 
higher standards than the minimum criteria set forth in subpart A of 
this part. Therefore, any flood plain management regulations adopted by 
a State or a community which are more restrictive than the criteria set 
forth in this part are encouraged and shall take precedence.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 60.2  Minimum compliance with flood plain management criteria.

    (a) A flood-prone community applying for flood insurance eligibility 
shall meet the standards of Sec. 60.3(a) in order to become eligible if 
a FHBM has not

[[Page 252]]

been issued for the community at the time of application. Thereafter, 
the community will be given a period of six months from the date the 
Administrator provides the data set forth in Sec. 60.3(b), (c), (d), (e) 
or (f), in which to meet the requirements of the applicable paragraph. 
If a community has received a FHBM, but has not yet applied for Program 
eligibility, the community shall apply for eligibility directly under 
the standards set forth in Sec. 60.3(b). Thereafter, the community will 
be given a period of six months from the date the Administrator provides 
the data set forth in Sec. 60.3(c), (d), (e) or (f) in which to meet the 
requirements of the applicable paragraph.
    (b) A mudslide (i.e., mudflow)-prone community applying for flood 
insurance eligibility shall meet the standards of Sec. 60.4(a) to 
become eligible. Thereafter, the community will be given a period of six 
months from the date the mudslide (i.e., mudflow) areas having special 
mudslide hazards are delineated in which to meet the requirements of 
Sec. 60.4(b).
    (c) A flood-related erosion-prone community applying for flood 
insurance eligibility shall meet the standards of Sec. 60.5(a) to 
become eligible. Thereafter, the community will be given a period of six 
months from the date the flood-related erosion areas having special 
erosion hazards are delineated in which to meet the requirements of 
Sec. 60.5(b).
    (d) Communities identified in part 65 of this subchapter as 
containing more than one type of hazard (e.g., any combination of 
special flood, mudslide (i.e., mudflow), and flood-related erosion 
hazard areas) shall adopt flood plain management regulations for each 
type of hazard consistent with the requirements of Sec. Sec. 60.3, 60.4 
and 60.5.
    (e) Local flood plain management regulations may be submitted to the 
State Coordinating Agency designated pursuant to Sec. 60.25 for its 
advice and concurrence. The submission to the State shall clearly 
describe proposed enforcement procedures.
    (f) The community official responsible for submitting annual or 
biennial reports to the Administrator pursuant to Sec. 59.22(b)(2) of 
this subchapter shall also submit copies of each annual or biennial 
report to any State Coordinating Agency.
    (g) A community shall assure that its comprehensive plan is 
consistent with the flood plain management objectives of this part.
    (h) The community shall adopt and enforce flood plain management 
regulations based on data provided by the Administrator. Without prior 
approval of the Administrator, the community shall not adopt and enforce 
flood plain management regulations based upon modified data reflecting 
natural or man-made physical changes.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 29318, June 24, 1983; 48 FR 44552, Sept. 29, 1983; 
49 FR 4751, Feb. 8, 1984; 50 FR 36024, Sept. 4, 1985; 59 FR 53598, Oct. 
25, 1994; 62 FR 55716, Oct. 27, 1997]



Sec. 60.3  Flood plain management criteria for flood-prone areas.

    The Administrator will provide the data upon which flood plain 
management regulations shall be based. If the Administrator has not 
provided sufficient data to furnish a basis for these regulations in a 
particular community, the community shall obtain, review and reasonably 
utilize data available from other Federal, State or other sources 
pending receipt of data from the Administrator. However, when special 
flood hazard area designations and water surface elevations have been 
furnished by the Administrator, they shall apply. The symbols defining 
such special flood hazard designations are set forth in Sec. 64.3 of 
this subchapter. In all cases the minimum requirements governing the 
adequacy of the flood plain management regulations for flood-prone areas 
adopted by a particular community depend on the amount of technical data 
formally provided to the community by the Administrator. Minimum 
standards for communities are as follows:
    (a) When the Administrator has not defined the special flood hazard 
areas within a community, has not provided water surface elevation data, 
and has not provided sufficient data to identify the floodway or coastal 
high hazard area, but the community has indicated

[[Page 253]]

the presence of such hazards by submitting an application to participate 
in the Program, the community shall:
    (1) Require permits for all proposed construction or other 
development in the community, including the placement of manufactured 
homes, so that it may determine whether such construction or other 
development is proposed within flood-prone areas;
    (2) Review proposed development to assure that all necessary permits 
have been received from those governmental agencies from which approval 
is required by Federal or State law, including section 404 of the 
Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334;
    (3) Review all permit applications to determine whether proposed 
building sites will be reasonably safe from flooding. If a proposed 
building site is in a flood-prone area, all new construction and 
substantial improvements shall (i) be designed (or modified) and 
adequately anchored to prevent flotation, collapse, or lateral movement 
of the structure resulting from hydrodynamic and hydrostatic loads, 
including the effects of buoyancy, (ii) be constructed with materials 
resistant to flood damage, (iii) be constructed by methods and practices 
that minimize flood damages, and (iv) be constructed with electrical, 
heating, ventilation, plumbing, and air conditioning equipment and other 
service facilities that are designed and/or located so as to prevent 
water from entering or accumulating within the components during 
conditions of flooding.
    (4) Review subdivision proposals and other proposed new development, 
including manufactured home parks or subdivisions, to determine whether 
such proposals will be reasonably safe from flooding. If a subdivision 
proposal or other proposed new development is in a flood-prone area, any 
such proposals shall be reviewed to assure that (i) all such proposals 
are consistent with the need to minimize flood damage within the flood-
prone area, (ii) all public utilities and facilities, such as sewer, 
gas, electrical, and water systems are located and constructed to 
minimize or eliminate flood damage, and (iii) adequate drainage is 
provided to reduce exposure to flood hazards;
    (5) Require within flood-prone areas new and replacement water 
supply systems to be designed to minimize or eliminate infiltration of 
flood waters into the systems; and
    (6) Require within flood-prone areas (i) new and replacement 
sanitary sewage systems to be designed to minimize or eliminate 
infiltration of flood waters into the systems and discharges from the 
systems into flood waters and (ii) onsite waste disposal systems to be 
located to avoid impairment to them or contamination from them during 
flooding.
    (b) When the Administrator has designated areas of special flood 
hazards (A zones) by the publication of a community's FHBM or FIRM, but 
has neither produced water surface elevation data nor identified a 
floodway or coastal high hazard area, the community shall:
    (1) Require permits for all proposed construction and other 
developments including the placement of manufactured homes, within Zone 
A on the community's FHBM or FIRM;
    (2) Require the application of the standards in paragraphs (a) (2), 
(3), (4), (5) and (6) of this section to development within Zone A on 
the community's FHBM or FIRM;
    (3) Require that all new subdivision proposals and other proposed 
developments (including proposals for manufactured home parks and 
subdivisions) greater than 50 lots or 5 acres, whichever is the lesser, 
include within such proposals base flood elevation data;
    (4) Obtain, review and reasonably utilize any base flood elevation 
and floodway data available from a Federal, State, or other source, 
including data developed pursuant to paragraph (b)(3) of this section, 
as criteria for requiring that new construction, substantial 
improvements, or other development in Zone A on the community's FHBM or 
FIRM meet the standards in paragraphs (c)(2), (c)(3), (c)(5), (c)(6), 
(c)(12), (c)(14), (d)(2) and (d)(3) of this section;
    (5) Where base flood elevation data are utilized, within Zone A on 
the community's FHBM or FIRM:
    (i) Obtain the elevation (in relation to mean sea level) of the 
lowest floor

[[Page 254]]

(including basement) of all new and substantially improved structures, 
and
    (ii) Obtain, if the structure has been floodproofed in accordance 
with paragraph (c)(3)(ii) of this section, the elevation (in relation to 
mean sea level) to which the structure was floodproofed, and
    (iii) Maintain a record of all such information with the official 
designated by the community under Sec. 59.22 (a)(9)(iii);
    (6) Notify, in riverine situations, adjacent communities and the 
State Coordinating Office prior to any alteration or relocation of a 
watercourse, and submit copies of such notifications to the 
Administrator;
    (7) Assure that the flood carrying capacity within the altered or 
relocated portion of any watercourse is maintained;
    (8) Require that all manufactured homes to be placed within Zone A 
on a community's FHBM or FIRM shall be installed using methods and 
practices which minimize flood damage. For the purposes of this 
requirement, manufactured homes must be elevated and anchored to resist 
flotation, collapse, or lateral movement. Methods of anchoring may 
include, but are not to be limited to, use of over-the-top or frame ties 
to ground anchors. This requirement is in addition to applicable State 
and local anchoring requirements for resisting wind forces.
    (c) When the Administrator has provided a notice of final flood 
elevations for one or more special flood hazard areas on the community's 
FIRM and, if appropriate, has designated other special flood hazard 
areas without base flood elevations on the community's FIRM, but has not 
identified a regulatory floodway or coastal high hazard area, the 
community shall:
    (1) Require the standards of paragraph (b) of this section within 
all A1-30 zones, AE zones, A zones, AH zones, and AO zones, on the 
community's FIRM;
    (2) Require that all new construction and substantial improvements 
of residential structures within Zones A1-30, AE and AH zones on the 
community's FIRM have the lowest floor (including basement) elevated to 
or above the base flood level, unless the community is granted an 
exception by the Administrator for the allowance of basements in 
accordance with Sec. 60.6 (b) or (c);
    (3) Require that all new construction and substantial improvements 
of non-residential structures within Zones A1-30, AE and AH zones on the 
community's firm (i) have the lowest floor (including basement) elevated 
to or above the base flood level or, (ii) together with attendant 
utility and sanitary facilities, be designed so that below the base 
flood level the structure is watertight with walls substantially 
impermeable to the passage of water and with structural components 
having the capability of resisting hydrostatic and hydrodynamic loads 
and effects of buoyancy;
    (4) Provide that where a non-residential structure is intended to be 
made watertight below the base flood level, (i) a registered 
professional engineer or architect shall develop and/or review 
structural design, specifications, and plans for the construction, and 
shall certify that the design and methods of construction are in 
accordance with accepted standards of practice for meeting the 
applicable provisions of paragraph (c)(3)(ii) or (c)(8)(ii) of this 
section, and (ii) a record of such certificates which includes the 
specific elevation (in relation to mean sea level) to which such 
structures are floodproofed shall be maintained with the official 
designated by the community under Sec. 59.22(a)(9)(iii);
    (5) Require, for all new construction and substantial improvements, 
that fully enclosed areas below the lowest floor that are usable solely 
for parking of vehicles, building access or storage in an area other 
than a basement and which are subject to flooding shall be designed to 
automatically equalize hydrostatic flood forces on exterior walls by 
allowing for the entry and exit of floodwaters. Designs for meeting this 
requirement must either be certified by a registered professional 
engineer or architect or meet or exceed the following minimum criteria: 
A minimum of two openings having a total net area of not less than one 
square inch for every square foot of enclosed area subject to flooding 
shall be provided. The bottom of all openings shall be no higher than 
one foot above grade. Openings

[[Page 255]]

may be equipped with screens, louvers, valves, or other coverings or 
devices provided that they permit the automatic entry and exit of 
floodwaters.
    (6) Require that manufactured homes that are placed or substantially 
improved within Zones A1-30, AH, and AE on the community's FIRM on sites
    (i) Outside of a manufactured home park or subdivision,
    (ii) In a new manufactured home park or subdivision,
    (iii) In an expansion to an existing manufactured home park or 
subdivision, or
    (iv) In an existing manufactured home park or subdivision on which a 
manufactured home has incurred ``substantial damage'' as the result of a 
flood, be elevated on a permanent foundation such that the lowest floor 
of the manufactured home is elevated to or above the base flood 
elevation and be securely anchored to an adequately anchored foundation 
system to resist floatation collapse and lateral movement.
    (7) Require within any AO zone on the community's FIRM that all new 
construction and substantial improvements of residential structures have 
the lowest floor (including basement) elevated above the highest 
adjacent grade at least as high as the depth number specified in feet on 
the community's FIRM (at least two feet if no depth number is 
specified);
    (8) Require within any AO zone on the community's FIRM that all new 
construction and substantial improvements of nonresidential structures 
(i) have the lowest floor (including basement) elevated above the 
highest adjacent grade at least as high as the depth number specified in 
feet on the community's FIRM (at least two feet if no depth number is 
specified), or (ii) together with attendant utility and sanitary 
facilities be completely floodproofed to that level to meet the 
floodproofing standard specified in Sec. 60.3(c)(3)(ii);
    (9) Require within any A99 zones on a community's FIRM the standards 
of paragraphs (a)(1) through (a)(4)(i) and (b)(5) through (b)(9) of this 
section;
    (10) Require until a regulatory floodway is designated, that no new 
construction, substantial improvements, or other development (including 
fill) shall be permitted within Zones A1-30 and AE on the community's 
FIRM, unless it is demonstrated that the cumulative effect of the 
proposed development, when combined with all other existing and 
anticipated development, will not increase the water surface elevation 
of the base flood more than one foot at any point within the community.
    (11) Require within Zones AH and AO, adequate drainage paths around 
structures on slopes, to guide floodwaters around and away from proposed 
structures.
    (12) Require that manufactured homes to be placed or substantially 
improved on sites in an existing manufactured home park or subdivision 
within Zones A-1-30, AH, and AE on the community's FIRM that are not 
subject to the provisions of paragraph (c)(6) of this section be 
elevated so that either
    (i) The lowest floor of the manufactured home is at or above the 
base flood elevation, or
    (ii) The manufactured home chassis is supported by reinforced piers 
or other foundation elements of at least equivalent strength that are no 
less than 36 inches in height above grade and be securely anchored to an 
adequately anchored foundation system to resist floatation, collapse, 
and lateral movement.
    (13) Notwithstanding any other provisions of Sec. 60.3, a community 
may approve certain development in Zones Al-30, AE, and AH, on the 
community's FIRM which increase the water surface elevation of the base 
flood by more than one foot, provided that the community first applies 
for a conditional FIRM revision, fulfills the requirements for such a 
revision as established under the provisions of Sec. 65.12, and 
receives the approval of the Administrator.
    (14) Require that recreational vehicles placed on sites within Zones 
A1-30, AH, and AE on the community's FIRM either
    (i) Be on the site for fewer than 180 consecutive days,
    (ii) Be fully licensed and ready for highway use, or
    (iii) Meet the permit requirements of paragraph (b)(1) of this 
section and the

[[Page 256]]

elevation and anchoring requirements for ``manufactured homes'' in 
paragraph (c)(6) of this section.

A recreational vehicle is ready for highway use if it is on its wheels 
or jacking system, is attached to the site only by quick disconnect type 
utilities and security devices, and has no permanently attached 
additions.
    (d) When the Administrator has provided a notice of final base flood 
elevations within Zones A1-30 and/or AE on the community's FIRM and, if 
appropriate, has designated AO zones, AH zones, A99 zones, and A zones 
on the community's FIRM, and has provided data from which the community 
shall designate its regulatory floodway, the community shall:
    (1) Meet the requirements of paragraphs (c) (1) through (14) of this 
section;
    (2) Select and adopt a regulatory floodway based on the principle 
that the area chosen for the regulatory floodway must be designed to 
carry the waters of the base flood, without increasing the water surface 
elevation of that flood more than one foot at any point;
    (3) Prohibit encroachments, including fill, new construction, 
substantial improvements, and other development within the adopted 
regulatory floodway unless it has been demonstrated through hydrologic 
and hydraulic analyses performed in accordance with standard engineering 
practice that the proposed encroachment would not result in any increase 
in flood levels within the community during the occurrence of the base 
flood discharge;
    (4) Notwithstanding any other provisions of Sec. 60.3, a community 
may permit encroachments within the adopted regulatory floodway that 
would result in an increase in base flood elevations, provided that the 
community first applies for a conditional FIRM and floodway revision, 
fulfills the requirements for such revisions as established under the 
provisions of Sec. 65.12, and receives the approval of the 
Administrator.
    (e) When the Administrator has provided a notice of final base flood 
elevations within Zones A1-30 and/or AE on the community's FIRM and, if 
appropriate, has designated AH zones, AO zones, A99 zones, and A zones 
on the community's FIRM, and has identified on the community's FIRM 
coastal high hazard areas by designating Zones V1-30, VE, and/or V, the 
community shall:
    (1) Meet the requirements of paragraphs (c)(1) through (14) of this 
section;
    (2) Within Zones V1-30, VE, and V on a community's FIRM, (i ) obtain 
the elevation (in relation to mean sea level) of the bottom of the 
lowest structural member of the lowest floor (excluding pilings and 
columns) of all new and substantially improved structures, and whether 
or not such structures contain a basement, and (ii) maintain a record of 
all such information with the official designated by the community under 
Sec. 59.22(a)(9)(iii);
    (3) Provide that all new construction within Zones V1-30, VE, and V 
on the community's FIRM is located landward of the reach of mean high 
tide;
    (4) Provide that all new construction and substantial improvements 
in Zones V1-30 and VE, and also Zone V if base flood elevation data is 
available, on the community's FIRM, are elevated on pilings and columns 
so that (i) the bottom of the lowest horizontal structural member of the 
lowest floor (excluding the pilings or columns) is elevated to or above 
the base flood level; and (ii) the pile or column foundation and 
structure attached thereto is anchored to resist flotation, collapse and 
lateral movement due to the effects of wind and water loads acting 
simultaneously on all building components. Water loading values used 
shall be those associated with the base flood. Wind loading values used 
shall be those required by applicable State or local building standards. 
A registered professional engineer or architect shall develop or review 
the structural design, specifications and plans for the construction, 
and shall certify that the design and methods of construction to be used 
are in accordance with accepted standards of practice for meeting the 
provisions of paragraphs (e)(4) (i) and (ii) of this section.
    (5) Provide that all new construction and substantial improvements 
within Zones V1-30, VE, and V on the community's FIRM have the space 
below the

[[Page 257]]

lowest floor either free of obstruction or constructed with non-
supporting breakaway walls, open wood lattice-work, or insect screening 
intended to collapse under wind and water loads without causing 
collapse, displacement, or other structural damage to the elevated 
portion of the building or supporting foundation system. For the 
purposes of this section, a breakway wall shall have a design safe 
loading resistance of not less than 10 and no more than 20 pounds per 
square foot. Use of breakway walls which exceed a design safe loading 
resistance of 20 pounds per square foot (either by design or when so 
required by local or State codes) may be permitted only if a registered 
professional engineer or architect certifies that the designs proposed 
meet the following conditions:
    (i) Breakaway wall collapse shall result from a water load less than 
that which would occur during the base flood; and,
    (ii) The elevated portion of the building and supporting foundation 
system shall not be subject to collapse, displacement, or other 
structural damage due to the effects of wind and water loads acting 
simultaneously on all building components (structural and non-
structural). Water loading values used shall be those associated with 
the base flood. Wind loading values used shall be those required by 
applicable State or local building standards.

Such enclosed space shall be useable solely for parking of vehicles, 
building access, or storage.
    (6) Prohibit the use of fill for structural support of buildings 
within Zones V1-30, VE, and V on the community's FIRM;
    (7) Prohibit man-made alteration of sand dunes and mangrove stands 
within Zones V1-30, VE, and V on the community's FIRM which would 
increase potential flood damage.
    (8) Require that manufactured homes placed or substantially improved 
within Zones V1-30, V, and VE on the community's FIRM on sites
    (i) Outside of a manufactured home park or subdivision,
    (ii) In a new manufactured home park or subdivision,
    (iii) In an expansion to an existing manufactured home park or 
subdivision, or
    (iv) In an existing manufactured home park or subdivision on which a 
manufactured home has incurred ``substantial damage'' as the result of a 
flood, meet the standards of paragraphs (e)(2) through (7) of this 
section and that manufactured homes placed or substantially improved on 
other sites in an existing manufactured home park or subdivision within 
Zones VI-30, V, and VE on the community's FIRM meet the requirements of 
paragraph (c)(12) of this section.
    (9) Require that recreational vehicles placed on sites within Zones 
V1-30, V, and VE on the community's FIRM either
    (i) Be on the site for fewer than 180 consecutive days,
    (ii) Be fully licensed and ready for highway use, or
    (iii) Meet the requirements in paragraphs (b)(1) and (e) (2) through 
(7) of this section.

A recreational vehicle is ready for highway use if it is on its wheels 
or jacking system, is attached to the site only by quick disconnect type 
utilities and security devices, and has no permanently attached 
additions.
    (f) When the Administrator has provided a notice of final base flood 
elevations within Zones A1-30 or AE on the community's FIRM, and, if 
appropriate, has designated AH zones, AO zones, A99 zones, and A zones 
on the community's FIRM, and has identified flood protection restoration 
areas by designating Zones AR, AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A, 
the community shall:
    (1) Meet the requirements of paragraphs (c)(1) through (14) and 
(d)(1) through (4) of this section.
    (2) Adopt the official map or legal description of those areas 
within Zones AR, AR/A1-30, AR/AE, AR/AH, AR/A, or AR/AO that are 
designated developed areas as defined in Sec. 59.1 in accordance with 
the eligibility procedures under Sec. 65.14.
    (3) For all new construction of structures in areas within Zone AR 
that are designated as developed areas and in other areas within Zone AR 
where the AR flood depth is 5 feet or less:

[[Page 258]]

    (i) Determine the lower of either the AR base flood elevation or the 
elevation that is 3 feet above highest adjacent grade; and
    (ii) Using this elevation, require the standards of paragraphs 
(c)(1) through (14) of this section.
    (4) For all new construction of structures in those areas within 
Zone AR that are not designated as developed areas where the AR flood 
depth is greater than 5 feet:
    (i) Determine the AR base flood elevation; and
    (ii) Using that elevation require the standards of paragraphs (c)(1) 
through (14) of this section.
    (5) For all new construction of structures in areas within Zone AR/
A1-30, AR/AE, AR/AH, AR/AO, and AR/A:
    (i) Determine the applicable elevation for Zone AR from paragraphs 
(a)(3) and (4) of this section;
    (ii) Determine the base flood elevation or flood depth for the 
underlying A1-30, AE, AH, AO and A Zone; and
    (iii) Using the higher elevation from paragraphs (a)(5)(i) and (ii) 
of this section require the standards of paragraphs (c)(1) through (14) 
of this section.
    (6) For all substantial improvements to existing construction within 
Zones AR/A1-30, AR/AE, AR/AH, AR/AO, and AR/A:
    (i) Determine the A1-30 or AE, AH, AO, or A Zone base flood 
elevation; and
    (ii) Using this elevation apply the requirements of paragraphs 
(c)(1) through (14) of this section.
    (7) Notify the permit applicant that the area has been designated as 
an AR, AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A Zone and whether the 
structure will be elevated or protected to or above the AR base flood 
elevation.

[41 FR 46975, Oct. 26, 1976]

    Editorial Note: For Federal Register citations affecting Sec. 60.3, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 60.4  Flood plain management criteria for mudslide 
(i.e., mudflow)-prone areas.

    The Administrator will provide the data upon which flood plain 
management regulations shall be based. If the Administrator has not 
provided sufficient data to furnish a basis for these regulations in a 
particular community, the community shall obtain, review, and reasonably 
utilize data available from other Federal, State or other sources 
pending receipt of data from the Administrator. However, when special 
mudslide (i.e., mudflow) hazard area designations have been furnished by 
the Administrator, they shall apply. The symbols defining such special 
mudslide (i.e., mudflow) hazard designations are set forth in Sec. 64.3 
of this subchapter. In all cases, the minimum requirements for mudslide 
(i.e., mudflow)-prone areas adopted by a particular community depend on 
the amount of technical data provided to the community by the 
Administrator. Minimum standards for communities are as follows:
    (a) When the Administrator has not yet identified any area within 
the community as an area having special mudslide (i.e., mudflow) 
hazards, but the community has indicated the presence of such hazards by 
submitting an application to participate in the Program, the community 
shall
    (1) Require permits for all proposed construction or other 
development in the community so that it may determine whether 
development is proposed within mudslide (i.e., mudflow)-prone areas;
    (2) Require review of each permit application to determine whether 
the proposed site and improvements will be reasonably safe from 
mudslides (i.e., mudflows). Factors to be considered in making such a 
determination should include but not be limited to (i) the type and 
quality of soils, (ii) any evidence of ground water or surface water 
problems, (iii) the depth and quality of any fill, (iv) the overall 
slope of the site, and (v) the weight that any proposed structure will 
impose on the slope;
    (3) Require, if a proposed site and improvements are in a location 
that may have mudslide (i.e., mudflow) hazards, that (i) a site 
investigation and further review be made by persons qualified in geology 
and soils engineering, (ii) the proposed grading, excavations, new

[[Page 259]]

construction, and substantial improvements are adequately designed and 
protected against mudslide (i.e., mudflow) damages, (iii) the proposed 
grading, excavations, new construction and substantial improvements do 
not aggravate the existing hazard by creating either on-site or off-site 
disturbances, and (iv) drainage, planting, watering, and maintenance be 
such as not to endanger slope stability.
    (b) When the Administrator has delineated Zone M on the community's 
FIRM, the community shall:
    (1) Meet the requirements of paragraph (a) of this section; and
    (2) Adopt and enforce a grading ordinance or regulation in 
accordance with data supplied by the Administrator which (i) regulates 
the location of foundation systems and utility systems of new 
construction and substantial improvements, (ii) regulates the location, 
drainage and maintenance of all excavations, cuts and fills and planted 
slopes, (iii) provides special requirements for protective measures 
including but not necessarily limited to retaining walls, buttress 
fills, sub-drains, diverter terraces, benchings, etc., and (iv) requires 
engineering drawings and specifications to be submitted for all 
corrective measures, accompanied by supporting soils engineering and 
geology reports. Guidance may be obtained from the provisions of the 
1973 edition and any subsequent edition of the Uniform Building Code, 
sections 7001 through 7006, and 7008 through 7015. The Uniform Building 
Code is published by the International Conference of Building Officials, 
50 South Los Robles, Pasadena, California 91101.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 60.5  Flood plain management criteria for flood-related erosion-prone 
areas.

    The Administrator will provide the data upon which flood plain 
management regulations for flood-related erosion-prone areas shall be 
based. If the Administrator has not provided sufficient data to furnish 
a basis for these regulations in a particular community, the community 
shall obtain, review, and reasonably utilize data available from other 
Federal, State or other sources, pending receipt of data from the 
Administrator. However, when special flood-related erosion hazard area 
designations have been furnished by the Administrator they shall apply. 
The symbols defining such special flood-related erosion hazard 
designations are set forth in Sec. 64.3 of this subchapter. In all 
cases the minimum requirements governing the adequacy of the flood plain 
management regulations for flood-related erosion-prone areas adopted by 
a particular community depend on the amount of technical data provided 
to the community by the Administrator. Minimum standards for communities 
are as follows:
    (a) When the Administrator has not yet identified any area within 
the community as having special flood-related erosion hazards, but the 
community has indicated the presence of such hazards by submitting an 
application to participate in the Program, the community shall
    (1) Require the issuance of a permit for all proposed construction, 
or other development in the area of flood-related erosion hazard, as it 
is known to the community;
    (2) Require review of each permit application to determine whether 
the proposed site alterations and improvements will be reasonably safe 
from flood-related erosion and will not cause flood-related erosion 
hazards or otherwise aggravate the existing flood-related erosion 
hazard; and
    (3) If a proposed improvement is found to be in the path of flood-
related erosion or to increase the erosion hazard, require the 
improvement to be relocated or adequate protective measures to be taken 
which will not aggravate the existing erosion hazard.
    (b) When the Administrator has delineated Zone E on the community's 
FIRM, the community shall
    (1) Meet the requirements of paragraph (a) of this section; and
    (2) Require a setback for all new development from the ocean, lake, 
bay, riverfront or other body of water, to create a safety buffer 
consisting of a natural vegetative or contour strip. This buffer will be 
designated by the Administrator according to the flood-related erosion 
hazard and erosion

[[Page 260]]

rate, in conjunction with the anticipated ``useful life'' of structures, 
and depending upon the geologic, hydrologic, topographic and climatic 
characteristics of the community's land. The buffer may be used for 
suitable open space purposes, such as for agricultural, forestry, 
outdoor recreation and wildlife habitat areas, and for other activities 
using temporary and portable structures only.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 60.6  Variances and exceptions.

    (a) The Administrator does not set forth absolute criteria for 
granting variances from the criteria set forth in Sec. Sec. 60.3, 60.4, 
and 60.5. The issuance of a variance is for flood plain management 
purposes only. Insurance premium rates are determined by statute 
according to actuarial risk and will not be modified by the granting of 
a variance. The community, after examining the applicant's hardships, 
shall approve or disapprove a request. While the granting of variances 
generally is limited to a lot size less than one-half acre (as set forth 
in paragraph (a)(2) of this section), deviations from that limitation 
may occur. However, as the lot size increases beyond one-half acre, the 
technical justification required for issuing a variance increases. The 
Administrator may review a community's findings justifying the granting 
of variances, and if that review indicates a pattern inconsistent with 
the objectives of sound flood plain management, the Administrator may 
take appropriate action under Sec. 59.24(b) of this subchapter. 
Variances may be issued for the repair or rehabilitation of historic 
structures upon a determination that the proposed repair or 
rehabilitation will not preclude the structure's continued designation 
as a historic structure and the variance is the minimum necessary to 
preserve the historic character and design of the structure. Procedures 
for the granting of variances by a community are as follows:
    (1) Variances shall not be issued by a community within any 
designated regulatory floodway if any increase in flood levels during 
the base flood discharge would result;
    (2) Variances may be issued by a community for new construction and 
substantial improvements to be erected on a lot of one-half acre or less 
in size contiguous to and surrounded by lots with existing structures 
constructed below the base flood level, in conformance with the 
procedures of paragraphs (a) (3), (4), (5) and (6) of this section;
    (3) Variances shall only be issued by a community upon (i) a showing 
of good and sufficient cause, (ii) a determination that failure to grant 
the variance would result in exceptional hardship to the applicant, and 
(iii) a determination that the granting of a variance will not result in 
increased flood heights, additional threats to public safety, 
extraordinary public expense, create nuisances, cause fraud on or 
victimization of the public, or conflict with existing local laws or 
ordinances;
    (4) Variances shall only be issued upon a determination that the 
variance is the minimum necessary, considering the flood hazard, to 
afford relief;
    (5) A community shall notify the applicant in writing over the 
signature of a community official that (i) the issuance of a variance to 
construct a structure below the base flood level will result in 
increased premium rates for flood insurance up to amounts as high as $25 
for $100 of insurance coverage and (ii) such construction below the base 
flood level increases risks to life and property. Such notification 
shall be maintained with a record of all variance actions as required in 
paragraph (a)(6) of this section; and
    (6) A community shall (i) maintain a record of all variance actions, 
including justification for their issuance, and (ii) report such 
variances issued in its annual or biennial report submitted to the 
Administrator.
    (7) Variances may be issued by a community for new construction and 
substantial improvements and for other development necessary for the 
conduct of a functionally dependent use provided that (i) the criteria 
of paragraphs (a)(1) through (a)(4) of this section are met, and (ii) 
the structure or other development is protected by methods that minimize 
flood damages

[[Page 261]]

during the base flood and create no additional threats to public safety.
    (b)(1) The requirement that each flood-prone, mudslide (i.e., 
mudflow)-prone, and flood-related erosion prone community must adopt and 
submit adequate flood plain management regulations as a condition of 
initial and continued flood insurance eligibility is statutory and 
cannot be waived, and such regulations shall be adopted by a community 
within the time periods specified in Sec. Sec. 60.3, 60.4 or Sec. 
60.5. However, certain exceptions from the standards contained in this 
subpart may be permitted where the Administrator recognizes that, 
because of extraordinary circumstances, local conditions may render the 
application of certain standards the cause for severe hardship and gross 
inequity for a particular community. Consequently, a community proposing 
the adoption of flood plain management regulations which vary from the 
standards set forth in Sec. Sec. 60.3, 60.4, or Sec. 60.5, shall 
explain in writing to the Administrator the nature and extent of and the 
reasons for the exception request and shall include sufficient 
supporting economic, environmental, topographic, hydrologic, and other 
scientific and technical data, and data with respect to the impact on 
public safety and the environment.
    (2) The Administrator shall prepare a Special Environmental 
Clearance to determine whether the proposal for an exception under 
paragraph (b)(1) of this section will have significant impact on the 
human environment. The decision whether an Environmental Impact 
Statement or other environmental document will be prepared, will be made 
in accordance with the procedures set out in 44 CFR part 10. Ninety or 
more days may be required for an environmental quality clearance if the 
proposed exception will have significant impact on the human environment 
thereby requiring an EIS.
    (c) A community may propose flood plain management measures which 
adopt standards for floodproofed residential basements below the base 
flood level in zones A1-30, AH, AO, and AE which are not subject to 
tidal flooding. Nothwithstanding the requirements of paragraph (b) of 
this section the Administrator may approve the proposal provided that:
    (1) The community has demonstrated that areas of special flood 
hazard in which basements will be permitted are subject to shallow and 
low velocity flooding and that there is adequate flood warning time to 
ensure that all residents are notified of impending floods. For the 
purposes of this paragraph flood characteristics must include:
    (i) Flood depths that are five feet or less for developable lots 
that are contiguous to land above the base flood level and three feet or 
less for other lots;
    (ii) Flood velocities that are five feet per second or less; and
    (iii) Flood warning times that are 12 hours or greater. Flood 
warning times of two hours or greater may be approved if the community 
demonstrates that it has a flood warning system and emergency plan in 
operation that is adequate to ensure safe evacuation of flood plain 
residents.
    (2) The community has adopted flood plain management measures that 
require that new construction and substantial improvements of 
residential structures with basements in zones A1-30, AH, AO, and AE 
shall:
    (i) Be designed and built so that any basement area, together with 
attendant utilities and sanitary facilities below the floodproofed 
design level, is watertight with walls that are impermeable to the 
passage of water without human intervention. Basement walls shall be 
built with the capacity to resist hydrostatic and hydrodynamic loads and 
the effects of buoyancy resulting from flooding to the floodproofed 
design level, and shall be designed so that minimal damage will occur 
from floods that exceed that level. The floodproofed design level shall 
be an elevation one foot above the level of the base flood where the 
difference between the base flood and the 500-year flood is three feet 
or less and two feet above the level of the base flood where the 
difference is greater than three feet.
    (ii) Have the top of the floor of any basement area no lower than 
five feet below the elevation of the base flood;

[[Page 262]]

    (iii) Have the area surrounding the structure on all sides filled to 
or above the elevation of the base flood. Fill must be compacted with 
slopes protected by vegetative cover;
    (iv) Have a registered professional engineer or architect develop or 
review the building's structual design, specifications, and plans, 
including consideration of the depth, velocity, and duration of flooding 
and type and permeability of soils at the building site, and certify 
that the basement design and methods of construction proposed are in 
accordance with accepted standards of practice for meeting the 
provisions of this paragraph;
    (v) Be inspected by the building inspector or other authorized 
representative of the community to verify that the structure is built 
according to its design and those provisions of this section which are 
verifiable.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 
1984; 50 FR 36025, Sept. 4, 1985; 51 FR 30308, Aug. 25, 1986; 54 FR 
33550, Aug. 15, 1989]



Sec. 60.7  Revisions of criteria for flood plain management regulations.

    From time to time part 60 may be revised as experience is acquired 
under the Program and new information becomes available. Communities 
will be given six months from the effective date of any new regulation 
to revise their flood plain management regulations to comply with any 
such changes.



Sec. 60.8  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.



   Subpart B_Requirements for State Flood Plain Management Regulations



Sec. 60.11  Purpose of this subpart.

    (a) A State is considered a ``community'' pursuant to Sec. 59.1 of 
this subchapter; and, accordingly, the Act provides that flood insurance 
shall not be sold or renewed under the Program unless a community has 
adopted adequate flood plain management regulations consistent with 
criteria established by the Administrator.
    (b) This subpart sets forth the flood plain management criteria 
required for State-owned properties located within special hazard areas 
identified by the Administrator. A State shall satisfy such criteria as 
a condition to the purchase of a Standard Flood Insurance Policy for a 
State-owned structure or its contents, or as a condition to the approval 
by the Administrator, pursuant to part 75 of this subchapter, of its 
plan of self-insurance.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 60.12  Flood plain management criteria for State-owned properties 
in special hazard areas.

    (a) The State shall comply with the minimum flood plain management 
criteria set forth in Sec. Sec. 60.3, 60.4, and 60.5. A State either 
shall:
    (1) Comply with the flood plain management requirements of all local 
communities participating in the program in which State-owned properties 
are located; or
    (2) Establish and enforce flood plain management regulations which, 
at a minimum, satisfy the criteria set forth in Sec. Sec. 60.3, 60.4, 
and 60.5.
    (b) The procedures by which a state government adopts and 
administers flood plain management regulations satisfying the criteria 
set forth in Sec. Sec. 60.3, 60.4 and 60.5 may vary from the procedures 
by which local governments satisfy the criteria.
    (c) If any State-owned property is located in a non-participating 
local community, then the State shall comply with the requirements of 
paragraph (a)(2) of this section for the property.



Sec. 60.13  Noncompliance.

    If a State fails to submit adequate flood plain management 
regulations applicable to State-owned properties pursuant to Sec. 60.12 
within six months of the effective date of this regulation, or fails to 
adequately enforce such regulations, the State shall be subject to 
suspensive action pursuant to Sec. 59.24.

[[Page 263]]

Where the State fails to adequately enforce its flood plain management 
regulations, the Administrator shall conduct a hearing before initiating 
such suspensive action.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



 Subpart C_Additional Considerations in Managing Flood-Prone, Mudslide 
       (i.e., Mudflow)-Prone and Flood-Related Erosion-Prone Areas



Sec. 60.21  Purpose of this subpart.

    The purpose of this subpart is to encourage the formation and 
adoption of overall comprehensive management plans for flood-prone, 
mudslide (i.e., mudflow)-prone and flood-related erosion-prone areas. 
While adoption by a community of the standards in this subpart is not 
mandatory, the community shall completely evaluate these standards.



Sec. 60.22  Planning considerations for flood-prone areas.

    (a) The flood plain management regulations adopted by a community 
for flood-prone areas should:
    (1) Permit only that development of flood-prone areas which (i) is 
appropriate in light of the probability of flood damage and the need to 
reduce flood losses, (ii) is an acceptable social and economic use of 
the land in relation to the hazards involved, and (iii) does not 
increase the danger to human life;
    (2) Prohibit nonessential or improper installation of public 
utilities and public facilities in flood-prone areas.
    (b) In formulating community development goals after the occurrence 
of a flood disaster, each community shall consider--
    (1) Preservation of the flood-prone areas for open space purposes;
    (2) Relocation of occupants away from flood-prone areas;
    (3) Acquisition of land or land development rights for public 
purposes consistent with a policy of minimization of future property 
losses;
    (4) Acquisition of frequently flood-damaged structures;
    (c) In formulating community development goals and in adopting flood 
plain management regulations, each community shall consider at least the 
following factors--
    (1) Human safety;
    (2) Diversion of development to areas safe from flooding in light of 
the need to reduce flood damages and in light of the need to prevent 
environmentally incompatible flood plain use;
    (3) Full disclosure to all prospective and interested parties 
(including but not limited to purchasers and renters) that (i) certain 
structures are located within flood-prone areas, (ii) variances have 
been granted for certain structures located within flood-prone areas, 
and (iii) premium rates applied to new structures built at elevations 
below the base flood substantially increase as the elevation decreases;
    (4) Adverse effects of flood plain development on existing 
development;
    (5) Encouragement of floodproofing to reduce flood damage;
    (6) Flood warning and emergency preparedness plans;
    (7) Provision for alternative vehicular access and escape routes 
when normal routes are blocked or destroyed by flooding;
    (8) Establishment of minimum floodproofing and access requirements 
for schools, hospitals, nursing homes, orphanages, penal institutions, 
fire stations, police stations, communications centers, water and sewage 
pumping stations, and other public or quasi-public facilities already 
located in the flood-prone area, to enable them to withstand flood 
damage, and to facilitate emergency operations;
    (9) Improvement of local drainage to control increased runoff that 
might increase the danger of flooding to other properties;
    (10) Coordination of plans with neighboring community's flood plain 
management programs;
    (11) The requirement that all new construction and substantial 
improvements in areas subject to subsidence be elevated above the base 
flood level equal to expected subsidence for at least a ten year period;
    (12) For riverine areas, requiring subdividers to furnish 
delineations for

[[Page 264]]

floodways before approving a subdivision;
    (13) Prohibition of any alteration or relocation of a watercourse, 
except as part of an overall drainage basin plan. In the event of an 
overall drainage basin plan, provide that the flood carrying capacity 
within the altered or relocated portion of the watercourse is 
maintained;
    (14) Requirement of setbacks for new construction within Zones V1-
30, VE, and V on a community's FIRM;
    (15) Requirement of additional elevation above the base flood level 
for all new construction and substantial improvements within Zones A1-
30, AE, V1-30, and VE on the community's FIRM to protect against such 
occurrences as wave wash and floating debris, to provide an added margin 
of safety against floods having a magnitude greater than the base flood, 
or to compensate for future urban development;
    (16) Requirement of consistency between state, regional and local 
comprehensive plans and flood plain management programs;
    (17) Requirement of pilings or columns rather than fill, for the 
elevation of structures within flood-prone areas, in order to maintain 
the storage capacity of the flood plain and to minimize the potential 
for negative impacts to sensitive ecological areas;
    (18) Prohibition, within any floodway or coastal high hazard area, 
of plants or facilities in which hazardous substances are manufactured.
    (19) Requirement that a plan for evacuating residents of all 
manufactured home parks or subdivisions located within flood prone areas 
be developed and filed with and approved by appropriate community 
emergency management authorities.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 50 FR 36025, Sept. 4, 1985; 54 FR 40284, Sept. 29, 1989]



Sec. 60.23  Planning considerations for mud slide (i.e., mudflow)-prone 
areas.

    The planning process for communities identified under part 65 of 
this subchapter as containing Zone M, or which indicate in their 
applications for flood insurance pursuant to Sec. 59.22 of this 
subchapter that they have mudslide (i.e., mudflow) areas, should 
include--
    (a) The existence and extent of the hazard;
    (b) The potential effects of inappropriate hillside development, 
including
    (1) Loss of life and personal injuries, and
    (2) Public and private property losses, costs, liabilities, and 
exposures resulting from potential mudslide (i.e., mudflow) hazards;
    (c) The means of avoiding the hazard including the (1) availability 
of land which is not mudslide (i.e., mudflow)-prone and the feasibility 
of developing such land instead of further encroaching upon mudslide 
(i.e., mudflow) areas, (2) possibility of public acquisition of land, 
easements, and development rights to assure the proper development of 
hillsides, and (3) advisability of preserving mudslide (i.e., mudflow) 
areas as open space;
    (d) The means of adjusting to the hazard, including the (1) 
establishment by ordinance of site exploration, investigation, design, 
grading, construction, filing, compacting, foundation, sewerage, 
drainage, subdrainage, planting, inspection and maintenance standards 
and requirements that promote proper land use, and (2) provision for 
proper drainage and subdrainage on public property and the location of 
public utilities and service facilities, such as sewer, water, gas and 
electrical systems and streets in a manner designed to minimize exposure 
to mudslide (i.e., mudflow) hazards and prevent their aggravation;
    (e) Coordination of land use, sewer, and drainage regulations and 
ordinances with fire prevention, flood plain, mudslide (i.e., mudflow), 
soil, land, and water regulation in neighboring communities;
    (f) Planning subdivisions and other developments in such a manner as 
to avoid exposure to mudslide (i.e., mudflow) hazards and the control of 
public facility and utility extension to discourage inappropriate 
development;
    (g) Public facility location and design requirements with higher 
site stability and access standards for schools, hospitals, nursing 
homes, orphanages,

[[Page 265]]

correctional and other residential institutions, fire and police 
stations, communication centers, electric power transformers and 
substations, water and sewer pumping stations and any other public or 
quasi-public institutions located in the mudslide (i.e., mudflow) area 
to enable them to withstand mudslide (i.e., mudflow) damage and to 
facilitate emergency operations; and
    (h) Provision for emergencies, including:
    (1) Warning, evacuation, abatement, and access procedures in the 
event of mudslide (i.e., mudflow),
    (2) Enactment of public measures and initiation of private 
procedures to limit danger and damage from continued or future mudslides 
(i.e., mudflow),
    (3) Fire prevention procedures in the event of the rupture of gas or 
electrical distribution systems by mudslides,
    (4) Provisions to avoid contamination of water conduits or 
deterioration of slope stability by the rupture of such systems,
    (5) Similar provisions for sewers which in the event of rupture pose 
both health and site stability hazards and
    (6) Provisions for alternative vehicular access and escape routes 
when normal routes are blocked or destroyed by mudslides (i.e., 
mudflow);
    (i) The means for assuring consistency between state, areawide, and 
local comprehensive plans with the plans developed for mudslide (i.e., 
mudflow)-prone areas;
    (j) Deterring the nonessential installation of public utilities and 
public facilities in mudslide (i.e., mudflow)-prone areas.



Sec. 60.24  Planning considerations for flood-related erosion-prone areas.

    The planning process for communities identified under part 65 of 
this subchapter as containing Zone E or which indicate in their 
applications for flood insurance coverage pursuant to Sec. 59.22 of 
this subchapter that they have flood-related erosion areas should 
include--
    (a) The importance of directing future developments to areas not 
exposed to flood-related erosion;
    (b) The possibility of reserving flood-related erosion-prone areas 
for open space purposes;
    (c) The coordination of all planning for the flood-related erosion-
prone areas with planning at the State and Regional levels, and with 
planning at the level of neighboring communities;
    (d) Preventive action in E zones, including setbacks, shore 
protection works, relocating structures in the path of flood-related 
erosion, and community acquisition of flood-related erosion-prone 
properties for public purposes;
    (e) Consistency of plans for flood-related erosion-prone areas with 
comprehensive plans at the state, regional and local levels.



Sec. 60.25  Designation, duties, and responsibilities of State Coordinating 
Agencies.

    (a) States are encouraged to demonstrate a commitment to the minimum 
flood plain management criteria set forth in Sec. Sec. 60.3, 60.4, and 
60.5 as evidenced by the designation of an agency of State government to 
be responsible for coordinating the Program aspects of flood plain 
management in the State.
    (b) State participation in furthering the objectives of this part 
shall include maintaining capability to perform the appropriate duties 
and responsibilities as follows:
    (1) Enact, whenever necessary, legislation enabling counties and 
municipalities to regulate development within flood-prone areas;
    (2) Encourage and assist communities in qualifying for participation 
in the Program;
    (3) Guide and assist county and municipal public bodies and agencies 
in developing, implementing, and maintaining local flood plain 
management regulations;
    (4) Provide local governments and the general public with Program 
information on the coordination of local activities with Federal and 
State requirements for managing flood-prone areas;
    (5) Assist communities in disseminating information on minimum 
elevation requirements for development within flood-prone areas;

[[Page 266]]

    (6) Assist in the delineation of riverine and coastal flood-prone 
areas, whenever possible, and provide all relevant technical information 
to the Administrator;
    (7) Recommend priorities for Federal flood plain management 
activities in relation to the needs of county and municipal localities 
within the State;
    (8) Provide notification to the Administrator in the event of 
apparent irreconcilable differences between a community's local flood 
plain management program and the minimum requirements of the Program;
    (9) Establish minimum State flood plain management regulatory 
standards consistent with those established in this part and in 
conformance with other Federal and State environmental and water 
pollution standards for the prevention of pollution during periods of 
flooding;
    (10) Assure coordination and consistency of flood plain management 
activities with other State, areawide, and local planning and 
enforcement agencies;
    (11) Assist in the identification and implementation of flood hazard 
mitigation recommendations which are consistent with the minimum flood 
plain management criteria for the Program;
    (12) Participate in flood plain management training opportunities 
and other flood hazard preparedness programs whenever practicable.
    (c) Other duties and responsibilities, which may be deemed 
appropriate by the State and which are to be officially designated as 
being conducted in the capacity of the State Coordinating Agency for the 
Program, may be carried out with prior notification of the 
Administrator.
    (d) For States which have demonstrated a commitment to and 
experience in application of the minimum flood plain management criteria 
set forth in Sec. Sec. 60.3, 60.4, and 60.5 as evidenced by the 
establishment and implementation of programs which substantially 
encompass the activities described in paragraphs (a), (b), and (c) of 
this section, the Administrator shall take the foregoing into account 
when:
    (1) Considering State recommendations prior to implementing Program 
activities affecting State communities;
    (2) Considering State approval or certifications of local flood 
plain management regulations as meeting the requirements of this part.

[51 FR 30309, Aug. 25, 1986]



Sec. 60.26  Local coordination.

    (a) Local flood plain, mudslide (i.e., mudflow) and flood-related 
erosion area management, forecasting, emergency preparedness, and damage 
abatement programs should be coordinated with relevant Federal, State, 
and regional programs;
    (b) A community adopting flood plain management regulations pursuant 
to these criteria should coordinate with the appropriate State agency to 
promote public acceptance and use of effective flood plain, mudslide, 
(i.e., mudflow) and flood-related erosion regulations;
    (c) A community should notify adjacent communities prior to 
substantial commercial developments and large subdivisions to be 
undertaken in areas having special flood, mudslide (i.e., mudflow) and/
or flood-related erosion hazards.



PART 61_INSURANCE COVERAGE AND RATES--Table of Contents




Sec.
61.1 Purpose of part.
61.2 Definitions.
61.3 Types of coverage.
61.4 Limitations on coverage.
61.5 Special terms and conditions.
61.6 Maximum amounts of coverage available.
61.7 Risk premium rate determinations.
61.8 Applicability of risk premium rates.
61.9 Establishment of chargeable rates.
61.11 Effective date and time of coverage under the Standard Flood 
          Insurance Policy--New Business Applications and Endorsements.
61.12 Rates based on a flood protection system involving Federal funds.
61.13 Standard Flood Insurance Policy.
61.14 Standard Flood Insurance Policy Interpretations.
61.16 Probation additional premium.
61.17 Group Flood Insurance Policy.

Appendix A(1) to Part 61--Federal Emergency Management Agency, Federal 
          Insurance Administration, Standard Flood Insurance Policy
Appendix A(2) to Part 61--Federal Emergency Management Agency, Federal

[[Page 267]]

          Insurance Administration, Standard Flood Insurance Policy
Appendix A(3) to Part 61--Federal Emergency Management Agency, Federal 
          Insurance Administration, Standard Flood Insurance Policy
Appendix A(4) to Part 61--Federal Emergency Management Agency, Federal 
          Insurance Administration, Standard Flood Insurance Policy
Appendix A(5) to Part 61--Federal Emergency Management Agency, Federal 
          Insurance Administration, Standard Flood Insurance Policy
Appendix A(6) to Part 61--Federal Emergency Management Agency, Federal 
          Insurance Administration, Standard Flood Insurance Policy

    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.

    Source: 43 FR 2570, Jan. 17, 1978, unless otherwise noted. 
Redesignated at 44 FR 31177, May 31, 1979.



Sec. 61.1  Purpose of part.

    This part describes the types of properties eligible for flood 
insurance coverage under the Program, the limits of such coverage, and 
the premium rates actually to be paid by insureds. The specific 
communities eligible for coverage are designated by the Administrator 
from time to time as applications are approved under the emergency 
program and as ratemaking studies of communities are completed prior to 
the regular program. Lists of such communities are periodically 
published under part 64 of this subchapter.

[43 FR 2570, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 39068, Aug. 29, 1983; 49 FR 4751, Feb. 8, 1984; 49 
FR 5621, Feb. 14, 1984]



Sec. 61.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.



Sec. 61.3  Types of coverage.

    Insurance coverage under the Program is available for structures and 
their contents. Coverage for each may be purchased separately.

[43 FR 2570, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 39068, Aug. 29, 1983; 50 FR 36025, Sept. 4, 1985; 51 
FR 30309, Aug. 25, 1986; 58 FR 62424, Nov. 26, 1993]



Sec. 61.4  Limitations on coverage.

    All flood insurance made available under the Program is subject:
    (a) To the Act, the Amendments thereto, and the Regulations issued 
under the Act;
    (b) To the terms and conditions of the Standard Flood Insurance 
Policy, which shall be promulgated by the Administrator for substance 
and form, and which is subject to interpretation by the Administrator as 
to scope of coverage pursuant to the applicable statutes and 
regulations;
    (c) To the specified limits of coverage set forth in the Application 
and Declarations page of the policy; and
    (d) To the maximum limits of coverage set forth in Sec. 61.6.

[43 FR 2570, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 39068, Aug. 29, 1983; 50 FR 36025, Sept. 4, 1985; 53 
FR 16277, May 6, 1988; 58 FR 62424, Nov. 26, 1993]



Sec. 61.5  Special terms and conditions.

    (a) No new flood insurance or renewal of flood insurance policies 
shall be written for properties declared by a duly constituted State or 
local zoning or other authority to be in violation of any flood plain, 
mudslide (i.e., mudflow) or flood-related erosion area management or 
control law, regulation, or ordinance.
    (b) In order to reduce the administrative costs of the Program, of 
which the Federal Government pays a major share, payment of the full 
policyholder premium must be made at the time of application.
    (c) Because of the seasonal nature of flooding, refunds of premiums 
upon cancellation of coverage by the insured are permitted only if the 
insurer ceases to have an ownership interest in the covered property at 
the location described in the policy. Refunds of premiums for any other 
reason are subject to the conditions set forth in Sec. 62.5 of this 
subchapter.
    (d) Optional Deductibles, All Zones, are available as follows:

   Category One--1 to 4 Family Building and Contents Coverage Policies
------------------------------------------------------------------------
                    Options                         Building/contents
------------------------------------------------------------------------
                                                               $500/$500

[[Page 268]]

 
                                                             1,000/1,000
                                                             2,000/1,000
                                                             3,000/1,000
                                                             4,000/2,000
                                                             5,000/2,000
------------------------------------------------------------------------


 Category Two--1 to 4 Family Building Coverage Only or Contents Coverage
                              Only Policies
------------------------------------------------------------------------
              Options                    Building         Contents \1\
------------------------------------------------------------------------
                                                 $500               $500
                                                1,000              1,000
                                                2,000              2,000
                                                3,000              3,000
                                                4,000              4,000
                                                5,000              5,000
------------------------------------------------------------------------
\1\ Also applies to residential unit contents in other residential
  building or in multi-unit condominium building.


      Category Three--Other Residential and Nonresidential Policies
------------------------------------------------------------------------
                                                    Single coverage only
          Options              Policy combining        policy (either
                            building and contents  building or contents)
------------------------------------------------------------------------
                                        $500/$500                   $500
                                      1,000/1,000                  1,000
                                      2,000/2,000                  2,000
                                      3,000/3,000                  3,000
                                      4,000/4,000                  4,000
                                      5,000/5,000                  5,000
------------------------------------------------------------------------


        Category Four--Residential Condominium Building Policies
------------------------------------------------------------------------
                                                    Single coverage only
          Options              Policy combining        policy (either
                            building and contents  building or contents)
------------------------------------------------------------------------
                                  $10,000/$10,000                $10,000
                                    25,000/10,000                 25,000
------------------------------------------------------------------------

    Note: Any other combination may be submitted for rating to the NFIP.

    (e) The standard flood insurance policy is authorized only under 
terms and conditions established by Federal statute, the program's 
regulations, the Administrator's interpretations and the express terms 
of the policy itself. Accordingly, representations regarding the extent 
and scope of coverage which are not consistent with the National Flood 
Insurance Act of 1968, as amended, or the Program's regulations, are 
void, and the duly licensed property or casualty agent acts for the 
insured and does not act as agent for the Federal Government, the 
Federal Emergency Management Agency, or the servicing agent.

[43 FR 2570, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 47 FR 19140, May 4, 1982; 48 FR 39068, Aug. 29, 1983; 49 
FR 33656, Aug. 23, 1984; 50 FR 36025, Sept. 4, 1985; 51 FR 30309, Aug. 
25, 1986; 53 FR 16277, May 6, 1988; 53 FR 27991, July 26, 1988; 57 FR 
19541, May 7, 1992; 58 FR 62424, Nov. 26, 1993]



Sec. 61.6  Maximum amounts of coverage available.

    (a) Pursuant to section 1306 of the Act, the following are the 
limits of coverage available under the emergency program and under the 
regular program.

------------------------------------------------------------------------
                                              Regular program
                                  --------------------------------------
                                    Emergency                   Total
                                   program \1\     Second       amount
                                   first layer     layer      available
------------------------------------------------------------------------
    Single Family Residential
 
Except in Hawaii, Alaska, Guam,        $35,000     $215,000     $250,000
 U.S. Virgin Islands.............
In Hawaii, Alaska, Guam, U.S.           50,000      200,000      250,000
 Virgin Islands..................
 
        Other Residential
 
Except in Hawaii, Alaska, Guam,        100,000      150,000      250,000
 U.S. Virgin Islands.............
In Hawaii, Alaska, Guam, U.S.          150,000      100,000      250,000
 Virgin Islands..................
 
          Nonresidential
 
Small business...................      100,000      400,000      500,000
Churches and other properties....      100,000      400,000      500,000
 
           Contents \2\
 
Residential......................       10,000       90,000      100,000
Small business...................      100,000      400,000      500,000
Churches, other properties.......      100,000      400,000      500,000
------------------------------------------------------------------------
\1\ Only first layer available under emergency program.
\2\ Per unit.


[[Page 269]]

    (b) In the insuring of a residential condominium building in a 
regular program community, the maximum limit of building coverage is 
$250,000 times the number of units in the building (not to exceed the 
building's replacement cost).

[60 FR 5585, Jan. 30, 1995]



Sec. 61.7  Risk premium rate determinations.

    (a) Pursuant to section 1307 of the Act, the Administrator is 
authorized to undertake studies and investigations to enable him/her to 
estimate the risk premium rates necessary to provide flood insurance in 
accordance with accepted actuarial principles, including applicable 
operating costs and allowances. Such rates are also referred to in this 
subchapter as ``actuarial rates.''
    (b) The Administrator is also authorized to prescribe by regulation 
the rates which can reasonably be charged to insureds in order to 
encourage them to purchase the flood insurance made available under the 
Program. Such rates are referred to in this subchapter as ``chargeable 
rates.'' For areas having special flood, mudslide (i.e., mudflow), and 
flood-related erosion hazards, chargeable rates are usually lower than 
actuarial rates.



Sec. 61.8  Applicability of risk premium rates.

    Risk premium rates are applicable to all flood insurance made 
available for:
    (a) Any structure, the construction or substantial improvement of 
which was started after December 31, 1974 or on or after the effective 
date of the initial FIRM, whichever is later.
    (b) Coverage which exceeds the following limits:
    (1) For dwelling properties in States other than Alaska, Hawaii, the 
Virgin Islands, and Guam (i) $35,000 aggregate liability for any 
property containing only one unit, (ii) $100,000 for any property 
containing more than one unit, and (iii) $10,000 liability per unit for 
any contents related to such unit.
    (2) For dwelling properties in Alaska, Hawaii, the Virgin Islands, 
and Guam (i) $50,000 aggregate liability for any property containing 
only one unit, (ii) $150,000 for property containing more than one unit, 
and (iii) $10,000 aggregate liability per unit for any contents related 
to such unit.
    (3) For churches and other properties (i) $100,000 for the structure 
and (ii) $100,000 for contents of any such unit.
    (c) Any structure or the contents thereof for which the chargeable 
rates prescribed by this part would exceed the risk premium rates.



Sec. 61.9  Establishment of chargeable rates.

    (a) Under section 1308 of the Act, we are establishing annual 
chargeable rates for each $100 of flood insurance coverage as follows 
for Pre-FIRM, A zone properties, Pre-FIRM, V-zone properties, and 
emergency program properties.

----------------------------------------------------------------------------------------------------------------
                                                  A zone \1\ rates per year  per  V zone \2\ rates per year  per
                                                         $100 coverage on:               $100 coverage on:
                                                 ---------------------------------------------------------------
                                                       structure                       Structure
                Type of structure                ---------------------           ---------------------
                                                    RCBAP \3\                       RCBAP \3\
                                                 --------------  All    Contents --------------  All    Contents
                                                   High   Low   other              High   Low   other
                                                   rise   rise                     rise   rise
----------------------------------------------------------------------------------------------------------------
1. Residential:
    No Basement or Enclosure....................    .85    .70    .76        .96   1.08    .93    .99       1.23
    With Basement or Enclosure..................    .90    .75    .81        .96   1.15   1.00   1.06       1.23
2. All other including hotels and motels with
 normal occupancy of less than 6 months
 duration:
    No Basement or Enclosure....................    N/A    N/A    .83       1.62    N/A    N/A   1.10       2.14
    With Basement or Enclosure..................    N/A    N/A    .88       1.62    N/A    N/A   1.16      2.14
----------------------------------------------------------------------------------------------------------------
\1\ 1 A zones are zones A1-A30, AE, AO, AH, and unnumbered A zones.
\2\ V zones are zones V1-V30, VE, and unnumbered V zones.
\3\ Residential Condominium Building Association Policies (RCBAP) are distinguished between High Rise (those
  structures that have 3 or more floors and 5 or more units) and Low Rise (those structures that have either
  less than 3 floors or less than 5 units).


[[Page 270]]

    (b) We will charge rates for contents in pre-FIRM buildings 
according to the use of the building.
    (c) A-zone rates for buildings without basements or enclosures apply 
uniformly to all buildings throughout emergency program communities.

[64 FR 13116, Mar. 17, 1999, as amended at 67 FR 8905, Feb. 27, 2002; 68 
FR 15668, Apr. 1, 2003]



Sec. 61.11  Effective date and time of coverage under the Standard Flood 
Insurance Policy--New Business Applications and Endorsements.

    (a) During the 13-month period beginning on the effective date of a 
revised Flood Hazard Boundary Map or Flood Insurance Rate Map for a 
community, the effective date and time of any initial flood insurance 
coverage shall be 12:01 a.m. (local time) on the first calendar day 
after the application date and the presentment of payment of premium; 
for example, a flood insurance policy applied for with the payment of 
the premium on May 1 will become effective at 12:01 a.m. on May 2.
    (b) Where the initial purchase of flood insurance is in connection 
with the making, increasing, extension, or renewal of a loan, the 
coverage with respect to the property which is the subject of the loan 
shall be effective as of the time of the loan closing, provided the 
written request for the coverage is received by the NFIP and the flood 
insurance policy is applied for and the presentment of payment of 
premium is made at or prior to the loan closing.
    (c) Except as provided by paragraphs (a) and (b) of this section, 
the effective date and time of any new policy or added coverage or 
increase in the amount of coverage shall be 12:01 a.m. (local time) on 
the 30th calendar day after the application date and the presentment of 
payment of premium; for example, a flood insurance policy applied for 
with the payment of the premium on May 1 will become effective at 12:01 
a.m. on May 31.
    (d) Adding new coverage or increasing the amount of coverage in 
force is permitted during the term of any policy. The additional premium 
for any new coverage or increase in the amount of coverage shall be 
calculated pro rata in accordance with the rates currently in force.
    (e) With respect to any submission of an application in connection 
with new business, the payment by an insured to an agent or the issuance 
of premium payment by the agent, does not constitute payment to the 
NFIP, except where a WYO Company receives an application and premium 
payment from one of its agents and elects to refer the business to the 
NFIP Servicing Agent because the WYO Company does not wish to write the 
business, in which case any applicable waiting period under this section 
shall be calculated in accordance with the first sentence of paragraph 
(f) of this section. Therefore, it is important that an application for 
Flood Insurance and its premium be mailed to the NFIP promptly in order 
to have the effective date of the coverage based on the application date 
plus the waiting period. If the application and the premium payment are 
received at the office of the NFIP within ten (10) days from the date of 
application, the waiting period will be calculated from the date of 
application. Also, as an alternative, in those cases where the 
application and premium payment are mailed by certified mail within four 
(4) days from the date of application, the waiting period will be 
calculated from the date of application even though the application and 
premium payment are received at the office of the NFIP after ten (10) 
days following the date of application. Thus, if the application and 
premium payment are received after ten (10) days from the date of the 
application or are not mailed by certified mail within four (4) days 
from the date of application, the waiting period will be calculated from 
the date of receipt at the office of the NFIP. To determine the 
effective date of any coverage added by endorsement to a flood insurance 
policy already in effect, substitute the term endorsement for the term 
application in this paragraph (e).
    (f) With respect to the submission of an application in connection 
with new business, a renewal of a policy in effect and an endorsement to 
a policy in effect, the payment by an insured to an

[[Page 271]]

agent or the issuance of premium payment to a Write-Your-Own (WYO) 
Company by the agent, accompanied by a properly completed application, 
renewal or endorsement form, as appropriate, shall commence the 
calculation of any applicable waiting period under this section, 
provided that the agent is acting in the capacity of an agent of a 
Write-Your-Own (WYO) Company authorized by 44 CFR 62.23, is under 
written contract to or is an employee of such Company, and such WYO 
Company is, at the time of such submission of an application in 
connection with new business or a renewal of or endorsement to flood 
insurance coverage, engaged in WYO business under an arrangement entered 
into by the Administrator and the WYO Company pursuant to Sec. 62.23.
    (g) Subject to the provisions of paragraph (f) of this section, the 
rules set forth in paragraphs (a), (b), (c), (d) and (e) of this section 
apply to WYO Companies, except that premium payments and accompanying 
applications and endorsements shall be mailed to and received by the WYO 
Company, rather than the NFIP.

[43 FR 50427, Oct. 30, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 46 FR 13514, Feb. 23, 1981; 48 FR 39069, Aug. 29, 1983; 48 
FR 44544, Sept. 29, 1983; 49 FR 33656, Aug. 24, 1984; 50 FR 16242, Apr. 
25, 1985; 50 FR 36026, Sept. 4, 1985; 51 FR 30309, Aug. 25, 1986; 53 FR 
15211, Apr. 28, 1988; 60 FR 5585, 5586, Jan. 30, 1995]



Sec. 61.12  Rates based on a flood protection system involving Federal 
funds.

    (a) Where the Administrator determines that a community has made 
adequate progress on the construction of a flood protection system 
involving Federal funds which will significantly limit the area of 
special flood hazards, the applicable risk premium rates for any 
property, located within a special flood hazard area intended to be 
protected directly by such system will be those risk premium rates which 
would be applicable when the system is complete.
    (b) Adequate progress in paragraph (a) of this section means that 
the community has provided information to the Administrator sufficient 
to determine that substantial completion of the flood protection system 
has been effected because:
    (1) 100 percent of the total financial project cost of the completed 
flood protection system has been authorized;
    (2) At least 60 percent of the total financial project cost of the 
completed flood protection system has been appropriated;
    (3) At least 50 percent of the total financial project cost of the 
completed flood protection system has been expended;
    (4) All critical features of the flood protection system, as 
identified by the Administrator, are under construction, and each 
critical feature is 50 percent completed as measured by the actual 
expenditure of the estimated construction budget funds; and
    (5) The community has not been responsible for any delay in the 
completion of the system.
    (c) Each request by a community for a determination must be 
submitted in writing to the Risk Studies Division, Office of Risk 
Assessment, Federal Insurance Administration, Federal Emergency 
Management Agency, Washington DC, and contain a complete statement of 
all relevant facts relating to the flood protection system, including, 
but not limited to, supporting technical data (e.g., U.S. Army Corps of 
Engineers flood protection project data), cost schedules, budget 
appropriation data and the extent of Federal funding of the system's 
construction. Such facts shall include information sufficient to 
identify all persons affected by such flood protection system or by such 
request: A full and precise statement of intended purposes of the flood 
protection system; and a carefully detailed description of such project, 
including construction completion target dates. In addition, true copies 
of all contracts, agreements, leases, instruments, and other documents 
involved must be submitted with the request. Relevant facts reflected in 
documents, however, must be included in the statement and not merely 
incorporated by reference, and must be accompanied by an analysis of 
their bearing on the requirements of paragraph (b) of this section, 
specifying the pertinent provisions. The request must contain a 
statement whether, to the best

[[Page 272]]

of the knowledge of the person responsible for preparing the application 
for the community, the flood protection system is currently the subject 
matter of litigation before any Federal, State or local court or 
administrative agency, and the purpose of that litigation. The request 
must also contain a statement as to whether the community has previously 
requested a determination with respect to the same subject matter from 
the Administrator, detailing the disposition of such previous request. 
As documents become part of the file and cannot be returned, the 
original documents should not be submitted.
    (d) The effective date for any risk premium rates established under 
this section shall be the date of final determination by the 
Administrator that adequate progress toward completion of a flood 
protection system has been made in a community.
    (e) A responsible official of a community which received a 
determination that adequate progress has been made towards completion of 
a flood protection system shall certify to the Administrator annually on 
the anniversary date of receipt of such determination that no present 
delay in completion of the system is attributable to local sponsors of 
the system, and that a good faith effort is being made to complete the 
project.
    (f) A community for which risk premium rates have been made 
available under section 1307(e) of the National Flood Insurance Act of 
1968, as amended, shall notify the Administrator if, at any time, all 
progress on the completion of the flood protection system has been 
halted or if the project for the completion of the flood protection 
system has been canceled.

[43 FR 2570, Jan. 17, 1978, Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 47 FR 43061 Sept. 30, 1982; 48 FR 39069, Aug. 29, 1983; 48 
FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 51 FR 30310, Aug. 
25, 1986]



Sec. 61.13  Standard Flood Insurance Policy.

    (a) Incorporation of forms. Each of the Standard Flood Insurance 
Policy forms included in appendix ``A'' hereto (General Property, 
Dwelling, and Residential Condominium Building Association) and by 
reference incorporated herein shall be incorporated into the Standard 
Flood Insurance Policy.
    (b) Endorsements. All endorsements to the Standard Flood Insurance 
Policy shall be final upon publication in the Federal Register for 
inclusion in appendix A.
    (c) Applications. The application and renewal application forms 
utilized by the National Flood Insurance Program shall be the only 
application forms used in connection with the Standard Flood Insurance 
Policy.
    (d) Waivers. The Standard Flood Insurance Policy and required 
endorsements must be used in the Flood Insurance Program, and no 
provision of the said documents shall be altered, varied, or waived 
other than by the express written consent of the Administrator through 
the issuance of an appropriate amendatory endorsement, approved by the 
Administrator as to form and substance for uniform use.
    (e) Oral and written binders. No oral binder or contract shall be 
effective. No written binder shall be effective unless issued with 
express authorization of the Administrator.
    (f) The Standard Flood Insurance Policy and endorsements may be 
issued by private sector ``Write-Your-Own'' (WYO) property insurance 
companies, based upon flood insurance applications and renewal forms, 
all of which instruments of flood insurance may bear the name, as 
Insurer, of the issuing WYO Company. In the case of any Standard Flood 
Insurance Policy, and its related forms, issued by a WYO Company, 
wherever the names ``Federal Emergency Management Agency'' and ``Federal 
Insurance Administration'' appear, the WYO Company is authorized to 
substitute its own name therefor. Standard Flood Insurance Policies 
issued by WYO Companies may be executed by the issuing WYO Company as 
Insurer, in the place and stead of the Federal Insurance Administrator.

[43 FR 2570, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 44 FR 62517, Oct. 31, 1979; 48 FR 46791, Oct. 14, 1983; 58 
FR 62424, Nov. 26, 1993]

[[Page 273]]



Sec. 61.14  Standard Flood Insurance Policy Interpretations.

    (a) Definition. A Standard Flood Insurance Policy Interpretation is 
a written determination by the Administrator construing the scope of the 
flood insurance coverage that has been and is provided under the policy.
    (b) Publication and requests for interpretation. The Administrator 
shall, pursuant to these regulations from time to time, issue 
interpretative rulings regarding the provisions of the Standard Flood 
Insurance Policy. Such Interpretations shall be published in the Federal 
Register, made a part of appendix C to these regulations, and 
incorporated by reference as part of these regulations. Any policyholder 
or person in privity with a policyholder may file a request for an 
interpretation in writing with the Federal Insurance Administration, 
Federal Emergency Management Agency, Washington, DC 20472.

[43 FR 2570, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 39072, Aug. 29, 1983]



Sec. 61.16  Probation additional premium.

    The additional premium charged pursuant to Sec. 59.24(b) on each 
policy sold or renewed within a community placed on probation prior to 
October 1, 1992, is $25.00. Where the community was placed on probation 
on or after October 1, 1992, the additional premium charge is $50.00.''.

[50 FR 36026, Sept. 4, 1985, as amended at 57 FR 19541, May 7, 1992]



Sec. 61.17  Group Flood Insurance Policy.

    (a) A Group Flood Insurance Policy (GFIP) is a policy covering all 
individuals named by a State as recipients under section 408 of the 
Stafford Act (42 U.S.C. 5174) of an Individuals and Households Program 
(IHP) award for flood damage as a result of major disaster declaration 
by the President.
    (b) The premium for the GFIP is a flat fee of $600 per insured. We 
may adjust the premium to reflect NFIP loss experience and any 
adjustment of benefits under the IHP program.
    (c) The amount of coverage is equivalent to the maximum grant amount 
established under section 408 of the Stafford Act (42 U.S.C. 5174).
    (d) The term of the GFIP is for 36 months and begins 60 days after 
the date of the disaster declaration.
    (e) Coverage for individual grantees begins on the thirtieth day 
after the NFIP receives the required data for individual grantees and 
their premium payments.
    (f) We will send a Certificate of Flood Insurance to each individual 
insured under the GFIP.
    (g) The GFIP is the Standard Flood Insurance Policy Dwelling Form (a 
copy of which is included in Appendix A(1) of this part), except that:
    (1) VI. DEDUCTIBLES does not apply to the GFIP. A special deductible 
of $200 (applicable separately to any building loss and any contents 
loss) applies to insured flood-damage losses sustained by the insured 
property in the course of any subsequent flooding event during the term 
of the GFIP. The deductible does not apply to:
    (i) III.C.2. Loss Avoidance Measures; or
    (ii) III. C.3. Condominium Loss Assessments coverage.
    (2) VII. GENERAL CONDITIONS, E. Cancellation of Policy by You, does 
not apply to the GFIP.
    (3) VII. GENERAL CONDITIONS, H. Policy Renewal, does not apply to 
the GFIP.
    (h) We will send a notice to the GFIP certificate holders 
approximately 60 days before the end of the thirty-six month term of the 
GFIP. The notice will encourage them to contact a local insurance agent 
or producer or a private insurance company selling NFIP policies under 
the Write Your Own program of the NFIP Standard Flood Insurance Policy, 
and advise them as to the amount of coverage they must maintain in order 
not to jeopardize their eligibility for future disaster assistance. The 
IHP program will provide the NFIP the amount of flood insurance coverage 
to be maintained by certificate holders.

[65 FR 60769, Oct. 12, 2000, as amended at 67 FR 61462, Sept. 30, 2002]

[[Page 274]]

                        Appendix A(1) to Part 61

  Federal Emergency Management Agency, Federal Insurance Administration

                     Standard Flood Insurance Policy

                              DWELLING FORM

    Please read the policy carefully. The flood insurance provided is 
subject to limitations, restrictions, and exclusions. This policy covers 
only:
    1. A non-condominium residential building designed for principal use 
as a dwelling place of one to four families, or
    2. A single family dwelling unit in a condominium building.

                              I. Agreement

    The Federal Emergency Management Agency (FEMA) provides flood 
insurance under the terms of the National Flood Insurance Act of 1968 
and its Amendments, and Title 44 of the Code of Federal Regulations.
    We will pay you for direct physical loss by or from flood to your 
insured property if you:
    1. Have paid the correct premium;
    2. Comply with all terms and conditions of this policy; and
    3. Have furnished accurate information and statements.
    We have the right to review the information you give us at any time 
and to revise your policy based on our review.

                             II. Definitions

    A. In this policy, ``you'' and ``your'' refer to the insured(s) 
shown on the Declarations Page of this policy and your spouse, if a 
resident of the same household. Insured(s) includes: Any mortgagee and 
loss payee named in the Application and Declarations Page, as well as 
any other mortgagee or loss payee determined to exist at the time of 
loss in the order of precedence. ``We,'' ``us,'' and ``our'' refer to 
the insurer.
    Some definitions are complex because they are provided as they 
appear in the law or regulations, or result from court cases. The 
precise definitions are intended to protect you.
    Flood, as used in this flood insurance policy, means:
    1. A general and temporary condition of partial or complete 
inundation of two or more acres of normally dry land area or of two or 
more properties (one of which is your property) from:
    a. Overflow of inland or tidal waters,
    b. Unusual and rapid accumulation or runoff of surface waters from 
any source,
    c. Mudflow.
    2. Collapse or subsidence of land along the shore of a lake or 
similar body of water as a result of erosion or undermining caused by 
waves or currents of water exceeding anticipated cyclical levels that 
result in a flood as defined in A.1.a. above.
    B. The following are the other key definitions we use in this 
policy:
    1. Act. The National Flood Insurance Act of 1968 and any amendments 
to it.
    2. Actual Cash Value. The cost to replace an insured item of 
property at the time of loss, less the value of its physical 
depreciation.
    3. Application. The statement made and signed by you or your agent 
in applying for this policy. The application gives information we use to 
determine the eligibility of the risk, the kind of policy to be issued, 
and the correct premium payment. The application is part of this flood 
insurance policy. For us to issue you a policy, the correct premium 
payment must accompany the application.
    4. Base Flood. A flood having a one percent chance of being equaled 
or exceeded in any given year.
    5. Basement. Any area of the building, including any sunken room or 
sunken portion of a room, having its floor below ground level (subgrade) 
on all sides.
    6. Building.
    a. A structure with two or more outside rigid walls and a fully 
secured roof, that is affixed to a permanent site;
    b. A manufactured home (a ``manufactured home,'' also known as a 
mobile home, is a structure: built on a permanent chassis, transported 
to its site in one or more sections, and affixed to a permanent 
foundation); or
    c. A travel trailer without wheels, built on a chassis and affixed 
to a permanent foundation, that is regulated under the community's 
floodplain management and building ordinances or laws.
    Building does not mean a gas or liquid storage tank or a 
recreational vehicle, park trailer or other similar vehicle, except as 
described in B.6.c. above.
    7. Cancellation. The ending of the insurance coverage provided by 
this policy before the expiration date.
    8. Condominium. That form of ownership of real property in which 
each unit owner has an undivided interest in common elements.
    9. Condominium Association. The entity made up of the unit owners 
responsible for the maintenance and operation of:
    a. Common elements owned in undivided shares by unit owners; and
    b. Other real property in which the unit owners have use rights; 
where membership in the entity is a required condition of unit 
ownership.
    10. Declarations Page. A computer-generated summary of information 
you provided in the application for insurance. The Declarations Page 
also describes the term of the policy, limits of coverage, and displays 
the

[[Page 275]]

premium and our name. The Declarations Page is a part of this flood 
insurance policy.
    11. Described Location. The location where the insured building(s) 
or personal property are found. The described location is shown on the 
Declarations Page.
    12. Direct Physical Loss By or From Flood. Loss or damage to insured 
property, directly caused by a flood. There must be evidence of physical 
changes to the property.
    13. Dwelling. A building designed for use as a residence for no more 
than four families or a single-family unit in a building under a 
condominium form of ownership.
    14. Elevated Building. A building that has no basement and that has 
its lowest elevated floor raised above ground level by foundation walls, 
shear walls, posts, piers, pilings, or columns.
    15. Emergency Program. The initial phase of a community's 
participation in the National Flood Insurance Program. During this 
phase, only limited amounts of insurance are available under the Act.
    16. Expense Constant. A flat charge you must pay on each new or 
renewal policy to defray the expenses of the Federal Government related 
to flood insurance.
    17. Federal Policy Fee. A flat charge you must pay on each new or 
renewal policy to defray certain administrative expenses incurred in 
carrying out the National Flood Insurance Program. This fee covers 
expenses not covered by the Expense Constant.
    18. Improvements. Fixtures, alterations, installations, or additions 
comprising a part of the insured dwelling or the apartment in which you 
reside.
    19. Mudflow. A river of liquid and flowing mud on the surface of 
normally dry land areas, as when earth is carried by a current of water. 
Other earth movements, such as landslide, slope failure, or a saturated 
soil mass moving by liquidity down a slope, are not mudflows.
    20. National Flood Insurance Program (NFIP). The program of flood 
insurance coverage and floodplain management administered under the Act 
and applicable Federal regulations in Title 44 of the Code of Federal 
Regulations, Subchapter B.
    21. Policy. The entire written contract between you and us. It 
includes:
    a. This printed form;
    b. The application and Declarations Page;
    c. Any endorsement(s) that may be issued; and
    d. Any renewal certificate indicating that coverage has been 
instituted for a new policy and new policy term.
    Only one dwelling, which you specifically described in the 
application, may be insured under this policy.
    22. Pollutants. Substances that include, but are not limited to, any 
solid, liquid, gaseous, or thermal irritant or contaminant, including 
smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. 
``Waste'' includes, but is not limited to, materials to be recycled, 
reconditioned, or reclaimed.
    23. Post-FIRM Building. A building for which construction or 
substantial improvement occurred after December 31, 1974, or on or after 
the effective date of an initial Flood Insurance Rate Map (FIRM), 
whichever is later.
    24. Probation Premium. A flat charge you must pay on each new or 
renewal policy issued covering property in a community the NFIP has 
placed on probation under the provisions of 44 CFR 59.24.
    25. Regular Program. The final phase of a community's participation 
in the National Flood Insurance Program. In this phase, a Flood 
Insurance Rate Map is in effect and full limits of coverage are 
available under the Act.
    26. Special Flood Hazard Area. An area having special flood or 
mudflow, and/or flood-related erosion hazards, and shown on a Flood 
Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO, A1-A30, 
AE, A99, AH, AR, AR/A, AR/AE, AR/AH, AR/AO, AR/A1-A30, V1-V30, VE, or V.
    27. Unit. A single-family unit you own in a condominium building.
    28. Valued Policy. A policy in which the insured and the insurer 
agree on the value of the property insured, that value being payable in 
the event of a total loss. The Standard Flood Insurance Policy is not a 
valued policy.

                          III. Property Covered

                    A. Coverage A--Building Property

    We insure against direct physical loss by or from flood to:
    1. The dwelling at the described location, or for a period of 45 
days at another location as set forth in III.C.2.b., Property Removed to 
Safety.
    2. Additions and extensions attached to and in contact with the 
dwelling by means of a rigid exterior wall, a solid load-bearing 
interior wall, a stairway, an elevated walkway, or a roof. At your 
option, additions and extensions connected by any of these methods may 
be separately insured. Additions and extensions attached to and in 
contact with the building by means of a common interior wall that is not 
a solid load-bearing wall are always considered part of the dwelling and 
cannot be separately insured.
    3. A detached garage at the described location. Coverage is limited 
to no more than 10% of the limit of liability on the dwelling. Use of 
this insurance is at your option but reduces the building limit of 
liability. We do not cover any detached garage used or held for use for 
residential (i.e., dwelling), business, or farming purposes.
    4. Materials and supplies to be used for construction, alteration, 
or repair of the

[[Page 276]]

dwelling or a detached garage while the materials and supplies are 
stored in a fully enclosed building at the described location or on an 
adjacent property.
    5. A building under construction, alteration, or repair at the 
described location.
    a. If the structure is not yet walled or roofed as described in the 
definition for building (see II.B.6.a.) then coverage applies:
    (1) Only while such work is in progress; or
    (2) If such work is halted, only for a period of up to 90 continuous 
days thereafter.
    b. However, coverage does not apply until the building is walled and 
roofed if the lowest floor, including the basement floor, of a non-
elevated building or the lowest elevated floor of an elevated building 
is:
    (1) Below the base flood elevation in Zones AH, AE, A1-A30, AR, AR/
AE, AR/AH, AR/A1-A30, AR/A, AR/AO; or
    (2) Below the base flood elevation adjusted to include the effect of 
wave action in Zones VE or V1-V30.
    The lowest floor levels are based on the bottom of the lowest 
horizontal structural member of the floor in Zones VE or V1-V30 and the 
top of the floor in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, 
AR/A, AR/AO.
    6. A manufactured home or a travel trailer as described in the 
Definitions section (see II.B.6.b. and II.B.6.c.).
    If the manufactured home or travel trailer is in a special flood 
hazard area, it must be anchored in the following manner at the time of 
the loss:
    a. By over-the-top or frame ties to ground anchors; or
    b. In accordance with the manufacturer's specifications; or
    c. In compliance with the community's floodplain management 
requirements unless it has been continuously insured by the NFIP at the 
same described location since September 30, 1982.
    7. The following items of property which are covered under Coverage 
A only:
    a. Awnings and canopies;
    b. Blinds;
    c. Built-in dishwashers;
    d. Built-in microwave ovens;
    e. Carpet permanently installed over unfinished flooring;
    f. Central air conditioners;
    g. Elevator equipment;
    h. Fire sprinkler systems;
    i. Walk-in freezers;
    j. Furnaces and radiators;
    k. Garbage disposal units;
    l. Hot water heaters, including solar water heaters;
    m. Light fixtures;
    n. Outdoor antennas and aerials fastened to buildings;
    o. Permanently installed cupboards, bookcases, cabinets, paneling, 
and wallpaper;
    p. Plumbing fixtures;
    q. Pumps and machinery for operating pumps;
    r. Ranges, cooking stoves, and ovens;
    s. Refrigerators; and
    t. Wall mirrors, permanently installed.
    8. Items of property in a building enclosure below the lowest 
elevated floor of an elevated post-FIRM building located in Zones A1-
A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a 
basement, regardless of the zone. Coverage is limited to the following:
    a. Any of the following items, if installed in their functioning 
locations and, if necessary for operation, connected to a power source:
    (1) Central air conditioners;
    (2) Cisterns and the water in them;
    (3) Drywall for walls and ceilings in a basement and the cost of 
labor to nail it, unfinished and unfloated and not taped, to the 
framing;
    (4) Electrical junction and circuit breaker boxes;
    (5) Electrical outlets and switches;
    (6) Elevators, dumbwaiters and related equipment, except for related 
equipment installed below the base flood elevation after September 30, 
1987;
    (7) Fuel tanks and the fuel in them;
    (8) Furnaces and hot water heaters;
    (9) Heat pumps;
    (10) Nonflammable insulation in a basement;
    (11) Pumps and tanks used in solar energy systems;
    (12) Stairways and staircases attached to the building, not 
separated from it by elevated walkways;
    (13) Sump pumps;
    (14) Water softeners and the chemicals in them, water filters, and 
faucets installed as an integral part of the plumbing system;
    (15) Well water tanks and pumps;
    (16) Required utility connections for any item in this list; and
    (17) Footings, foundations, posts, pilings, piers, or other 
foundation walls and anchorage systems required to support a building.
    b. Clean-up.

                    B. Coverage B--Personal Property

    1. If you have purchased personal property coverage, we insure 
against direct physical loss by or from flood to personal property 
inside a building at the described location, if:
    a. The property is owned by you or your household family members; 
and
    b. At your option, the property is owned by guests or servants.
    Personal property is also covered for a period of 45 days at another 
location as set forth in III.C.2.b., Property Removed to Safety.
    Personal property in a building that is not fully enclosed must be 
secured to prevent flotation out of the building. If the personal

[[Page 277]]

property does float out during a flood, it will be conclusively presumed 
that it was not reasonably secured. In that case there is no coverage 
for such property.
    2. Coverage for personal property includes the following property, 
subject to B.1. above, which is covered under Coverage B only:
    a. Air conditioning units, portable or window type;
    b. Carpets, not permanently installed, over unfinished flooring;
    c. Carpets over finished flooring;
    d. Clothes washers and dryers;
    e. ``Cook-out'' grills;
    f. Food freezers, other than walk-in, and food in any freezer; and
    g. Portable microwave ovens and portable dishwashers.
    3. Coverage for items of property in a building enclosure below the 
lowest elevated floor of an elevated post-FIRM building located in Zones 
A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in 
a basement, regardless of the zone, is limited to the following items, 
if installed in their functioning locations and, if necessary for 
operation, connected to a power source:
    a. Air conditioning units, portable or window type;
    b. Clothes washers and dryers; and
    c. Food freezers, other than walk-in, and food in any freezer.
    4. If you are a tenant and have insured personal property under 
Coverage B in this policy, we will cover such property, including your 
cooking stove or range and refrigerator. The policy will also cover 
improvements made or acquired solely at your expense in the dwelling or 
apartment in which you reside, but for not more than 10% of the limit of 
liability shown for personal property on the Declarations Page. Use of 
this insurance is at your option but reduces the personal property limit 
of liability.
    5. If you are the owner of a unit and have insured personal property 
under Coverage B in this policy, we will also cover your interior walls, 
floor, and ceiling (not otherwise covered under a flood insurance policy 
purchased by your condominium association) for not more than 10% of the 
limit of liability shown for personal property on the Declarations Page. 
Use of this insurance is at your option but reduces the personal 
property limit of liability.
    6. Special Limits. We will pay no more than $2,500 for any one loss 
to one or more of the following kinds of personal property:
    a. Artwork, photographs, collectibles, or memorabilia, including but 
not limited to, porcelain or other figures, and sports cards;
    b. Rare books or autographed items;
    c. Jewelry, watches, precious and semi-precious stones, or articles 
of gold, silver, or platinum;
    d. Furs or any article containing fur which represents its principal 
value; or
    e. Personal property used in any business.
    7. We will pay only for the functional value of antiques.

                     C. Coverage C--Other Coverages

    1. Debris Removal.
    a. We will pay the expense to remove non-owned debris that is on or 
in insured property and debris of insured property anywhere.
    b. If you or a member of your household perform the removal work, 
the value of your work will be based on the Federal minimum wage.
    c. This coverage does not increase the Coverage A or Coverage B 
Limit of Liability.
    2. Loss Avoidance Measures
    a. Sandbags, Supplies, and Labor
    (1) We will pay up to $1,000 for costs you incur to protect the 
insured building from a flood or imminent danger of flood, for the 
following:
    (a) Your reasonable expenses to buy:
    (i) Sandbags, including sand to fill them;
    (ii) Fill for temporary levees;
    (iii) Pumps; and
    (iv) Plastic sheeting and lumber used in connection with these 
items.
    (b) The value of work, at the Federal minimum wage, that you or a 
member of your household perform.
    (2) This coverage for Sandbags, Supplies and Labor only applies if 
damage to insured property by or from flood is imminent and the threat 
of flood damage is apparent enough to lead a person of common prudence 
to anticipate flood damage. One of the following must also occur:
    (a) A general and temporary condition of flooding in the area near 
the described location must occur, even if the flood does not reach the 
building; or
    (b) A legally authorized official must issue an evacuation order or 
other civil order for the community in which the building is located 
calling for measures to preserve life and property from the peril of 
flood.
    This coverage does not increase the Coverage A or Coverage B Limit 
of Liability.
    b. Property Removed to Safety
    (1) We will pay up to $1,000 for the reasonable expenses you incur 
to move insured property to a place other than the described location 
that contains the property in order to protect it from flood or the 
imminent danger of flood.
    Reasonable expenses include the value of work, at the Federal 
minimum wage, you or a member of your household perform.
    (2) If you move insured property to a location other than the 
described location that contains the property, in order to protect it 
from flood or the imminent danger of flood, we will cover such property 
while at that location for a period of 45 consecutive days from the date 
you begin to move it there. The personal property that is moved must be

[[Page 278]]

placed in a fully enclosed building or otherwise reasonably protected 
from the elements.
    Any property removed, including a moveable home described in 
II.6.b.and c., must be placed above ground level or outside of the 
special flood hazard area.
    This coverage does not increase the Coverage A or Coverage B Limit 
of Liability.
    3. Condominium Loss Assessments.
    a. If this policy insures a unit, we will pay, up to the Coverage A 
limit of liability, your share of loss assessments charged against you 
by the condominium association in accordance with the condominium 
association's articles of association, declarations and your deed.
    The assessment must be made as a result of direct physical loss by 
or from flood during the policy term, to the building's common elements.
    b. We will not pay any loss assessment charged against you:
    (1) And the condominium association by any governmental body;
    (2) That results from a deductible under the insurance purchased by 
the condominium association insuring common elements;
    (3) That results from a loss to personal property, including 
contents of a condominium building;
    (4) That results from a loss sustained by the condominium 
association that was not reimbursed under a flood insurance policy 
written in the name of the association under the Act because the 
building was not, at the time of loss, insured for an amount equal to 
the lesser of:
    (a) 80% or more of its full replacement cost; or
    (b) The maximum amount of insurance permitted under the Act;
    (5) To the extent that payment under this policy for a condominium 
building loss, in combination with payments under any other NFIP 
policies for the same building loss, exceeds the maximum amount of 
insurance permitted under the Act for that kind of building; or
    (6) To the extent that payment under this policy for a condominium 
building loss, in combination with any recovery available to you as a 
tenant in common under any NFIP condominium association policies for the 
same building loss, exceeds the amount of insurance permitted under the 
Act for a single-family dwelling.
    Loss assessment coverage does not increase the Coverage A Limit of 
Liability.

               D. Coverage D--Increased Cost of Compliance

    1. General.
    This policy pays you to comply with a State or local floodplain 
management law or ordinance affecting repair or reconstruction of a 
structure suffering flood damage. Compliance activities eligible for 
payment are: elevation, floodproofing, relocation, or demolition (or any 
combination of these activities) of your structure. Eligible 
floodproofing activities are limited to:
    a. Non-residential structures.
    b. Residential structures with basements that satisfy FEMA's 
standards published in the Code of Federal Regulations [44 CFR 60.6 (b) 
or (c)].
    2. Limit of Liability.
    We will pay you up to $30,000 under this Coverage D--Increased Cost 
of Compliance, which only applies to policies with building coverage 
(Coverage A). Our payment of claims under Coverage D is in addition to 
the amount of coverage which you selected on the application and which 
appears on the Declarations Page. But the maximum you can collect under 
this policy for both Coverage A--Building Property and Coverage D--
Increased Cost of Compliance cannot exceed the maximum permitted under 
the Act. We do not charge a separate deductible for a claim under 
Coverage D.
    3. Eligibility
    a. A structure covered under Coverage A--Building Property 
sustaining a loss caused by a flood as defined by this policy must:
    (1) Be a ``repetitive loss structure.'' A repetitive loss structure 
is one that meets the following conditions:
    (a) The structure is covered by a contract of flood insurance issued 
under the NFIP.
    (b) The structure has suffered flood damage on two occasions during 
a 10-year period which ends on the date of the second loss.
    (c) The cost to repair the flood damage, on average, equaled or 
exceeded 25% of the market value of the structure at the time of each 
flood loss.
    (d) In addition to the current claim, the NFIP must have paid the 
previous qualifying claim, and the State or community must have a 
cumulative, substantial damage provision or repetitive loss provision in 
its floodplain management law or ordinance being enforced against the 
structure; or
    (2) Be a structure that has had flood damage in which the cost to 
repair equals or exceeds 50% of the market value of the structure at the 
time of the flood. The State or community must have a substantial damage 
provision in its floodplain management law or ordinance being enforced 
against the structure.
    b. This Coverage D pays you to comply with State or local floodplain 
management laws or ordinances that meet the minimum standards of the 
National Flood Insurance Program found in the Code of Federal 
Regulations at 44 CFR 60.3. We pay for compliance activities that exceed 
those standards under these conditions:
    (1) 3.a.(1) above.
    (2) Elevation or floodproofing in any risk zone to preliminary or 
advisory base flood

[[Page 279]]

elevations provided by FEMA which the State or local government has 
adopted and is enforcing for flood-damaged structures in such areas. 
(This includes compliance activities in B, C, X, or D zones which are 
being changed to zones with base flood elevations. This also includes 
compliance activities in zones where base flood elevations are being 
increased, and a flood-damaged structure must comply with the higher 
advisory base flood elevation.) Increased Cost of Compliance coverage 
does not apply to situations in B, C, X, or D zones where the community 
has derived its own elevations and is enforcing elevation or 
floodproofing requirements for flood-damaged structures to elevations 
derived solely by the community.
    (3) Elevation or floodproofing above the base flood elevation to 
meet State or local ``freeboard'' requirements, i.e., that a structure 
must be elevated above the base flood elevation.
    c. Under the minimum NFIP criteria at 44 CFR 60.3(b)(4), States and 
communities must require the elevation or floodproofing of structures in 
unnumbered A zones to the base flood elevation where elevation data is 
obtained from a Federal, State, or other source. Such compliance 
activities are also eligible for Coverage D.
    d. This coverage will also pay for the incremental cost, after 
demolition or relocation, of elevating or floodproofing a structure 
during its rebuilding at the same or another site to meet State or local 
floodplain management laws or ordinances, subject to Exclusion D.5.g. 
below.
    e. This coverage will also pay to bring a flood-damaged structure 
into compliance with state or local floodplain management laws or 
ordinances even if the structure had received a variance before the 
present loss from the applicable floodplain management requirements.
    4. Conditions.
    a. When a structure covered under Coverage A--Building Property 
sustains a loss caused by a flood, our payment for the loss under this 
Coverage D will be for the increased cost to elevate, floodproof, 
relocate, or demolish (or any combination of these activities) caused by 
the enforcement of current State or local floodplain management 
ordinances or laws. Our payment for eligible demolition activities will 
be for the cost to demolish and clear the site of the building debris or 
a portion thereof caused by the enforcement of current State or local 
floodplain management ordinances or laws. Eligible activities for the 
cost of clearing the site will include those necessary to discontinue 
utility service to the site and ensure proper abandonment of on-site 
utilities.
    b. When the building is repaired or rebuilt, it must be intended for 
the same occupancy as the present building unless otherwise required by 
current floodplain management ordinances or laws.
    5. Exclusions.
    Under this Coverage D (Increased Cost of Compliance) we will not pay 
for:
    a. The cost to comply with any floodplain management law or 
ordinance in communities participating in the Emergency Program.
    b. The cost associated with enforcement of any ordinance or law that 
requires any insured or others to test for, monitor, clean up, remove, 
contain, treat, detoxify or neutralize, or in any way respond to, or 
assess the effects of pollutants.
    c. The loss in value to any insured building or other structure due 
to the requirements of any ordinance or law.
    d. The loss in residual value of the undamaged portion of a building 
demolished as a consequence of enforcement of any State or local 
floodplain management law or ordinance.
    e. Any Increased Cost of Compliance under this Coverage D:
    (1) Until the building is elevated, floodproofed, demolished, or 
relocated on the same or to another premises; and
    (2) Unless the building is elevated, floodproofed, demolished, or 
relocated as soon as reasonably possible after the loss, not to exceed 
two years.
    f. Any code upgrade requirements, e.g., plumbing or electrical 
wiring, not specifically related to the State or local floodplain 
management law or ordinance.
    g. Any compliance activities needed to bring additions or 
improvements made after the loss occurred into compliance with State or 
local floodplain management laws or ordinances.
    h. Loss due to any ordinance or law that you were required to comply 
with before the current loss.
    i. Any rebuilding activity to standards that do not meet the NFIP's 
minimum requirements. This includes any situation where the insured has 
received from the State or community a variance in connection with the 
current flood loss to rebuild the property to an elevation below the 
base flood elevation.
    j. Increased Cost of Compliance for a garage or carport.
    k. Any structure insured under an NFIP Group Flood Insurance Policy.
    l. Assessments made by a condominium association on individual 
condominium unit owners to pay increased costs of repairing commonly 
owned buildings after a flood in compliance with State or local 
floodplain management ordinances or laws.
    6. Other Provisions.

[[Page 280]]

    a. Increased Cost of Compliance coverage will not be included in the 
calculation to determine whether coverage meets the 80% insurance-to-
value requirement for replacement cost coverage as set forth in VII. 
General Conditions, V. Loss Settlement.
    b. All other conditions and provisions of the policy apply.

                        IV. Property Not Covered

    We do not cover any of the following:
    1. Personal property not inside a building;
    2. A building, and personal property in it, located entirely in, on, 
or over water or seaward of mean high tide if it was constructed or 
substantially improved after September 30, 1982;
    3. Open structures, including a building used as a boathouse or any 
structure or building into which boats are floated, and personal 
property located in, on, or over water;
    4. Recreational vehicles other than travel trailers described in the 
Definitions section (see II.B.6.c.) whether affixed to a permanent 
foundation or on wheels;
    5. Self-propelled vehicles or machines, including their parts and 
equipment. However, we do cover self-propelled vehicles or machines not 
licensed for use on public roads that are:
    a. Used mainly to service the described location or
    b. Designed and used to assist handicapped persons, while the 
vehicles or machines are inside a building at the described location;
    6. Land, land values, lawns, trees, shrubs, plants, growing crops, 
or animals;
    7. Accounts, bills, coins, currency, deeds, evidences of debt, 
medals, money, scrip, stored value cards, postage stamps, securities, 
bullion, manuscripts, or other valuable papers;
    8. Underground structures and equipment, including wells, septic 
tanks, and septic systems;
    9. Those portions of walks, walkways, decks, driveways, patios and 
other surfaces, all whether protected by a roof or not, located outside 
the perimeter, exterior walls of the insured building or the building in 
which the insured unit is located;
    10. Containers, including related equipment, such as, but not 
limited to, tanks containing gases or liquids;
    11. Buildings or units and all their contents if more than 49% of 
the actual cash value of the building is below ground, unless the lowest 
level is at or above the base flood elevation and is below ground by 
reason of earth having been used as insulation material in conjunction 
with energy efficient building techniques;
    12. Fences, retaining walls, seawalls, bulkheads, wharves, piers, 
bridges, and docks;
    13. Aircraft or watercraft, or their furnishings and equipment;
    14. Hot tubs and spas that are not bathroom fixtures, and swimming 
pools, and their equipment, such as, but not limited to, heaters, 
filters, pumps, and pipes, wherever located;
    15. Property not eligible for flood insurance pursuant to the 
provisions of the Coastal Barrier Resources Act and the Coastal Barrier 
Improvement Act and amendments to these Acts;
    16. Personal property you own in common with other unit owners 
comprising the membership of a condominium association.

                              V. Exclusions

    A. We only pay for direct physical loss by or from flood, which 
means that we do not pay you for:
    1. Loss of revenue or profits;
    2. Loss of access to the insured property or described location;
    3. Loss of use of the insured property or described location;
    4. Loss from interruption of business or production;
    5. Any additional living expenses incurred while the insured 
building is being repaired or is unable to be occupied for any reason;
    6. The cost of complying with any ordinance or law requiring or 
regulating the construction, demolition, remodeling, renovation, or 
repair of property, including removal of any resulting debris. This 
exclusion does not apply to any eligible activities we describe in 
Coverage D--Increased Cost of Compliance; or
    7. Any other economic loss you suffer.
    B. We do not insure a loss directly or indirectly caused by a flood 
that is already in progress at the time and date:
    1. The policy term begins; or
    2. Coverage is added at your request.
    C. We do not insure for loss to property caused directly by earth 
movement even if the earth movement is caused by flood. Some examples of 
earth movement that we do not cover are:
    1. Earthquake;
    2. Landslide;
    3. Land subsidence;
    4. Sinkholes;
    5. Destabilization or movement of land that results from 
accumulation of water in subsurface land area; or
    6. Gradual erosion.
    We do, however, pay for losses from mudflow and land subsidence as a 
result of erosion that are specifically covered under our definition of 
flood (see II.A.1.c. and II.A.2.).
    D. We do not insure for direct physical loss caused directly or 
indirectly by any of the following:
    1. The pressure or weight of ice;
    2. Freezing or thawing;
    3. Rain, snow, sleet, hail, or water spray;

[[Page 281]]

    4. Water, moisture, mildew, or mold damage that results primarily 
from any condition:
    a. Substantially confined to the dwelling; or
    b. That is within your control, including but not limited to:
    (1) Design, structural, or mechanical defects;
    (2) Failure, stoppage, or breakage of water or sewer lines, drains, 
pumps, fixtures, or equipment; or
    (3) Failure to inspect and maintain the property after a flood 
recedes;
    5. Water or water-borne material that:
    a. Backs up through sewers or drains;
    b. Discharges or overflows from a sump, sump pump or related 
equipment; or
    c. Seeps or leaks on or through the covered property;
unless there is a flood in the area and the flood is the proximate cause 
of the sewer or drain backup, sump pump discharge or overflow, or the 
seepage of water;
    6. The pressure or weight of water unless there is a flood in the 
area and the flood is the proximate cause of the damage from the 
pressure or weight of water;
    7. Power, heating, or cooling failure unless the failure results 
from direct physical loss by or from flood to power, heating, or cooling 
equipment on the described location;
    8. Theft, fire, explosion, wind, or windstorm;
    9. Anything you or any member of your household do or conspires to 
do to deliberately cause loss by flood; or
    10. Alteration of the insured property that significantly increases 
the risk of flooding.
    E. We do not insure for loss to any building or personal property 
located on land leased from the Federal Government, arising from or 
incident to the flooding of the land by the Federal Government, where 
the lease expressly holds the Federal Government harmless under flood 
insurance issued under any Federal Government program.
    F. We do not pay for the testing for or monitoring of pollutants 
unless required by law or ordinance.

                             VI. Deductibles

    A. When a loss is covered under this policy, we will pay only that 
part of the loss that exceeds your deductible amount, subject to the 
limit of liability that applies. The deductible amount is shown on the 
Declarations Page.
    However, when a building under construction, alteration, or repair 
does not have at least two rigid exterior walls and a fully secured roof 
at the time of loss, your deductible amount will be two times the 
deductible that would otherwise apply to a completed building.
    B. In each loss from flood, separate deductibles apply to the 
building and personal property insured by this policy.
    C. The deductible does NOT apply to:
    1. III.C.2. Loss Avoidance Measures;
    2. III.C.3. Condominium Loss Assessments; or
    3. III.D. Increased Cost of Compliance.

                         VII. General Conditions

                         A. Pair and Set Clause

    In case of loss to an article that is part of a pair or set, we will 
have the option of paying you:
    1. An amount equal to the cost of replacing the lost, damaged, or 
destroyed article, minus its depreciation, or
    2. The amount that represents the fair proportion of the total value 
of the pair or set that the lost, damaged, or destroyed article bears to 
the pair or set.

               B. Concealment or Fraud and Policy Voidance

    1. With respect to all insureds under this policy, this policy:
    a. Is void;
    b. Has no legal force or effect;
    c. Cannot be renewed; and
    d. Cannot be replaced by a new NFIP policy, if, before or after a 
loss, you or any other insured or your agent have at any time:
    (1) Intentionally concealed or misrepresented any material fact or 
circumstance;
    (2) Engaged in fraudulent conduct; or
    (3) Made false statements; relating to this policy or any other NFIP 
insurance.
    2. This policy will be void as of the date wrongful acts described 
in B.1.above were committed.
    3. Fines, civil penalties, and imprisonment under applicable Federal 
laws may also apply to the acts of fraud or concealment described above.
    4. This policy is also void for reasons other than fraud, 
misrepresentation, or wrongful act. This policy is void from its 
inception and has no legal force under the following conditions:
    a. If the property is located in a community that was not 
participating in the NFIP on the policy's inception date and did not 
join or reenter the program during the policy term and before the loss 
occurred; or
    b. If the property listed on the application is otherwise not 
eligible for coverage under the NFIP.

                           C. Other Insurance

    1. If a loss covered by this policy is also covered by other 
insurance that includes flood coverage not issued under the Act, we will 
not pay more than the amount of insurance you are entitled to for lost, 
damaged, or

[[Page 282]]

destroyed property insured under this policy subject to the following:
    a. We will pay only the proportion of the loss that the amount of 
insurance that applies under this policy bears to the total amount of 
insurance covering the loss, unless C.1.b. or c. immediately below 
applies.
    b. If the other policy has a provision stating that it is excess 
insurance, this policy will be primary.
    c. This policy will be primary (but subject to its own deductible) 
up to the deductible in the other flood policy (except another policy as 
described in C.1.b. above). When the other deductible amount is reached, 
this policy will participate in the same proportion that the amount of 
insurance under this policy bears to the total amount of both policies, 
for the remainder of the loss.
    2. If there is other insurance in the name of your condominium 
association covering the same property covered by this policy, then this 
policy will be in excess over the other insurance.

                   D. Amendments, Waivers, Assignment

    This policy cannot be changed nor can any of its provisions be 
waived without the express written consent of the Federal Insurance 
Administrator. No action we take under the terms of this policy 
constitutes a waiver of any of our rights. You may assign this policy in 
writing when you transfer title of your property to someone else except 
under these conditions:
    1. When this policy covers only personal property; or
    2. When this policy covers a structure during the course of 
construction.

                  E. Cancellation of the Policy by You

    1. You may cancel this policy in accordance with the applicable 
rules and regulations of the NFIP.
    2. If you cancel this policy, you may be entitled to a full or 
partial refund of premium also under the applicable rules and 
regulations of the NFIP.

                   F. Non-Renewal of the Policy by Us

    Your policy will not be renewed:
    1. If the community where your covered property is located stops 
participating in the NFIP, or
    2. If your building has been declared ineligible under section 1316 
of the Act.

                G. Reduction and Reformation of Coverage

    1. If the premium we received from you was not enough to buy the 
kind and amount of coverage you requested, we will provide only the 
amount of coverage that can be purchased for the premium payment we 
received.
    2. The policy can be reformed to increase the amount of coverage 
resulting from the reduction described in G.1. above to the amount you 
requested as follows:
    a. Discovery of Insufficient Premium or Incomplete Rating 
Information Before a Loss:
    (1) If we discover before you have a flood loss that your premium 
payment was not enough to buy the requested amount of coverage, we will 
send you and any mortgagee or trustee known to us a bill for the 
required additional premium for the current policy term (or that portion 
of the current policy term following any endorsement changing the amount 
of coverage). If you or the mortgagee or trustee pay the additional 
premium within 30 days from the date of our bill, we will reform the 
policy to increase the amount of coverage to the originally requested 
amount effective to the beginning of the current policy term (or 
subsequent date of any endorsement changing the amount of coverage).
    (2) If we determine before you have a flood loss that the rating 
information we have is incomplete and prevents us from calculating the 
additional premium, we will ask you to send the required information. 
You must submit the information within 60 days of our request. Once we 
determine the amount of additional premium for the current policy term, 
we will follow the procedure in G.2.a.(1) above.
    (3) If we do not receive the additional premium (or additional 
information) by the date it is due, the amount of coverage can only be 
increased by endorsement subject to any appropriate waiting period.
    b. Discovery of Insufficient Premium or Incomplete Rating 
Information After a Loss:
    (1) If we discover after you have a flood loss that your premium 
payment was not enough to buy the requested amount of coverage, we will 
send you and any mortgagee or trustee known to us a bill for the 
required additional premium for the current and the prior policy terms. 
If you or the mortgagee or trustee pay the additional premium within 30 
days of the date of our bill, we will reform the policy to increase the 
amount of coverage to the originally requested amount effective to the 
beginning of the prior policy term.
    (2) If we discover after you have a flood loss that the rating 
information we have is incomplete and prevents us from calculating the 
additional premium, we will ask you to send the required information. 
You must submit the information before your claim can be paid. Once we 
determine the amount of additional premium for the current and prior 
policy terms, we will follow the procedure in G.2.b.(1) above.
    (3) If we do not receive the additional premium by the date it is 
due, your flood insurance claim will be settled based on the reduced 
amount of coverage. The amount of

[[Page 283]]

coverage can only be increased by endorsement subject to any appropriate 
waiting period.
    3. However, if we find that you or your agent intentionally did not 
tell us, or falsified, any important fact or circumstance or did 
anything fraudulent relating to this insurance, the provisions of 
Condition B. Concealment or Fraud and Policy Voidance apply.

                            H. Policy Renewal

    1. This policy will expire at 12:01 a.m. on the last day of the 
policy term.
    2. We must receive the payment of the appropriate renewal premium 
within 30 days of the expiration date.
    3. If we find, however, that we did not place your renewal notice 
into the U.S. Postal Service, or if we did mail it, we made a mistake, 
e.g., we used an incorrect, incomplete, or illegible address, which 
delayed its delivery to you before the due date for the renewal premium, 
then we will follow these procedures:
    a. If you or your agent notified us, not later than one year after 
the date on which the payment of the renewal premium was due, of non-
receipt of a renewal notice before the due date for the renewal premium, 
and we determine that the circumstances in the preceding paragraph 
apply, we will mail a second bill providing a revised due date, which 
will be 30 days after the date on which the bill is mailed.
    b. If we do not receive the premium requested in the second bill by 
the revised due date, then we will not renew the policy. In that case, 
the policy will remain an expired policy as of the expiration date shown 
on the Declarations Page.
    4. In connection with the renewal of this policy, we may ask you 
during the policy term to recertify, on a Recertification Questionnaire 
we will provide to you, the rating information used to rate your most 
recent application for or renewal of insurance.

            I. Conditions Suspending or Restricting Insurance

    We are not liable for loss that occurs while there is a hazard that 
is increased by any means within your control or knowledge.

                     J. Requirements in Case of Loss

    In case of a flood loss to insured property, you must:
    1. Give prompt written notice to us;
    2. As soon as reasonably possible, separate the damaged and 
undamaged property, putting it in the best possible order so that we may 
examine it;
    3. Prepare an inventory of damaged property showing the quantity, 
description, actual cash value, and amount of loss. Attach all bills, 
receipts, and related documents;
    4. Within 60 days after the loss, send us a proof of loss, which is 
your statement of the amount you are claiming under the policy signed 
and sworn to by you, and which furnishes us with the following 
information:
    a. The date and time of loss;
    b. A brief explanation of how the loss happened;
    c. Your interest (for example, ``owner'') and the interest, if any, 
of others in the damaged property;
    d. Details of any other insurance that may cover the loss;
    e. Changes in title or occupancy of the covered property during the 
term of the policy;
    f. Specifications of damaged buildings and detailed repair 
estimates;
    g. Names of mortgagees or anyone else having a lien, charge, or 
claim against the insured property;
    h. Details about who occupied any insured building at the time of 
loss and for what purpose; and
    i. The inventory of damaged personal property described in J.3. 
above.
    5. In completing the proof of loss, you must use your own judgment 
concerning the amount of loss and justify that amount.
    6. You must cooperate with the adjuster or representative in the 
investigation of the claim.
    7. The insurance adjuster whom we hire to investigate your claim may 
furnish you with a proof of loss form, and she or he may help you 
complete it. However, this is a matter of courtesy only, and you must 
still send us a proof of loss within 60 days after the loss even if the 
adjuster does not furnish the form or help you complete it.
    8. We have not authorized the adjuster to approve or disapprove 
claims or to tell you whether we will approve your claim.
    9. At our option, we may accept the adjuster's report of the loss 
instead of your proof of loss. The adjuster's report will include 
information about your loss and the damages you sustained. You must sign 
the adjuster's report. At our option, we may require you to swear to the 
report.

                       K. Our Options After a Loss

    Options we may, in our sole discretion, exercise after loss include 
the following:
    1. At such reasonable times and places that we may designate, you 
must:
    a. Show us or our representative the damaged property;
    b. Submit to examination under oath, while not in the presence of 
another insured, and sign the same; and
    c. Permit us to examine and make extracts and copies of:
    (1) Any policies of property insurance insuring you against loss and 
the deed establishing your ownership of the insured real property;

[[Page 284]]

    (2) Condominium association documents including the Declarations of 
the condominium, its Articles of Association or Incorporation, Bylaws, 
rules and regulations, and other relevant documents if you are a unit 
owner in a condominium building; and
    (3) All books of accounts, bills, invoices and other vouchers, or 
certified copies pertaining to the damaged property if the originals are 
lost.
    2. We may request, in writing, that you furnish us with a complete 
inventory of the lost, damaged or destroyed property, including:
    a. Quantities and costs;
    b. Actual cash values or replacement cost (whichever is 
appropriate);
    c. Amounts of loss claimed;
    d. Any written plans and specifications for repair of the damaged 
property that you can reasonably make available to us; and
    e. Evidence that prior flood damage has been repaired.
    3. If we give you written notice within 30 days after we receive 
your signed, sworn proof of loss, we may:
    a. Repair, rebuild, or replace any part of the lost, damaged, or 
destroyed property with material or property of like kind and quality or 
its functional equivalent; and
    b. Take all or any part of the damaged property at the value that we 
agree upon or its appraised value.

                         L. No Benefit to Bailee

    No person or organization, other than you, having custody of covered 
property will benefit from this insurance.

                             M. Loss Payment

    1. We will adjust all losses with you. We will pay you unless some 
other person or entity is named in the policy or is legally entitled to 
receive payment. Loss will be payable 60 days after we receive your 
proof of loss (or within 90 days after the insurance adjuster files the 
adjuster's report signed and sworn to by you in lieu of a proof of loss) 
and:
    a. We reach an agreement with you;
    b. There is an entry of a final judgment; or
    c. There is a filing of an appraisal award with us, as provided in 
VII. P.
    2. If we reject your proof of loss in whole or in part you may:
    a. Accept our denial of your claim;
    b. Exercise your rights under this policy; or
    c. File an amended proof of loss as long as it is filed within 60 
days of the date of the loss.

                             N. Abandonment

    You may not abandon to us damaged or undamaged property insured 
under this policy.

                               O. Salvage

    We may permit you to keep damaged property insured under this policy 
after a loss, and we will reduce the amount of the loss proceeds payable 
to you under the policy by the value of the salvage.

                              P. Appraisal

    If you and we fail to agree on the actual cash value or, if 
applicable, replacement cost of your damaged property to settle upon the 
amount of loss, then either may demand an appraisal of the loss. In this 
event, you and we will each choose a competent and impartial appraiser 
within 20 days after receiving a written request from the other. The two 
appraisers will choose an umpire. If they cannot agree upon an umpire 
within 15 days, you or we may request that the choice be made by a judge 
of a court of record in the state where the covered property is located. 
The appraisers will separately state the actual cash value, the 
replacement cost, and the amount of loss to each item. If the appraisers 
submit a written report of an agreement to us, the amount agreed upon 
will be the amount of loss. If they fail to agree, they will submit 
their differences to the umpire. A decision agreed to by any two will 
set the amount of actual cash value and loss, or if it applies, the 
replacement cost and loss.
    Each party will:
    1. Pay its own appraiser; and
    2. Bear the other expenses of the appraisal and umpire equally.

                           Q. Mortgage Clause

    The word ``mortgagee'' includes trustee.
    Any loss payable under Coverage A--Building Property will be paid to 
any mortgagee of whom we have actual notice, as well as any other 
mortgagee or loss payee determined to exist at the time of loss, and 
you, as interests appear. If more than one mortgagee is named, the order 
of payment will be the same as the order of precedence of the mortgages.
    If we deny your claim, that denial will not apply to a valid claim 
of the mortgagee, if the mortgagee:
    1. Notifies us of any change in the ownership or occupancy, or 
substantial change in risk of which the mortgagee is aware;
    2. Pays any premium due under this policy on demand if you have 
neglected to pay the premium; and
    3. Submits a signed, sworn proof of loss within 60 days after 
receiving notice from us of your failure to do so.
    All of the terms of this policy apply to the mortgagee.
    The mortgagee has the right to receive loss payment even if the 
mortgagee has started foreclosure or similar action on the building.

[[Page 285]]

    If we decide to cancel or not renew this policy, it will continue in 
effect for the benefit of the mortgagee only for 30 days after we notify 
the mortgagee of the cancellation or non-renewal.
    If we pay the mortgagee for any loss and deny payment to you, we are 
subrogated to all the rights of the mortgagee granted under the mortgage 
on the property. Subrogation will not impair the right of the mortgagee 
to recover the full amount of the mortgagee's claim.

                           R. Suit Against Us

    You may not sue us to recover money under this policy unless you 
have complied with all the requirements of the policy. If you do sue, 
you must start the suit within one year after the date of the written 
denial of all or part of the claim, and you must file the suit in the 
United States District Court of the district in which the covered 
property was located at the time of loss. This requirement applies to 
any claim that you may have under this policy and to any dispute that 
you may have arising out of the handling of any claim under the policy.

                             S. Subrogation

    Whenever we make a payment for a loss under this policy, we are 
subrogated to your right to recover for that loss from any other person. 
That means that your right to recover for a loss that was partly or 
totally caused by someone else is automatically transferred to us, to 
the extent that we have paid you for the loss. We may require you to 
acknowledge this transfer in writing. After the loss, you may not give 
up our right to recover this money or do anything that would prevent us 
from recovering it. If you make any claim against any person who caused 
your loss and recover any money, you must pay us back first before you 
may keep any of that money.

                       T. Continuous Lake Flooding

    1. If an insured building has been flooded by rising lake waters 
continuously for 90 days or more and it appears reasonably certain that 
a continuation of this flooding will result in a covered loss to the 
insured building equal to or greater than the building policy limits 
plus the deductible or the maximum payable under the policy for any one 
building loss, we will pay you the lesser of these two amounts without 
waiting for the further damage to occur if you sign a release agreeing:
    a. To make no further claim under this policy;
    b. Not to seek renewal of this policy;
    c. Not to apply for any flood insurance under the Act for property 
at the described location; and
    d. Not to seek a premium refund for current or prior terms.
    If the policy term ends before the insured building has been flooded 
continuously for 90 days, the provisions of this paragraph T.1. will 
apply when the insured building suffers a covered loss before the policy 
term ends.
    2. If your insured building is subject to continuous lake flooding 
from a closed basin lake, you may elect to file a claim under either 
paragraph T.1. above or T.2. (A ``closed basin lake'' is a natural lake 
from which water leaves primarily through evaporation and whose surface 
area now exceeds or has exceeded one square mile at any time in the 
recorded past. Most of the nation's closed basin lakes are in the 
western half of the United States where annual evaporation exceeds 
annual precipitation and where lake levels and surface areas are subject 
to considerable fluctuation due to wide variations in the climate. These 
lakes may overtop their basins on rare occasions.) Under this paragraph 
T.2., we will pay your claim as if the building is a total loss even 
though it has not been continuously inundated for 90 days, subject to 
the following conditions:
    a. Lake flood waters must damage or imminently threaten to damage 
your building.
    b. Before approval of your claim, you must:
    (1) Agree to a claim payment that reflects your buying back the 
salvage on a negotiated basis; and
    (2) Grant the conservation easement described in FEMA's ``Policy 
Guidance for Closed Basin Lakes'' to be recorded in the office of the 
local recorder of deeds. FEMA, in consultation with the community in 
which the property is located, will identify on a map an area or areas 
of special consideration (ASC) in which there is a potential for flood 
damage from continuous lake flooding. FEMA will give the community the 
agreed-upon map showing the ASC. This easement will only apply to that 
portion of the property in the ASC. It will allow certain agricultural 
and recreational uses of the land. The only structures it will allow on 
any portion of the property within the ASC are certain simple 
agricultural and recreational structures. If any of these allowable 
structures are insurable buildings under the NFIP and are insured under 
the NFIP, they will not be eligible for the benefits of this paragraph 
T.2. If a U.S. Army Corps of Engineers certified flood control project 
or otherwise certified flood control project later protects the 
property, FEMA will, upon request, amend the ASC to remove areas 
protected by those projects. The restrictions of the easement will then 
no longer apply to any portion of the property removed from the ASC; and
    (3) Comply with paragraphs T.1.a. through T.1.d. above.

[[Page 286]]

    c. Within 90 days of approval of your claim, you must move your 
building to a new location outside the ASC. FEMA will give you an 
additional 30 days to move if you show there is sufficient reason to 
extend the time.
    d. Before the final payment of your claim, you must acquire an 
elevation certificate and a floodplain development permit from the local 
floodplain administrator for the new location of your building.
    e. Before the approval of your claim, the community having 
jurisdiction over your building must:
    (1) Adopt a permanent land use ordinance, or a temporary moratorium 
for a period not to exceed 6 months to be followed immediately by a 
permanent land use ordinance, that is consistent with the provisions 
specified in the easement required in paragraph T.2.b. above.
    (2) Agree to declare and report any violations of this ordinance to 
FEMA so that under Section 1316 of the National Flood Insurance Act of 
1968, as amended, flood insurance to the building can be denied; and
    (3) Agree to maintain as deed-restricted, for purposes compatible 
with open space or agricultural or recreational use only, any affected 
property the community acquires an interest in. These deed restrictions 
must be consistent with the provisions of paragraph T.2.b. above, except 
that, even if a certified project protects the property, the land use 
restrictions continue to apply if the property was acquired under the 
Hazard Mitigation Grant Program or the Flood Mitigation Assistance 
Program. If a non-profit land trust organization receives the property 
as a donation, that organization must maintain the property as deed-
restricted, consistent with the provisions of paragraph T.2.b. above.
    f. Before the approval of your claim, the affected State must take 
all action set forth in FEMA's ``Policy Guidance for Closed Basin 
Lakes.''
    g. You must have NFIP flood insurance coverage continuously in 
effect from a date established by FEMA until you file a claim under 
paragraph T.2. If a subsequent owner buys NFIP insurance that goes into 
effect within 60 days of the date of transfer of title, any gap in 
coverage during that 60-day period will not be a violation of this 
continuous coverage requirement. For the purpose of honoring a claim 
under this paragraph T.2, we will not consider to be in effect any 
increased coverage that became effective after the date established by 
FEMA. The exception to this is any increased coverage in the amount 
suggested by your insurer as an inflation adjustment.
    h. This paragraph T.2. will be in effect for a community when the 
FEMA Regional Director for the affected region provides to the 
community, in writing, the following:
    (1) Confirmation that the community and the State are in compliance 
with the conditions in paragraphs T.2.e. and T.2.f. above, and
    (2) The date by which you must have flood insurance in effect.

                    U. Duplicate Policies Not Allowed

    1. We will not insure your property under more than one NFIP policy.
    If we find that the duplication was not knowingly created, we will 
give you written notice. The notice will advise you that you may choose 
one of several options under the following procedures:
    a. If you choose to keep in effect the policy with the earlier 
effective date, you may also choose to add the coverage limits of the 
later policy to the limits of the earlier policy. The change will become 
effective as of the effective date of the later policy.
    b. If you choose to keep in effect the policy with the later 
effective date, you may also choose to add the coverage limits of the 
earlier policy to the limits of the later policy. The change will be 
effective as of the effective date of the later policy.
    In either case, you must pay the pro rata premium for the increased 
coverage limits within 30 days of the written notice. In no event will 
the resulting coverage limits exceed the permissible limits of coverage 
under the Act or your insurable interest, whichever is less. We will 
make a refund to you, according to applicable NFIP rules, of the premium 
for the policy not being kept in effect.
    2. Your option under Condition U. Duplicate Policies Not Allowed to 
elect which NFIP policy to keep in effect does not apply when duplicates 
have been knowingly created. Losses occurring under such circumstances 
will be adjusted according to the terms and conditions of the earlier 
policy. The policy with the later effective date must be canceled.

                           V. Loss Settlement

                             1. Introduction

    This policy provides three methods of settling losses: Replacement 
Cost, Special Loss Settlement, and Actual Cash Value. Each method is 
used for a different type of property, as explained in a-c. below.
    a. Replacement Cost Loss Settlement, described in V.2. below, 
applies to a single-family dwelling provided:
    (1) It is your principal residence, which means that, at the time of 
loss, you or your spouse lived there for 80% of:
    (a) The 365 days immediately preceding the loss; or
    (b) The period of your ownership, if you owned the dwelling for less 
than 365 days; and
    (2) At the time of loss, the amount of insurance in this policy that 
applies to the dwelling is 80% or more of its full replacement cost 
immediately before the loss, or is

[[Page 287]]

the maximum amount of insurance available under the NFIP.
    b. Special Loss Settlement, described in V.3. below, applies to a 
single-family dwelling that is a manufactured or mobile home or a travel 
trailer.
    c. Actual Cash Value loss settlement applies to a single-family 
dwelling not subject to replacement cost or special loss settlement, and 
to the property listed in V.4. below.

                   2. Replacement Cost Loss Settlement

    The following loss settlement conditions apply to a single-family 
dwelling described in V.1.a. above:
    a. We will pay to repair or replace the damaged dwelling after 
application of the deductible and without deduction for depreciation, 
but not more than the least of the following amounts:
    (1) The building limit of liability shown on your Declarations Page;
    (2) The replacement cost of that part of the dwelling damaged, with 
materials of like kind and quality and for like use; or
    (3) The necessary amount actually spent to repair or replace the 
damaged part of the dwelling for like use.
    b. If the dwelling is rebuilt at a new location, the cost described 
above is limited to the cost that would have been incurred if the 
dwelling had been rebuilt at its former location.
    c. When the full cost of repair or replacement is more than $1,000, 
or more than 5% of the whole amount of insurance that applies to the 
dwelling, we will not be liable for any loss under V.2.a. above or 
V.4.a.(2) below unless and until actual repair or replacement is 
completed.
    d. You may disregard the replacement cost conditions above and make 
claim under this policy for loss to dwellings on an actual cash value 
basis. You may then make claim for any additional liability according to 
V.2.a., b., and c. above, provided you notify us of your intent to do so 
within 180 days after the date of loss.
    e. If the community in which your dwelling is located has been 
converted from the Emergency Program to the Regular Program during the 
current policy term, then we will consider the maximum amount of 
available NFIP insurance to be the amount that was available at the 
beginning of the current policy term.

                       3. Special Loss Settlement

    a. The following loss settlement conditions apply to a single-family 
dwelling that:
    (1) is a manufactured or mobile home or a travel trailer, as defined 
in II.B.6.b. and c.,
    (2) is at least 16 feet wide when fully assembled and has an area of 
at least 600 square feet within its perimeter walls when fully 
assembled, and
    (3) is your principal residence as specified in V.1.a.(1) above.
    b. If such a dwelling is totally destroyed or damaged to such an 
extent that, in our judgment, it is not economically feasible to repair, 
at least to its pre-damage condition, we will, at our discretion pay the 
least of the following amounts:
    (1) The lesser of the replacement cost of the dwelling or 1.5 times 
the actual cash value, or
    (2) The building limit of liability shown on your Declarations Page.
    c. If such a dwelling is partially damaged and, in our judgment, it 
is economically feasible to repair it to its pre-damage condition, we 
will settle the loss according to the Replacement Cost conditions in 
V.2.above.

                  4. Actual Cash Value Loss Settlement

    The types of property noted below are subject to actual cash value 
(or in the case of V.4.a.(2), below, proportional) loss settlement.
    a. A dwelling, at the time of loss, when the amount of insurance on 
the dwelling is both less than 80% of its full replacement cost 
immediately before the loss and less than the maximum amount of 
insurance available under the NFIP. In that case, we will pay the 
greater of the following amounts, but not more than the amount of 
insurance that applies to that dwelling:
    (1) The actual cash value, as defined in II.B.2., of the damaged 
part of the dwelling; or
    (2) A proportion of the cost to repair or replace the damaged part 
of the dwelling, without deduction for physical depreciation and after 
application of the deductible.
    This proportion is determined as follows: If 80% of the full 
replacement cost of the dwelling is less than the maximum amount of 
insurance available under the NFIP, then the proportion is determined by 
dividing the actual amount of insurance on the dwelling by the amount of 
insurance that represents 80% of its full replacement cost. But if 80% 
of the full replacement cost of the dwelling is greater than the maximum 
amount of insurance available under the NFIP, then the proportion is 
determined by dividing the actual amount of insurance on the dwelling by 
the maximum amount of insurance available under the NFIP.
    b. A two-, three-, or four-family dwelling.
    c. A unit that is not used exclusively for single-family dwelling 
purposes.
    d. Detached garages.
    e. Personal property.
    f. Appliances, carpets, and carpet pads.
    g. Outdoor awnings, outdoor antennas or aerials of any type, and 
other outdoor equipment.

[[Page 288]]

    h. Any property covered under this policy that is abandoned after a 
loss and remains as debris anywhere on the described location.
    i. A dwelling that is not your principal residence.

                     5. Amount of Insurance Required

    To determine the amount of insurance required for a dwelling 
immediately before the loss, we do not include the value of:
    a. Footings, foundations, piers, or any other structures or devices 
that are below the undersurface of the lowest basement floor and support 
all or part of the dwelling;
    b. Those supports listed in V.5.a. above, that are below the surface 
of the ground inside the foundation walls if there is no basement; and
    c. Excavations and underground flues, pipes, wiring, and drains.

    Note: The Coverage D--Increased Cost of Compliance limit of 
liability is not included in the determination of the amount of 
insurance required.

                       VIII. Liberalization Clause

    If we make a change that broadens your coverage under this edition 
of our policy, but does not require any additional premium, then that 
change will automatically apply to your insurance as of the date we 
implement the change, provided that this implementation date falls 
within 60 days before or during the policy term stated on the 
Declarations Page.

                          IX. What Law Governs

    This policy and all disputes arising from the handling of any claim 
under the policy are governed exclusively by the flood insurance 
regulations issued by FEMA, the National Flood Insurance Act of 1968, as 
amended (42 U.S.C. 4001, et seq.), and Federal common law.
    In Witness Whereof, we have signed this policy below and hereby 
enter into this Insurance Agreement.
                                                          Jo Ann Howard,
                        Administrator, Federal Insurance Administration.

[65 FR 60769, Oct. 12, 2000, as amended at 68 FR 9897, Mar. 3, 2003]

                        Appendix A(2) to Part 61

  Federal Emergency Management Agency, Federal Insurance Administration

                     Standard Flood Insurance Policy

                          GENERAL PROPERTY FORM

    Please read the policy carefully. The flood insurance coverage 
provided is subject to limitations, restrictions, and exclusions.
    This policy provides no coverage:
    1. In a regular program community, for a residential condominium 
building, as defined in this policy; and
    2. Except for personal property coverage, for a unit in a 
condominium building.

                              I. Agreement

    The Federal Emergency Management Agency (FEMA) provides flood 
insurance under the terms of the National Flood Insurance Act of 1968 
and its Amendments, and Title 44 of the Code of Federal Regulations.
    We will pay you for direct physical loss by or from flood to your 
insured property if you:
    1. Have paid the correct premium;
    2. Comply with all terms and conditions of this policy; and
    3. Have furnished accurate information and statements.
    We have the right to review the information you give us at any time 
and to revise your policy based on our review.

                             II. Definitions

    A. In this policy, ``you'' and ``your'' refer to the insured(s) 
shown on the Declarations Page of this policy. Insured(s) includes: Any 
mortgagee and loss payee named in the Application and Declarations page, 
as well as any other mortgagee or loss payee determined to exist at the 
time of loss in the order of precedence. ``We,'' ``us,'' and ``our'' 
refer to the insurer.
    Some definitions are complex because they are provided as they 
appear in the law or regulations, or result from court cases. The 
precise definitions are intended to protect you.
    Flood, as used in this flood insurance policy, means:
    1. A general and temporary condition of partial or complete 
inundation of two or more acres of normally dry land area or of two or 
more properties (one of which is your property) from:
    a. Overflow of inland or tidal waters;
    b. Unusual and rapid accumulation or runoff of surface waters from 
any source;
    c. Mudflow.
    2. The collapse or subsidence of land along the shore of a lake or 
similar body of water as a result of erosion or undermining caused by 
waves or currents of water exceeding anticipated cyclical levels which 
result in a flood as defined in A.1.a. above.
    B. The following are the other key definitions we use in this 
policy:
    1. Act. The National Flood Insurance Act of 1968 and any amendments 
to it.
    2. Actual Cash Value. The cost to replace an insured item of 
property at the time of loss, less the value of its physical 
depreciation.
    3. Application. The statement made and signed by you or your agent 
in applying for

[[Page 289]]

this policy. The application gives information we use to determine the 
eligibility of the risk, the kind of policy to be issued, and the 
correct premium payment. The application is part of this flood insurance 
policy. For us to issue you a policy, the correct premium payment must 
accompany the application.
    4. Base Flood. A flood having a one percent chance of being equaled 
or exceeded in any given year.
    5. Basement. Any area of the building, including any sunken room or 
sunken portion of a room, having its floor below ground level (subgrade) 
on all sides.
    6. Building.
    a. A structure with two or more outside rigid walls and a fully 
secured roof, that is affixed to a permanent site;
    b. A manufactured home (``a manufactured home,'' also known as a 
mobile home, is a structure: built on a permanent chassis, transported 
to its site in one or more sections, and affixed to a permanent 
foundation); or
    c. A travel trailer without wheels, built on a chassis and affixed 
to a permanent foundation, that is regulated under the community's 
floodplain management and building ordinances or laws.
    Building does not mean a gas or liquid storage tank or a 
recreational vehicle, park trailer, or other similar vehicle, except as 
described in B.6.c., above.
    7. Cancellation. The ending of the insurance coverage provided by 
this policy before the expiration date.
    8. Condominium. That form of ownership of real property in which 
each unit owner has an undivided interest in common elements.
    9. Condominium Association. The entity, formed by the unit owners, 
responsible for the maintenance and operation of:
    a. Common elements owned in undivided shares by unit owners; and
    b. Other real property in which the unit owners have use rights 
where membership in the entity is a required condition of unit 
ownership.
    10. Declarations Page. A computer-generated summary of information 
you provided in the application for insurance. The Declarations Page 
also describes the term of the policy, limits of coverage, and displays 
the premium and our name. The Declarations Page is a part of this flood 
insurance policy.
    11. Described Location. The location where the insured building or 
personal property is found. The described location is shown on the 
Declarations Page.
    12. Direct Physical Loss By or From Flood. Loss or damage to insured 
property, directly caused by a flood. There must be evidence of physical 
changes to the property.
    13. Elevated Building. A building that has no basement and that has 
its lowest elevated floor raised above ground level by foundation walls, 
shear walls, posts, piers, pilings, or columns.
    14. Emergency Program. The initial phase of a community's 
participation in the National Flood Insurance Program. During this 
phase, only limited amounts of insurance are available under the Act.
    15. Expense Constant. A flat charge you must pay on each new or 
renewal policy to defray the expenses of the Federal Government related 
to flood insurance.
    16. Federal Policy Fee. A flat charge you must pay on each new or 
renewal policy to defray certain administrative expenses incurred in 
carrying out the National Flood Insurance Program. This fee covers 
expenses not covered by the expense constant.
    17. Improvements. Fixtures, alterations, installations, or additions 
comprising a part of the insured building.
    18. Mudflow. A river of liquid and flowing mud on the surfaces of 
normally dry land areas, as when earth is carried by a current of water. 
Other earth movements, such as landslide, slope failure, or a saturated 
soil mass moving by liquidity down a slope, are not mudflows.
    19. National Flood Insurance Program (NFIP). The program of flood 
insurance coverage and floodplain management administered under the Act 
and applicable Federal regulations in Title 44 of the Code of Federal 
Regulations, Subchapter B.
    20. Policy. The entire written contract between you and us. It 
includes:
    a. This printed form;
    b. The application and Declarations Page;
    c. Any endorsement(s) that may be issued; and,
    d. Any renewal certificate indicating that coverage has been 
instituted for a new policy and new policy term.
    Only one building, which you specifically described in the 
application, may be insured under this policy.
    21. Pollutants. Substances that include, but that are not limited 
to, any solid, liquid, gaseous or thermal irritant or contaminant, 
including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and 
waste. ``Waste'' includes, but is not limited to, materials to be 
recycled, reconditioned, or reclaimed.
    22. Post-FIRM Building. A building for which construction or 
substantial improvement occurred after December 31, 1974, or on or after 
the effective date of an initial Flood Insurance Rate Map (FIRM), 
whichever is later.
    23. Probation Premium. A flat charge you must pay on each new or 
renewal policy issued covering property in a community that has been 
placed on probation under the provisions of 44 CFR 59.24.
    24. Regular Program. The final phase of a community's participation 
in the National Flood Insurance Program. In this phase, a Flood 
Insurance Rate Map is in effect and

[[Page 290]]

full limits of coverage are available under the Act.
    25. Residential Condominium Building. A building, owned and 
administered as a condominium, containing one or more family units and 
in which at least 75% of the floor area is residential.
    26. Special Flood Hazard Area. An area having special flood or 
mudflow, and/or flood-related erosion hazards, and shown on a Flood 
Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO, A1-A30, 
AE, A99, AH, AR, AR/A, AR/AE, AR/AH, AR/AO, AR/A1-A30, V1-V30, VE, V.
    27. Stock means merchandise held in storage or for sale, raw 
materials, and in-process or finished goods, including supplies used in 
their packing or shipping.
    Stock does not include any property not covered under Section IV. 
Property Not
    Covered, except the following:
    a. Parts and equipment for self-propelled vehicles;
    b. Furnishings and equipment for watercraft;
    c. Spas and hot-tubs, including their equipment; and
    d. Swimming pool equipment.
    28. Unit. A unit in a condominium building.
    29. Valued Policy. A policy in which the insured and the insurer 
agree on the value of the property insured, that value being payable in 
the event of a total loss. The Standard Flood Insurance Policy is not a 
valued policy.

                          III. Property Covered

                    A. Coverage A--Building Property

    We insure against direct physical loss by or from flood to:
    1. The building described on the Declarations Page at the described 
location. If the building is a condominium building and the named 
insured is the condominium association, Coverage A includes all units 
within the building and the improvements within the units, provided the 
units are owned in common by all unit owners.
    2. We also insure building property for a period of 45 days at 
another location, as set forth in III.C.2.b., Property Removed to 
Safety.
    3. Additions and extensions attached to and in contact with the 
building by means of a rigid exterior wall, a solid load-bearing 
interior wall, a stairway, an elevated walkway, or a roof. At your 
option, additions and extensions connected by any of these methods may 
be separately insured. Additions and extensions attached to and in 
contact with the building by means of a common interior wall that is not 
a solid load-bearing wall are always considered part of the building and 
cannot be separately insured.
    4. The following fixtures, machinery, and equipment, which are 
covered under Coverage A only:
    a. Awnings and canopies;
    b. Blinds;
    c. Carpet permanently installed over unfinished flooring;
    d. Central air conditioners;
    e. Elevator equipment;
    f. Fire extinguishing apparatus;
    g. Fire sprinkler systems;
    h. Walk-in freezers;
    i. Furnaces;
    j. Light fixtures;
    k. Outdoor antennas and aerials attached to buildings;
    l. Permanently installed cupboards, bookcases, paneling, and 
wallpaper;
    m. Pumps and machinery for operating pumps;
    n. Ventilating equipment; and
    o. Wall mirrors, permanently installed;
    p. In the units within the building, installed:
    (1) Built-in dishwashers;
    (2) Built-in microwave ovens;
    (3) Garbage disposal units;
    (4) Hot water heaters, including solar water heaters;
    (5) Kitchen cabinets;
    (6) Plumbing fixtures;
    (7) Radiators;
    (8) Ranges;
    (9) Refrigerators; and
    (10) Stoves.
    5. Materials and supplies to be used for construction, alteration, 
or repair of the insured building while the materials and supplies are 
stored in a fully enclosed building at the described location or on an 
adjacent property.
    6. A building under construction, alteration, or repair at the 
described location.
    a. If the structure is not yet walled or roofed as described in the 
definition for building (see II. 6.a.), then coverage applies:
    (1) Only while such work is in progress; or
    (2) If such work is halted, only for a period of up to 90 continuous 
days thereafter.
    b. However, coverage does not apply until the building is walled and 
roofed if the lowest floor, including the basement floor, of a non-
elevated building or the lowest elevated floor of an elevated building 
is:
    (1) Below the base flood elevation in Zones AH, AE, A1-A30, AR, AR/
AE, AR/AH, AR/A1-A30, AR/A, AR/AO; or
    (2) Below the base flood elevation adjusted to include the effect of 
wave action in Zones VE or V1-V30.
    The lowest floor levels are based on the bottom of the lowest 
horizontal structural member of the floor in Zones VE or V1-V30 and the 
top of the floor in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, 
AR/A, AR/AO.

[[Page 291]]

    7. A manufactured home or a travel trailer as described in the 
Definitions
    Section (see II.B.6.b.and II.B.6.c.).
    If the manufactured home or travel trailer is in a special flood 
hazard area, it must be anchored in the following manner at the time of 
the loss:
    a. By over-the-top or frame ties to ground anchors; or
    b. In accordance with the manufacturer's specifications; or
    c. In compliance with the community's floodplain management 
requirements unless it has been continuously insured by the NFIP at the 
same described location since September 30, 1982.
    8. Items of property in a building enclosure below the lowest 
elevated floor of an elevated post-FIRM building located in zones A1-
A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a 
basement, regardless of the zone. Coverage is limited to the following:
    a. Any of the following items, if installed in their functioning 
locations and, if necessary for operation, connected to a power source:
    (1) Central air conditioners;
    (2) Cisterns and the water in them;
    (3) Drywall for walls and ceilings in a basement and the cost of 
labor to nail it, unfinished and unfloated and not taped, to the 
framing;
    (4) Electrical junction and circuit breaker boxes;
    (5) Electrical outlets and switches;
    (6) Elevators, dumbwaiters, and related equipment, except for 
related equipment installed below the base flood elevation after 
September 30, 1987;
    (7) Fuel tanks and the fuel in them;
    (8) Furnaces and hot water heaters;
    (9) Heat pumps;
    (10) Nonflammable insulation in a basement;
    (11) Pumps and tanks used in solar energy systems;
    (12) Stairways and staircases attached to the building, not 
separated from it by elevated walkways;
    (13) Sump pumps;
    (14) Water softeners and the chemicals in them, water filters, and 
faucets installed as an integral part of the plumbing system;
    (15) Well water tanks and pumps;
    (16) Required utility connections for any item in this list; and
    (17) Footings, foundations, posts, pilings, piers, or other 
foundation walls and anchorage systems required to support a building.
    b. Clean-up.

                    B. Coverage B--Personal Property

    1. If you have purchased personal property coverage, we insure, 
subject to B. 2., 3., and 4. below, against direct physical loss by or 
from flood to personal property inside the fully enclosed insured 
building:
    a. Owned solely by you, or in the case of a condominium, owned 
solely by the condominium association and used exclusively in the 
conduct of the business affairs of the condominium association; or
    b. Owned in common by the unit owners of the condominium 
association.
    We also insure such personal property for 45 days while stored at a 
temporary location, as set forth in III.C.2.b., Property Removed to 
Safety.
    2. When this policy covers personal property, coverage will be 
either for household personal property or other than household personal 
property, while within the insured building, but not both.
    a. If this policy covers household personal property, it will insure 
household personal property usual to a living quarters, that:
    (1) Belongs to you, or a member of your household, or at your 
option:
    (a) Your domestic worker;
    (b) Your guest; or
    (2) You may be legally liable for.
    b. If this policy covers other than household personal property, it 
will insure your:
    (1) Furniture and fixtures;
    (2) Machinery and equipment;
    (3) Stock; and
    (4) Other personal property owned by you and used in your business, 
subject to IV. Property Not Covered.
    3. Coverage for personal property includes the following property, 
subject to B.1.a. and B.1.b. above, which is covered under Coverage B. 
only:
    a. Air conditioning units installed in the building;
    b. Carpet, not permanently installed, over unfinished flooring;
    c. Carpets over finished flooring;
    d. Clothes washers and dryers;
    e. ``Cook-out'' grills;
    f. Food freezers, other than walk-in, and the food in any freezer;
    g. Outdoor equipment and furniture stored inside the insured 
building;
    h. Ovens and the like; and
    i. Portable microwave ovens and portable dishwashers.
    4. Items of property in a building enclosure below the lowest 
elevated floor of an elevated post-FIRM building located in zones A1-
A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a 
basement, regardless of the zone, is limited to the following items, if 
installed in their functioning locations and, if necessary for 
operation, connected to a power source:
    a. Air conditioning units--portable or window type;
    b. Clothes washers and dryers; and
    c. Food freezers, other than walk-in, and food in any freezer.

[[Page 292]]

    5. Special Limits. We will pay no more than $2,500 for any loss to 
one or more of the following kinds of personal property:
    a. Artwork, photographs, collectibles, or memorabilia, including but 
not limited to, porcelain or other figures, and sports cards;
    b. Rare books or autographed items;
    c. Jewelry, watches, precious and semi-precious stones, articles of 
gold, silver, or platinum;
    d. Furs or any article containing fur which represents its principal 
value; or
    6. We will pay only for the functional value of antiques.
    7. If you are a tenant, you may apply up to 10% of the Coverage B 
limit to improvements:
    a. Made a part of the building you occupy; and
    b. You acquired, or made at your expense, even though you cannot 
legally remove.
    This coverage does not increase the amount of insurance that applies 
to insured personal property.
    8. If you are a condominium unit owner, you may apply up to 10% of 
the Coverage B limit to cover loss to interior:
    a. walls,
    b. floors, and
    c. ceilings,
that are not covered under a policy issued to the condominium 
association insuring the condominium building.
    This coverage does not increase the amount of insurance that applies 
to insured personal property.
    9. If you are a tenant, personal property must be inside the fully 
enclosed building.

                     C. Coverage C--Other Coverages

    1. Debris Removal.
    a. We will pay the expense to remove non-owned debris that is on or 
in insured property and debris of insured property anywhere.
    b. If you or a member of your household perform the removal work, 
the value of your work will be based on the Federal minimum wage.
    c. This coverage does not increase the Coverage A or Coverage B 
limit of liability.
    2. Loss Avoidance Measures.
    a. Sandbags, Supplies, and Labor
    (1) We will pay up to $1,000 for the costs you incur to protect the 
insured building from a flood or imminent danger of flood, for the 
following:
    (a) Your reasonable expenses to buy:
    (i) Sandbags, including sand to fill them;
    (ii) Fill for temporary levees;
    (iii) Pumps; and
    (iv) Plastic sheeting and lumber used in connection with these 
items; and
    (b) The value of work, at the Federal minimum wage, that you 
perform.
    (2) This coverage for Sandbags, Supplies, and Labor only applies if 
damage to insured property by or from flood is imminent and the threat 
of flood damage is apparent enough to lead a person of common prudence 
to anticipate flood damage. One of the following must also occur:
    (a) A general and temporary condition of flooding in the area near 
the described location must occur, even if the flood does not reach the 
insured building; or
    (b) A legally authorized official must issue an evacuation order or 
other civil order for the community in which the insured building is 
located calling for measures to preserve life and property from the 
peril of flood.
    This coverage does not increase the Coverage A or Coverage B limit 
of liability.
    b. Property Removed to Safety
    (1) We will pay up to $1,000 for the reasonable expenses you incur 
to move insured property to a place other than the described location 
that contains the property in order to protect it from flood or the 
imminent danger of flood.
    Reasonable expenses include the value of work, at the Federal 
minimum wage, that you perform.
    (2) If you move insured property to a place other than the described 
location that contains the property, in order to protect it from flood 
or the imminent danger of flood, we will cover such property while at 
that location for a period of 45 consecutive days from the date you 
begin to move it there. The personal property that is moved must be 
placed in a fully enclosed building, or otherwise reasonably protected 
from the elements.
    Any property removed, including a moveable home described in II.6.b. 
and c., must be placed above ground level or outside of the special 
flood hazard area.
    This coverage does not increase the Coverage A or Coverage B limit 
of liability.
    3. Pollution Damage.
    We will pay for damage caused by pollutants to covered property if 
the discharge, seepage, migration, release, or escape of the pollutants 
is caused by or results from flood. The most we will pay under this 
coverage is $10,000. This coverage does not increase the Coverage A or 
Coverage B limits of liability. Any payment under this provision when 
combined with all other payments for the same loss cannot exceed the 
replacement cost or actual cash value, as appropriate, of the covered 
property. This coverage does not include the testing for or monitoring 
of pollutants unless required by law or ordinance.

               D. Coverage D--Increased Cost of Compliance

    1. General.
    This policy pays you to comply with a State or local floodplain 
management law or ordinance affecting repair or reconstruction of a 
structure suffering flood damage. Compliance activities eligible for 
payment are:

[[Page 293]]

elevation, floodproofing, relocation, or demolition (or any combination 
of these activities) of your structure. Eligible floodproofing 
activities are limited to:
    a. Non-residential structures. b. Residential structures with 
basements that satisfy FEMA's standards published in the Code of Federal 
Regulations [44 CFR 60.6 (b) or (c)].
    2. Limit of Liability.
    We will pay you up to $30,000 under this Coverage D--Increased Cost 
of Compliance, which only applies to policies with building coverage 
(Coverage A). Our payment of claims under Coverage D is in addition to 
the amount of coverage which you selected on the application and which 
appears on the Declarations Page. But the maximum you can collect under 
this policy for both Coverage A (Building Property) and Coverage D 
(Increased Cost of Compliance) cannot exceed the maximum permitted under 
the Act. We do NOT charge a separate deductible for a claim under 
Coverage D.
    3. Eligibility.
    a. A structure covered under Coverage A--Building Property 
sustaining a loss caused by a flood as defined by this policy must:
    (1) Be a ``repetitive loss structure.'' A ``repetitive loss 
structure'' is one that meets the following conditions:
    (a) The structure is covered by a contract of flood insurance issued 
under the NFIP.
    (b) The structure has suffered flood damage on 2 occasions during a 
10-year period which ends on the date of the second loss.
    (c) The cost to repair the flood damage, on average, equaled or 
exceeded 25% of the market value of the structure at the time of each 
flood loss.
    (d) In addition to the current claim, the NFIP must have paid the 
previous qualifying claim, and the State or community must have a 
cumulative, substantial damage provision or repetitive loss provision in 
its floodplain management law or ordinance being enforced against the 
structure; or
    (2) Be a structure that has had flood damage in which the cost to 
repair equals or exceeds 50% of the market value of the structure at the 
time of the flood. The State or community must have a substantial damage 
provision in its floodplain management law or ordinance being enforced 
against the structure.
    b. This Coverage D pays you to comply with State or local floodplain 
management laws or ordinances that meet the minimum standards of the 
National Flood Insurance Program found in the Code of Federal 
Regulations at 44 CFR 60.3. We pay for compliance activities that exceed 
those standards under these conditions:
    (1) 3.a.(1) above.
    (2) Elevation or floodproofing in any risk zone to preliminary or 
advisory base flood elevations provided by FEMA which the State or local 
government has adopted and is enforcing for flood-damaged structures in 
such areas. (This includes compliance activities in B, C, X, or D zones 
which are being changed to zones with base flood elevations. This also 
includes compliance activities in zones where base flood elevations are 
being increased, and a flood-damaged structure must comply with the 
higher advisory base flood elevation.) Increased Cost of Compliance 
coverage does not apply to situations in B, C, X, or D zones where the 
community has derived its own elevations and is enforcing elevation or 
floodproofing requirements for flood-damaged structures to elevations 
derived solely by the community.
    (3) Elevation or floodproofing above the base flood elevation to 
meet State or local ``freeboard'' requirements, i.e., that a structure 
must be elevated above the base flood elevation.
    c. Under the minimum NFIP criteria at 44 CFR 60.3(b)(4), States and 
communities must require the elevation or floodproofing of structures in 
unnumbered A zones to the base flood elevation where elevation data is 
obtained from a Federal, State, or other source. Such compliance 
activities are also eligible for Coverage D.
    d. This coverage will also pay for the incremental cost, after 
demolition or relocation, of elevating or floodproofing a structure 
during its rebuilding at the same or another site to meet State or local 
floodplain management laws or ordinances, subject to Exclusion D.5.g. 
below.
    e. This coverage will also pay to bring a flood-damaged structure 
into compliance with State or local floodplain management laws or 
ordinances even if the structure had received a variance before the 
present loss from the applicable floodplain management requirements.
    4. Conditions.
    a. When a structure covered under Coverage A--Building Property 
sustains a loss caused by a flood, our payment for the loss under this 
Coverage D will be for the increased cost to elevate, floodproof, 
relocate, or demolish (or any combination of these activities) caused by 
the enforcement of current State or local floodplain management 
ordinances or laws. Our payment for eligible demolition activities will 
be for the cost to demolish and clear the site of the building debris or 
a portion thereof caused by the enforcement of current State or local 
floodplain management ordinances or laws. Eligible activities for the 
cost of clearing the site will include those necessary to discontinue 
utility service to the site and ensure proper abandonment of on-site 
utilities.
    b. When the building is repaired or rebuilt, it must be intended for 
the same occupancy as the present building unless otherwise required by 
current floodplain management ordinances or laws.
    5. Exclusions.

[[Page 294]]

    Under this Coverage D--Increased Cost of Compliance, we will not pay 
for:
    a. The cost to comply with any floodplain management law or 
ordinance in communities participating in the Emergency Program.
    b. The cost associated with enforcement of any ordinance or law that 
requires any insured or others to test for, monitor, clean up, remove, 
contain, treat, detoxify or neutralize, or in any way respond to, or 
assess the effects of pollutants.
    c. The loss in value to any insured building or other structure due 
to the requirements of any ordinance or law.
    d. The loss in residual value of the undamaged portion of a building 
demolished as a consequence of enforcement of any State or local 
floodplain management law or ordinance.
    e. Any Increased Cost of Compliance under this Coverage D:
    (1) Until the building is elevated, floodproofed, demolished, or 
relocated on the same or to another premises; and
    (2) Unless the building is elevated, floodproofed, demolished, or 
relocated as soon as reasonably possible after the loss, not to exceed 
two years.
    f. Any code upgrade requirements, e.g., plumbing or electrical 
wiring, not specifically related to the State or local floodplain 
management law or ordinance.
    g. Any compliance activities needed to bring additions or 
improvements made after the loss occurred into compliance with State or 
local floodplain management laws or ordinances.
    h. Loss due to any ordinance or law that you were required to comply 
with before the current loss.
    i. Any rebuilding activity to standards that do not meet the NFIP's 
minimum requirements. This includes any situation where the insured has 
received from the State or community a variance in connection with the 
current flood loss to rebuild the property to an elevation below the 
base flood elevation.
    j. Increased Cost of Compliance for a garage or carport.
    k. Any structure insured under an NFIP Group Flood Insurance Policy.
    l. Assessments made by a condominium association on individual 
condominium unit owners to pay increased costs of repairing commonly 
owned buildings after a flood in compliance with State or local 
floodplain management ordinances or laws.
    6. Other Provisions.
    All other conditions and provisions of the policy apply.

                        IV. Property Not Covered

    A. We do not cover any of the following property:
    1. Personal property not inside the fully enclosed building;
    2. A building, and personal property in it, located entirely in, on, 
or over water or seaward of mean high tide, if it was constructed or 
substantially improved after September 30, 1982;
    3. Open structures, including a building used as a boathouse or any 
structure or building into which boats are floated, and personal 
property located in, on, or over water;
    4. Recreational vehicles other than travel trailers described in the 
II.B.6.c., whether affixed to a permanent foundation or on wheels;
    5. Self-propelled vehicles or machines, including their parts and 
equipment. However, we do cover self-propelled vehicles or machines, 
provided they are not licensed for use on public roads and are:
    a. Used mainly to service the described location; or
    b. Designed and used to assist handicapped persons, while the 
vehicles or machines are inside a building at the described location;
    6. Land, land values, lawns, trees, shrubs, plants, growing crops, 
or animals;
    7. Accounts, bills, coins, currency, deeds, evidences of debt, 
medals, money, scrip, stored value cards, postage stamps, securities, 
bullion, manuscripts, or other valuable papers;
    8. Underground structures and equipment, including wells, septic 
tanks, and septic systems;
    9. Those portions of walks, walkways, decks, driveways, patios, and 
other surfaces, all whether protected by a roof or not, located outside 
the perimeter, exterior walls of the insured building;
    10. Containers including related equipment, such as, but not limited 
to, tanks containing gases or liquids;
    11. Buildings or units and all their contents if more than 49% of 
the actual cash value of the building or unit is below ground, unless 
the lowest level is at or above the base flood elevation and is below 
ground by reason of earth having been used as insulation material in 
conjunction with energy efficient building techniques;
    12. Fences, retaining walls, seawalls, bulkheads, wharves, piers, 
bridges, and docks;
    13. Aircraft or watercraft, or their furnishings and equipment;
    14. Hot tubs and spas that are not bathroom fixtures, and swimming 
pools, and their equipment such as, but not limited to, heaters, 
filters, pumps, and pipes, wherever located;
    15. Property not eligible for flood insurance pursuant to the 
provisions of the Coastal Barrier Resources Act and the Coastal Barrier 
Improvement Act of 1990 and amendments to these Acts;

[[Page 295]]

    16. Personal property owned by or in the care, custody or control of 
a unit owner, except for property of the type and under the 
circumstances set forth under III. Coverage B--Personal Property of this 
policy;
    17. A residential condominium building located in a Regular Program 
community.

                              V. Exclusions

    A. We only provide coverage for direct physical loss by or from 
flood, which means that we do not pay you for:
    1. Loss of revenue or profits;
    2. Loss of access to the insured property or described location;
    3. Loss of use of the insured property or described location;
    4. Loss from interruption of business or production;
    5. Any additional expenses incurred while the insured building is 
being repaired or is unable to be occupied for any reason;
    6. The cost of complying with any ordinance or law requiring or 
regulating the construction, demolition, remodeling, renovation or 
repair of property, including removal of any resulting debris. This 
exclusion does not apply to any eligible activities that we describe in 
Coverage D--Increased Cost of Compliance; or
    7. Any other economic loss you suffer.
    B. We do not insure a loss directly or indirectly caused by a flood 
that is already in progress at the time and date:
    1. The policy term begins; or
    2. Coverage is added at your request.
    C. We do not insure for loss to property caused directly by earth 
movement even if the earth movement is caused by flood. Some examples of 
earth movement that we do not cover are:
    1. Earthquake;
    2. Landslide;
    3. Land subsidence;
    4. Sinkholes;
    5. Destabilization or movement of land that results from 
accumulation of water in subsurface land areas; or
    6. Gradual erosion.
    We do, however, pay for losses from mudflow and land subsidence as a 
result of erosion that are specifically covered under our definition of 
flood (see A.1.c. and II.A.2.).
    D. We do not insure for direct physical loss caused directly or 
indirectly by:
    1. The pressure or weight of ice;
    2. Freezing or thawing;
    3. Rain, snow, sleet, hail, or water spray;
    4. Water, moisture, mildew, or mold damage that results primarily 
from any condition:
    a. Substantially confined to the insured building; or
    b. That is within your control including, but not limited to:
    (1) Design, structural, or mechanical defects;
    (2) Failures, stoppages, or breakage of water or sewer lines, 
drains, pumps, fixtures, or equipment; or
    (3) Failure to inspect and maintain the property after a flood 
recedes;
    5. Water or water-borne material that:
    a. Backs up through sewers or drains;
    b. Discharges or overflows from a sump, sump pump, or related 
equipment; or
    c. Seeps or leaks on or through the covered property;
unless there is a flood in the area and the flood is the proximate cause 
of the sewer or drain backup, sump pump discharge or overflow, or the 
seepage of water;
    6. The pressure or weight of water unless there is a flood in the 
area and the flood is the proximate cause of the damage from the 
pressure or weight of water;
    7. Power, heating, or cooling failure unless the failure results 
from direct physical loss by or from flood to power, heating, or cooling 
equipment situated on the described location;
    8. Theft, fire, explosion, wind, or windstorm;
    9. Anything that you or your agents do or conspire to do to cause 
loss by flood deliberately; or
    10. Alteration of the insured property that significantly increases 
the risk of flooding.
    E. We do not insure for loss to any building or personal property 
located on land leased from the Federal Government, arising from or 
incident to the flooding of the land by the Federal Government, where 
the lease expressly holds the Federal Government harmless under flood 
insurance issued under any Federal Government program.

                             VI. Deductibles

    A. When a loss is covered under this policy, we will pay only that 
part of the loss that exceeds the applicable deductible amount, subject 
to the limit of liability that applies. The deductible amount is shown 
on the Declarations Page.
    However, when a building under construction, alteration, or repair 
does not have at least two rigid exterior walls and a fully secured roof 
at the time of loss, your deductible amount will be two times the 
deductible that would otherwise apply to a completed building.
    B. In each loss from flood, separate deductibles apply to the 
building and personal property insured by this policy.
    C. No deductible applies to:
    1. III.C.2. Loss Avoidance Measures; or
    2. III.D. Increased Cost of Compliance.

                         VII. General Conditions

                         A. Pair and Set Clause

    In case of loss to an article that is part of a pair or set, we will 
have the option of paying you:

[[Page 296]]

    1. An amount equal to the cost of replacing the lost, damaged, or 
destroyed article, less depreciation, or
    2. An amount which represents the fair proportion of the total value 
of the pair or set that the lost, damaged, or destroyed article bears to 
the pair or set.

               B. Concealment or Fraud and Policy Voidance

    1. With respect to all insureds under this policy, this policy:
    a. Is void,
    b. Has no legal force or effect,
    c. Cannot be renewed, and
    d. Cannot be replaced by a new NFIP policy, if, before or after a 
loss, you or any other insured or your agent have at any time:
    (1) Intentionally concealed or misrepresented any material fact or 
circumstance,
    (2) Engaged in fraudulent conduct, or
    (3) Made false statements relating to this policy or any other NFIP 
insurance.
    2. This policy will be void as of the date wrongful acts described 
in B.1. above were committed.
    3. Fines, civil penalties, and imprisonment under applicable Federal 
laws may also apply to the acts of fraud or concealment described above.
    4. This policy is also void for reasons other than fraud, 
misrepresentation, or wrongful act. This policy is void from its 
inception and has no legal force under the following conditions:
    a. If the property is located in a community that was not 
participating in the NFIP on the policy's inception date and did not 
join or re-enter the program during the policy term and before the loss 
occurred; or
    b. If the property listed on the application is otherwise not 
eligible for coverage under the NFIP.

                           C. Other Insurance

    1. If a loss covered by this policy is also covered by other 
insurance that includes flood coverage not issued under the Act, we will 
not pay more than the amount of insurance that you are entitled to for 
lost, damaged, or destroyed property insured under this policy subject 
to the following:
    a. We will pay only the proportion of the loss that the amount of 
insurance that applies under this policy bears to the total amount of 
insurance covering the loss, unless C.1.b. or c. below applies.
    b. If the other policy has a provision stating that it is excess 
insurance, this policy will be primary.
    c. This policy will be primary (but subject to its own deductible) 
up to the deductible in the other flood policy (except another policy as 
described in C.1.b. above). When the other deductible amount is reached, 
this policy will participate in the same proportion that the amount of 
insurance under this policy bears to the total amount of both policies, 
for the remainder of the loss.
    2. Where this policy covers a condominium association and there is a 
flood insurance policy in the name of a unit owner that covers the same 
loss as this policy, then this policy will be primary.

                   D. Amendments, Waivers, Assignment

    This policy cannot be changed nor can any of its provisions be 
waived without the express written consent of the Federal Insurance 
Administrator. No action that we take under the terms of this policy can 
constitute a waiver of any of our rights. You may assign this policy in 
writing when you transfer title of your property to someone else except 
under these conditions:
    1. When this policy covers only personal property; or
    2. When this policy covers a structure during the course of 
construction.

                    E. Cancellation of Policy by You

    1. You may cancel this policy in accordance with the applicable 
rules and regulations of the NFIP.
    2. If you cancel this policy, you may be entitled to a full or 
partial refund of premium also under the applicable rules and 
regulations of the NFIP.

                   F. Non-Renewal of the Policy by Us

    Your policy will not be renewed:
    1. If the community where your covered property is located stops 
participating in the NFIP; or
    2. If your building has been declared ineligible under section 1316 
of the Act.

                G. Reduction and Reformation of Coverage

    1. If the premium we received from you was not enough to buy the 
kind and amount of coverage that you requested, we will provide only the 
amount of coverage that can be purchased for the premium payment we 
received.
    2. The policy can be reformed to increase the amount of coverage 
resulting from the reduction described in G.1. above to the amount you 
requested as follows:
    a. Discovery of Insufficient Premium or Incomplete Rating 
Information Before a Loss.
    (1) If we discover before you have a flood loss that your premium 
payment was not enough to buy the requested amount of coverage, we will 
send you and any mortgagee or trustee known to us a bill for the 
required additional premium for the current policy term (or that portion 
of the current policy term following any endorsement changing the amount 
of coverage). If you or the mortgagee or trustee pay the additional 
premium within 30 days from the date of our bill, we will reform the 
policy to increase the

[[Page 297]]

amount of coverage to the originally requested amount effective to the 
beginning of the current policy term (or subsequent date of any 
endorsement changing the amount of coverage).
    (2) If we determine before you have a flood loss that the rating 
information we have is incomplete and prevents us from calculating the 
additional premium, we will ask you to send the required information. 
You must submit the information within 60 days of our request. Once we 
determine the amount of additional premium for the current policy term, 
we will follow the procedure in G.2.a.(1) above.
    (3) If we do not receive the additional premium (or additional 
information) by the date it is due, the amount of coverage can only be 
increased by endorsement subject to any appropriate waiting period.
    b. Discovery of Insufficient Premium or Incomplete Rating 
Information After a Loss.
    (1) If we discover after you have a flood loss that your premium 
payment was not enough to buy the requested amount of coverage, we will 
send you and any mortgagee or trustee known to us a bill for the 
required additional premium for the current and the prior policy terms. 
If you or the mortgagee or trustee pay the additional premium within 30 
days of the date of our bill, we will reform the policy to increase the 
amount of coverage to the originally requested amount effective to the 
beginning of the prior policy term.
    (2) If we discover after you have a flood loss that the rating 
information we have is incomplete and prevents us from calculating the 
additional premium, we will ask you to send the required information. 
You must submit the information before your claim can be paid. Once we 
determine the amount of additional premium for the current and prior 
policy terms, we will follow the procedure in G.2.b.(1) above.
    (3) If we do not receive the additional premium by the date it is 
due, your flood insurance claim will be settled based on the reduced 
amount of coverage. The amount of coverage can only be increased by 
endorsement subject to any appropriate waiting period.
    3. However, if we find that you or your agent intentionally did not 
tell us, or falsified, any important fact or circumstance or did 
anything fraudulent relating to this insurance, the provisions of 
Condition B. above apply.

                            H. Policy Renewal

    1. This policy will expire at 12:01 a.m. on the last day of the 
policy term.
    2. We must receive the payment of the appropriate renewal premium 
within 30 days of the expiration date.
    3. If we find, however, that we did not place your renewal notice 
into the U.S. Postal Service, or if we did mail it, we made a mistake, 
e.g., we used an incorrect, incomplete, or illegible address, which 
delayed its delivery to you before the due date for the renewal premium, 
then we will follow these procedures:
    a. If you or your agent notified us, not later than one year after 
the date on which the payment of the renewal premium was due, of 
nonreceipt of a renewal notice before the due date for the renewal 
premium, and we determine that the circumstances in the preceding 
paragraph apply, we will mail a second bill providing a revised due 
date, which will be 30 days after the date on which the bill is mailed.
    b. If we do not receive the premium requested in the second bill by 
the revised due date, then we will not renew the policy. In that case, 
the policy will remain as an expired policy as of the expiration date 
shown on the Declarations Page.
    4. In connection with the renewal of this policy, we may ask you 
during the policy term to re-certify, on a Recertification Questionnaire 
that we will provide to you, the rating information used to rate your 
most recent application for or renewal of insurance.

            I. Conditions Suspending or Restricting Insurance

    We are not liable for loss that occurs while there is a hazard that 
is increased by any means within your control or knowledge.

                     J. Requirements in Case of Loss

    In case of a flood loss to insured property, you must:
    1. Give prompt written notice to us;
    2. As soon as reasonably possible, separate the damaged and 
undamaged property, putting it in the best possible order so that we may 
examine it;
    3. Prepare an inventory of damaged property showing the quantity, 
description, actual cash value, and amount of loss. Attach all bills, 
receipts, and related documents;
    4. Within 60 days after the loss, send us a proof of loss, which is 
your statement of the amount you are claiming under the policy signed 
and sworn to by you, and which furnishes us with the following 
information:
    a. The date and time of loss;
    b. A brief explanation of how the loss happened;
    c. Your interest (for example, ``owner'') and the interest, if any, 
of others in the damaged property;
    d. Details of any other insurance that may cover the loss;
    e. Changes in title or occupancy of the insured property during the 
term of the policy;
    f. Specifications of damaged buildings and detailed repair 
estimates;

[[Page 298]]

    g. Names of mortgagees or anyone else having a lien, charge, or 
claim against the insured property;
    h. Details about who occupied any insured building at the time of 
loss and for what purpose; and
    i. The inventory of damaged property described in J.3. above.
    5. In completing the proof of loss, you must use your own judgment 
concerning the amount of loss and justify that amount.
    6. You must cooperate with the adjuster or representative in the 
investigation of the claim.
    7. The insurance adjuster whom we hire to investigate your claim may 
furnish you with a proof of loss form, and she or he may help you 
complete it. However, this is a matter of courtesy only, and you must 
still send us a proof of loss within sixty days after the loss even if 
the adjuster does not furnish the form or help you complete it.
    8. We have not authorized the adjuster to approve or disapprove 
claims or to tell you whether we will approve your claim.
    9. At our option, we may accept the adjuster's report of the loss 
instead of your proof of loss. The adjuster's report will include 
information about your loss and the damages you sustained. You must sign 
the adjuster's report. At our option, we may require you to swear to the 
report.

                       K. Our Options After a Loss

    Options we may, in our sole discretion, exercise after loss include 
the following:
    1. At such reasonable times and places that we may designate, you 
must:
    a. Show us or our representative the damaged property;
    b. Submit to examination under oath, while not in the presence of 
another insured, and sign the same; and
    c. Permit us to examine and make extracts and copies of:
    (1) Any policies of property insurance insuring you against loss and 
the deed establishing your ownership of the insured real property;
    (2) Condominium association documents including the Declarations of 
the condominium, its Articles of Association or Incorporation, Bylaws, 
and rules and regulations; and
    (3) All books of accounts, bills, invoices, and other vouchers, or 
certified copies pertaining to the damaged property if the originals are 
lost.
    2. We may request, in writing, that you furnish us with a complete 
inventory of the lost, damaged, or destroyed property, including:
    a. Quantities and costs;
    b. Actual cash values;
    c. Amounts of loss claimed;
    d. Any written plans and specifications for repair of the damaged 
property that you can reasonably make available to us; and
    e. Evidence that prior flood damage has been repaired.
    3. If we give you written notice within 30 days after we receive 
your signed, sworn proof of loss, we may:
    a. Repair, rebuild, or replace any part of the lost, damaged, or 
destroyed property with material or property of like kind and quality or 
its functional equivalent; and
    b. Take all or any part of the damaged property at the value that we 
agree upon or its appraised value.

                         L. No Benefit to Bailee

    No person or organization, other than you, having custody of covered 
property will benefit from this insurance.

                             M. Loss Payment

    1. We will adjust all losses with you. We will pay you unless some 
other person or entity is named in the policy or is legally entitled to 
receive payment. Loss will be payable 60 days after we receive your 
proof of loss (or within 90 days after the insurance adjuster files an 
adjuster's report signed and sworn to by you in lieu of a proof of loss) 
and:
    a. We reach an agreement with you;
    b. There is an entry of a final judgment; or
    c. There is a filing of an appraisal award with us, as provided in 
VII. P.
    2. If we reject your proof of loss in whole or in part you may:
    a. Accept such denial of your claim;
    b. Exercise your rights under this policy; or
    c. File an amended proof of loss as long as it is filed within 60 
days of the date of the loss.

                             N. Abandonment

    You may not abandon damaged or undamaged insured property to us.

                               O. Salvage

    We may permit you to keep damaged insured property after a loss, and 
we will reduce the amount of the loss proceeds payable to you under the 
policy by the value of the salvage.

                              P. Appraisal

    If you and we fail to agree on the actual cash value of the damaged 
property so as to determine the amount of loss, either may demand an 
appraisal of the loss. In this event, you and we will each choose a 
competent and impartial appraiser within 20 days after receiving a 
written request from the other. The two appraisers will choose an 
umpire. If they cannot agree upon an umpire within 15 days, you or we 
may request that the choice be made by a judge of a court of record in 
the

[[Page 299]]

state where the insured property is located. The appraisers will 
separately state the actual cash value and the amount of loss to each 
item. If the appraisers submit a written report of an agreement to us, 
the amount agreed upon will be the amount of loss. If they fail to 
agree, they will submit their differences to the umpire. A decision 
agreed to by any two will set the amount of actual cash value and loss.
    Each party will:
    1. Pay its own appraiser; and
    2. Bear the other expenses of the appraisal and umpire equally.

                           Q. Mortgage Clause

    The word ``mortgagee'' includes trustee.
    Any loss payable under Coverage A--Building Property will be paid to 
any mortgagee of whom we have actual notice, as well as any other 
mortgagee or loss payee determined to exist at the time of loss, and 
you, as interests appear. If more than one mortgagee is named, the order 
of payment will be the same as the order of precedence of the mortgages. 
If we deny your claim, that denial will not apply to a valid claim of 
the mortgagee, if the mortgagee:
    1. Notifies us of any change in the ownership or occupancy, or 
substantial change in risk of which the mortgagee is aware;
    2. Pays any premium due under this policy on demand if you have 
neglected to pay the premium; and
    3. Submits a signed, sworn proof of loss within 60 days after 
receiving notice from us of your failure to do so.
    All terms of this policy apply to the mortgagee.
    The mortgagee has the right to receive loss payment even if the 
mortgagee has started foreclosure or similar action on the building.
    If we decide to cancel or not renew this policy, it will continue in 
effect for the benefit of the mortgagee only for 30 days after we notify 
the mortgagee of the cancellation or non-renewal.
    If we pay the mortgagee for any loss and deny payment to you, we are 
subrogated to all the rights of the mortgagee granted under the mortgage 
on the property. Subrogation will not impair the right of the mortgagee 
to recover the full amount of the mortgagee's claim.

                           R. Suit Against Us

    You may not sue us to recover money under this policy unless you 
have complied with all the requirements of the policy. If you do sue, 
you must start the suit within one year of the date of the written 
denial of all or part of the claim, and you must file the suit in the 
United States District Court of the district in which the insured 
property was located at the time of loss. This requirement applies to 
any claim that you may have under this policy and to any dispute that 
you may have arising out of the handling of any claim under the policy.

                             S. Subrogation

    Whenever we make a payment for a loss under this policy, we are 
subrogated to your right to recover for that loss from any other person. 
That means that your right to recover for a loss that was partly or 
totally caused by someone else is automatically transferred to us, to 
the extent that we have paid you for the loss. We may require you to 
acknowledge this transfer in writing. After the loss, you may not give 
up our right to recover this money or do anything that would prevent us 
from recovering it. If you make any claim against any person who caused 
your loss and recover any money, you must pay us back first before you 
may keep any of that money.

                       T. Continuous Lake Flooding

    1. If an insured building has been flooded by rising lake waters 
continuously for 90 days or more and it appears reasonably certain that 
a continuation of this flooding will result in a covered loss to the 
insured building equal to or greater than the building policy limits 
plus the deductible or the maximum payable under the policy for any one 
building loss, we will pay you the lesser of these two amounts without 
waiting for the further damage to occur if you sign a release agreeing:
    a. To make no further claim under this policy;
    b. Not to seek renewal of this policy;
    c. Not to apply for any flood insurance under the Act for property 
at the described location; and
    d. Not to seek a premium refund for current or prior terms.
    If the policy term ends before the insured building has been flooded 
continuously for 90 days, the provisions of this paragraph T.1. will 
apply when as the insured building suffers a covered loss before the 
policy term ends.
    2. If your insured building is subject to continuous lake flooding 
from a closed basin lake, you may elect to file a claim under either 
paragraph T.1. above or this paragraph T.2. (A ``closed basin lake'' is 
a natural lake from which water leaves primarily through evaporation and 
whose surface area now exceeds or has exceeded one square mile at any 
time in the recorded past. Most of the nation's closed basin lakes are 
in the western half of the United States, where annual evaporation 
exceeds annual precipitation and where lake levels and surface areas are 
subject to considerable fluctuation due to wide variations in the 
climate. These lakes may overtop their basins on rare occasions.) Under 
this paragraph T.2 we will pay your

[[Page 300]]

claim as if the building is a total loss even though it has not been 
continuously inundated for 90 days, subject to the following conditions:
    a. Lake flood waters must damage or imminently threaten to damage 
your building.
    b. Before approval of your claim, you must:
    (1) Agree to a claim payment that reflects your buying back the 
salvage on a negotiated basis; and
    (2) Grant the conservation easement described in FEMA's ``Policy 
Guidance for Closed Basin Lakes,'' to be recorded in the office of the 
local recorder of deeds. FEMA, in consultation with the community in 
which the property is located, will identify on a map an area or areas 
of special consideration (ASC) in which there is a potential for flood 
damage from continuous lake flooding. FEMA will give the community the 
agreed-upon map showing the ASC. This easement will only apply to that 
portion of the property in the ASC. It will allow certain agricultural 
and recreational uses of the land. The only structures that it will 
allow on any portion of the property within the ASC are certain, simple 
agricultural and recreational structures. If any of these allowable 
structures are insurable buildings under the NFIP and are insured under 
the NFIP, they will not be eligible for the benefits of this paragraph 
T.2. If a U.S. Army Corps of Engineers certified flood control project 
or otherwise certified flood control project later protects the 
property, FEMA will, upon request, amend the ASC to remove areas 
protected by those projects. The restrictions of the easement will then 
no longer apply to any portion of the property removed from the ASC; and
    (3) Comply with paragraphs T.1.a. through T.1.d. above.
    c. Within 90 days of approval of your claim, you must move your 
building to a new location outside the ASC. FEMA will give you an 
additional 30 days to move if you show that there is sufficient reason 
to extend the time.
    d. Before the final payment of your claim, you must acquire an 
elevation certificate and a floodplain development permit from the local 
floodplain administrator for the new location of your building.
    e. Before the approval of your claim, the community having 
jurisdiction over your building must:
    (1) Adopt a permanent land use ordinance, or a temporary moratorium 
for a period not to exceed 6 months to be followed immediately by a 
permanent land use ordinance, that is consistent with the provisions 
specified in the easement required in paragraph T.2.b. above.
    (2) Agree to declare and report any violations of this ordinance to 
FEMA so that under Sec. 1316 of the National Flood Insurance Act of 
1968, as amended, flood insurance to the building can be denied; and
    (3) Agree to maintain as deed-restricted, for purposes compatible 
with open space or agricultural or recreational use only, any affected 
property the community acquires an interest in. These deed restrictions 
must be consistent with the provisions of paragraph T.2.b. above except 
that even if a certified project protects the property, the land use 
restrictions continue to apply if the property was acquired under the 
Hazard Mitigation Grant Program or the Flood Mitigation Assistance 
Program. If a non-profit land trust organization receives the property 
as a donation, that organization must maintain the property as deed-
restricted, consistent with the provisions of paragraph T.2.b. above.
    f. Before the approval of your claim, the affected State must take 
all action set forth in FEMA's ``Policy Guidance for Closed Basin 
Lakes.''
    g. You must have NFIP flood insurance coverage continuously in 
effect from a date established by FEMA until you file a claim under this 
paragraph T.2. If a subsequent owner buys NFIP insurance that goes into 
effect within 60 days of the date of transfer of title, any gap in 
coverage during that 60-day period will not be a violation of this 
continuous coverage requirement. For the purpose of honoring a claim 
under this paragraph T.2, we will not consider to be in effect any 
increased coverage that became effective after the date established by 
FEMA. The exception to this is any increased coverage in the amount 
suggested by your insurer as an inflation adjustment.
    h. This paragraph T.2. will be in effect for a community when the 
FEMA Regional Director for the affected region provides to the 
community, in writing, the following:
    (1) Confirmation that the community and the State are in compliance 
with the conditions in paragraphs T.2.e. and T.2.f. above, and
    (2) The date by which you must have flood insurance in effect.

                    U. Duplicate Policies Not Allowed

    1. Property may not be insured under more than one NFIP policy.
    If we find that the duplication was not knowingly created, we will 
give you written notice. The notice will advise you that you may choose 
one of several options under the following procedures:
    a. If you choose to keep in effect the policy with the earlier 
effective date, you may also choose to add the coverage limits of the 
later policy to the limits of the earlier policy. The change will become 
effective as of the effective date of the later policy.
    b. If you choose to keep in effect the policy with the later 
effective date, you may also choose to add the coverage limits of the 
earlier policy to the limits of the later policy. The change will be 
effective as of the effective date of the later policy.

[[Page 301]]

    In either case, you must pay the pro rata premium for the increased 
coverage limits within 30 days of the written notice. In no event will 
the resulting coverage limits exceed the permissible limits of coverage 
under the Act or your insurable interest, whichever is less. We will 
make a refund to you, according to applicable NFIP rules, of the premium 
for the policy not being kept in effect.
    2. Your option under this Condition U. Duplicate Policies Not 
Allowed to elect which NFIP policy to keep in effect does not apply when 
duplicates have been knowingly created. Losses occurring under such 
circumstances will be adjusted according to the terms and conditions of 
the earlier policy. The policy with the later effective date must be 
canceled.

                           V. Loss Settlement

    We will pay the least of the following amounts after application of 
the deductible:
    1. The applicable amount of insurance under this policy;
    2. The actual cash value; or
    3. The amount it would cost to repair or replace the property with 
material of like kind and quality within a reasonable time after the 
loss.

                       VIII. Liberalization Clause

    If we make a change that broadens your coverage under this edition 
of our policy, but does not require any additional premium, then that 
change will automatically apply to your insurance as of the date we 
implement the change, provided that this implementation date falls 
within 60 days before or during the policy term stated on the 
Declarations Page.

                          IX. What Law Governs

    This policy and all disputes arising from the handling of any claim 
under the policy are governed exclusively by the flood insurance 
regulations issued by FEMA, the National Flood Insurance Act of 1968, as 
amended (42 U.S.C. 4001, et seq.), and Federal common law.
    In Witness Whereof, we have signed this policy below and hereby 
enter into this Insurance Agreement.
                                                          Jo Ann Howard,
                        Administrator, Federal Insurance Administration.

[65 FR 60778, Oct. 12, 2000, as amended at 68 FR 9897, Mar. 3, 2003]

                        Appendix A(3) to Part 61

  Federal Emergency Management Agency Federal Insurance Administration

                     Standard Flood Insurance Policy

           RESIDENTIAL CONDOMINIUM BUILDING ASSOCIATION POLICY

                              I. Agreement

    Please read the policy carefully. The flood insurance provided is 
subject to limitations, restrictions, and exclusions.
    This policy covers only a residential condominium building in a 
regular program community. If the community reverts to emergency program 
status during the policy term and remains as an emergency program 
community at time of renewal, this policy cannot be renewed.
    The Federal Emergency Management Agency (FEMA) provides flood 
insurance under the terms of the National Flood Insurance Act of 1968 
and its Amendments, and Title 44 of the Code of Federal Regulations.
    We will pay you for direct physical loss by or from flood to your 
insured property if you:
    1. Have paid the correct premium;
    2. Comply with all terms and conditions of this policy; and
    3. Have furnished accurate information and statements.
    We have the right to review the information you give us at any time 
and to revise your policy based on our review.

                             II. Definitions

    A. In this policy, ``you'' and ``your'' refer to the insured(s) 
shown on the Declarations Page of this policy. Insured(s) includes: any 
mortgagee and loss payee named in the Application and Declarations Page, 
as well as any other mortgagee or loss payee determined to exist at the 
time of loss in the order of precedence. ``We,'' ``us,'' and ``our'' 
refer to the insurer.
    Some definitions are complex because they are provided as they 
appear in the law or regulations, or result from court cases. The 
precise definitions are intended to protect you.
    ``Flood'', as used in this flood insurance policy, means:
    1. A general and temporary condition of partial or complete 
inundation of two or more acres of normally dry land area or of two or 
more properties (one of which is your property) from:
    a. Overflow of inland or tidal waters;
    b. Unusual and rapid accumulation or runoff of surface waters from 
any source;
    c. Mudflow.
    2. Collapse or subsidence of land along the shore of a lake or 
similar body of water as a result of erosion or undermining caused by

[[Page 302]]

waves or currents of water exceeding anticipated cyclical levels which 
result in a flood as defined in A.1.a above.
    B. The following are the other key definitions we use in this 
policy:
    1. Act. The National Flood Insurance Act of 1968 and any amendments 
to it.
    2. Actual Cash Value. The cost to replace an insured item of 
property at the time of loss, less the value of its physical 
depreciation.
    3. Application. The statement made and signed by you or your agent 
in applying for this policy. The application gives information we use to 
determine the eligibility of the risk, the kind of policy to be issued, 
and the correct premium payment. The application is part of this flood 
insurance policy. For us to issue you a policy, the correct premium 
payment must accompany the application.
    4. Base Flood. A flood having a one percent chance of being equaled 
or exceeded in any given year.
    5. Basement. Any area of the building, including any sunken room or 
sunken portion of a room, having its floor below ground level (subgrade) 
on all sides.
    6. Building.
    a. A structure with two or more outside rigid walls and a fully 
secured roof, that is affixed to a permanent site;
    b. A manufactured home (``a manufactured home,'' also known as a 
mobile home, is a structure: built on a permanent chassis, transported 
to its site in one or more sections, and affixed to a permanent 
foundation); or
    c. A travel trailer without wheels, built on a chassis and affixed 
to a permanent foundation, that is regulated under the community's 
floodplain management and building ordinances or laws.
    Building does not mean a gas or liquid storage tank or a 
recreational vehicle, park trailer or other similar vehicle, except as 
described in B.6.c., above.
    7. Cancellation. The ending of the insurance coverage provided by 
this policy before the expiration date.
    8. Condominium. That form of ownership of real property in which 
each unit owner has an undivided interest in common elements.
    9. Condominium Association. The entity, formed by the unit owners, 
responsible for the maintenance and operation of:
    a. Common elements owned in undivided shares by unit owners; and
    b. Other real property in which the unit owners have use rights; 
where membership in the entity is a required condition of unit 
ownership.
    10. Declarations Page. A computer-generated summary of information 
you provided in the application for insurance. The Declarations Page 
also describes the term of the policy, limits of coverage, and displays 
the premium and our name. The Declarations Page is a part of this flood 
insurance policy.
    11. Described Location. The location where the insured building or 
personal property is found. The described location is shown on the 
Declarations Page.
    12. Direct Physical Loss By or From Flood. Loss or damage to insured 
property, directly caused by a flood. There must be evidence of physical 
changes to the property.
    13. Elevated Building. A building that has no basement and that has 
its lowest elevated floor raised above ground level by foundation walls, 
shear walls, posts, piers, pilings, or columns.
    14. Emergency Program. The initial phase of a community's 
participation in the National Flood Insurance Program. During this 
phase, only limited amounts of insurance are available under the Act.
    15. Expense Constant. A flat charge you must pay on each new or 
renewal policy to defray the expenses of the Federal Government related 
to flood insurance.
    16. Federal Policy Fee. A flat charge you must pay on each new or 
renewal policy to defray certain administrative expenses incurred in 
carrying out the National Flood Insurance Program. This fee covers 
expenses not covered by the expense constant.
    17. Improvements. Fixtures, alterations, installations, or additions 
comprising a part of the residential condominium building, including 
improvements in the units.
    18. Mudflow. A river of liquid and flowing mud on the surfaces of 
normally dry land areas, as when earth is carried by a current of water. 
Other earth movements, such as landslide, slope failure, or a saturated 
soil mass moving by liquidity down a slope, are not mudflows.
    19. National Flood Insurance Program (NFIP). The program of flood 
insurance coverage and floodplain management administered under the Act 
and applicable Federal regulations in Title 44 of the Code of Federal 
Regulations, Subchapter B.
    20. Policy. The entire written contract between you and us. It 
includes:
    a. This printed form;
    b. The application and Declarations Page;
    c. Any endorsement(s) that may be issued; and
    d. Any renewal certificate indicating that coverage has been 
instituted for a new policy and new policy term.
    Only one building, which you specifically described in the 
application, may be insured under this policy.
    21. Pollutants. Substances that include, but are not limited to, any 
solid, liquid, gaseous, or thermal irritant or contaminant, including 
smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste 
includes, but is not limited to, materials to be recycled, 
reconditioned, or reclaimed.

[[Page 303]]

    22. Post-FIRM Building. A building for which construction or 
substantial improvement occurred after December 31, 1974, or on or after 
the effective date of an initial Flood Insurance Rate Map (FIRM), 
whichever is later.
    23. Probation Premium. A flat charge you must pay on each new or 
renewal policy issued covering property in a community that the NFIP has 
placed on probation under the provisions of 44 CFR 59.24.
    24. Regular Program. The final phase of a community's participation 
in the National Flood Insurance Program. In this phase, a Flood 
Insurance Rate Map is in effect and full limits of coverage are 
available under the Act.
    25. Residential Condominium Building. A building, owned and 
administered as a condominium, containing one or more family units and 
in which at least 75% of the floor area is residential.
    26. Special Flood Hazard Area. An area having special flood or 
mudflow, and/or flood-related erosion hazards, and shown on a Flood 
Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO, A1-A30, 
AE, A99, AH, AR, AR/A, AR/AE, AR/AH, AR/AO, AR/A1-A30, V1-V30, VE, or V.
    27. Unit. A single-family unit in a residential condominium 
building.
    28. Valued Policy. A policy in which the insured and the insurer 
agree on the value of the property insured, that value being payable in 
the event of a total loss. The Standard Flood Insurance Policy is not a 
valued policy.

                          III. Property Covered

                    A. Coverage A--Building Property

    We insure against direct physical loss by or from flood to:
    1. The residential condominium building described on the 
Declarations Page at the described location, including all units within 
the building and the improvements within the units.
    2. We also insure such building property for a period of 45 days at 
another location, as set forth in III.C.2.b., Property Removed to 
Safety.
    3. Additions and extensions attached to and in contact with the 
building by means of a rigid exterior wall, a solid load-bearing 
interior wall, a stairway, an elevated walkway, or a roof. At your 
option, additions and extensions connected by any of these methods may 
be separately insured. Additions and extensions attached to and in 
contact with the building by means of a common interior wall that is not 
a solid load-bearing wall are always considered part of the building and 
cannot be separately insured.
    4. The following fixtures, machinery and equipment, including its 
units, which are covered under Coverage A only:
    a. Awnings and canopies;
    b. Blinds;
    c. Carpet permanently installed over unfinished flooring;
    d. Central air conditioners;
    e. Elevator equipment;
    f. Fire extinguishing apparatus;
    g. Fire sprinkler systems;
    h. Walk-in freezers;
    i. Furnaces;
    j. Light fixtures;
    k. Outdoor antennas and aerials fastened to buildings;
    l. Permanently installed cupboards, bookcases, paneling, and 
wallpaper;
    m. Pumps and machinery for operating pumps;
    n. Ventilating equipment;
    o. Wall mirrors, permanently installed; and
    p. In the units within the building, installed:
    (1) Built-in dishwashers;
    (2) Built-in microwave ovens;
    (3) Garbage disposal units;
    (4) Hot water heaters, including solar water heaters;
    (5) Kitchen cabinets;
    (6) Plumbing fixtures;
    (7) Radiators;
    (8) Ranges;
    (9) Refrigerators; and
    (10) Stoves.
    5. Materials and supplies to be used for construction, alteration or 
repair of the insured building while the materials and supplies are 
stored in a fully enclosed building at the described location or on an 
adjacent property.
    6. A building under construction, alteration or repair at the 
described location.
    a. If the structure is not yet walled or roofed as described in the 
definition for building (see II.B.6.a.), then coverage applies:
    (1) Only while such work is in progress; or
    (2) If such work is halted, only for a period of up to 90 continuous 
days thereafter.
    b. However, coverage does not apply until the building is walled and 
roofed if the lowest floor, including the basement floor, of a non-
elevated building or the lowest elevated floor of an elevated building 
is:
    (1) Below the base flood elevation in Zones AH, AE, A1-30, AR, AR/
AE, AR/AH, AR/A1-30, AR/A, AR/AO; or
    (2) Below the base flood elevation adjusted to include the effect of 
wave action in Zones VE or V1-30.
    The lowest floor levels are based on the bottom of the lowest 
horizontal structural member of the floor in Zones VE or V1-V30 and the 
top of the floor in Zones AH, AE, A1-A30, AR, AR/AE, AR/AH, AR/A1-A30, 
AR/A, AR/AO.
    7. A manufactured home or a travel trailer as described in the 
Definitions Section (See II.B.b. and c.).

[[Page 304]]

    If the manufactured home is in a special flood hazard area, it must 
be anchored in the following manner at the time of the loss:
    a. By over-the-top or frame ties to ground anchors; or
    b. In accordance with the manufacturer's specifications; or
    c. In compliance with the community's floodplain management 
requirements unless it has been continuously insured by the NFIP at the 
same described location since September 30, 1982.
    8. Items of property in a building enclosure below the lowest 
elevated floor of an elevated post-FIRM building located in zones A1-
A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in a 
basement, regardless of the zone. Coverage is limited to the following:
    a. Any of the following items, if installed in their functioning 
locations and, if necessary for operation, connected to a power source:
    (1) Central air conditioners;
    (2) Cisterns and the water in them;
    (3) Drywall for walls and ceilings in a basement and the cost of 
labor to nail it, unfinished and unfloated and not taped, to the 
framing;
    (4) Electrical junction and circuit breaker boxes;
    (5) Electrical outlets and switches;
    (6) Elevators, dumbwaiters, and related equipment, except for 
related equipment installed below the base flood elevation after 
September 30, 1987;
    (7) Fuel tanks and the fuel in them;
    (8) Furnaces and hot water heaters;
    (9) Heat pumps;
    (10) Nonflammable insulation in a basement;
    (11) Pumps and tanks used in solar energy systems;
    (12) Stairways and staircases attached to the building, not 
separated from it by elevated walkways;
    (13) Sump pumps;
    (14) Water softeners and the chemicals in them, water filters and 
faucets installed as an integral part of the plumbing system;
    (15) Well water tanks and pumps;
    (16) Required utility connections for any item in this list; and
    (17) Footings, foundations, posts, pilings, piers, or other 
foundation walls and anchorage systems required to support a building.
    b. Clean-up.

                    B. Coverage B--Personal Property

    1. If you have purchased personal property coverage, we insure, 
subject to B.2. and B.3. below, against direct physical loss by or from 
flood to personal property that is inside the fully enclosed insured 
building and is:
    a. Owned by the unit owners of the condominium association in 
common, meaning property in which each unit owner has an undivided 
ownership interest; or
    b. Owned solely by the condominium association and used exclusively 
in the conduct of the business affairs of the condominium association.
    We also insure such personal property for 45 days while stored at a 
temporary location, as set forth in III.C.2.b., Property Removed to 
Safety.
    2. Coverage for personal property includes the following property, 
subject to B.1. above, which is covered under Coverage B only:
    a. Air conditioning units--portable or window type;
    b. Carpet, not permanently installed, over unfinished flooring;
    c. Carpets over finished flooring;
    d. Clothes washers and dryers;
    e. ``Cook-out'' grills;
    f. Food freezers, other than walk-in, and the food in any freezer;
    g. Outdoor equipment and furniture stored inside the insured 
building;
    h. Ovens and the like; and
    i. Portable microwave ovens and portable dishwashers.
    3. Coverage for items of property in a building enclosure below the 
lowest elevated floor of an elevated post-FIRM building located in zones 
A1-A30, AE, AH, AR, AR/A, AR/AE, AR/AH, AR/A1-A30, V1-V30, or VE, or in 
a basement, regardless of the zone, is limited to the following items, 
if installed in their functioning locations and, if necessary for 
operation, connected to a power source:
    a. Air conditioning units--portable or window type;
    b. Clothes washers and dryers; and
    c. Food freezers, other than walk-in, and food in any freezer.
    4. Special Limits. We will pay no more than $2,500 for any one loss 
to one or more of the following kinds of personal property:
    a. Artwork, photographs, collectibles, or memorabilia, including but 
not limited to, porcelain or other figures, and sports cards;
    b. Rare books or autographed items;
    c. Jewelry, watches, precious and semi-precious stones, or articles 
of gold, silver, or platinum;
    d. Furs or any article containing fur which represents its principal 
value.
    5. We will pay only for the functional value of antiques.

                     C. Coverage C--Other Coverages

    1. Debris Removal
    a. We will pay the expense to remove non-owned debris that is on or 
in insured property and debris of insured property anywhere.
    b. If you or a member of your household perform the removal work, 
the value of your work will be based on the Federal minimum wage.

[[Page 305]]

    c. This coverage does not increase the Coverage A or Coverage B 
limit of liability.
    2. Loss Avoidance Measures
    a. Sandbags, Supplies, and Labor
    (1) We will pay up to $1,000 for the costs you incur to protect the 
insured building from a flood or imminent danger of flood, for the 
following:
    (a) Your reasonable expenses to buy:
    (i) Sandbags, including sand to fill them;
    (ii) Fill for temporary levees;
    (iii) Pumps; and
    (iv) Plastic sheeting and lumber used in connection with these 
items; and
    (b) The value of work, at the Federal minimum wage, that you 
perform.
    (2) This coverage for Sandbags, Supplies, and Labor applies only if 
damage to insured property by or from flood is imminent and the threat 
of flood damage is apparent enough to lead a person of common prudence 
to anticipate flood damage. One of the following must also occur:
    (a) A general and temporary condition of flooding in the area near 
the described location must occur, even if the flood does not reach the 
insured building; or
    (b) A legally authorized official must issue an evacuation order or 
other civil order for the community in which the insured building is 
located calling for measures to preserve life and property from the 
peril of flood. This coverage does not increase the Coverage A or 
Coverage B limit of liability.
    b. Property Removed to Safety
    (1) We will pay up to $1,000 for the reasonable expenses you incur 
to move insured property to a place other than the described location 
that contains the property in order to protect it from flood or the 
imminent danger of flood.
    Reasonable expenses include the value of work, at the Federal 
minimum wage, that you perform.
    (2) If you move insured property to a location other than the 
described location that contains the property, in order to protect it 
from flood or the imminent danger of flood, we will cover such property 
while at that location for a period of 45 consecutive days from the date 
you begin to move it there. The personal property that is moved must be 
placed in a fully enclosed building, or otherwise reasonably protected 
from the elements.
    Any property removed, including a moveable home described in II.6.b. 
and c., must be placed above ground level or outside of the special 
flood hazard area.
    This coverage does not increase the Coverage A or Coverage B limit 
of liability.

               D. Coverage D--Increased Cost of Compliance

    1. General.
    This policy pays you to comply with a State or local floodplain 
management law or ordinance affecting repair or reconstruction of a 
structure suffering flood damage. Compliance activities eligible for 
payment are: elevation, floodproofing, relocation, or demolition (or any 
combination of these activities) of your structure. Eligible 
floodproofing activities are limited to:
    a. Non-residential structures.
    b. Residential structures with basements that satisfy FEMA's 
standards published in the Code of Federal Regulations [44 CFR 60.6 (b) 
or (c)].
    2. Limit of Liability.
    We will pay you up to $30,000 under this Coverage D--Increased Cost 
of Compliance, which only applies to policies with building coverage 
(Coverage A).Our payment of claims under Coverage D is in addition to 
the amount of coverage which you selected on the application and which 
appears on the Declarations Page. But the maximum you can collect under 
this policy for both Coverage A--Building Property and Coverage D--
Increased Cost of Compliance cannot exceed the maximum permitted under 
the Act. We do not charge a separate deductible for a claim under 
Coverage D.
    3. Eligibility.
    a. A structure covered under Coverage A--Building Property 
sustaining a loss caused by a flood as defined by this policy must:
    (1) Be a ``repetitive loss structure.'' A ``repetitive loss 
structure'' is one that meets the following conditions:
    (a) The structure is covered by a contract of flood insurance issued 
under the NFIP.
    (b) The structure has suffered flood damage on 2 occasions during a 
10-year period which ends on the date of the second loss.
    (c) The cost to repair the flood damage, on average, equaled or 
exceeded 25% of the market value of the structure at the time of each 
flood loss.
    (d) In addition to the current claim, the NFIP must have paid the 
previous qualifying claim, and the State or community must have a 
cumulative, substantial damage provision or repetitive loss provision in 
its floodplain management law or ordinance being enforced against the 
structure; or
    (2) Be a structure that has had flood damage in which the cost to 
repair equals or exceeds 50% of the market value of the structure at the 
time of the flood. The State or community must have a substantial damage 
provision in its floodplain management law or ordinance being enforced 
against the structure.
    b. This Coverage D pays you to comply with State or local floodplain 
management laws or ordinances that meet the minimum standards of the 
National Flood Insurance Program found in the Code of Federal 
Regulations at 44 CFR 60.3. We pay for compliance activities that exceed 
those standards under these conditions:
    (1) 3.a.(1) above.

[[Page 306]]

    (2) Elevation or floodproofing in any risk zone to preliminary or 
advisory base flood elevations provided by FEMA which the State or local 
government has adopted and is enforcing for flood-damaged structures in 
such areas. (This includes compliance activities in B, C, X, or D zones 
which are being changed to zones with base flood elevations. This also 
includes compliance activities in zones where base flood elevations are 
being increased, and a flood-damaged structure must comply with the 
higher advisory base flood elevation.) Increased Cost of Compliance 
coverage does not apply to situations in B, C, X, or D zones where the 
community has derived its own elevations and is enforcing elevation or 
floodproofing requirements for flood-damaged structures to elevations 
derived solely by the community.
    (3) Elevation or floodproofing above the base flood elevation to 
meet State or local ``freeboard'' requirements, i.e., that a structure 
must be elevated above the base flood elevation.
    c. Under the minimum NFIP criteria at 44 CFR 60.3(b)(4), States and 
communities must require the elevation or floodproofing of structures in 
unnumbered A zones to the base flood elevation where elevation data is 
obtained from a Federal, State, or other source. Such compliance 
activities are also eligible for Coverage D.
    d. This coverage will also pay for the incremental cost, after 
demolition or relocation, of elevating or floodproofing a structure 
during its rebuilding at the same or another site to meet State or local 
floodplain management laws or ordinances, subject to Exclusion 
D.5.g.below relating to improvements.
    e. This coverage will also pay to bring a flood-damaged structure 
into compliance with State or local floodplain management laws or 
ordinances even if the structure had received a variance before the 
present loss from the applicable floodplain management requirements.
    4. Conditions.
    a. When a structure covered under Coverage A--Building Property 
sustains a loss caused by a flood, our payment for the loss under this 
Coverage D will be for the increased cost to elevate, floodproof, 
relocate, or demolish (or any combination of these activities) caused by 
the enforcement of current State or local floodplain management 
ordinances or laws. Our payment for eligible demolition activities will 
be for the cost to demolish and clear the site of the building debris or 
a portion thereof caused by the enforcement of current State or local 
floodplain management ordinances or laws. Eligible activities for the 
cost of clearing the site will include those necessary to discontinue 
utility service to the site and ensure proper abandonment of on-site 
utilities.
    b. When the building is repaired or rebuilt, it must be intended for 
the same occupancy as the present building unless otherwise required by 
current floodplain management ordinances or laws.
    5. Exclusions.
    Under this Coverage D--Increased Cost of Compliance, we will not pay 
for:
    a. The cost to comply with any floodplain management law or 
ordinance in communities participating in the Emergency Program.
    b. The cost associated with enforcement of any ordinance or law that 
requires any insured or others to test for, monitor, clean up, remove, 
contain, treat, detoxify or neutralize, or in any way respond to, or 
assess the effects of pollutants.
    c. The loss in value to any insured building or other structure due 
to the requirements of any ordinance or law.
    d. The loss in residual value of the undamaged portion of a building 
demolished as a consequence of enforcement of any State or local 
floodplain management law or ordinance.
    e. Any Increased Cost of Compliance under this Coverage D:
    (1) Until the building is elevated, floodproofed, demolished, or 
relocated on the same or to another premises; and
    (2) Unless the building is elevated, floodproofed, demolished, or 
relocated as soon as reasonably possible after the loss, not to exceed 
two years.
    f. Any code upgrade requirements, e.g., plumbing or electrical 
wiring, not specifically related to the State or local floodplain 
management law or ordinance.
    g. Any compliance activities needed to bring additions or 
improvements made after the loss occurred into compliance with State or 
local floodplain management laws or ordinances.
    h. Loss due to any ordinance or law that you were required to comply 
with before the current loss.
    i. Any rebuilding activity to standards that do not meet the NFIP's 
minimum requirements. This includes any situation where the insured has 
received from the State or community a variance in connection with the 
current flood loss to rebuild the property to an elevation below the 
base flood elevation.
    j. Increased Cost of Compliance for a garage or carport.
    k. Any structure insured under an NFIP Group Flood Insurance Policy.
    l. Assessments made by a condominium association on individual 
condominium unit owners to pay increased costs of repairing commonly 
owned buildings after a flood in compliance with State or local 
floodplain management ordinances or laws.
    6. Other Provisions.

[[Page 307]]

    a. Increased Cost of Compliance coverage will not be included in the 
calculation to determine whether coverage meets the coinsurance 
requirement for replacement cost coverage under VIII. General 
Conditions, V. Loss Settlement.
    b. All other conditions and provisions of this policy apply.

                        IV. Property Not Covered

    We do not cover any of the following:
    1. Personal property not inside the fully enclosed building;
    2. A building, and personal property in it, located entirely in, on, 
or over water or seaward of mean high tide, if constructed or 
substantially improved after September 30, 1982;
    3. Open structures, including a building used as a boathouse or any 
structure or building into which boats are floated, and personal 
property located in, on, or over water;
    4. Recreational vehicles other than travel trailers described in the 
Definitions Section (see II.B.6.c.) whether affixed to a permanent 
foundation or on wheels;
    5. Self-propelled vehicles or machines, including their parts and 
equipment.
    However, we do cover self-propelled vehicles or machines, provided 
they are not licensed for use on public roads and are:
    a. Used mainly to service the described location, or
    b. Designed and used to assist handicapped persons, while the 
vehicles or machines are inside a building at the described location;
    6. Land, land values, lawns, trees, shrubs, plants, growing crops, 
or animals;
    7. Accounts, bills, coins, currency, deeds, evidences of debt, 
medals, money, scrip, stored value cards, postage stamps, securities, 
bullion, manuscripts, or other valuable papers;
    8. Underground structures and equipment, including wells, septic 
tanks, and septic systems;
    9. Those portions of walks, walkways, decks, driveways, patios, and 
other surfaces, all whether protected by a roof or not, located outside 
the perimeter, exterior walls of the insured building;
    10. Containers, including related equipment, such as, but not 
limited to, tanks containing gases or liquids;
    11. Buildings and all their contents if more than 49% of the actual 
cash value of the building is below ground, unless the lowest level is 
at or above the base flood elevation and is below ground by reason of 
earth having been used as insulation material in conjunction with energy 
efficient building techniques;
    12. Fences, retaining walls, seawalls, bulkheads, wharves, piers, 
bridges, and docks;
    13. Aircraft or watercraft, or their furnishings and equipment;
    14. Hot tubs and spas that are not bathroom fixtures, and swimming 
pools, and their equipment such as, but not limited to, heaters, 
filters, pumps, and pipes, wherever located;
    15. Property not eligible for flood insurance pursuant to the 
provisions of the Coastal Barrier Resources Act and the Coastal Barrier 
Improvements Act of 1990 and amendments to these Acts;
    16. Personal property used in connection with any incidental 
commercial occupancy or use of the building.

                              V. Exclusions

    A. We only pay for direct physical loss by or from flood, which 
means that we do not pay you for:
    1. Loss of revenue or profits;
    2. Loss of access to the insured property or described location;
    3. Loss of use of the insured property or described location;
    4. Loss from interruption of business or production;
    5. Any additional living expenses incurred while the insured 
building is being repaired or is unable to be occupied for any reason;
    6. The cost of complying with any ordinance or law requiring or 
regulating the construction, demolition, remodeling, renovation, or 
repair of property, including removal of any resulting debris. This 
exclusion does not apply to any eligible activities that we describe in 
Coverage D--Increased Cost of Compliance; or
    7. Any other economic loss.
    B. We do not insure a loss directly or indirectly caused by a flood 
that is already in progress at the time and date:
    1. The policy term begins; or
    2. Coverage is added at your request.
    C. We do not insure for loss to property caused directly by earth 
movement even if the earth movement is caused by flood. Some examples of 
earth movement that we do not cover are:
    1. Earthquake;
    2. Landslide;
    3. Land subsidence;
    4. Sinkholes;
    5. Destabilization or movement of land that results from 
accumulation of water in subsurface land areas; or
    6. Gradual erosion.
    We do, however, pay for losses from mudflow and land subsidence as a 
result of erosion that are specifically covered under our definition of 
flood (see II.A.1.c. and II.A.2.).
    D. We do not insure for direct physical loss caused directly or 
indirectly by:
    1. The pressure or weight of ice;
    2. Freezing or thawing;
    3. Rain, snow, sleet, hail, or water spray;
    4. Water, moisture, mildew, or mold damage that results primarily 
from any condition:

[[Page 308]]

    a. Substantially confined to the insured building; or
    b. That is within your control including, but not limited to:
    (1) Design, structural, or mechanical defects;
    (2) Failures, stoppages, or breakage of water or sewer lines, 
drains, pumps, fixtures, or equipment; or
    (3) Failure to inspect and maintain the property after a flood 
recedes;
    5. Water or water-borne material that:
    a. Backs up through sewers or drains;
    b. Discharges or overflows from a sump, sump pump, or related 
equipment; or
    c. Seeps or leaks on or through insured property;
unless there is a flood in the area and the flood is the proximate cause 
of the sewer, drain, or sump pump discharge or overflow, or the seepage 
of water;
    6. The pressure or weight of water unless there is a flood in the 
area and the flood is the proximate cause of the damage from the 
pressure or weight of water.
    7. Power, heating, or cooling failure unless the failure results 
from direct physical loss by or from flood to power, heating or cooling 
equipment situated on the described location;
    8. Theft, fire, explosion, wind, or windstorm;
    9. Anything you or your agents do or conspire to do to cause loss by 
flood deliberately; or
    10. Alteration of the insured property that significantly increases 
the risk of flooding.
    E. We do not insure for loss to any building or personal property 
located on land leased from the Federal Government, arising from or 
incident to the flooding of the land by the Federal Government, where 
the lease expressly holds the Federal Government harmless under flood 
insurance issued under any Federal Government program.
    F. We do not pay for the testing for or monitoring of pollutants 
unless required by law or ordinance.

                             VI. Deductibles

    A. When a loss is covered under this policy, we will pay only that 
part of the loss that exceeds the applicable deductible amount, subject 
to the limit of insurance that applies. The deductible amount is shown 
on the Declarations Page.
    However, when a building under construction, alteration, or repair 
does not have at least two rigid exterior walls and a fully secured roof 
at the time of loss, your deductible amount will be two times the 
deductible that would otherwise apply to a completed building.
    B. In each loss from flood, separate deductibles apply to the 
building and personal property insured by this policy.
    C. No deductible applies to:
    1. III.C.2. Loss Avoidance Measures; or
    2. III.D. Increased Cost of Compliance.

                            VII. Coinsurance

    A. This Coinsurance Section applies only to coverage on the 
building.
    B. We will impose a penalty on loss payment unless the amount of 
insurance applicable to the damaged building is:
    1. At least 80% of its replacement cost; or
    2. The maximum amount of insurance available for that building under 
the NFIP, whichever is less.
    C. If the actual amount of insurance on the building is less than 
the required amount in accordance with the terms of VII. B. above, then 
loss payment is determined as follows (subject to all other relevant 
conditions in this policy, including those pertaining to valuation, 
adjustment, settlement, and payment of loss):
    1. Divide the actual amount of insurance carried on the building by 
the required amount of insurance.
    2. Multiply the amount of loss, before application of the 
deductible, by the figure determined in C.1. above.
    3. Subtract the deductible from the figure determined in C.2. above.
    We will pay the amount determined in C.3. above, or the amount of 
insurance carried, whichever is less. The amount of insurance carried, 
if in excess of the applicable maximum amount of insurance available 
under the NFIP, is reduced accordingly.

                                Examples

                Example 1 (Inadequate Insurance)

Replacement value of the building--$250,000
Required amount of insurance--$200,000
 (80% of replacement value of $250,000)
Actual amount of insurance carried--$180,000
Amount of the loss--$150,000
Deductible--$500
Step 1:180,000 / 200,000 = .90
 (90% of what should be carried.)
Step 2: 150,000 x .90 = 135,000
Step 3: 135,000 - 500 = 134,500

    We will pay no more than $134,500. The remaining $15,500 is not 
covered due to the coinsurance penalty ($15,000) and application of the 
deductible ($500).

                 Example 2 (Adequate Insurance)

Replacement value of the building--$500,000
Required amount of insurance--$400,000
 (80% of replacement value of $500,000)
Actual amount of insurance carried--$400,000
Amount of the loss--$200,000
Deductible--$500

    In this example there is no coinsurance penalty, because the actual 
amount of insurance carried meets the required amount. We will pay no 
more than $199,500 ($200,000 amount of loss minus the $500 deductible).

[[Page 309]]

    D. In calculating the full replacement cost of a building:
    1. The replacement cost value of any covered building property will 
be included;
    2. The replacement cost value of any building property not covered 
under this policy will not be included; and
    3. Only the replacement cost value of improvements installed by the 
condominium association will be included.

                        VIII. General Conditions

    A. Pair and Set Clause.
    In case of loss to an article that is part of a pair or set, we will 
have the option of paying you:
    1. An amount equal to the cost of replacing the lost, damaged, or 
destroyed article, less depreciation; or
    2. An amount which represents the fair proportion of the total value 
of the pair or set that the lost, damaged, or destroyed article bears to 
the pair or set.
    B. Concealment or Fraud and Policy Voidance.
    1. With respect to all insureds under this policy, this policy:
    a. Is void,
    b. Has no legal force or effect,
    c. Cannot be renewed, and
    d. Cannot be replaced by a new NFIP policy, if, before or after a 
loss, you or any other insured or your agent have at any time:
    (1) Intentionally concealed or misrepresented any material fact or 
circumstance,
    (2) Engaged in fraudulent conduct, or
    (3) Made false statements,
relating to this policy or any other NFIP insurance.
    2. This policy will be void as of the date the wrongful acts 
described in B.1. above were committed.
    3. Fines, civil penalties, and imprisonment under applicable Federal 
laws may also apply to the acts of fraud or concealment described above.
    4. This policy is also void for reasons other than fraud, 
misrepresentation, or wrongful act. This policy is void from its 
inception and has no legal force under the following conditions:
    a. If the property is located in a community that was not 
participating in the NFIP on the policy's inception date and did not 
join or re-enter the program during the policy term and before the loss 
occurred; or
    b. If the property listed on the application is not otherwise 
eligible for coverage under the NFIP.
    C. Other Insurance.
    1. If a loss covered by this policy is also covered by other 
insurance that includes flood coverage not issued under the Act, we will 
not pay more than the amount of insurance that you are entitled to for 
lost, damaged or destroyed property insured under this policy subject to 
the following:
    a. We will pay only the proportion of the loss that the amount of 
insurance that applies under this policy bears to the total amount of 
insurance covering the loss, unless C.1.b. or c. immediately below 
applies.
    b. If the other policy has a provision stating that it is excess 
insurance, this policy will be primary.
    c. This policy will be primary (but subject to its own deductible) 
up to the deductible in the other flood policy (except another policy as 
described in C.1.b. above). When the other deductible amount is reached, 
this policy will participate in the same proportion that the amount of 
insurance under this policy bears to the total amount of both policies, 
for the remainder of the loss.
    2. If there is a flood insurance policy in the name of a unit owner 
that covers the same loss as this policy, then this policy will be 
primary.
    D. Amendments, Waivers, Assignment.
    This policy cannot be changed nor can any of its provisions be 
waived without the express written consent of the Federal Insurance 
Administrator. No action that we take under the terms of this policy 
constitutes a waiver of any of our rights. You may assign this policy in 
writing when you transfer title of your property to someone else except 
under these conditions:
    1. When this policy covers only personal property; or
    2. When this policy covers a structure during the course of 
construction.
    E. Cancellation of Policy by You.
    1. You may cancel this policy in accordance with the applicable 
rules and regulations of the NFIP.
    2. If you cancel this policy, you may be entitled to a full or 
partial refund of premium also under the applicable rules and 
regulations of the NFIP.
    F. Non-Renewal of the Policy by Us.
    Your policy will not be renewed:
    1. If the community where your covered property is located stops 
participating in the NFIP, or
    2. Your building has been declared ineligible under section 1316 of 
the Act.
    G. Reduction and Reformation of Coverage.
    1. If the premium we received from you was not enough to buy the 
kind and amount of coverage you requested, we will provide only the 
amount of coverage that can be purchased for the premium payment we 
received.
    2. The policy can be reformed to increase the amount of coverage 
resulting from the reduction described in G.1. above the amount that you 
requested as follows:
    a. Discovery of Insufficient Premium or Incomplete Rating 
Information Before a Loss.
    (1) If we discover before you have a flood loss that your premium 
payment was not

[[Page 310]]

enough to buy the requested amount of coverage, we will send you and any 
mortgagee or trustee known to us a bill for the required additional 
premium for the current policy term (or that portion of the current 
policy term following any endorsement changing the amount of coverage). 
If you or the mortgagee or trustee pay the additional premium within 30 
days from the date of our bill, we will reform the policy to increase 
the amount of coverage to the originally requested amount effective to 
the beginning of the current policy term (or subsequent date of any 
endorsement changing the amount of coverage).
    (2) If we determine before you have a flood loss that the rating 
information we have is incomplete and prevents us from calculating the 
additional premium, we will ask you to send the required information. 
You must submit the information within 60 days of our request. Once we 
determine the amount of additional premium for the current policy term, 
we will follow the procedure in G.2.a.(1) above.
    (3) If we do not receive the additional premium (or additional 
information) by the date it is due, the amount of coverage can only be 
increased by endorsement subject to any appropriate waiting period.
    b. Discovery of Insufficient Premium or Incomplete Rating 
Information After a Loss.
    (1) If we discover after you have a flood loss that your premium 
payment was not enough to buy the requested amount of coverage, we will 
send you and any mortgagee or trustee known to us a bill for the 
required additional premium for the current and the prior policy terms. 
If you or the mortgagee or trustee pay the additional premium within 30 
days of the date of our bill, we will reform the policy to increase the 
amount of coverage to the originally requested amount effective to the 
beginning of the prior policy term.
    (2) If we discover after you have a flood loss that the rating 
information we have is incomplete and prevents us from calculating the 
additional premium, we will ask you to send the required information. 
You must submit the information before your claim can be paid. Once we 
determine the amount of additional premium for the current and prior 
policy terms, we will follow the procedure in G.2.b.(1) above.
    (3) If we do not receive the additional premium by the date it is 
due, your flood insurance claim will be settled based on the reduced 
amount of coverage. The amount of coverage can only be increased by 
endorsement subject to any appropriate waiting period.
    3. However, if we find that you or your agent intentionally did not 
tell us, or falsified, any important fact or circumstance or did 
anything fraudulent relating to this insurance, the provisions of 
Condition B. Concealment or Fraud and Policy Voidance above apply.
    H. Policy Renewal.
    1. This policy will expire at 12:01 a.m. on the last day of the 
policy term.
    2. We must receive the payment of the appropriate renewal premium 
within 30 days of the expiration date.
    3. If we find, however, that we did not place your renewal notice 
into the U.S. Postal Service, or if we did mail it, we made a mistake, 
e.g., we used an incorrect, incomplete, or illegible address, which 
delayed its delivery to you before the due date for the renewal premium, 
then we will follow these procedures:
    a. If you or your agent notified us, not later than one year after 
the date on which the payment of the renewal premium was due, of 
nonreceipt of a renewal notice before the due date for the renewal 
premium, and we determine that the circumstances in the preceding 
paragraph apply, we will mail a second bill providing a revised due 
date, which will be 30 days after the date on which the bill is mailed.
    b. If we do not receive the premium requested in the second bill by 
the revised due date, then we will not renew the policy. In that case, 
the policy will remain as an expired policy as of the expiration date 
shown on the Declarations Page.
    4. In connection with the renewal of this policy, we may ask you 
during the policy term to re-certify, on a Recertification Questionnaire 
that we will provide you, the rating information used to rate your most 
recent application for or renewal of insurance.
    I. Conditions Suspending or Restricting Insurance.
    We are not liable for loss that occurs while there is a hazard that 
is increased by any means within your control or knowledge.
    J. Requirements in Case of Loss.
    In case of a flood loss to insured property, you must:
    1. Give prompt written notice to us;
    2. As soon as reasonably possible, separate the damaged and 
undamaged property, putting it in the best possible order so that we may 
examine it;
    3. Prepare an inventory of damaged personal property showing the 
quantity, description, actual cash value, and amount of loss. Attach all 
bills, receipts and related documents;
    4. Within 60 days after the loss, send us a proof of loss, which is 
your statement of the amount you are claiming under the policy signed 
and sworn to by you, and which furnishes us with the following 
information:
    a. The date and time of loss;
    b. A brief explanation of how the loss happened;
    c. Your interest (for example, ``owner'') and the interest, if any, 
of others in the damaged property;

[[Page 311]]

    d. Details of any other insurance that may cover the loss;
    e. Changes in title or occupancy of the insured property during the 
term of the policy;
    f. Specifications of damaged insured buildings and detailed repair 
estimates;
    g. Names of mortgagees or anyone else having a lien, charge, or 
claim against the insured property;
    h. Details about who occupied any insured building at the time of 
loss and for what purpose; and
    i. The inventory of damaged personal property described in J.3. 
above.
    5. In completing the proof of loss, you must use your own judgment 
concerning the amount of loss and justify that amount.
    6. You must cooperate with the adjuster or representative in the 
investigation of the claim.
    7. The insurance adjuster whom we hire to investigate your claim may 
furnish you with a proof of loss form, and she or he may help you 
complete it. However, this is a matter of courtesy only, and you must 
still send us a proof of loss within sixty days after the loss even if 
the adjuster does not furnish the form or help you complete it.
    8. We have not authorized the adjuster to approve or disapprove 
claims or to tell you whether we will approve your claim.
    9. At our option, we may accept the adjuster's report of the loss 
instead of your proof of loss. The adjuster's report will include 
information about your loss and the damages you sustained. You must sign 
the adjuster's report. At our option, we may require you to swear to the 
report.
    K. Our Options After a Loss.
    Options that we may, in our sole discretion, exercise after loss 
include the following:
    1. At such reasonable times and places that we may designate, you 
must:
    a. Show us or our representative the damaged property;
    b. Submit to examination under oath, while not in the presence of 
another insured, and sign the same; and
    c. Permit us to examine and make extracts and copies of:
    (1) Any policies of property insurance insuring you against loss and 
the deed establishing your ownership of the insured real property;
    (2) Condominium association documents including the Declarations of 
the condominium, its Articles of Association or Incorporation, Bylaws, 
and rules and regulations; and
    (3) All books of accounts, bills, invoices and other vouchers, or 
certified copies pertaining to the damaged property if the originals are 
lost.
    2. We may request, in writing, that you furnish us with a complete 
inventory of the lost, damaged, or destroyed property, including:
    a. Quantities and costs;
    b. Actual cash values or replacement cost (whichever is 
appropriate);
    c. Amounts of loss claimed;
    d. Any written plans and specifications for repair of the damaged 
property that you can make reasonably available to us; and
    e. Evidence that prior flood damage has been repaired.
    3. If we give you written notice within 30 days after we receive 
your signed, sworn proof of loss, we may:
    a. Repair, rebuild, or replace any part of the lost, damaged, or 
destroyed property with material or property of like kind and quality or 
its functional equivalent; and
    b. Take all or any part of the damaged property at the value we 
agree upon or its appraised value.
    L. No Benefit to Bailee.
    No person or organization, other than you, having custody of covered 
property will benefit from this insurance.
    M. Loss Payment.
    1. We will adjust all losses with you. We will pay you unless some 
other person or entity is named in the policy or is legally entitled to 
receive payment. Loss will be payable 60 days after we receive your 
proof of loss (or within 90 days after the insurance adjuster files an 
adjuster's report signed and sworn to by you in lieu of a proof of loss) 
and:
    a. We reach an agreement with you;
    b. There is an entry of a final judgment; or
    c. There is a filing of an appraisal award with us, as provided in 
VIII. P.
    2. If we reject your proof of loss in whole or in part you may:
    a. Accept such denial of your claim;
    b. Exercise your rights under this policy; or
    c. File an amended proof of loss as long as it is filed within 60 
days of the date of the loss.
    N. Abandonment.
    You may not abandon damaged or undamaged insured property to us.
    O. Salvage.
    We may permit you to keep damaged insured property after a loss, and 
we will reduce the amount of the loss proceeds payable to you under the 
policy by the value of the salvage.
    P. Appraisal.
    If you and we fail to agree on the actual cash value or, if 
applicable, replacement cost of the damaged property so as to determine 
the amount of loss, then either may demand an appraisal of the loss. In 
this event, you and we will each choose a competent and impartial 
appraiser within 20 days after receiving a written request from the 
other. The two appraisers will choose an umpire. If they cannot agree 
upon an umpire within 15 days, you or we may request that the choice be

[[Page 312]]

made by a judge of a court of record in the state where the insured 
property is located. The appraisers will separately state the actual 
cash value, the replacement cost, and the amount of loss to each item. 
If the appraisers submit a written report of an agreement to us, the 
amount agreed upon will be the amount of loss. If they fail to agree, 
they will submit their differences to the umpire. A decision agreed to 
by any two will set the amount of actual cash value and loss, or if it 
applies, the replacement cost and loss.
    Each party will:
    1. Pay its own appraiser; and
    2. Bear the other expenses of the appraisal and umpire equally.
    Q. Mortgage Clause.
    The word ``mortgagee'' includes trustee.
    Any loss payable under Coverage A--Building will be paid to any 
mortgagee of whom we have actual notice, as well as any other mortgagee 
or loss payee determined to exist at the time of loss, and you, as 
interests appear. If more than one mortgagee is named, the order of 
payment will be the same as the order of precedence of the mortgages.
    If we deny your claim, that denial will not apply to a valid claim 
of the mortgagee, if the mortgagee:
    1. Notifies us of any change in the ownership or occupancy, or 
substantial change in risk, of which the mortgagee is aware;
    2. Pays any premium due under this policy on demand if you have 
neglected to pay the premium; and
    3. Submits a signed, sworn proof of loss within 60 days after 
receiving notice from us of your failure to do so.
    All of the terms of this policy apply to the mortgagee.
    The mortgagee has the right to receive loss payment even if the 
mortgagee has started foreclosure or similar action on the building.
    If we decide to cancel or not renew this policy, it will continue in 
effect for the benefit of the mortgagee only for 30 days after we notify 
the mortgagee of the cancellation or non-renewal.
    If we pay the mortgagee for any loss and deny payment to you, we are 
subrogated to all the rights of the mortgagee granted under the mortgage 
on the property. Subrogation will not impair the right of the mortgagee 
to recover the full amount of the mortgagee's claim.
    R. Suit Against Us.
    You may not sue us to recover money under this policy unless you 
have complied with all the requirements of the policy. If you do sue, 
you must start the suit within one year of the date of the written 
denial of all or part of the claim and you must file the suit in the 
United States District Court of the district in which the insured 
property was located at the time of loss. This requirement applies to 
any claim that you may have under this policy and to any dispute that 
you may have arising out of the handling of any claim under the policy.
    S. Subrogation.
    Whenever we make a payment for a loss under this policy, we are 
subrogated to your right to recover for that loss from any other person. 
That means that your right to recover for a loss that was partly or 
totally caused by someone else is automatically transferred to us, to 
the extent that we have paid you for the loss. We may require you to 
acknowledge this transfer in writing. After the loss, you may not give 
up our right to recover this money or do anything that would prevent us 
from recovering it. If you make any claim against any person who caused 
your loss and recover any money, you must pay us back first before you 
may keep any of that money.
    T. Continuous Lake Flooding.
    1. If an insured building has been flooded by rising lake waters 
continuously for 90 days or more and it appears reasonably certain that 
a continuation of this flooding will result in a covered loss to the 
insured building equal to or greater than the building policy limits 
plus the deductible or the maximum payable under the policy for any one 
building loss, we will pay you the lesser of these two amounts without 
waiting for the further damage to occur if you sign a release agreeing:
    a. To make no further claim under this policy;
    b. Not to seek renewal of this policy;
    c. Not to apply for any flood insurance under the Act for property 
at the described location; and
    d. Not to seek a premium refund for current or prior terms.
    If the policy term ends before the insured building has been flooded 
continuously for 90 days, the provisions of this paragraph T.1. will 
apply as long as the insured building suffers a covered loss before the 
policy term ends.
    2. If your insured building is subject to continuous lake flooding 
from a closed basin lake, you may elect to file a claim under either 
paragraph T.1. above or this paragraph T.2. (A ``closed basin lake'' is 
a natural lake from which water leaves primarily through evaporation and 
whose surface area now exceeds or has exceeded one square mile at any 
time in the recorded past. Most of the nation's closed basin lakes are 
in the western half of the United States where annual evaporation 
exceeds annual precipitation and where lake levels and surface areas are 
subject to considerable fluctuation due to wide variations in the 
climate. These lakes may overtop their basins on rare occasions.) Under 
this paragraph T.2, we will pay your claim as if the building is a total 
loss even though it has not been continuously inundated for 90 days, 
subject to the following conditions:

[[Page 313]]

    a. Lake flood waters must damage or imminently threaten to damage 
your building.
    b. Before approval of your claim, you must:
    (1) Agree to a claim payment that reflects your buying back the 
salvage on a negotiated basis; and
    (2) Grant the conservation easement contained in FEMA's ``Policy 
Guidance for Closed Basin Lakes,'' to be recorded in the office of the 
local recorder of deeds. FEMA, in consultation with the community in 
which the property is located, will identify on a map an area or areas 
of special consideration (ASC) in which there is a potential for flood 
damage from continuous lake flooding. FEMA will give the community the 
agreed-upon map showing the ASC. This easement will only apply to that 
portion of the property in the ASC. It will allow certain agricultural 
and recreational uses of the land. The only structures that it will 
allow on any portion of the property within the ASC are certain simple 
agricultural and recreational structures. If any of these allowable 
structures are insurable buildings under the NFIP and are insured under 
the NFIP, they will not be eligible for the benefits of this paragraph 
T.2. If a U.S. Army Corps of Engineers certified flood control project 
or otherwise certified flood control project later protects the 
property, FEMA will, upon request, amend the ASC to remove areas 
protected by those projects. The restrictions of the easement will then 
no longer apply to any portion of the property removed from the ASC; and
    (3) Comply with paragraphs T.1.a. through T.1.d. above.
    c. Within 90 days of approval of your claim, you must move your 
building to a new location outside the ASC. FEMA will give you an 
additional 30 days to move if you show there is sufficient reason to 
extend the time.
    d. Before the final payment of your claim, you must acquire an 
elevation certificate and a floodplain development permit from the local 
floodplain administrator for the new location of your building.
    e. Before the approval of your claim, the community having 
jurisdiction over your building must:
    (1) Adopt a permanent land use ordinance, or a temporary moratorium 
for a period not to exceed 6 months to be followed immediately by a 
permanent land use ordinance, that is consistent with the provisions 
specified in the easement required in paragraph T.2.b. above;
    (2) Agree to declare and report any violations of this ordinance to 
FEMA so that under Sec. 1316 of the National Flood Insurance Act of 
1968, as amended, flood insurance to the building can be denied; and
    (3) Agree to maintain as deed-restricted, for purposes compatible 
with open space or agricultural or recreational use only, any affected 
property the community acquires an interest in. These deed restrictions 
must be consistent with the provisions of paragraph T.2.b. above, except 
that even if a certified project protects the property, the land use 
restrictions continue to apply if the property was acquired under the 
Hazard Mitigation Grant Program or the Flood Mitigation Assistance 
Program. If a non-profit land trust organization receives the property 
as a donation, that organization must maintain the property as deed-
restricted, consistent with the provisions of paragraph T.2.b. above.
    f. Before the approval of your claim, the affected State must take 
all action set forth in FEMA's ``Policy Guidance for Closed Basin 
Lakes.''
    g. You must have NFIP flood insurance coverage continuously in 
effect from a date established by FEMA until you file a claim under this 
paragraph T.2. If a subsequent owner buys NFIP insurance that goes into 
effect within 60 days of the date of transfer of title, any gap in 
coverage during that 60-day period will not be a violation of this 
continuous coverage requirement. For the purpose of honoring a claim 
under this paragraph T.2., we will not consider to be in effect any 
increased coverage that became effective after the date established by 
FEMA. The exception to this is any increased coverage in the amount 
suggested by your insurer as an inflation adjustment.
    h. This paragraph T.2. will be in effect for a community when the 
FEMA Regional Director for the affected region provides to the 
community, in writing, the following:
    (1) Confirmation that the community and the State are in compliance 
with the conditions in paragraphs T.2.e. and T.2.f. above, and
    (2) The date by which you must have flood insurance in effect.
    U. Duplicate Policies Not Allowed.
    1. We will not insure your property under more than one NFIP policy.
    If we find that the duplication was not knowingly created, we will 
give you written notice. The notice will advise you that you may choose 
one of several options under the following procedures:
    a. If you choose to keep in effect the policy with the earlier 
effective date, you may also choose to add the coverage limits of the 
later policy to the limits of the earlier policy. The change will become 
effective as of the effective date of the later policy.
    b. If you choose to keep in effect the policy with the later 
effective date, you may also choose to add the coverage limits of the 
earlier policy to the limits of the later policy. The change will be 
effective as of the effective date of the later policy.
    In either case, you must pay the pro rata premium for the increased 
coverage limits within 30 days of the written notice. In no event will 
the resulting coverage limits exceed the permissible limits of coverage 
under

[[Page 314]]

the Act or your insurable interest, whichever is less. We will make a 
refund to you, according to applicable NFIP rules, of the premium for 
the policy not being kept in effect.
    2. The insured's option under this condition U. Duplicate Policies 
Not Allowed to elect which NFIP policy to keep in effect does not apply 
when duplicates have been knowingly created. Losses occurring under such 
circumstances will be adjusted according to the terms and conditions of 
the earlier policy. The policy with the later effective date must be 
canceled.
    V. Loss Settlement.

                             1. Introduction

    This policy provides three methods of settling losses: Replacement 
Cost, Special Loss Settlement, and Actual Cash Value. Each method is 
used for a different type of property, as explained in a.-c. below.
    a. Replacement Cost Loss Settlement described in V.2. below applies 
to buildings other than manufactured homes or travel trailers.
    b. Special Loss Settlement described in V.3. below applies to a 
residential condominium building that is a travel trailer or a 
manufactured home.
    c. Actual Cash Value loss settlement applies to all other property 
covered under this policy, as outlined in V.4. below.

                   2. Replacement Cost Loss Settlement

    a. We will pay to repair or replace a damaged or destroyed building, 
after application of the deductible and without deduction for 
depreciation, but not more than the least of the following amounts:
    (1) The amount of insurance in this policy that applies to the 
building;
    (2) The replacement cost of that part of the building damaged, with 
materials of like kind and quality, and for like occupancy and use; or
    (3) The necessary amount actually spent to repair or replace the 
damaged part of the building for like occupancy and use.
    b. We will not be liable for any loss on a Replacement Cost Coverage 
basis unless and until actual repair or replacement of the damaged 
building or parts thereof, is completed.
    c. If a building is rebuilt at a location other than the described 
location, we will pay no more than it would have cost to repair or 
rebuild at the described location, subject to all other terms of 
Replacement Cost Loss Settlement.

                       3. Special Loss Settlement

    a. The following loss settlement conditions apply to a residential 
condominium building that is: (1) a manufactured home or travel trailer, 
as defined in II.B.6.b. and c., and (2) at least 16 feet wide when fully 
assembled and has at least 600 square feet within its perimeter walls 
when fully assembled.
    b. If such a building is totally destroyed or damaged to such an 
extent that, in our judgment, it is not economically feasible to repair, 
at least to its pre-damaged condition, we will, at our discretion, pay 
the least of the following amounts:
    (1) The lesser of the replacement cost of the manufactured home or 
travel trailer or 1.5 times the actual cash value; or
    (2) The Building Limit of liability shown on your Declarations Page.
    c. If such a manufactured home or travel trailer is partially 
damaged and, in our judgment, it is economically feasible to repair it 
to its pre-damaged condition, we will settle the loss according to the 
Replacement Cost Loss Settlement conditions in V.2. above.

                  4. Actual Cash Value Loss Settlement

    a. The types of property noted below are subject to actual cash 
value loss settlement:
    (1) Personal property;
    (2) Insured property abandoned after a loss and that remains as 
debris at the described location;
    (3) Outside antennas and aerials, awning, and other outdoor 
equipment;
    (4) Carpeting and pads;
    (5) Appliances; and
    (6) A manufactured home or mobile home or a travel trailer as 
defined in II.B.6.b. or c. that does not meet the conditions for special 
loss settlement in V.3. above.
    b. We will pay the least of the following amounts:
    (1) The applicable amount of insurance under this policy;
    (2) The actual cash value (as defined in II.B.2.); or
    (3) The amount it would cost to repair or replace the property with 
material of like kind and quality within a reasonable time after the 
loss.

                        IX. Liberalization Clause

    If we make a change that broadens your coverage under this edition 
of our policy, but does not require any additional premium, then that 
change will automatically apply to your insurance as of the date we 
implement the change, provided that this implementation date falls 
within 60 days before or during the policy term stated on the 
Declarations Page.

                           X. What Law Governs

    This policy and all disputes arising from the handling of any claim 
under the policy are governed exclusively by the flood insurance 
regulations issued by FEMA, the National Flood Insurance Act of 1968, as 
amended (42 U.S.C. 4001, et seq.), and Federal common law.

[[Page 315]]

    In Witness Whereof, we have signed this policy below and hereby 
enter into this Insurance Agreement.
                                                          Jo Ann Howard,
                        Administrator, Federal Insurance Administration.

[65 FR 60785, Oct. 12, 2000, as amended at 68 FR 9897, Mar. 3, 2003]

                        Appendix A(4) to Part 61

  Federal Emergency Management Agency, Federal Insurance Administration

      Standard Flood Insurance Policy Endorsement to Dwelling Form

    This endorsement replaces the provisions of VII.B.4 and VII.H.2, and 
also adds a new paragraph, VII.H.5. This endorsement applies in Monroe 
County and the Village of Islamorada, Florida, This endorsement also 
applies to communities within Monroe County, Florida that incorporate on 
or after January 1, 1999, agree to participate in the inspection 
procedure, and become eligible for the sale of flood insurance.
    VII.B.4. This policy is also void for reasons other than fraud, 
misrepresentation, or wrongful act. This policy is void from its 
inception and has no legal force under the following conditions:
    a. If the property is located in a community that was not 
participating in the NFIP on the policy's inception date and did not 
join or re-enter the program during the policy term and before the loss 
occurred.
    b. If you have not submitted a community inspection report, referred 
to in ``H. Policy Renewal'' below, that was required in a notice sent to 
you in conjunction with the community inspection procedure established 
under 44 CFR 59.30.
    c. If the property listed on the application is not otherwise 
eligible for coverage under the NFIP
    VII.H.2. We must receive the payment of the appropriate renewal 
premium and when applicable, the community inspection report referred to 
in H.5 below within 30 days of the expiration date.
    VII.H.5. Your community has been approved by the Federal Emergency 
Management Agency to participate in an inspection procedure set forth in 
National Flood Insurance Program Regulations (44 CFR 59.30). During the 
several years that this inspection procedure will be in place, you may 
be required to obtain and submit an inspection report from your 
community certifying whether or not your insured property is in 
compliance with the community's floodplain management ordinance before 
you can renew your policy. You will be notified in writing of this 
requirement approximately 6 months before a renewal date and again at 
the time your renewal bill is sent.

[65 FR 60793, Oct. 12, 2000, as amended at 67 FR 10634, Mar. 8, 2002]

                        Appendix A(5) to Part 61

  Federal Emergency Management Agency, Federal Insurance Administration

  Standard Flood Insurance Policy Endorsement to General Property Form

    This endorsement replaces the provisions of VII.B.4 and VII.H.2, and 
also adds a new paragraph, VII.H.5. This endorsement applies in Monroe 
County and the Village of Islamorada, Florida. This endorsement also 
applies to communities within Monroe County, Florida that incorporate on 
or after January 1, 1999, agree to participate in the inspection 
procedure, and become eligible for the sale of flood insurance.
    VII.B.4. This policy is also void for reasons other than fraud, 
misrepresentation, or wrongful act. This policy is void from its 
inception and has no legal force under the following conditions:
    a. If the property is located in a community that was not 
participating in the NFIP on the policy's inception date and did not 
join or re-enter the program during the policy term and before the loss 
occurred.
    b. If you have not submitted a community inspection report, referred 
to in ``H. Policy Renewal'' below, that was required in a notice sent to 
you in conjunction with the community inspection procedure established 
under 44 CFR 59.30.
    c. If the property listed on the application is not otherwise 
eligible for coverage under the NFIP
    VII.H.2. We must receive the payment of the appropriate renewal 
premium and when applicable, the community inspection report referred to 
in H.5 below within 30 days of the expiration date.
    VII.H.5. Your community has been approved by the Federal Emergency 
Management Agency to participate in an inspection procedure set forth in 
National Flood Insurance Program Regulations (44 CFR 59.30). During the 
several years that this inspection procedure will be in place, you may 
be required to obtain and submit an inspection report from your 
community certifying whether or not your insured property is in 
compliance with the community's floodplain management ordinance before 
you can renew your policy. You will be notified in writing of this 
requirement approximately 6 months before a renewal date and again at 
the time your renewal bill is sent.

[65 FR 60793, Oct. 12, 2000, as amended at 67 FR 10634, Mar. 8, 2002]

[[Page 316]]

                        Appendix A(6) to Part 61

  Federal Emergency Management Agency, Federal Insurance Administration

 Standard Flood Insurance Policy Endorsement to Residential Condominium 
                       Building Association Policy

    This endorsement replaces the provisions of VIII.B.4 and VIII.H.2, 
and also adds a new paragraph, VIII.H.5. This endorsement applies in 
Monroe County and the Village of Islamorada, Florida. This endorsement 
also applies to communities within Monroe County, Florida and 
incorporate on or after January 1, 1999, agree to participate in the 
inspection procedure, and become eligible for the sale of flood 
insurance.
    VIII.B.4. This policy is also void for reasons other than fraud, 
misrepresentation, or wrongful act. This policy is void from its 
inception and has no legal force under the following conditions:
    a. If the property is located in a community that was not 
participating in the NFIP on the policy's inception date and did not 
join or re-enter the program during the policy term and before the loss 
occurred.
    b. If you have not submitted a community inspection report, referred 
to in ``H. Policy Renewal'' below, that was required in a notice sent to 
you in conjunction with the community inspection procedure established 
under 44 CFR 59.30.
    c. If the property listed on the application is not otherwise 
eligible for coverage under the NFIP
    VIII.H.2. We must receive the payment of the appropriate renewal 
premium and when applicable, the community inspection report referred to 
in H.5 below within 30 days of the expiration date.
    VIII.H.5. Your community has been approved by the Federal Emergency 
Management Agency to participate in an inspection procedure set forth in 
National Flood Insurance Program Regulations (44 CFR 59.30). During the 
several years that this inspection procedure will be in place, you may 
be required to obtain and submit an inspection report from your 
community certifying whether or not your insured property is in 
compliance with the community's floodplain management ordinance before 
you can renew your policy. You will be notified in writing of this 
requirement approximately 6 months before a renewal date and again at 
the time your renewal bill is sent.

[65 FR 60794, Oct. 12, 2000, as amended at 67 FR 10634, Mar. 8, 2002]



PART 62_SALE OF INSURANCE AND ADJUSTMENT OF CLAIMS--Table of Contents




                     Subpart A_Issuance of Policies

Sec.
62.1 Purpose of part.
62.2 Definitions.
62.3 Servicing agent.
62.4 Limitations on sale of policies.
62.5 Premium refund.
62.6 Minimum commissions.

             Subpart B_Claims Adjustment and Judicial Review

62.21 Claims adjustment.
62.22 Judicial review.

                Subpart C_Write-Your-Own (WYO) Companies

62.23 WYO Companies authorized.
62.24 WYO participation criteria.

Appendix A to Part 62--Federal Emergency Management Agency, Federal 
          Insurance Administration, Financial Assistance/Subsidy 
          Arrangement
Appendix B to Part 62--National Flood Insurance Program

    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.

    Source: 43 FR 2573, Jan. 17, 1978, unless otherwise noted. 
Redesignated at 44 FR 31177, May 31, 1979.



                     Subpart A_Issuance of Policies



Sec. 62.1  Purpose of part.

    The purpose of this part is to set forth the manner in which flood 
insurance under the Program is made available to the general public in 
those communities designated as eligible for the sale of insurance under 
part 64 of this subchapter, and to prescribe the general method by which 
the Administrator exercises his/her responsibility regarding the manner 
in which claims for losses are paid.



Sec. 62.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.

[[Page 317]]



Sec. 62.3  Servicing agent.

    (a) Pursuant to sections 1345 and 1346 of the Act, the Administrator 
has entered into the Agreement with a servicing agent to authorize it to 
assist in issuing flood insurance policies under the Program in 
communities designated by the Administrator and to accept responsibility 
for delivery of policies and payment of claims for losses as prescribed 
by and at the discretion of the Administrator.
    (b) National Con-Serv, Inc., whose offices are located in Rockville, 
Maryland, is the servicing agent for the Federal Insurance 
Administration.
    (c) The servicing agent will arrange for the issuance of flood 
insurance to any person qualifying for such coverage under parts 61 and 
64 of this subchapter who submits an application to the servicing agent 
in accordance with the terms and conditions of the contract between the 
Agency and the servicing agent.

[43 FR 2573, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 58 
FR 62447, Nov. 26, 1993]



Sec. 62.4  Limitations on sale of policies.

    (a) The servicing agent shall be deemed to have agreed, as a 
condition of its contract that it shall not offer flood insurance under 
any authority or auspices in any amount within the maximum limits of 
coverage specified in Sec. 61.6 of this subchapter, in any area the 
Administrator designates in part 64 of this subchapter as eligible for 
the sale of flood insurance under the Program, other than in accordance 
with this part, and the Standard Flood Insurance Policy.
    (b) The agreement and all activities thereunder are subject to title 
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and to the 
applicable Federal regulations and requirements issued from time to time 
pursuant thereto. No person shall be excluded from participation in, 
denied the benefits of, or subjected to discrimination under the 
Program, on the ground of race, color, sex, creed or national origin. 
Any complaint or information concerning the existence of any such 
unlawful discrimination in any matter within the purview of this part 
should be referred to the Administrator.

[43 FR 2573, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 62.5  Premium refund.

    A Standard Flood Insurance Policyholder whose property has been 
determined not to be in a special hazard area after the map revision or 
a Letter of Map Amendment under part 70 of this subchapter may cancel 
the policy within the current policy year provided (a) he was required 
to purchase or to maintain flood insurance coverage, or both, as a 
condition for financial assistance, and (b) his property was located in 
an identified special hazard area as represented on an effective FHBM or 
FIRM when the financial assistance was provided. If no claim under the 
policy has been paid or is pending, the full premium shall be refunded 
for the current policy year, and for an additional policy year where the 
insured had been required to renew the policy during the period when a 
revised map was being reprinted. A Standard Flood Insurance Policyholder 
may cancel a policy having a term of three (3) years, on an anniversary 
date, where the reason for the cancellation is that a policy of flood 
insurance has been obtained or is being obtained in substitution for the 
NFIP policy and the NFIP obtains a written concurrence in the 
cancellation from any mortgage of which the NFIP has actual notice; or 
the policyholder has extinguishing the insured mortgage debt and is no 
longer required by the mortgagee to maintain the coverage. In such 
event, the premium refund shall be pro rata but with retention of the 
expense constant.

[43 FR 2573, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 49 FR 33658, Aug. 24, 1984; 53 FR 16279, May 6, 1988]



Sec. 62.6  Minimum commissions.

    (a) The earned commission which shall be paid to any property or 
casualty insurance agent or broker duly licensed by a state insurance 
regulatory authority, with respect to each policy or renewal the agent 
duly procures on behalf of the insured, in connection with policies of 
flood insurance placed with the NFIP at the offices of

[[Page 318]]

its servicing agent, but not with respect to policies of flood insurance 
issued pursuant to Subpart C of this part, shall not be less than $10 
and is computed as follows:
    (1) In the case of a new or renewal policy, the following 
commissions shall apply based on the total premiums paid for the policy 
term:

------------------------------------------------------------------------
                                                             Commissions
                       Premium amount                         (percent)
------------------------------------------------------------------------
First $2,000 of Premium....................................           15
Excess of $2,000...........................................            5
------------------------------------------------------------------------

    (2) In the case of mid-term increases in amounts of insurance added 
by endorsements, the following commissions shall apply based on the 
total premiums paid for the increased amounts of insurance:

------------------------------------------------------------------------
                                                             Commissions
                       Premium amount                         (percent)
------------------------------------------------------------------------
First $2,000 of Premium....................................           15
Excess of $2,000...........................................            5
------------------------------------------------------------------------

    (b) Any refunds of premiums authorized under this subchapter shall 
not affect a previously earned commission; and no agent shall be 
required to return that earned commission, unless the refund is made to 
establish a common policy term anniversary date with other insurance 
providing coverage against loss by other perils in which case a return 
of commission will be required by the agent on a pro rata basis. In such 
cases, the policy shall be immediately rewritten for a new term with the 
same amount(s) of coverage and with premium calculated at the then 
current rate and, as to return premium, returned, pro rata, to the 
insured based on the former policy's premium rate.

[46 FR 13515, Feb. 23, 1981, as amended at 53 FR 15221, Apr. 28, 1988; 
57 FR 19541, May 7, 1992]



             Subpart B_Claims Adjustment and Judicial Review



Sec. 62.21  Claims adjustment.

    (a) In accordance with the Agreement, the servicing agent shall 
arrange for the prompt adjustment and settlement and payment of all 
claims arising from policies of insurance issued under the program. 
Investigation of such claims may be made through the facilities of its 
subcontractors or insurance adjustment organizations, to the extent 
required and appropriate for the expeditious processing of such claims.
    (b) All adjustment of losses and settlements of claims shall be made 
in accordance with the terms and conditions of the policy and parts 61 
and 62 of this subchapter.



Sec. 62.22  Judicial review.

    (a) Upon the disallowance by the Federal Insurance Administration, a 
participating Write-Your-Own Company, or the servicing agent of any 
claim on grounds other than failure to file a proof of loss, or upon the 
refusal of the claimant to accept the amount allowed upon any claim 
after appraisal pursuant to policy provisions, the claimant within one 
year after the date of mailing by the Federal Insurance Administration, 
the participating Write-Your-Own Company, or the servicing agent of the 
notice of disallowance or partial disallowance of the claim may, 
pursuant to 42 U.S.C. 4072, institute an action on such claim against 
the insurer only in the U.S. District Court for the district in which 
the insured property or the major portion thereof shall have been 
situated, without regard to the amount in controversy.
    (b) Service of process for all judicial proceedings where a claimant 
is suing Director pursuant to 42 U.S.C. 4071 shall be made upon the 
appropriate United States Attorney, the Attorney General of the United 
States, and the Federal Insurance Administrator of the Federal Emergency 
Management Agency.

[43 FR 2573, Jan. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 47 FR 43061 Sept. 30, 1982; 49 FR 33879, Aug. 27, 1984; 69 
FR 45610, July 30, 2004]



                Subpart C_Write-Your-Own (WYO) Companies



Sec. 62.23  WYO Companies authorized.

    (a) Pursuant to section 1345 of the Act, the Administrator may enter 
into arrangements with individual private sector property insurance 
companies or other insurers, such as public entity

[[Page 319]]

risk sharing organizations. Under these arrangements, such companies or 
other insurers may offer flood insurance coverage under the program to 
eligible applicants. Such WYO companies may offer flood coverage to 
policyholders insured by them under their own property business lines of 
insurance, pursuant to their customary business practices, including 
their usual arrangements with agents and producers. WYO companies may 
sell flood insurance coverage in any State in which the WYO company is 
authorized to engage in the business of property insurance. Other WYO 
insurers may offer flood insurance coverage to their pool members 
insured by them under their own property business lines of coverage, 
pursuant to their customary business practices. These other WYO insurers 
may provide flood coverage in any State that has authorized the other 
insurer to provide property coverage to its members. Arrangements 
entered into by WYO Companies or other insurers under this subpart must 
be in the form and substance of the standard arrangement, titled 
``Financial Assistance/Subsidy Arrangement,'' a copy of which is 
included in appendix A of this part and made a part of these 
regulations.
    (b) Any duly authorized insurer so engaged in the Program shall be a 
WYO Company. (The term ``WYO Company'' shall include the following kinds 
of insurers: Public entity risk-sharing organizations, an association of 
local governments, a State association of political subdivisions, a 
State-sponsored municipal league, and other intergovernmental risk-
sharing pool for covering public entity structures.)
    (c) A WYO Company is authorized to arrange for the issuance of flood 
insurance in any amount within the maximum limits of coverage specified 
in Sec. 61.6 of this subchapter, as Insurer, to any person qualifying 
for such coverage under parts 61 and 64 of this subchapter who submits 
an application to the WYO Company; coverage shall be issued under the 
Standard Flood Insurance Policy.
    (d) A WYO Company issuing flood insurance coverage shall arrange for 
the adjustment, settlement, payment and defense of all claims arising 
from policies of flood insurance it issues under the Program, based upon 
the terms and conditions of the Standard Flood Insurance Policy.
    (e) In carrying out its functions under this subpart, a WYO Company 
shall use its own customary standards, staff and independent contractor 
resources, as it would in the ordinary and necessary conduct of its own 
business affairs, subject to the Act and regulations prescribed by the 
Administrator under the Act.
    (f) To facilitate the marketing of flood insurance coverage under 
the Program to policyholders of WYO Companies, the Administrator will 
enter into arrangements with such companies whereby the Federal 
Government will be a guarantor in which the primary relationship between 
the WYO Company and the Federal Government will be one of a fiduciary 
nature, i.e., to assure that any taxpayer funds are accounted for and 
appropriately expended. In furtherance of this end, the Administrator 
has established ``A Plan to Maintain Financial Control for Business 
Written Under the Write Your Own Program'', a copy of which is included 
in appendix B of this part and made a part of these regulations.
    (g) A WYO Company shall act as a fiscal agent of the Federal 
Government, but not as its general agent. WYO Companies are solely 
responsible for their obligations to their insured under any flood 
insurance policies issued under agreements entered into with the 
Administrator, such that the Federal Government is not a proper party 
defendant in any lawsuit arising out of such policies.
    (h) To facilitate the underwriting of flood insurance coverage by 
WYO Companies, the following procedures will be used by WYO Companies:
    (1) To expedite business growth, the WYO Company will encourage its 
present property insurance policyholders to purchase flood insurance 
through the NFIP WYO Program.
    (2) To conform its underwriting practices to the underwriting rules 
and rates in effect as to the NFIP, the WYO Company will establish 
procedures to carry out the NFIP rating system and provide its 
policyholders with the same coverage as is afforded under the NFIP.

[[Page 320]]

    (3) The WYO Company may follow its customary billing practices to 
meet the Federal rules on the presentment of premium and net premium 
deposits to a Letter of Credit bank account authorized by the 
Administrator and reduction of coverage when an underpayment is 
discovered.
    (4) The WYO Company is expected to meet the recording and reporting 
requirements of the WYO Transaction Record Reporting and Processing 
Plan. Transactions reported by the WYO Company under the WYO Transaction 
Record Reporting and Processing Plan will be analyzed by the NFIP Bureau 
& Statistical Agent. A monthly report will be submitted to the WYO 
Company and the FIA. The analysis will cover the timeliness of WYO 
Company submissions, the disposition of transactions that have not 
passed systems edits and the reconciliation of the totals generated from 
transaction reports with those submitted on the WYO Company's 
reconciliation reports.
    (5) If a WYO Company rejects an application from an agent or a 
producer, the agent or producer shall be notified so that the business 
can be placed through the NFIP Servicing Agent, or another WYO Company.
    (6) Flood insurance coverage will be issued by the WYO Company on a 
separate policy form and will not be added, by endorsement, to the 
Company's other property insurance forms.
    (7) Premium payment plans can be offered by the WYO Company so long 
as the net premium depository requirements specified under the NFIP/WYO 
Program accounting procedures are met. A cancellation by the WYO Company 
for non-payment of premium will not produce a pro rata return of the net 
premium deposit to the WYO Company.
    (8) NFIP business will not be assumed by the WYO Companies at any 
time other than at renewal time, at which time the insurance producer 
may submit the business to the WYO Company as new business. However, it 
is permissible to cancel and rewrite flood policies to obtain concurrent 
expiration dates with other policies covering the property.
    (i) To facilitate the adjustment of flood insurance claims by WYO 
Companies, the following procedures will be used by WYO Companies.
    (1) Under the terms of the Arrangement set forth at appendix A of 
this part, WYO Companies will adjust claims in accordance with general 
Company standards, guided by NFIP Claims manuals. The Arrangement also 
provides that claim adjustments shall be binding upon the FIA. For 
example, the entire responsibility for providing a proper adjustment for 
both combined wind and water claims and flood-alone claims is the 
responsibility of the WYO Company. The responsibility for providing a 
proper adjustment for combined wind and water claims is to be conducted 
by listing in concert with the Single Adjuster provisions listed in 
appendix A.
    (2) The WYO Company may use its staff adjusters, independent 
adjusters, or both. It is important that the Company's Claims Department 
verifies the correctness of the coverage interpretations and 
reasonableness of the payments recommended by the adjusters.
    (3) An established loss adjustment Fee Schedule is part of the 
Arrangement and cannot be changed during an Arrangement year. This is 
the expense allowance to cover costs of independent or WYO Company 
adjusters.
    (4) The normal catastrophe claims procedure currently operated by a 
WYO Company should be implemented in the event of a claim catastrophe 
situation. Flood claims will be handled along with other catastrophe 
claims.
    (5) It will be the WYO Company's responsibility to try to detect 
fraud (as it does in the case of property insurance) and coordinate its 
findings with FIA.
    (6) Pursuant to the Arrangement, the responsibility for defending 
claims will be upon the Write Your Own Company and defense costs will be 
part of the unallocated or allocated claim expense allowance, depending 
on whether a staff counsel or an outside attorney handles the defense of 
the matter. Claims in litigation will be reported by WYO Companies to 
FIA upon joinder of issue and FIA may inquire and be advised of the 
disposition of such litigation.
    (7) The claim reserving procedures of the individual WYO Company can 
be used.

[[Page 321]]

    (8) Regarding the handling of subrogation, if a WYO Company prefers 
to forego pursuit of subrogation recovery, it may do so by referring the 
matter, with a complete copy of the claim file, to FIA. Subrogation 
initiatives may be truncated at any time before suit is commenced (after 
commencing an action, special arrangement must bemade). FIA, after 
consultation with FEMA's Office of the General Counsel (OGC), will 
forward the cause of action to OGC or to the NFIP Bureau and Statistical 
Agent for prosecution. Any funds received will be deposited, less 
expenses, in the National Flood Insurance Fund.
    (9) Special allocated loss adjustment expenses will include such 
items as: nonstaff attorney fees, engineering fees and special 
investigation fees over and above normal adjustment practices.
    (10) The customary content of claim files will include coverage 
verification, normal adjuster investigations, including statements where 
necessary, police reports, building reports and investigations, damage 
verification and other documentation relevant to the adjustment of 
claims under the NFIP's and the WYO Company's traditional claim 
adjustment practices and procedures. The WYO Company's claim examiners 
and managers will supervise the adjustment of flood insurance claims by 
staff and independent claims adjusters.
    (11) The WYO Company will extend reasonable cooperation to FEMA's 
Office of the General Counsel on matters pertaining to litigation and 
subrogation, under paragraph (i)(8) of this section.
    (j) To facilitate establishment of financial controls under the WYO 
Program, the WYO Company will:
    (1) Have a biennial audit of the flood insurance financial 
statements conducted by an independent Certified Public Accountant (CPA) 
firm at the Company's expense to ensure that the financial data reported 
to us accurately represents the flood insurance activities of the 
Company. The CPA firm must conduct its audits in accordance with the 
generally accepted auditing standards (GAAS) and Government Auditing 
Standards issued by the Comptroller General of the United States 
(commonly known as ``yellow book'' requirements). The Company must file 
with us (the Federal Insurance Administration) a report of the CPA 
firm's detailed biennial audit, and, after our review of the audit 
report, we will convey our determination to the Standards Committee.
    (2) Participate in a WYO Company/FIA Operation review. We will 
conduct a review of the WYO Company's flood insurance claims, 
underwriting, customer service, marketing, and litigation activities at 
least once every three (3) years. As part of these reviews, we will 
reconcile specific files with a listing of transactions submitted by the 
Company under the Transaction Record Reporting and Processing (TRPP) 
Plan (Part 5). We will file a report of the Operation Review with the 
Standards Committee.
    (3) Meet the recording and reporting requirements of the WYO 
Transaction Record Reporting and Processing Plan and the WYO Accounting 
Procedures Manual. Transactions reported to the National Flood Insurance 
Program's (NFIP's) Bureau and Statistical Agent by the WYO Company under 
the WYO Transaction Record Reporting and Processing Plan and the WYO 
Accounting Procedures Manual will be analyzed by the Bureau and 
Statistical Agent and a monthly report will be submitted to the WYO 
Company and the FIA. The analysis will cover the timeliness of the WYO 
Company submissions, the disposition of transactions which do not pass 
systems edits and the reconciliation of the totals generated from 
transaction reports with those submitted on WYO Company reconciliation 
reports.
    (4) Cooperate with FEMA's Office of Financial Management on Letter 
of Credit matters.
    (5) Cooperate with FIA in the implementation of a claims 
reinspection program.
    (6) Cooperate with FIA in the verification of risk rating 
information.
    (7) Cooperate with FEMA's Office of the Inspector General on matters 
pertaining to fraud.
    (k) To facilitate the operation of the WYO Program and in order that 
a WYO Company can use its own customary

[[Page 322]]

standards, staff and independent contractor resources, as it would in 
the ordinary and necessary conduct of its own business affairs, subject 
to the Act, the Administrator, for good cause shown, may grant 
exceptions to and waivers of the regulations contained in this title 
relative to the administration of the NFIP.
    (l)(1) WYO Companies may, on a voluntary basis, elect to participate 
in the Mortgage Portfolio Protection Program (MPPP), under which they 
can offer, as a last resort, flood insurance at special high rates, 
sufficient to recover the full cost of this program in recognition of 
the uncertainty as to the degree of risk a given building presents due 
to the limited underwriting data required, to properties in a lending 
institution's mortgage portfolio to achieve compliance with the flood 
insurance purchase requirements of the Flood Disaster Protection Act of 
1973. Flood insurance policies under the MPPP may only be issued for 
those properties that:
    (i) Are determined to be located within special flood hazard areas 
of communities that are participating in the NFIP, and
    (ii) Are not covered by a flood insurance policy even after a 
required series of notices have been given to the property owner 
(mortgagor) by the lending institution of the requirement for obtaining 
and maintaining such coverage, but the mortgagor has failed to respond.
    (2) WYO Companies participating in the MPPP must provide a detailed 
implementation package to any lending institution that, on a voluntary 
basis, chooses to participate in the MPPP to ensure the lending 
institution has full knowledge of the criteria in that program and must 
obtain a signed receipt for that package from the lending institution. 
Participating WYO Companies must also maintain evidence of compliance 
with paragraph (l)(3) of this section for review during the audits and 
reviews required by the WYO Financial Control Plan contained in appendix 
B of this part.
    (3) The mortgagor must be protected against the lending 
institution's arbitrary placing of flood insurance for which the 
mortgagor will be billed by being sent three notification letters as 
described in paragraphs (l)(4) through (6) of this section.
    (4) The initial notification letter must:
    (i) State the requirements of the Flood Disaster Protection Act of 
1973, as amended;
    (ii) Announce the determination that the mortgagor's property is in 
an identified special flood hazard area as delineated on the appropriate 
FEMA map, necessitating flood insurance coverage for the duration of the 
loan;
    (iii) Describe the procedure to follow should the mortgagor wish to 
challenge the determination;
    (iv) Request evidence of a valid flood insurance policy or, if there 
is none, encourage the mortgagor to obtain a Standard Flood Insurance 
Policy (SFIP) promptly from a local insurance agent (or WYO Company);
    (v) Advise that the premium for a MPPP policy is significantly 
higher than a conventional SFIP policy and advise as to the option for 
obtaining less costly flood insurance; and
    (vi) Advise that a MPPP policy will be purchased by the lender if 
evidence of flood insurance coverage is not received by a date certain.
    (5) The second notification letter must remind the mortgagor of the 
previous notice and provide essentially the same information.
    (6) The final notification letter must:
    (i) Enclose a copy of the flood insurance policy purchased under the 
MPPP on the mortgagor's (insured's) behalf, together with the 
Declarations Page,
    (ii) Advise that the policy was purchased because of the failure to 
respond to the previous notices, and
    (iii) Remind the insured that similar coverage may be available at 
significantly lower cost and advise that the policy can be cancelled at 
any time during the policy year and a pro rata refund provided for the 
unearned portion of the premium in the event the insured purchases 
another policy that is acceptable to satisfy the requirements of the 
1973 Act.

(Approved by the Office of Management and Budget under OMB control 
number 3067-0229)

[61 FR 51219, Oct. 1, 1996, as amended at 64 FR 56176, Oct. 18, 1999; 67 
FR 13549, Mar. 22, 2002; 69 FR 45610, July 30, 2004]

[[Page 323]]



Sec. 62.24  WYO participation criteria.

    New companies or organizations eligible for the pilot project we 
describe in paragraph (b) of this section that seek to participate in 
the WYO program, as well as former WYO companies seeking to return to 
the WYO program, must meet standards for financial capability and 
stability for statistical and financial reporting and for commitment to 
program objectives.
    (a) To demonstrate the ability to meet the financial requirements, a 
private insurance company wishing to enter or reenter the WYO program 
must:
    (1) Be a licensed property insurance company;
    (2) Have a five (5) year history of writing property insurance;
    (3) Disclose any legal proceedings, suspensions, judgments, 
settlements, or agreements reached with any State insurance department, 
State attorney general, State corporation commission, or the Federal 
Government during the immediately prior five (5) years regarding the 
company's business practices;
    (4) Submit its most recent National Association of Insurance 
Commissioners (NAIC) annual statement;
    (5) Submit information, as data become available, to indicate that 
the company meets or exceeds NAIC standards for risk-based capital and 
surplus; and
    (6) Submit its last State or regional audit, which should contain no 
material negative findings.
    (b) To demonstrate the ability to meet the financial requirements, a 
public entity risk-sharing organization, an association of local 
governments, a State association of political subdivisions, a State-
sponsored municipal league, and any other intergovernmental risk-sharing 
pool for covering public entity structures, wishing to enter the WYO 
program, which will end September 30, 2004, must:
    (1) Have authority by a State to provide property coverage to its 
members;
    (2) Have a five (5) year history of writing property coverage;
    (3) Disclose any legal proceedings, suspensions, judgments, 
settlements, or agreements reached with any State insurance department, 
State attorney general, State corporation commission, or the Federal 
Government during the immediately prior five (5) years regarding the 
other insurer's business practices; and
    (4) Submit its most recent two annual audits from an independent 
accounting firm performed in compliance with generally accepted 
accounting principles that show no material negative findings; and 
submit, as data become available, information to indicate that the other 
insurer meets or exceeds standards comparable to those of the NAIC for 
risk-based capital and surplus.
    (c) An applicant for entry or reentry in the WYO program must also 
pass a test to determine the applicant's ability to process flood 
insurance and meet the Transaction Record Reporting and Processing 
(TRRP) Plan requirements of the WYO Financial Control Plan. Unless the 
test requirement is waived, e.g., where an already qualified performer 
will fulfill the applicant's reporting requirements, the applicant must 
prepare and submit test output monthly tape(s) and monthly financial 
statements and reconciliations for processing by the NFIP Bureau and 
Statistical Agent contractor. For test purposes, no error tolerance will 
be allowed. If the applicant fails the initial test, a second test will 
be run, which the applicant must pass to participate in the Program.
    (d) To satisfy the requirement for commitment to Program goals, 
including marketing of flood insurance policies, the applicant will 
submit information concerning its plans for the WYO Program including 
plans for the training and support of producers and staff, marketing 
plans and sales targets, and claims handling and disaster response 
plans. Applicants must also identify those aspects of their planned 
flood insurance operations to be performed by another organization, 
managing agent, another WYO Company, a WYO vendor, a service bureau or 
related organization. Applicants will also name, in addition to a 
Principal Coordinator, a corporate officer point of contact--an 
individual, e.g., at the level of Senior Executive Vice President, who 
reports directly to the Chief

[[Page 324]]

Executive Officer or the Chief Operating Officer. Each applicant shall 
furnish the latest available information regarding the number of its 
fire, allied lines, farm-owners multiple peril, homeowners multiple 
peril, and commercial multiple peril policies or coverage documents in 
force, by line. A private insurance company applying for participation 
in the WYO program shall also furnish its Best's Financial Size Category 
for the purpose of setting marketing goals.

[67 FR 13550, Mar. 22, 2002]

  Appendix A to Part 62--Federal Emergency Management Agency, Federal 
   Insurance Administration, Financial Assistance/Subsidy Arrangement

    Purpose: To assist the company in underwriting flood insurance using 
the Standard Flood Insurance Policy.
    Accounting Data: Pursuant to Section 1310 of the Act, a Letter of 
Credit shall be issued for payment as provided for herein from the 
National Flood Insurance Fund.
    Effective Date: October 1, 2004.
    Issued By: Federal Emergency Management Agency, Federal Insurance 
Administration, Washington, DC 20472.

               Article I--Findings, Purpose, and Authority

    Whereas, the Congress in its ``Finding and Declaration of Purpose'' 
in the National Flood Insurance Act of 1968, as amended, (``the Act'' or 
``Act'') recognized the benefit of having the National Flood Insurance 
Program (the ``Program'' or ``NFIP'') ``carried out to the maximum 
extent practicable by the private insurance industry''; and
    Whereas the Federal Insurance Administration (FIA) within the 
Mitigation Division recognizes this Arrangement as coming under the 
provisions of Section 1345 of the Act (42 U.S.C. 4081); and
    Whereas, the goal of the FIA is to develop a program with the 
insurance industry where, over time, some risk-bearing role for the 
industry will evolve as intended by the Congress (Section 1304 of the 
Act (42 U.S.C. 4011)); and
    Whereas, the insurer (hereinafter the ``Company'') under this 
Arrangement shall charge rates established by the FIA; and
    Whereas, FIA has promulgated regulations and guidance implementing 
the Act and the Write-Your-Own Program whereby participating private 
insurance companies act in a fiduciary capacity utilizing Federal funds 
to sell and administer the Standard Flood Insurance Policies, and has 
extensively regulated the participating companies' activities when 
selling or administering the Standard Flood Insurance Policies; and
    Whereas, any litigation resulting from, related to, or arising from 
the Company's compliance with the written standards, procedures, and 
guidance issued by FEMA or FIA arises under the Act, regulations, or FIA 
guidance, and legal issues thereunder raise a federal question; and
    Whereas, through this Arrangement, the Federal Treasury will back 
all flood policy claim payments by the Company; and
    Whereas, this Arrangement has been developed to enable any 
interested qualified insurer to write flood insurance under its own 
name; and
    Whereas, one of the primary objectives of the Program is to provide 
coverage to the maximum number of structures at risk and because the 
insurance industry has marketing access through its existing facilities 
not directly available to the FIA, it has been concluded that coverage 
will be extended to those who would not otherwise be insured under the 
Program; and
    Whereas, flood insurance policies issued subject to this Arrangement 
shall be only that insurance written by the Company in its own name 
under prescribed policy conditions and pursuant to this Arrangement and 
the Act; and
    Whereas, over time, the Program is designed to increase industry 
participation, and accordingly, reduce or eliminate Government as the 
principal vehicle for delivering flood insurance to the public; and
    Whereas, the sole parties under this Arrangement are the WYO 
Companies and the Federal Government.
    Now, therefore, the parties hereto mutually undertake the following:

                 Article II--Undertaking of the Company

    A. Eligibility Requirements for Participation in the NFIP:
    1. Policy Administration. All fund receipt, recording, control, 
timely deposit requirements, and disbursement in connection with all 
Policy Administration and any other related activities or 
correspondences, must meet all requirements of the Financial Control 
Plan. The Company shall be responsible for:
    a. Compliance with the Community Eligibility/Rating Criteria
    b. Making Policyholder Eligibility Determinations
    c. Policy Issuance
    d. Policy Endorsements
    e. Policy Cancellations
    f. Policy Correspondence
    g. Payment of Agents' Commissions

    2. Claims Processing. All claims processing must be processed in 
accordance with the processing of all the companies' insurance

[[Page 325]]

policies and with the Financial Control Plan. Companies will also be 
required to comply with FIA Policy Issuances and other guidance 
authorized by FIA or the Federal Emergency Management Agency (``FEMA'').
    3. Reports.
    a. Monthly Financial Reporting and Statistical Transaction reporting 
requirements. All monthly financial reporting and statistical 
transaction reporting shall be in accordance with the requirements of 
the NFIP Transaction Record Reporting and Processing Plan for the 
Company Program and the Financial Control Plan for business written 
under the WYO (Write Your Own) Program. 44 CFR part 62, appendix B. 
These data shall be validated/edited/audited in detail and shall be 
compared and balanced against Company reports.
    b. Monthly financial reporting procedure shall be in accordance with 
the WYO Accounting Procedures.
    B. Time Standards. Time will be measured from the date of receipt 
through the date mailed out. All dates referenced are working days, not 
calendar days. In addition to the standards set forth below, all 
functions performed by the company shall be in accordance with the 
highest reasonably attainable quality standards generally utilized in 
the insurance and data processing field. Continual failure to meet these 
requirements may result in limitations on the company's authority to 
write new business or the removal of the Company from the program. 
Applicable time standards are:
    1. Application Processing--15 days (note: if the policy cannot be 
mailed due to insufficient or erroneous information or insufficient 
funds, a request for correction or added moneys shall be mailed within 
10 days);
    2. Renewal Processing--7 days.
    3. Endorsement Processing--15 days.
    4. Cancellation Processing--15 days.
    5. Claims Draft Processing--7 days from completion of file 
examination.
    6. Claims Adjustment--45 days average from the receipt of Notice of 
Loss (or equivalent) through completion of examination.
    C. Single Adjuster Program. To ensure the maximum responsiveness to 
the NFIP policy holders following a catastrophic event, e.g., a 
hurricane, involving insured wind and flood damage to policyholders, the 
Company shall agree to the adjustment of the combined flood and wind 
losses utilizing one adjuster under an NFIP-approved Single Adjuster 
Program using procedures issued by the Administrator. The Single 
Adjuster procedure shall be followed in the following cases:
    1. Where the flood and wind coverage is provided by the Company;
    2. Where the flood coverage is provided by the Company and the wind 
coverage is provided by a participating State Property Insurance Plan, 
Windpool Association, Beach Plan, Joint Underwriting Association, FAIR 
Plan, or similar property insurance mechanism; and
    3. Where the flood coverage is provided by the Company and the wind 
coverage is provided by another property insurer and the State Insurance 
Regulator has determined that such property insurer shall, in the 
interest of consumers, facilitate the adjustment of its wind loss by the 
adjuster engaged to adjust the flood loss of the Company.
    D. Policy Issuance.
    1. The flood insurance subject to this Arrangement shall be only 
that insurance written by the Company in its own name pursuant to the 
Act.
    2. The Company shall issue policies under the regulations prescribed 
by the Administrator in accordance with the Act.
    3. All such policies of insurance shall conform to the regulations 
prescribed by the Administrator pursuant to the Act, and be issued on a 
form approved by the Administrator.
    4. All policies shall be issued in consideration of such premiums 
and upon such terms and conditions and in such States or areas or 
subdivisions thereof as may be designated by the Administrator and only 
where the Company is licensed by State law to engage in the property 
insurance business.
    5. The Administrator may require the Company to discontinue issuing 
policies subject to this Arrangement immediately in the event 
Congressional authorization or appropriation for the National Flood 
Insurance Program is withdrawn.
    E. The Company shall separate Federal flood insurance funds from all 
other Company accounts, at a bank or banks of its choosing for the 
collection, retention and disbursement of Federal funds relating to its 
obligation under this Arrangement, less the Company's expenses as set 
forth in Article III, and the operation of the Letter of Credit 
established pursuant to Article IV. All funds not required to meet 
current expenditures shall be remitted to the United States Treasury, in 
accordance with the provisions of the WYO Accounting Procedures Manual.
    F. The Company shall investigate, adjust, settle and defend all 
claims or losses arising from policies issued under this Arrangement. 
Payment of flood insurance claims by the Company shall be binding upon 
the FIA.
    G. Compliance with Agency Standard and Guidelines.
    1. The Company shall comply with written standards, procedures, and 
guidance issued by FEMA or FIA relating to the NFIP and applicable to 
the Company.
    2. The Company shall market flood insurance policies in a manner 
consistent with marketing guidelines established by FIA.

[[Page 326]]

 Article III--Loss Costs, Expenses, Expense Reimbursement, and Premium 
                                 Refunds

    A. The Company shall be liable for operating, administrative and 
production expenses, including any State premium taxes, dividends, 
agents' commissions or any other expense of whatever nature incurred by 
the Company in the performance of its obligations under this Arrangement 
but excluding other taxes or fees, such as surcharges on flood insurance 
premium and guaranty fund assessments.
    B. The Company may withhold as operating and administrative 
expenses, other than agents' or brokers' commissions, an amount from the 
Company's written premium on the policies covered by this Arrangement in 
reimbursement of all of the Company's marketing, operating, and 
administrative expenses, except for allocated and unallocated loss 
adjustment expenses described in C. of this article. This amount will 
equal the sum of the average of industry expense ratios for ``Other 
Acq.'', ``Gen. Exp.'', and ``Taxes'' calculated by aggregating premiums 
and expense amounts for each of five property coverages using direct 
premium and expense information to derive weighted average expense 
ratios. For this purpose, we (the Federal Insurance Administration) will 
use data for the property/casualty industry published, as of March 15 of 
the prior Arrangement year, in Part III of the Insurance Expense Exhibit 
in A.M. Best Company's Aggregates and Averages for the following five 
property coverages: Fire, Allied Lines, Farmowners Multiple Peril, 
Homeowners Multiple Peril, and Commercial Multiple Peril (non-liability 
portion). In addition, this amount will be increased by one percentage 
point to reimburse expenses beyond regular property/casualty expenses.
    The Company may retain fifteen percent (15%) of the Company's 
written premium on the policies covered by this Arrangement as the 
commission allowance to meet commissions or salaries of insurance 
agents, brokers, or other entities producing qualified flood insurance 
applications and other related expenses.
    The amount of expense allowance retained by the Company may increase 
a maximum of two percentage points, depending on the extent to which the 
Company meets the marketing goals for the Arrangement year contained in 
marketing guidelines established pursuant to Article II.G. We will pay 
the company the amount of any increase after the end of the Arrangement 
year.
    The Company, with the consent of the Administrator as to terms and 
costs, may use the services of a national rating organization, licensed 
under state law, to help us undertake and carry out such studies and 
investigations on a community or individual risk basis, and to determine 
equitable and accurate estimates of flood insurance risk premium rates 
as authorized under the National Flood Insurance Act of 1968, as 
amended. We will reimburse the Company for the charges or fees for such 
services under the provisions of the WYO Accounting Procedures Manual.
    C. Loss Adjustment Expenses shall be reimbursed as follows:
    1. Unallocated loss adjustment shall be an expense reimbursement of 
3.3% of the incurred loss (except that it does not include ``incurred 
but not reported'').
    2. Allocated loss adjustment expense shall be reimbursed to the 
Company pursuant to a ``Fee Schedule'' coordinated with the Company and 
provided by the Administrator.
    3. Special allocated loss expenses shall be reimbursed to the 
Company in accordance with guidelines issued by the Administrator.
    D. Loss Payments.
    1. Loss payments under policies of flood insurance shall be made by 
the Company from Federal funds retained in the bank account(s) 
established under Article II, Section E and, if such funds are depleted, 
from Federal funds derived by drawing against the Letter of Credit 
established pursuant to Article IV.
    2. Loss payments include payments as a result of litigation that 
arises under the scope of this Arrangement, and the Authorities set 
forth herein. All such loss payments and related expenses must meet the 
documentation requirements of the Financial Control Plan and of this 
Arrangement, and the Company must comply with the litigation 
documentation and notification requirements established by FEMA. Failure 
to meet these requirements may result in the Administrator's decision 
not to provide reimbursement.
    3. Limitation on Litigation Costs.
    a. Following receipt of notice of such litigation, the FEMA Office 
of the General Counsel (``OGC'') shall review the information submitted. 
If the FEMA OGC finds that the litigation is grounded in actions by the 
Company that are significantly outside the scope of this Arrangement, 
and/or involves issues of agent negligence, then the FEMA OGC shall make 
a recommendation to the Administrator regarding whether all or part of 
the litigation is significantly outside the scope of the Arrangement.
    b. In the event the Administrator agrees with the determination of 
the FEMA OGC under Article III, Section D.3.a then the Company will be 
notified in writing within thirty (30) days of the Administrator's 
decision that any award or judgment for damages and any costs to defend 
such litigation will not be recognized under Article III as a 
reimbursable loss cost, expense or expense reimbursement.
    c. In the event a question arises whether only part of a litigation 
is reimbursable, the

[[Page 327]]

FEMA OGC shall make a recommendation to the Administrator about the 
appropriate division of responsibility, if possible.
    d. In the event that the Company wishes to petition for 
reconsideration of the determination that it will not be reimbursed for 
any part of the award or judgment or any part of the costs expended to 
defend such litigation made under Article III, Section D.3.a-c, it may 
do so by mailing, within thirty (30) days of the notice that 
reimbursement will not be made, a written petition to the Administrator, 
who may request advice on other than legal matters of the WYO Standards 
Committee established under the WYO Financial Control Plan. The WYO 
Standards Committee will consider the request at its next regularly 
scheduled meeting or at a special meeting called for that purpose by the 
Chairman and issue a written recommendation to the Administrator. The 
Administrator's final determination will be made in writing within a 
reasonable time to the Company.
    E. Premium refunds to applicants and policyholders required pursuant 
to rules contained in the National Flood Insurance Program (NFIP) 
``Flood Insurance Manual'' shall be made by the Company from Federal 
flood insurance funds referred to in Article II, Section E, and, if such 
funds are depleted, from funds derived by drawing against the Letter of 
Credit established pursuant to Article IV. As fiscal agent, the Company 
shall not refund any premium to applicants or policyholders in any 
manner other than as specified in the NFIP's ``Flood Insurance Manual'' 
since flood insurance premiums are funds of the Federal Government.

               Article IV--Undertakings of the Government

    A. Letter(s) of Credit shall be established by the Federal Emergency 
Management Agency (FEMA) against which the Company may withdraw funds 
daily, if needed, pursuant to prescribed procedures implemented by FEMA. 
The amounts of the authorizations will be increased as necessary to meet 
the obligations of the Company under Article III, Sections C, D, and E. 
Request for funds shall be made only when net premium income has been 
depleted. The timing and amount of cash advances shall be as close as is 
administratively feasible to the actual disbursements by the recipient 
organization for allowable Letter of Credit expenses.
    Request for payment on Letters of Credit shall not ordinarily be 
drawn more frequently than daily nor in amounts less than $5,000, and in 
no case more than $5,000,000 unless so stated on the Letter of Credit. 
This Letter of Credit may be drawn by the Company for any of the 
following reasons:
    1. Payment of claim as described in Article III, Section D;
    2. Refunds to applicants and policyholders for insurance premium 
overpayment, or if the application for insurance is rejected or when 
cancellation or endorsement of a policy results in a premium refund as 
described in Article III, Section E; and
    3. Allocated and unallocated Loss Adjustment Expenses as described 
in Article III, Section C.
    B. The FIA shall provide technical assistance to the Company as 
follows:
    1. The FIA's policy and history concerning underwriting and claims 
handling.
    2. A mechanism to assist in clarification of coverage and claims 
questions.
    3. Other assistance as needed.

                 Article V--Commencement and Termination

    A. The initial period of this Arrangement is from October 1, 2004 
through September 30, 2005. Thereafter the Arrangement will be effective 
on an annual basis for the period October 1 through September 30. The 
FIA shall provide financial assistance only for policy applications and 
endorsements accepted by the Company during this period pursuant to the 
Program's effective date, underwriting and eligibility rules.
    B. Each year, the FIA shall publish in the Federal Register and make 
available to the Company the terms for subscription or re-subscription 
to this Financial Assistance/Subsidy Arrangement. The Company shall 
notify the FIA of its intent to re-subscribe or not re-subscribe within 
thirty days of publication.
    C. In order to assure uninterrupted service to policyholders, the 
Company shall promptly notify the FIA in the event the Company elects 
not to participate in the Program during the Arrangement year. If so 
notified, or if the FIA chooses not to renew the Company's 
participation, the FIA, at its option, may require the continued 
performance of all or selected elements of this Arrangement for the 
period required for orderly transfer or cessation of business and 
settlement of accounts, not to exceed 18 months, and may either require 
Article V.C.1 or allow Article V.C.2:
    1. The delivery to the FIA of:
    a. A plan for the orderly transfer to the FIA of any continuing 
responsibilities in administering the policies issued by the Company 
under the Program including provisions for coordination assistance; and
    b. All data received, produced, and maintained through the life of 
the Company's participation in the Program, including certain data, as 
determined by FIA, in a standard format and medium; and
    c. All claims and policy files, including those pertaining to 
receipts and disbursements that have occurred during the life of each 
policy. In the event of a transfer of the services provided, the Company 
shall provide

[[Page 328]]

the FIA with a report showing, on a policy basis, any amounts due from 
or payable to insureds, agents, brokers, and others as of the transition 
date; and
    d. All funds in its possession with respect to any policies 
transferred to FIA for administration and the unearned expenses retained 
by the Company.
    2. Submission of plans for the renewal of the business by another 
WYO Company or Companies or the submission of detailed plans for another 
WYO Company to assume responsibility for the Company's NFIP policies. 
Such plans shall assure uninterrupted service to policyholders and shall 
be accompanied by a formal request for FIA approval of such transfers.
    D. Financial assistance under this Arrangement may be canceled by 
the FIA in its entirety upon thirty (30) days written notice to the 
Company by certified mail stating one of the following reasons for such 
cancellation: (i) Fraud or misrepresentation by the Company subsequent 
to the inception of the Arrangement; or (ii) Nonpayment to the FIA of 
any amount due the FIA; or (iii) Material failure to comply with the 
requirements of this Arrangement or with the written standards, 
procedures, or guidance issued by FEMA or FIA relating to the NFIP and 
applicable to the Company. Under these specific conditions, the FIA may 
require the transfer of administrative responsibilities and the transfer 
of data and records as provided in Article V, Section C.1.a through d. 
If transfer is required, the unearned expenses retained by the Company 
shall be remitted to the FIA. In such event, the Government will assume 
all obligations and liabilities owed to policyholders under such 
policies, arising before and after the date of transfer. As an 
alternative to transfer of the policies to the Government, the FIA will 
consider a proposal, if it is made by the Company, for the assumption of 
responsibilities by another WYO Company as provided in Article V, 
Section C.2.
    E. In the event that the Company is unable or otherwise fails to 
carry out its obligations under this Arrangement by reason of any order 
or directive duly issued by the Department of Insurance of any 
jurisdiction to which the Company is subject, the Company agrees to 
transfer, and the Government will accept, any and all WYO policies 
issued by the Company and in force as of the date of such inability or 
failure to perform. In such event the Government will assume all 
obligations and liabilities within the scope of the Arrangement owed to 
policyholders arising before and after the date of transfer, and the 
Company will immediately transfer to the Government all needed records 
and data and all funds in its possession with respect to all such 
policies transferred and the unearned expenses retained by the Company. 
As an alternative to transfer of the policies to the Government, the FIA 
will consider a proposal, if it is made by the Company, for the 
assumption of responsibilities by another WYO Company as provided by 
Article V, Section C.2.
    F. In the event the Act is amended, or repealed, or expires, or if 
the FIA is otherwise without authority to continue the Program, 
financial assistance under this Arrangement may be canceled for any new 
or renewal business, but the Arrangement shall continue for policies in 
force that shall be allowed to run their term under the Arrangement.

              Article VI--Information and Annual Statements

    The Company shall furnish to FEMA such summaries and analyses of 
information including claim file information, and property address, 
location, and/or site information in its records as may be necessary to 
carry out the purposes of the National Flood Insurance Act of 1968, as 
amended, in such form as the FIA, in cooperation with the Company, shall 
prescribe. The Company shall be a property/casualty insurer domiciled in 
a State or territory of the United States. Upon request, the Company 
shall file with the FIA a true and correct copy of the Company's Fire 
and Casualty Annual Statement, and Insurance Expense Exhibit or 
amendments thereof as filed with the State Insurance Authority of the 
Company's domiciliary State.

               Article VII--Cash Management and Accounting

    A. FEMA shall make available to the Company during the entire term 
of this Arrangement and any continuation period required by FIA pursuant 
to Article V, Section C., the Letter of Credit provided for in Article 
IV drawn on a repository bank within the Federal Reserve System upon 
which the Company may draw for reimbursement of its expenses as set 
forth in Article IV that exceed net written premiums collected by the 
Company from the effective date of this Arrangement or continuation 
period to the date of the draw.
    B. The Company shall remit all funds, including interest, not 
required to meet current expenditures to the United States Treasury, in 
accordance with the provisions of the WYO Accounting Procedures Manual 
or procedures approved in writing by the FIA.
    C. In the event the Company elects not to participate in the Program 
in this or any subsequent fiscal year, or is otherwise unable or not 
permitted to participate, the Company and FIA shall make a provisional 
settlement of all amounts due or owing within three months of the 
expiration or termination of this Arrangement. This settlement shall 
include net premiums collected, funds drawn on the Letter of Credit, and 
reserves

[[Page 329]]

for outstanding claims. The Company and FIA agree to make a final 
settlement, subject to audit, of accounts for all obligations arising 
from this Arrangement within 18 months of its expiration or termination, 
except for contingent liabilities that shall be listed by the Company. 
At the time of final settlement, the balance, if any, due the FIA or the 
Company shall be remitted by the other immediately and the operating 
year under this Arrangement shall be closed.

                        Article VIII--Arbitration

    If any misunderstanding or dispute arises between the Company and 
the FIA with reference to any factual issue under any provisions of this 
Arrangement or with respect to the FIA's non-renewal of the Company's 
participation, other than as to legal liability under or interpretation 
of the standard flood insurance policy, such misunderstanding or dispute 
may be submitted to arbitration for a determination that shall be 
binding upon approval by the FIA. The Company and the FIA may agree on 
and appoint an arbitrator who shall investigate the subject of the 
misunderstanding or dispute and make a determination. If the Company and 
the FIA cannot agree on the appointment of an arbitrator, then two 
arbitrators shall be appointed, one to be chosen by the Company and one 
by the FIA.
    The two arbitrators so chosen, if they are unable to reach an 
agreement, shall select a third arbitrator who shall act as umpire, and 
such umpire's determination shall become final only upon approval by the 
FIA.
    The Company and the FIA shall bear in equal shares all expenses of 
the arbitration. Findings, proposed awards, and determinations resulting 
from arbitration proceedings carried out under this section, upon 
objection by FIA or the Company, shall be inadmissible as evidence in 
any subsequent proceedings in any court of competent jurisdiction.
    This Article shall indefinitely succeed the term of this 
Arrangement.

                    Article IX--Errors and Omissions

    In the event of negligence by the Company that has not resulted in 
litigation but has resulted in a claim against the Company, FEMA will 
not consider reimbursement of the Company for costs incurred due to that 
negligence unless the Company takes all reasonable actions to rectify 
the negligence and to mitigate any such costs as soon as possible after 
discovery of the negligence. Further, (i) if the claim against the 
Company is grounded in actions significantly outside the scope of this 
Arrangement or (ii) if there is negligence by the agent, FEMA will not 
reimburse any costs incurred due to that negligence. The Company will be 
notified in writing within thirty (30) days of a decision not to 
reimburse. In the event the Company wishes to petition for 
reconsideration of the decision not to reimburse, the procedure in 
Article III, Section D.3.d shall apply.
    However, in the event that the Company has made a claim payment to 
an insured without including a mortgagee (or trustee) of which the 
Company had actual notice prior to making payment, and subsequently 
determines that the mortgagee (or trustee) is also entitled to any part 
of said claim payment, any additional payment shall not be paid by the 
Company from any portion of the premium and any funds derived from any 
Federal Letter of Credit deposited in the bank account described in 
Article II, section E. In addition, the Company agrees to hold the 
Federal Government harmless against any claim asserted against the 
Federal Government by any such mortgagee (or Trustee), as described in 
the preceding sentence, by reason of any claim payment made to any 
insured under the circumstances described above.

                   Article X--Officials Not to Benefit

    No Member or Delegate to Congress, or Resident Commissioner, shall 
be admitted to any share or part of this Arrangement, or to any benefit 
that may arise therefrom; but this provision shall not be construed to 
extend to this Arrangement if made with a corporation for its general 
benefit.

                           Article XI--Offset

    At the settlement of accounts the Company and the FIA shall have, 
and may exercise, the right to offset any balance or balances, whether 
on account of premiums, commissions, losses, loss adjustment expenses, 
salvage, or otherwise due one party to the other, its successors or 
assigns, hereunder or under any other Arrangements heretofore or 
hereafter entered into between the Company and the FIA. This right of 
offset shall not be affected or diminished because of insolvency of the 
Company.
    All debts or credits of the same class, whether liquidated or 
unliquidated, in favor of or against either party to this Arrangement on 
the date of entry, or any order of conservation, receivership, or 
liquidation, shall be deemed to be mutual debts and credits and shall be 
offset with the balance only to be allowed or paid. No offset shall be 
allowed where a conservator, receiver, or liquidator has been appointed 
and where an obligation was purchased by or transferred to a party 
hereunder to be used as an offset.
    Although a claim on the part of either party against the other may 
be unliquidated or undetermined in amount on the date of the entry of 
the order, such claim will be regarded as being in existence as of the 
date of such order and any credits or claims of the

[[Page 330]]

same class then in existence and held by the other party may be offset 
against it.

                     Article XII--Equal Opportunity

    The Company shall not discriminate against any applicant for 
insurance because of race, color, religion, sex, age, handicap, marital 
status, or national origin.

           Article XIII--Restriction on Other Flood Insurance

    As a condition of entering into this Arrangement, the Company agrees 
that in any area in which the Administrator authorizes the purchase of 
flood insurance pursuant to the Program, all flood insurance offered and 
sold by the Company to persons eligible to buy pursuant to the Program 
for coverages available under the Program shall be written pursuant to 
this Arrangement.
    However, this restriction applies solely to policies providing only 
flood insurance. It does not apply to policies provided by the Company 
of which flood is one of the several perils covered, or where the flood 
insurance coverage amount is over and above the limits of liability 
available to the insured under the Program.

                Article XIV--Access to Books and Records

    The FIA and the Comptroller General of The United States, or their 
duly authorized representatives, for the purpose of investigation, 
audit, and examination shall have access to any books, documents, papers 
and records of the Company that are pertinent to this Arrangement. The 
Company shall keep records that fully disclose all matters pertinent to 
this Arrangement, including premiums and claims paid or payable under 
policies issued pursuant to this Arrangement. Records of accounts and 
records relating to financial assistance shall be retained and available 
for three (3) years after final settlement of accounts, and to financial 
assistance, three (3) years after final adjustment of such claims. The 
FIA shall have access to policyholder and claim records at all times for 
purposes of the review, defense, examination, adjustment, or 
investigation of any claim under a flood insurance policy subject to 
this Arrangement.

             Article XV--Compliance With Act and Regulations

    This Arrangement and all policies of insurance issued pursuant 
thereto shall be subject to the provisions of the National Flood 
Insurance Act of 1968, as amended, the Flood Disaster Protection Act of 
1973, as amended, the National Flood Insurance Reform Act of 1994, and 
Regulations issued pursuant thereto and all Regulations affecting the 
work that are issued pursuant thereto, during the term hereof.

 Article XVI--Relationship Between the Parties (Federal Government and 
                        Company) and the Insured

    Inasmuch as the Federal Government is a guarantor hereunder, the 
primary relationship between the Company and the Federal Government is 
one of a fiduciary nature, i.e., to assure that any taxpayer funds are 
accounted for and appropriately expended. The Company is a fiscal agent 
of the Federal Government, but is not a general agent of the Federal 
Government. The Company is solely responsible for its obligations to its 
insured under any policy issued pursuant hereto, such that the Federal 
Government is not a proper party to any lawsuit arising out of such 
policies.

Addendum to Appendix A to Part 62--Federal Emergency Management Agency, 
 Federal Insurance and Mitigation Administration, Financial Assistance/
                           Subsidy Arrangement

    Note: This Addendum to Appendix A to Part 62 applies only to a 
public entity risk-sharing organization, an association of local 
governments, a State association of political subdivisions, a State-
sponsored municipal league, and any other intergovernmental risk-sharing 
pool for covering public entity structures participating in the pilot 
project established in Sec. 62.24(b) that permits intergovernmental 
risk-sharing pools to provide flood insurance to public entities to 
cover public buildings.
    (1) ``Company'' in the preceding Arrangement includes ``a public 
entity risk-sharing organization, an association of local governments, a 
State association of political subdivisions, a State-sponsored municipal 
league, and any other intergovernmental risk-sharing pool for covering 
public entity structures.''
    (2) The references to ``marketing guidelines'' in Article II--
Undertaking of the Company and to ``marketing goals'' in Article III--
Loss Costs, Expenses, Expense Reimbursement, and Premium Refunds shall 
apply only to the private insurance companies participating in the WYO 
program.

[62 FR 39910, July 24, 1997, as amended at 63 FR 32761, June 16, 1998; 
64 FR 27709, May 21, 1999; 65 FR 36634, June 9, 2000; 66 FR 40917, Aug. 
6, 2001; 67 FR 13550, Mar. 22, 2002; 67 FR 51769, Aug. 9, 2002; 68 FR 
52701, Sept. 5, 2003; 68 FR 75454, Dec. 31, 2003; 69 FR 23659, Apr. 30, 
2004; 69 FR 45611, July 30, 2004]

[[Page 331]]

         Appendix B to Part 62--National Flood Insurance Program

  A Plan to Maintain Financial Control for Business Written Under the 
                         Write Your Own Program.

    (a) In general. Under the Write Your Own (WYO) Program, we (the 
Federal Insurance Administration (FIA), Federal Emergency Management 
Agency (FEMA)) may enter into an arrangement with individual private 
sector insurance companies licensed to engage in the business of 
property insurance. The arrangement allows these companies--using their 
customary business practices--to offer flood insurance coverage to 
eligible property owners. To assist companies in marketing flood 
insurance coverage, the Federal Government will be a guarantor of flood 
insurance coverage for WYO policies issued under the WYO Arrangement. To 
account for and ensure appropriate spending of any taxpayer funds, the 
WYO companies and we will implement this Financial Control Plan (Plan). 
Only the Administrator may approve any departures from the requirements 
of this Plan.
    (b) Financial Control Plan. (1) The WYO Companies are subject to 
audit, examination, and regulatory controls of the various States. 
Additionally, the operating department of an insurance company is 
customarily subject to examinations and audits performed by the 
company's internal audit or quality control departments, or both, and 
independent Certified Public Accountant (CPA) firms. This Plan will use 
to the extent possible the findings of these examinations and audits as 
they pertain to business written under the WYO Program.
    (2) This Plan contains several checks and balances that can, if 
properly implemented by the WYO Company, significantly reduce the need 
for extensive on-site reviews of the Company's files by us or our 
designee. Furthermore, we believe that this process is consistent with 
customary reinsurance practices and avoids duplication of examinations 
performed under the auspices of individual State Insurance Departments, 
NAIC Zone examinations, and independent CPA firms.
    (c) Standards Committee established. (1) We establish in this Plan a 
Standards Committee for the WYO Program to oversee the performance of 
WYO companies under this Plan and to recommend appropriate remedial 
actions to the Administrator. The Standards Committee will review and 
recommend to the Administrator remedies for any adverse action arising 
from the implementation of the Financial Control Plan. Adverse actions 
include, but are not limited to, not renewing a particular company's WYO 
Arrangement.
    (2) The Administrator appoints the members of the Standards 
Committee, which consists of five (5) members from FIA, one (1) member 
from FEMA's Office of Financial Management, and one (1) member from each 
of the six (6) designated WYO Companies, pools, or other entities.
    (3) A WYO company must--
    (A) Have a biennial audit of the flood insurance financial 
statements conducted by a CPA firm at the Company's expense to ensure 
that the financial data reported to us accurately represents the flood 
insurance activities of the Company. The CPA firm must conduct its 
audits in accordance with generally accepted auditing standards (GAAS) 
and the Government Auditing Standards issued by the Comptroller General 
of the United States (commonly known as ``yellow book'' requirements). 
The Company must file with us a report of the CPA firm's detailed 
biennial audit, and, after our review of the audit report, we will 
convey our determination to the Standards Committee.
    (B) Participate in a WYO Company/FIA Operation review. We will 
conduct a review of the WYO Company's flood insurance claims, 
underwriting, customer service, marketing, and litigation activities at 
least once every three (3) years. As part of these reviews, we will 
reconcile specific files with a listing of transactions submitted by the 
Company under the Transaction Record Reporting and Processing Plan (Part 
5). We will file a report of the Operation Review with the Standards 
Committee (Part 7).
    (C) Meet the recording and reporting requirements of the WYO 
Transaction Record Reporting and Processing (TRRP) Plan and the WYO 
Accounting Procedures Manual. The National Flood Insurance Program's 
(NFIP) Bureau and Statistical Agent will analyze the transactions 
reported under the TRRP Plan and submit a monthly report to the WYO 
company and to us. The analysis will cover the timeliness of the WYO 
submissions, the disposition of transactions that do not pass systems 
edits, and the reconciliation of the totals generated from transaction 
reports with those submitted on the WYO Company's reports. (Parts 2 and 
6).
    (D) Cooperate with FEMA's Office of Financial Management on Letter 
of Credit matters.
    (E) Cooperate with us in the implementation of a claims reinspection 
program (Part 3).
    (F) Cooperate with us in the verification of risk rating 
information.
    (G) Cooperate with FEMA's Office of Inspector General on matters 
pertaining to fraud.
    (d) This Plan incorporates by reference a separate document, ``The 
Write Your Own Program Financial Control Plan Requirements and 
Procedures,'' that contains the following parts, each of which is 
incorporated by reference into and is applicable to the Financial 
Control Plan:

[[Page 332]]

    (1) Part 1--Financial Audits, Audits for Cause, and State Insurance 
Department Audits;
    (2) Part 2--Transaction Record Reporting and Processing Plan 
Reconciliation Procedures;
    (3) Part 3--Claims Reinspection Program;
    (4) Part 4--Report Certifications and Signature Authorization;
    (5) Part 5--Transaction Record Reporting and Processing Plan;
    (6) Part 6--Write Your Own (WYO) Accounting Procedures Manual; and
    (7) Part 7--Operation Review Procedures.
    (e) Interested members of the public may obtain a copy of ``The 
Write Your Own Program Financial Control Plan Requirements and 
Procedures'' by contacting the FEMA Distribution Center, P.O. Box 2012, 
Jessup, MD 20794.''

[64 FR 56176, Oct. 18, 1999]



PART 63_IMPLEMENTATION OF SECTION 1306(c) OF THE NATIONAL FLOOD INSURANCE 
ACT OF 1968--Table of Contents




                            Subpart A_General

Sec.
63.1 Purpose of part.
63.2 Condemnation in lieu of certification.
63.3 Requirement to be covered by a contract for flood insurance by June 
          1, 1988.
63.4 Property not covered.
63.5 Coverage for contents removal.
63.6 Reimbursable relocation costs.
63.7 Amount of coverage and deductible on effective date of condemnation 
          or certification.
63.8 Limitation on amount of benefits.
63.9 Sale while claim pending.
63.10 Demolition or relocation contractor to be joint payee.
63.11 Requirement for a commitment before October 1, 1989.
63.12 Setback and community flood plain management requirements.

Subpart B_State Certification of Structures Subject to Imminent Collapse

63.13 Purpose of subpart.
63.14 Criteria for State qualification to perform imminent collapse 
          certifications.
63.15 State application for eligibility to certify structures subject to 
          imminent collapse.
63.16 Review of State application by the Administrator.
63.17 Procedures and data requirements for imminent collapse 
          certifications by States.
63.18 Review of State certification by the Administrator.

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978; E.O. 12127.

    Source: 53 FR 36975, Sept. 23, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 63.1  Purpose of part.

    The purpose of this part is to implement section 1306(c) of the 
National Flood Insurance Act of 1968, as amended (the Act). Section 544 
of the Housing and Community Development Act of 1987 (Pub. L. 100-242) 
amended the Act by adding subsection (c) to section 1306 of the Act. 
Under this amendment, effective February 5, 1988, section 1306(c) of the 
Act provides for benefit payments under the Standard Flood Insurance 
Policy (SFIP) for demolition or relocation of a structure insured under 
the Act that is located along the shore of a lake or other body of water 
and that is certified by an appropriate State or local land use 
authority to be subject to imminent collapse or subsidence as a result 
of erosion or undermining caused by waves or currents of water exceeding 
anticipated cyclical levels. This part establishes criteria by which 
States can obtain the approval of the Administrator to make these 
certifications and sets forth the procedures and data requirements to be 
used by those States in making these certifications. This part also 
contains provisions regarding other aspects of section 1306(c) of the 
Act. For example, there are provisions regarding section 1306(c)(6)(B) 
of the Act (which provides for condemnation in lieu of certification), 
including clarification as to the form of condemnation issued under a 
State or local law that is required.



Sec. 63.2  Condemnation in lieu of certification.

    (a) The condemnation required by section 1306(c)(6)(B) of the Act in 
lieu of certification need not be grounded in a finding that the 
structure is subject to imminent collapse or subsidence as a result of 
erosion, but may be issued for other reasons deemed sufficient by the 
State or local authority.
    (b) The condemnation may be in the form of a court order or other 
instrument authorized by State or local law, e.g., a notification to the 
property

[[Page 333]]

owner of an unsafe condition, or unsanitary condition, or other 
deficiency at the property address, coupled with a statement that the 
property owner must vacate the property if the condition giving rise to 
the condemnation notice is not cured by repair, removal, or demolition 
of the building by a date certain.
    (c) In addition to a condemnation in accordance with paragraphs (a) 
and (b) of this section, a structure must be found by the Administrator 
to be subject to imminent collapse or subsidence as a result of erosion 
or undermining caused by waves or currents of water exceeding 
anticipated cyclical levels to be eligible for benefits under section 
1306(c) of the Act.



Sec. 63.3  Requirement to be covered by a contract for flood insurance by 
June 1, 1988.

    The requirement in section 1306(c)(4)(C)(i) of the Act that a 
structure be ``covered by a contract for flood insurance under this 
title--(i) on or before June 1, 1988'' was met if presentation of the 
appropriate premium and a properly completed flood insurance application 
form was made to the National Flood Insurance Program or a Write Your 
Own (WYO) Company on or before June 1, 1988.



Sec. 63.4  Property not covered.

    Benefits under section 1306(c) of the Act do not include 
compensation for items excluded under the provisions of the Standard 
Flood Insurance Policy (SFIP).



Sec. 63.5  Coverage for contents removal.

    Whenever a structure is subject to imminent collapse or subsidence 
as a result of erosion or undermining caused by waves or currents of 
water exceeding anticipated cyclical levels and otherwise meets the 
requirements of section 1306(c) of the Act so that benefits are payable 
under those provisions, the coverage in the definition of ``Direct 
Physical Loss by or from Flood'' in the SFIP for the expense of removing 
contents, up to the minimum deductible of $500.00, to protect and 
preserve them from flood or from the imminent danger of flood, applies 
if contents coverage is in effect.



Sec. 63.6  Reimbursable relocation costs.

    In addition to the coverage described in Sec. 63.5 of this part, 
relocation costs for which benefits are payable under section 1306(c) of 
the Act include the costs of:
    (a) Removing the structure from the site,
    (b) Site cleanup,
    (c) Debris removal,
    (d) Moving the structure to a new site, and
    (e) At the new site, a new foundation and related grading, including 
elevating the structure as required by local flood plain management 
ordinances, and sewer, septic, electric, gas, telephone, and water 
connections at the building.



Sec. 63.7  Amount of coverage and deductible on effective date of 
condemnation or certification.

    The amount of building coverage and the deductible applicable to a 
claim for benefits under section 1306(c) of the Act are what was in 
effect on the date of condemnation or the date of application for 
certification.

[53 FR 36975, Sept. 23, 1988, as amended at 53 FR 44193, Nov. 2, 1988]



Sec. 63.8  Limitation on amount of benefits.

    (a) In section 1306(c)(3)(C) of the Act, the phrase under the flood 
insurance contract issued pursuant to this title means the value of the 
structure under section 1306(c)(3)(C) of the Act is limited to the 
amount of building coverage provided by the insured's policy.
    (b) Where the amount payable under section 1306(c)(1)(A)(ii) of the 
Act for the cost of demolition, together with the amount payable under 
section 1306(c)(1)(A) of the Act for the value of the structure under 
the demolition option, exceeds the amount of building coverage provided 
by the insured's policy, such amounts will be paid beyond the amount of 
that building coverage, even if this payment exceeds the limits of 
coverage otherwise authorized by section 1306(a) of the Act for the 
particular class of property.

[[Page 334]]



Sec. 63.9  Sale while claim pending.

    If a claimant sells a structure prior to its demolition or 
relocation, no benefits are payable to that claimant under section 
1306(c) of the Act, and any payments which may have been made under 
those provisions shall be reimbursed to the insurer making them.



Sec. 63.10  Demolition or relocation contractor to be joint payee.

    If a demolition or relocation contractor is used, the instrument of 
payment for benefits under section 1306(c) of the Act for the fee of 
that contractor, shall include that contractor as a joint payee, unless 
that contractor has already been paid when the instrument of payment is 
issued.



Sec. 63.11  Requirement for a commitment before October 1, 1989.

    The requirement in section 1306(c)(7) of the Act that a commitment 
be made on or before September 30, 1989 as a necessary condition to 
making any payments after September 30, 1989, is met if before October 
1, 1989,
    (a) There is either a condemnation in accordance with Sec. 63.2 of 
this part or a certification in accordance with subpart B of this part, 
and
    (b) A policyholder's notice of claim for benefits under section 
1306(c) of the Act is received by the insurer.



Sec. 63.12  Setback and community flood plain management requirements.

    (a) Where benefits have been paid under section 1306(c) of the Act, 
the setback requirements in section 1306(c)(5) of the Act, which if not 
met result in a prohibition against subsequently providing flood 
insurance or assistance under the Disaster Relief Act of 1974, shall 
apply:
    (1) To the structure involved wherever it is located, and
    (2) To any other structure subsequently constructed on or moved to 
the parcel of land on which the structure involved was located when the 
claim under section 1306(c) of the Act arose.
    (b) In addition, any structures relocated under section 1306 of the 
Act must comply with the flood plain management criteria set forth in 
Sec. 60.3 of this chapter.



Subpart B_State Certification of Structures Subject to Imminent Collapse



Sec. 63.13  Purpose of subpart.

    The purpose of this subpart is to establish criteria under the 
provisions of section 1306(c) of the National Flood Insurance Act of 
1968, as amended, by which States can obtain approval from the 
Administrator to certify that structures are subject to imminent 
collapse or subsidence as a result of erosion or undermining caused by 
waves or currents of water exceeding anticipated cyclical levels. The 
subpart also sets forth the procedures and data requirements to be 
utilized by those States in certifying structures as subject to imminent 
collapse. The State certification procedure represents an option to the 
use of the procedure whereby a structure is condemned by a State or 
local authority as a prerequisite to consideration for imminent collapse 
insurance benefits.



Sec. 63.14  Criteria for State qualification to perform imminent collapse 
certifications.

    In order to qualify under this subpart, the State must be 
administering a coastal zone management program which includes the 
following components, as a minimum:
    (a) A state-wide requirement that prohibits new construction and the 
relocation of structures seaward of an adopted erosion setback. Such 
setback must be based in whole or in part on some multiple of the local 
mean annual erosion (recession) rate; and
    (b) An established, complete and functional data base of mean annual 
erosion rates for all reaches of coastal shorelines subject to erosion 
in the State, which is used as the basis to enforce these setback 
requirements.



Sec. 63.15  State application for eligibility to certify structures subject 
to imminent collapse.

    (a) Application pursuant to this part shall be made by the Governor 
or other duly authorized official of the State.
    (b) The application must be submitted to the Federal Emergency 
Management Agency, Federal Insurance

[[Page 335]]

Administration, 500 C Street SW., Washington, DC 20472.
    (c) Documents to be included in the application are as follows:
    (1) Copies of all applicable State statutes and regulations 
verifying the existence of a coastal zone management program including 
setback requirements for new and relocated construction which are based 
in whole or in part on mean annual erosion rates established for the 
State's shorelines.
    (2) A copy of the State's mean annual erosion rate data base, if not 
already provided, showing such rates for all reaches of coastal 
shorelines subject to erosion within the State.
    (3) The title, address and phone number of a contact person within 
the State agency having authority for administering the coastal zone 
management program.
    (4) A statement that adequate resources are available to carry out 
the certification services, and that certifications will be performed in 
accordance with the procedures described in Sec. 63.17.



Sec. 63.16  Review of State application by the Administrator.

    (a) The Administrator may return the application for eligibility 
upon finding it incomplete or upon finding that additional information 
is required in order to make a determination as to the adequacy of the 
coastal zone management program and erosion rate data base.
    (b) Upon determining that the State's program and/or data base does 
not meet the criteria set forth in Sec. 63.14, the Administrator shall 
in writing reject the application for eligibility and indicate in what 
respects the State program and/or data base fails to comply with the 
criteria.
    (c) Upon determining that the State program and data base meets the 
criteria set forth in Sec. 63.14, the Administrator shall approve the 
State as eligible to certify structures subject to imminent collapse. 
Such approval, however, is in all cases provisional. The Administrator 
shall review the State program and data base for continued compliance 
with the criteria set forth in this part and may request updated 
documentation for the purpose of such review. If the program and/or data 
base is found to be inadequate and is not corrected within ninety days 
from the date that such inadequacies were identified, the Administrator 
may revoke his approval.



Sec. 63.17  Procedures and data requirements for imminent collapse 
certifications by States.

    Any State that has been determined to be eligible by the 
Administrator may certify that a coastal structure is subject to 
imminent collapse. Such certification requires that the State collect 
scientific or technical information relative to the structure and its 
site and provide such information to the insured to be filed with a 
claim for insurance benefits under Section 1306 of the National Flood 
Insurance Act of 1968, as amended. The information which is provided to 
the insured shall include, but is not limited to, the following:
    (a) Certification from the State agency that the structure is 
subject to imminent collapse. The certification shall cite the property 
address, legal description (e.g., lot, block), the date of application 
for certification, and the date of and basis for the certification, and
    (b) Supporting scientific and technical data to substantiate the 
certification consisting of the following:
    (1) Photographs of the structure in relation to the obvious peril. 
All photographs should be labeled with the location, direction, date and 
time from which they were taken. The collection of photographs should 
adequately display the following:
    (i) Any evidence of existing damage. The damage can include loss or 
erosion of soil near or around the foundation, or structural damage to 
the foundation components.
    (ii) Structure and waterbody. These photographs shall show both the 
structure and the waterbody that presents the peril. If the structure is 
on a high bluff or dune and not accessible from the water side, the top 
edge of the bluff or dune will be sufficient. These will usually be 
taken from one or both sides of the structure.
    (iii) Physical reference features used in the measurements discussed 
below. The reference feature shall be in or

[[Page 336]]

near the area affected by normal tides, when applicable. If a reference 
is not clearly distinguishable on the photograph, it should be annotated 
to identify the feature. If possible, all reference features described 
below should be photographed showing their relationship to the site of 
the threatened structure.
    (2) Identification and selection of reference features. The 
following reference features are presented according to priority. If the 
first feature is not present, the next feature shall be located and 
photographed, and so forth.
    (i) Top edge of bluff (cliff top).
    (ii) Top edge of escarpment on an eroding dune (i.e., a nearly 
vertical erosional cut at the seaward face of the dune). The normal high 
tide should be near the toe of the dune and there should be indications 
that the dune is actively eroding.
    (iii) The normal high tide limit may be indicated by one of the 
following:
    (A) Vegetation line (the seaward most edge of permanent vegetation).
    (B) Beach scarp (erosion line on beach, usually a sharp, nearly 
vertical drop of 0.5 to 3.0 feet at the upper limit of high tide).
    (C) Debris line deposited by the normal high tide, not by a recent 
storm.
    (D) Upper limit of wet sand.
    (3) Distance measurements from the threatened structure to the 
nearest points on the reference features. These measurements should be 
taken from all photographed reference features to the closest point on 
the supporting foundation. For purposes of making this measurement, 
decks, stairs, and other exterior attachments that do not contribute to 
the structural support of the building are not considered part of the 
structure. The measurements shall be taken horizontally with a tape and 
recorded to the nearest foot. The date and time of the measurement shall 
be noted. The location of the measurements (i.e., reference feature and 
closest structural member) shall be identified on the appropriate 
photograph or sketch of the site. If some or all of the reference 
features coincide, this shall also be noted and identified on the 
photographs. Reference features landward of the structure need not be 
measured, but shall be noted on the photographs.
    (4) A determination of the average annual erosion rate at the site 
and a copy of the pertinent section of the reference document used to 
obtain the annual erosion rate at the site.
    (5) Copy of the effective Flood Insurance Rate Map panel annotated 
with the location of the threatened structure.
    (6) In the event that a structure is not situated within a ``zone of 
imminent collapse'' using the criteria and procedures in paragraphs (b) 
(1) through (5) of this section, then the State may submit other 
scientific and technical data, in addition to the information described 
in paragraphs (b) (1) through (5) of this section, that would reveal 
unusual erosive or stability conditions at the site. Such data must 
include engineering analyses or reports performed on the structure or 
site which evaluates local rates of erosion, or the condition or 
stability of the structure's foundation including supporting soil.
    (c) In the case of structures planned to be relocated, a 
certification as to whether the proposed relocation site is outside the 
30-year setback for 1-4 family residential structures, or outside the 
60-year setback for all other structures, must also be submitted by the 
State.

[53 FR 36975, Sept. 23, 1988, as amended at 53 FR 44193, Nov. 2, 1988]



Sec. 63.18  Review of State certification by the Administrator.

    The Administrator, after a claim has been filed by the property 
owner, will review the certification and data prepared by the State. 
Upon completion of the review, the State will be notified that:
    (a) The structure has been determined to be subject to imminent 
collapse, or
    (b) The structure has not been determined to be subject to imminent 
collapse and the basis for such determination, or
    (c) Additional data are needed to verify that the procedures and 
criteria for imminent collapse certification have been met.

[[Page 337]]



PART 64_COMMUNITIES ELIGIBLE FOR THE SALE OF INSURANCE--Table of Contents




Sec.
64.1 Purpose of part.
64.2 Definitions.
64.3 Flood Insurance Maps.
64.4 Effect on community eligibility resulting from boundary changes, 
          governmental reorganization, etc.
64.5 Relationship of rates to zone designations.
64.6 List of eligible communities.

    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.



Sec. 64.1  Purpose of part.

    (a) 42 U.S.C. 4012(c), 4022 and 4102 require that flood insurance in 
the maximum limits of coverage under the regular program shall be 
offered in communities only after the Administrator has: (1) Identified 
the areas of special flood, mudslide (i.e., mudflow) or flood-related 
erosion hazards within the community; and/or (2) completed a risk study 
for the applicant community. The priorities for conducting such risk 
studies are set forth in Sec. Sec. 59.23 and 60.25 of this subchapter. 
The purpose of this part is to define the types of zones which the 
Agency will use for identifying the hazard areas on maps.
    (b) 42 U.S.C. 4056 authorizes an emergency implementation of the 
National Flood Insurance Program whereby the Administrator may make 
subsidized coverage available to eligible communities prior to the 
completion of detailed risk studies for such areas. This part also 
describes procedures under the emergency program and lists communities 
which become eligible under the NFIP.

[48 FR 28278, June 21, 1983, as amended at 49 FR 4751, Feb. 8, 1984; 49 
FR 33879, Aug. 27, 1984]



Sec. 64.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.

[41 FR 46986, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 64.3  Flood Insurance Maps.

    (a) The following maps may be prepared by the Administrator for use 
in connection with the sale of flood insurance:
    (1) Flood Insurance Rate Map: This map is prepared after the flood 
hazard study for the community has been completed and the risk premium 
rates have been established. The FIRM indicates the risk premium rate 
zones applicable in the community and when those rates are effective. 
The FIRM also may indicate, at the request of the community, zones to 
identify areas of future-conditions flood hazards. The symbols used to 
designate the risk premium rate zones and future-conditions zones are as 
follows:

------------------------------------------------------------------------
               Zone symbol
------------------------------------------------------------------------
A.......................................  Area of special flood hazard
                                           without water surface
                                           elevations determined
A1-30, AE...............................  Area of special flood hazard
                                           with water surface elevations
                                           determined
A0......................................  Area of special flood hazards
                                           having shallow water depths
                                           and/or unpredictable flow
                                           paths between (1) and (3) ft
A99.....................................  Area of special flood hazard
                                           where enough progress has
                                           been made on a protective
                                           system, such as dikes, dams,
                                           and levees, to consider it
                                           complete for insurance rating
                                           purposes
AH......................................  Areas of special flood hazards
                                           having shallow water depths
                                           and/or unpredictable flow
                                           paths between (1) and (3)
                                           feet, and with water surface
                                           elevations determined
AR......................................  Area of special flood hazard
                                           that results from the
                                           decertification of a
                                           previously accredited flood
                                           protection system that is
                                           determined to be in the
                                           process of being restored to
                                           provide base flood protection
V.......................................  Area of special flood hazards
                                           without water surface
                                           elevations determined, and
                                           with velocity, that is
                                           inundated by tidal floods
                                           (coastal high hazard area)
V1-30, VE...............................  Area of special flood hazards,
                                           with water surface elevations
                                           determined and with velocity,
                                           that is inundated by tidal
                                           floods (coastal high hazard
                                           area)
V0......................................  Area of special flood hazards
                                           having shallow water depths
                                           and/or unpredictable flow
                                           paths between (1) and (3) ft.
                                           and with velocity
B, X....................................  Areas of moderate flood
                                           hazards or areas of future-
                                           conditions flood hazard.
C, X....................................  Area of minimal hazards
D.......................................  Area of undetermined but
                                           possible, flood hazards
M.......................................  Area of special mudslide
                                           (i.e., mudflow) hazards
N.......................................  Area of moderate mudslide
                                           (i.e., mudflow) hazards
P.......................................  Area of undetermined, but
                                           possible, mudslide hazards

[[Page 338]]

 
E.......................................  Area of special flood-related
                                           erosion hazards.
------------------------------------------------------------------------


Areas identified as subject to more than one hazard (flood, mudslide 
(i.e., mudflow), flood-related erosion) or potential hazard (i.e., 
future-conditions flooding) will be designated on the FIRM by use of the 
proper zone symbols in combination.
    (2) Flood Hazard Boundary Map (FHBM). This map is issued by the 
Administrator delineating Zones A, M, and E within a community.
    (b) Notice of the issuance of new or revised FHBMs or FIRMs is given 
in Part 65 of this subchapter. The mandatory purchase of insurance is 
required within designated Zones A, A1-30, AE, A99, AO, AH, AR, AR/A1-
30, AR/AE, AR/AO, AR/AH, AR/A, V1-30, VE, V, VO, M, and E.
    (c) The FHBM or FIRM shall be maintained for public inspection at 
the following locations:
    (1) The information office of the State agency or agencies 
designated by statute or the respective Governors to cooperate with the 
Administrator in implementing the Program whenever a community becomes 
eligible for Program participation and the sale of insurance pursuant to 
this section or is identified as flood prone.
    (2) One or more official locations within the community in which 
flood insurance is offered.
    (3) [Reserved]
    (4) The official record copy of each official map shall be 
maintained in FEMA files in Washington, DC.

[41 FR 46986, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 46 FR 1274, Jan. 6, 1981; 48 FR 28278, June 21, 1983; 48 
FR 44544 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 50 FR 
36028, Sept. 4, 1985; 59 FR 53599, Oct. 25, 1994; 62 FR 55716, Oct. 27, 
1997; 66 FR 59170, Nov. 27, 2001]



Sec. 64.4  Effect on community eligibility resulting from boundary changes, 
governmental reorganization, etc.

    (a) When a community not participating in the Program acquires by 
means of annexation, incorporation, or otherwise, an area within another 
community participating in the Program, no new flood insurance shall be 
made available as of the effective date of annexation until the newly 
acquiring community participates in the Program. Until the effective 
date of participation, existing flood insurance policies remain in 
effect until the policy's date of expiration, but shall not be renewed.
    (b) When a community participating in the Program acquires by means 
of annexation, incorporation, or otherwise, another area which was 
previously located in a community either participating or not 
participating in the Program, the community shall have six months from 
the date of acquisition to formally amend its flood plain management 
regulations in order to include all flood-prone areas within the newly 
acquired area. The amended regulations shall satisfy the applicable 
requirements in Sec. 60.3 of this subchapter based on the data 
previously provided by the Administrator. In the event that the newly 
acquired area was previously located in a community participating in the 
Program, the provisions of this section shall only apply if the 
community, upon acquisition, and pending formal adoption of the 
amendment to its flood plain management regulations, certifies in 
writing over the signature of a community official that within the newly 
acquired area the flood plain management requirements previously 
applicable in the area remain in force. In the event that the newly-
acquired area was previously located in a community not participating in 
the Program, the provisions of the section shall only apply if the 
community, upon acquisition, and pending formal adoption of the 
amendments to its flood plain management regulations, certifies in 
writing over the signature of a community official that it shall enforce 
within the newly-month period, existing flood insurance policies shall 
remain in effect until their date of expiration may be renewed, and new 
policies may be issued. Failure to satisfy the applicable requirements 
in Sec. 60.3 shall result in the community's suspension from Program 
participation pursuant to Sec. 59.24 of this subchapter.
    (c) When an area previously a part of a community participating in 
the Program becomes autonomous or becomes

[[Page 339]]

a portion of a newly autonomous community resulting from boundary 
changes, governmental reorganization, changes in state statutes or 
constitution, or otherwise, such new community shall be given six months 
from the date of its independence, to adopt flood plain management 
regulations within the special hazard areas subject to its jurisdiction 
and to submit its application for participation as a separate community 
in order to retain eligibility for the sale of flood insurance. The 
regulations adopted by such new community shall satisfy the applicable 
requirements in Sec. 60.3 of this subchapter based on the data 
previously provided by the Administrator. The provisions of this section 
shall only apply where the new community upon the date of its 
independence certifies in writing over the signature of a community 
official that, pending formal adoption of flood plain management 
regulations, the flood plain management requirements previously 
applicable in that area remain in effect. During the six month period, 
existing flood insurance policies shall remain in effect until their 
dates of expiration may be renewed, and new policies may be issued. 
Failure to satisfy the applicable requirements in Sec. 60.3 of this 
subchapter shall result in the community's suspension from Program 
participation pursuant to Sec. 59.24 of this subchapter.
    (d) Where any community or any area within a community had in effect 
a FHBM or FIRM, but all or a portion of that community has been acquired 
by another community, or becomes autonomous, that map shall remain in 
effect until it is superseded by the Administrator, whether by 
republication as part of the map of the acquiring community, or 
otherwise.
    (e) When a community described in paragraph (a), (b), (c), or (d) of 
this section has flood elevations in effect, no new appeal period under 
parts 66, 67, and 68 of this subchapter will begin except as new 
scientific and technical data are available.

[41 FR 46986, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 64.5  Relationship of rates to zone designations.

    (a) In order to expedite a community's qualification for flood 
insurance under the emergency program, the Administrator may authorize 
the sale of such insurance without designating any Zones A, M, or E 
within a community, provided the community has previously adopted flood 
plain management regulations meeting the requirements of Sec. 60.3(a), 
Sec. 60.4(a) or Sec. 60.5(a) of this subchapter. When the 
Administrator has obtained sufficient technical information to delineate 
Zones A, M, or E, he/she shall delineate the tentative boundaries on a 
FHBM.
    (b) Upon the effective date of the FIRM, flood insurance will 
continue to be available throughout the entire community at chargeable 
rates (i.e., subsidized) for first layer coverage of existing 
structures, but will be only available at risk premium rates for all new 
construction and substantial improvements. Upon the effective date of a 
FIRM, second layer coverage is available only at risk premium rates for 
all structures.
    (c) Detailed insurance information may be obtained from the 
servicing companies. See part 62 of this subchapter.

[41 FR 46986, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 64.6  List of eligible communities.

    The sale of flood insurance pursuant to the National Flood Insurance 
Program (42 U.S.C. 4001-4128) is authorized for the communities set 
forth under this section. Previous listings under this part continue in 
effect until revised.

[41 FR 46986, Oct. 25, 1976]

    Editorial Note: For references to FR pages showing lists of eligible 
communities, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



PART 65_IDENTIFICATION AND MAPPING OF SPECIAL HAZARD AREAS--Table of Contents




Sec.
65.1 Purpose of part.

[[Page 340]]

65.2 Definitions.
65.3 Requirement to submit new technical data.
65.4 Right to submit new technical data.
65.5 Revision to special hazard area boundaries with no change to base 
          flood elevation determinations.
65.6 Revision of base flood elevation determinations.
65.7 Floodway revisions.
65.8 Review of proposed projects.
65.9 Review and response by the Administrator.
65.10 Mapping of areas protected by levee systems.
65.11 Evaluation of sand dunes in mapping coastal flood hazard areas.
65.12 Revision of flood insurance rate maps to reflect base flood 
          elevations caused by proposed encroachments.
65.13 Mapping and map revisions for areas subject to alluvial fan 
          flooding.
65.14 Remapping of areas for which local flood protection systems no 
          longer provide base flood protection.
65.15 List of communities submitting new technical data.
65.16 Standard Flood Hazard Determination Form and Instructions.
Sec. 65.17 Review of determinations.

    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.



Sec. 65.1  Purpose of part.

    42 U.S.C. 4104 authorizes the Director to identify and publish 
information with respect to all areas within the United States having 
special flood, mudslide (i.e., mudflow) and flood-related erosion 
hazards. The purpose of this part is to outline the steps a community 
needs to take in order to assist the Agency's effort in providing up-to-
date identification and publication, in the form of the maps described 
in part 64, on special flood, mudslide (i.e., mudflow) and flood-related 
erosion hazards.

[48 FR 28278, June 21, 1983]



Sec. 65.2  Definitions.

    (a) Except as otherwise provided in this part, the definitions set 
forth in part 59 of this subchapter are applicable to this part.
    (b) For the purpose of this part, a certification by a registered 
professional engineer or other party does not constitute a warranty or 
guarantee of performance, expressed or implied. Certification of data is 
a statement that the data is accurate to the best of the certifier's 
knowledge. Certification of analyses is a statement that the analyses 
have been performed correctly and in accordance with sound engineering 
practices. Certification of structural works is a statement that the 
works are designed in accordance with sound engineering practices to 
provide protection from the base flood. Certification of ``as built'' 
conditions is a statement that the structure(s) has been built according 
to the plans being certified, is in place, and is fully functioning.
    (c) For the purposes of this part, ``reasonably safe from flooding'' 
means base flood waters will not inundate the land or damage structures 
to be removed from the SFHA and that any subsurface waters related to 
the base flood will not damage existing or proposed buildings.

[51 FR 30313, Aug. 25, 1986, as amended at 66 FR 22442, May 4, 2001]



Sec. 65.3  Requirement to submit new technical data.

    A community's base flood elevations may increase or decrease 
resulting from physical changes affecting flooding conditions. As soon 
as practicable, but not later than six months after the date such 
information becomes available, a community shall notify the 
Administrator of the changes by submitting technical or scientific data 
in accordance with this part. Such a submission is necessary so that 
upon confirmation of those physical changes affecting flooding 
conditions, risk premium rates and flood plain management requirements 
will be based upon current data.

[51 FR 30313, Aug. 25, 1986]



Sec. 65.4  Right to submit new technical data.

    (a) A community has a right to request changes to any of the 
information shown on an effective map that does not impact flood plain 
or floodway delineations or base flood elevations, such as community 
boundary changes, labeling, or planimetric details. Such a submission 
shall include appropriate

[[Page 341]]

supporting documentation in accordance with this part and may be 
submitted at any time.
    (b) All requests for changes to effective maps, other than those 
initiatedby FEMA, must be made in writing by the Chief Executive Officer 
of the community (CEO) or an official designated by the CEO. Should the 
CEO refuse to submit such a request on behalf of another party, FEMA 
will agree to review it only if written evidence is provided indicating 
the CEO or designee has been requested to do so.
    (c) Requests for changes to effective Flood Insurance Rate Maps 
(FIRMs) and Flood Boundary and Floodway Maps (FBFMs) are subject to the 
cost recovery procedures described in 44 CFR part 72. As indicated in 
part 72, revisions requested to correct mapping errors or errors in the 
Flood Insurance Study analysis are not to be subject to the cost-
recovery procedures.

[51 FR 30313, Aug. 25, 1986, as amended at 57 FR 29038, June 30, 1992; 
61 FR 46331, Aug. 30, 1996; 62 FR 5736, Feb. 6, 1997]

    Editorial Note: For references to FR pages showing lists of eligible 
communities, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 65.5  Revision to special hazard area boundaries with no change to 
base flood elevation determinations.

    (a) Data requirements for topographic changes. In many areas of 
special flood hazard (excluding V zones and floodways) it may be 
feasible to elevate areas with engineered earthen fill above the base 
flood elevation. Scientific and technical information to support a 
request to gain exclusion from an area of special flood hazard of a 
structure or parcel of land that has been elevated by the placement of 
engineered earthen fill will include the following:
    (1) A copy of the recorded deed indicating the legal description of 
the property and the official recordation information (deed book volume 
and page number) and bearing the seal of the appropriate recordation 
official (e.g., County Clerk or Recorder of Deeds).
    (2) If the property is recorded on a plat map, a copy of the 
recorded plat indicating both the location of the property and the 
official recordation information (plat book volume and page number) and 
bearing the seal of the appropriate recordation official. If the 
property is not recorded on a plat map, FEMA requires copies of the tax 
map or other suitable maps to help in locating the property accurately.
    (3) A topographic map or other information indicating existing 
ground elevations and the date of fill. FEMA's determination to exclude 
a legally defined parcel of land or a structure from the area of special 
flood hazard will be based upon a comparison of the base flood 
elevations to the lowest ground elevation of the parcel or the lowest 
adjacent grade to the structure. If the lowest ground elevation of the 
entire legally defined parcel of land or the lowest adjacent grade to 
the structure are at or above the elevations of the base flood, FEMA 
will exclude the parcel and/or structure from the area of special flood 
hazard.
    (4) Written assurance by the participating community that they have 
complied with the appropriate minimum floodplain management requirements 
under Sec. 60.3. This includes the requirements that:
    (i) Existing residential structures built in the SFHA have their 
lowest floor elevated to or above the base flood;
    (ii) The participating community has determined that the land and 
any existing or proposed structures to be removed from the SFHA are 
``reasonably safe from flooding'', and that they have on file, available 
upon request by FEMA, all supporting analyses and documentation used to 
make that determination;
    (iii) The participating community has issued permits for all 
existing and proposed construction or other development; and
    (iv) All necessary permits have been received from those 
governmental agencies where approval is required by Federal, State, or 
local law.
    (5) If the community cannot assure that it has complied with the 
appropriate minimum floodplain management requirements under Sec. 60.3, 
of this chapter, the map revision request will

[[Page 342]]

be deferred until the community remedies all violations to the maximum 
extent possible through coordination with FEMA. Once the remedies are in 
place, and the community assures that the land and structures are 
``reasonably safe from flooding,'' we will process a revision to the 
SFHA using the criteria set forth in Sec. 65.5(a). The community must 
maintain on file, and make available upon request by FEMA, all 
supporting analyses and documentation used in determining that the land 
or structures are ``reasonably safe from flooding.''
    (6) Data to substantiate the base flood elevation. If we complete a 
Flood Insurance Study (FIS), we will use those data to substantiate the 
base flood elevation. Otherwise, the community may submit data provided 
by an authoritative source, such as the U.S. Army Corps of Engineers, 
U.S. Geological Survey, Natural Resources Conservation Service, State 
and local water resource departments, or technical data prepared and 
certified by a registered professional engineer. If base flood 
elevations have not previously been established, we may also request 
hydrologic and hydraulic calculations.
    (7) A revision of floodplain delineations based on fill must 
demonstrate that any such fill does not result in a floodway 
encroachment.
    (b) New topographic data. A community may also follow the procedures 
described in paragraphs (a)(1) through (6) of this section to request a 
map revision when no physical changes have occurred in the area of 
special flood hazard, when no fill has been placed, and when the natural 
ground elevations are at or above the elevations of the base flood, 
where new topographic maps are more detailed or more accurate than the 
current map.
    (c) Certification requirements. A registered professional engineer 
or licensed land surveyor must certify the items required in paragraphs 
(a)(3) and (6) and (b) of this section. Such certifications are subject 
to the provisions under Sec. 65.2.
    (d) Submission procedures. Submit all requests to the appropriate 
address serving the community's geographic area or to the FEMA 
Headquarters Office in Washington, DC.

[66 FR 22442, May 4, 2001]



Sec. 65.6  Revision of base flood elevation determinations.

    (a) General conditions and data requirements. (1) The supporting 
data must include all the information FEMA needs to review and evaluate 
the request. This may involve the requestor's performing new hydrologic 
and hydraulic analysis and delineation of new flood plain boundaries and 
floodways, as necessary.
    (2) To avoid discontinuities between the revised and unrevised flood 
data, the necessary hydrologic and hydraulic analyses submitted by the 
map revision requestor must be extensive enough to ensure that a logical 
transition can be shown between the revised flood elevations, flood 
plain boundaries, and floodways and those developed previously for areas 
not affected by the revision. Unless it is demonstrated that it would 
not be appropriate, the revised and unrevised base flood elevations must 
match within one-half foot where such transitions occur.
    (3) Revisions cannot be made based on the effects of proposed 
projects or future conditions. Section 65.8 of this subchapter contains 
provisions for obtaining conditional approval of proposed projects that 
may effect map changes when they are completed.
    (4) The datum and date of releveling of benchmarks, if any, to which 
the elevations are referenced must be indicated.
    (5) Maps will not be revised when discharges change as a result of 
the use of an alternative methodology or data for computing flood 
discharges unless the change is statistically significant as measured by 
a confidence limits analysis of the new discharge estimates.
    (6) Any computer program used to perform hydrologic or hydraulic 
analyses in support of a flood insurance map revision must meet all of 
the following criteria:
    (i) It must have been reviewed and accepted by a governmental agency 
responsible for the implementation of programs for flood control and/or 
the regulation of flood plain lands. For

[[Page 343]]

computer programs adopted by non-Federal agencies, certification by a 
responsible agency official must be provided which states that the 
program has been reviewed, tested, and accepted by that agency for 
purposes of design of flood control structures or flood plain land use 
regulation.
    (ii) It must be well-documented including source codes and user's 
manuals.
    (iii) It must be available to FEMA and all present and future 
parties impacted by flood insurance mapping developed or amended through 
the use of the program. For programs not generally available from a 
Federal agency, the source code and user's manuals must be sent to FEMA 
free of charge, with fully-documented permission from the owner that 
FEMA may release the code and user's manuals to such impacted parties.
    (7) A revised hydrologic analysis for flooding sources with 
established base flood elevations must include evaluation of the same 
recurrence interval(s) studied in the effective FIS, such as the 10-, 
50-, 100-, and 500-year flood discharges.
    (8) A revised hydraulic analysis for a flooding source with 
established base flood elevations must include evaluation of the same 
recurrence interval(s) studied in the effective FIS, such as the 10-, 
50-, 100-, and 500-year flood elevations, and of the floodway. Unless 
the basis of the request is the use of an alternative hydraulic 
methodology or the requestor can demonstrate that the data of the 
original hydraulic computer model is unavailable or its use is 
inappropriate, the analysis shall be made using the same hydraulic 
computer model used to develop the base flood elevations shown on the 
effective Flood Insurance Rate Map and updated to show present 
conditions in the flood plain. Copies of the input and output data from 
the original and revised hydraulic analyses shall be submitted.
    (9) A hydrologic or hydraulic analysis for a flooding source without 
established base flood elevations may be performed for only the 100-year 
flood.
    (10) A revision of flood plain delineations based on topographic 
changes must demonstrate that any topographic changes have not resulted 
in a floodway encroachment.
    (11) Delineations of flood plain boundaries for a flooding source 
with established base flood elevations must provide both the 100- and 
500-year flood plain boundaries. For flooding sources without 
established base flood elevations, only 100-year flood plain boundaries 
need be submitted. These boundaries should be shown on a topographic map 
of suitable scale and contour interval.
    (12) If a community or other party seeks recognition from FEMA, on 
its FHBM or FIRM, that an altered or relocated portion of a watercourse 
provides protection from, or mitigates potential hazards of, the base 
flood, the Administrator may request specific documentation from the 
community certifying that, and describing how, the provisions of Sec. 
60.3(b)(7) of this subchapter will be met for the particular watercourse 
involved. This documentation, which may be in the form of a written 
statement from the Community Chief Executive Officer, an ordinance, or 
other legislative action, shall describe the nature of the maintenance 
activities to be performed, the frequency with which they will be 
performed, and the title of the local community official who will be 
responsible for assuring that the maintenance activities are 
accomplished.
    (13) Notwithstanding any other provisions of Sec. 65.6, a community 
may submit, in lieu of the documentation specified in Sec. 65.6(a)(12), 
certification by a registered professional engineer that the project has 
been designed to retain its flood carrying capacity without periodic 
maintenance.
    (14) The participating community must provide written assurance that 
they have complied with the appropriate minimum floodplain management 
requirements under Sec. 60.3 of this chapter. This includes the 
requirements that:
    (i) Existing residential structures built in the SFHA have their 
lowest floor elevated to or above the base flood;
    (ii) The participating community has determined that the land and 
any existing or proposed structures to be removed from the SFHA are 
``reasonably

[[Page 344]]

safe from flooding,'' and that they have on file, available upon request 
by FEMA, all supporting analyses and documentation used to make that 
determination;
    (iii) The participating community has issued permits for all 
existing and proposed construction or other development; and
    (iv) All necessary permits have been received from those 
governmental agencies where approval is required by Federal, State, or 
local law.
    (15) If the community cannot assure that it has complied with the 
appropriate minimum floodplain management requirements under Sec. 60.3, 
of this chapter the map revision request will be deferred until the 
community remedies all violations to the maximum extent possible through 
coordination with FEMA. Once the remedies are in place, and the 
community assures that the land and structures are ``reasonably safe 
from flooding,'' we will process a revision to the SFHA using the 
criteria set forth under Sec. 65.6. The community must maintain on 
file, and make available upon request by FEMA, all supporting analyses 
and documentation used in determining that the land or structures are 
``reasonably safe from flooding.''
    (b) Data requirements for correcting map errors. To correct errors 
in the original flood analysis, technical data submissions shall include 
the following:
    (1) Data identifying mathematical errors.
    (2) Data identifying measurement errors and providing correct 
measurements.
    (c) Data requirements for changed physical conditions. Revisions 
based on the effects of physical changes that have occurred in the flood 
plain shall include:
    (1) Changes affecting hydrologic conditions. The following data must 
be submitted:
    (i) General description of the changes (e.g., dam, diversion 
channel, or detention basin).
    (ii) Construction plans for as-built conditions, if applicable.
    (iii) New hydrologic analysis accounting for the effects of the 
changes.
    (iv) New hydraulic analysis and profiles using the new flood 
discharge values resulting from the hydrologic analysis.
    (v) Revised delineations of the flood plain boundaries and floodway.
    (2) Changes affecting hydraulic conditions. The following data shall 
be submitted:
    (i) General description of the changes (e.g., channelization or new 
bridge, culvert, or levee).
    (ii) Construction plans for as-built conditions.
    (iii) New hydraulic analysis and flood elevation profiles accounting 
for the effects of the changes and using the original flood discharge 
values upon which the original map is based.
    (iv) Revised delineations of the flood plain boundaries and 
floodway.
    (3) Changes involving topographic conditions. The following data 
shall be submitted:
    (i) General description of the changes (e.g., grading or filling).
    (ii) New topographic information, such as spot elevations, cross 
sections grading plans, or contour maps.
    (iii) Revised delineations of the flood plain boundaries and, if 
necessary, floodway.
    (d) Data requirements for incorporating improved data. Requests for 
revisions based on the use of improved hydrologic, hydraulic, or 
topographic data shall include the following data:
    (1) Data that are believed to be better than those used in the 
original analysis (such as additional years of stream gage data).
    (2) Documentation of the source of the data.
    (3) Explanation as to why the use of the new data will improve the 
results of the original analysis.
    (4) Revised hydrologic analysis where hydrologic data are being 
incorporated.
    (5) Revised hydraulic analysis and flood elevation profiles where 
new hydrologic or hydraulic data are being incorporated.
    (6) Revised delineations of the flood plain boundaries and floodway 
where new hydrologic, hydraulic, or topographic data are being 
incorporated.

[[Page 345]]

    (e) Data requirements for incorporating improved methods. Requests 
for revisions based on the use of improved hydrologic or hydraulic 
methodology shall include the following data:
    (1) New hydrologic analysis when an alternative hydrologic 
methodology is being proposed.
    (2) New hydraulic analysis and flood elevation profiles when an 
alternative hyrologic or hydraulic methodology is being proposed.
    (3) Explanation as to why the alternative methodologies are superior 
to the original methodologies.
    (4) Revised delineations of the flood plain boundaries and floodway 
based on the new analysis(es).
    (f) Certification requirements. All analysis and data submitted by 
the requester shall be certified by a registered professional engineer 
or licensed land surveyor, as appropriate, subject to the definition of 
``certification'' given at Sec. 65.2 of this subchapter.
    (g) Submission procedures. All requests shall be submitted to the 
FEMA Regional Office servicing the community's geographic area or to the 
FEMA Headquarters Office in Washington, DC, and shall be accompanied by 
the appropriate payment, in accordance with 44 CFR part 72.

[51 FR 30314, Aug. 25, 1986, as amended at 53 FR 16279, May 6, 1988; 54 
FR 33550, Aug. 15, 1989; 61 FR 46331, Aug. 30, 1996; 62 FR 5736, Feb. 6, 
1997; 66 FR 22442, May 4, 2001]



Sec. 65.7  Floodway revisions.

    (a) General. Floodway data is developed as part of FEMA Flood 
Insurance Studies and is utilized by communities to select and adopt 
floodways as part of the flood plain management program required by 
Sec. 60.3 of this subchapter. When it has been determined by a 
community that no practicable alternatives exist to revising the 
boundaries of its previously adopted floodway, the procedures below 
shall be followed.
    (b) Data requirements when base flood elevation changes are 
requested. When a floodway revision is requested in association with a 
change to base flood elevations, the data requirements of Sec. 65.6 
shall also be applicable. In addition, the following documentation shall 
be submitted:
    (1) Copy of a public notice distributed by the community stating the 
community's intent to revise the floodway or a statement by the 
community that it has notified all affected property owners and affected 
adjacent jurisdictions.
    (2) Copy of a letter notifying the appropriate State agency of the 
floodway revision when the State has jurisdiction over the floodway or 
its adoption by communities participating in the NFIP.
    (3) Documentation of the approval of the revised floodway by the 
appropriate State agency (for communities where the State has 
jurisdiction over the floodway or its adoption by communities 
participating in the NFIP).
    (4) Engineering analysis for the revised floodway, as described 
below:
    (i) The floodway analysis must be performed using the hydraulic 
computer model used to determine the proposed base flood elevations.
    (ii) The floodway limits must be set so that neither the effective 
base flood elevations nor the proposed base flood elevations if less 
than the effective base flood elevations, are increased by more than the 
amount specified under Sec. 60.3 (d)(2). Copies of the input and output 
data from the original and modified computer models must be submitted.
    (5) Delineation of the revised floodway on the same topographic map 
used for the delineation of the revised flood boundaries.
    (c) Data requirements for changes not associated with base flood 
elevation changes. The following data shall be submitted:
    (1) Items described in paragraphs (b) (1) through (3) of this 
section must be submitted.
    (2) Engineering analysis for the revised floodway, as described 
below:
    (i) The original hydraulic computer model used to develop the 
established base flood elevations must be modified to include all 
encroachments that have occurred in the flood plain since the existing 
floodway was developed. If the original hydraulic computer model is not 
available, an alternate hydraulic computer model may be used provided 
the alternate model has been calibrated so as to reproduce the original

[[Page 346]]

water surface profile of the original hydraulic computer model. The 
alternate model must be then modified to include all encroachments that 
have occurred since the existing floodway was developed.
    (ii) The floodway analysis must be performed with the modified 
computer model using the desired floodway limits.
    (iii) The floodway limits must be set so that combined effects of 
the past encroachments and the new floodway limits do not increase the 
effective base flood elevations by more than the amount specified in 
Sec. 60.3(d)(2). Copies of the input and output data from the original 
and modified computer models must be submitted.
    (3) Delineation of the revised floodway on a copy of the effective 
NFIP map and a suitable topographic map.
    (d) Certification requirements. All analyses submitted shall be 
certified by a registered professional engineer. All topographic data 
shall be certified by a registered professional engineer or licensed 
land surveyor. Certifications are subject to the definition given at 
Sec. 65.2 of this subchapter.
    (e) Submission procedures. All requests that involve changes to 
floodways shall be submitted to the appropriate FEMA Regional Office 
servicing the community's geographic area.

[51 FR 30315, Aug. 25, 1986]



Sec. 65.8  Review of proposed projects.

    A community, or an individual through the community, may request 
FEMA's comments on whether a proposed project, if built as proposed, 
would justify a map revision. FEMA's comments will be issued in the form 
of a letter, termed a Conditional Letter of Map Revision, in accordance 
with 44 CFR part 72. The data required to support such requests are the 
same as those required for final revisions under Sec. Sec. 65.5, 65.6, 
and 65.7, except as-built certification is not required. All such 
requests shall be submitted to the FEMA Headquarters Office in 
Washington, DC, and shall be accompanied by the appropriate payment, in 
accordance with 44 CFR part 72.

[62 FR 5736, Feb. 6, 1997]



Sec. 65.9  Review and response by the Administrator.

    If any questions or problems arise during review, FEMA will consult 
the Chief Executive Officer of the community (CEO), the community 
official designated by the CEO, and/or the requester for resolution. 
Upon receipt of a revision request, the Administrator shall mail an 
acknowledgment of receipt of such request to the CEO. Within 90 days of 
receiving the request with all necessary information, the Administrator 
shall notify the CEO of one or more of the following:
    (a) The effective map(s) shall not be modified;
    (b) The base flood elevations on the effective FIRM shall be 
modified and new base flood elevations shall be established under the 
provisions of part 67 of this subchapter;
    (c) The changes requested are approved and the map(s) amended by 
Letter of Map Revision (LOMR);
    (d) The changes requested are approved and a revised map(s) will be 
printed and distributed;
    (e) The changes requested are not of such a significant nature as to 
warrant a reissuance or revision of the flood insurance study or maps 
and will be deferred until such time as a significant change occurs;
    (f) An additional 90 days is required to evaluate the scientific or 
technical data submitted; or
    (g) Additional data are required to support the revision request.
    (h) The required payment has not been submitted in accordance with 
44 CFR part 72, no review will be conducted and no determination will be 
issued until payment is received.

[51 FR 30315, Aug. 25, 1986; 61 FR 46331, Aug. 30, 1996, as amended at 
62 FR 5736, Feb. 6, 1997]



Sec. 65.10  Mapping of areas protected by levee systems.

    (a) General. For purposes of the NFIP, FEMA will only recognize in 
its flood hazard and risk mapping effort those levee systems that meet, 
and continue to meet, minimum design, operation, and maintenance 
standards that are consistent with the level of protection sought 
through the comprehensive

[[Page 347]]

flood plain management criteria established by Sec. 60.3 of this 
subchapter. Accordingly, this section describes the types of information 
FEMA needs to recognize, on NFIP maps, that a levee system provides 
protection from the base flood. This information must be supplied to 
FEMA by the community or other party seeking recognition of such a levee 
system at the time a flood risk study or restudy is conducted, when a 
map revision under the provisions of part 65 of this subchapter is 
sought based on a levee system, and upon request by the Administrator 
during the review of previously recognized structures. The FEMA review 
will be for the sole purpose of establishing appropriate risk zone 
determinations for NFIP maps and shall not constitute a determination by 
FEMA as to how a structure or system will perform in a flood event.
    (b) Design criteria. For levees to be recognized by FEMA, evidence 
that adequate design and operation and maintenance systems are in place 
to provide reasonable assurance that protection from the base flood 
exists must be provided. The following requirements must be met:
    (1) Freeboard. (i) Riverine levees must provide a minimum freeboard 
of three feet above the water-surface level of the base flood. An 
additional one foot above the minimum is required within 100 feet in 
either side of structures (such as bridges) riverward of the levee or 
wherever the flow is constricted. An additional one-half foot above the 
minimum at the upstream end of the levee, tapering to not less than the 
minimum at the downstream end of the levee, is also required.
    (ii) Occasionally, exceptions to the minimum riverine freeboard 
requirement described in paragraph (b)(1)(i) of this section, may be 
approved. Appropriate engineering analyses demonstrating adequate 
protection with a lesser freeboard must be submitted to support a 
request for such an exception. The material presented must evaluate the 
uncertainty in the estimated base flood elevation profile and include, 
but not necessarily be limited to an assessment of statistical 
confidence limits of the 100-year discharge; changes in stage-discharge 
relationships; and the sources, potential, and magnitude of debris, 
sediment, and ice accumulation. It must be also shown that the levee 
will remain structurally stable during the base flood when such 
additional loading considerations are imposed. Under no circumstances 
will freeboard of less than two feet be accepted.
    (iii) For coastal levees, the freeboard must be established at one 
foot above the height of the one percent wave or the maximum wave runup 
(whichever is greater) associated with the 100-year stillwater surge 
elevation at the site.
    (iv) Occasionally, exceptions to the minimum coastal levee freeboard 
requirement described in paragraph (b)(1)(iii) of this section, may be 
approved. Appropriate engineering analyses demonstrating adequate 
protection with a lesser freeboard must be submitted to support a 
request for such an exception. The material presented must evaluate the 
uncertainty in the estimated base flood loading conditions. Particular 
emphasis must be placed on the effects of wave attack and overtopping on 
the stability of the levee. Under no circumstances, however, will a 
freeboard of less than two feet above the 100-year stillwater surge 
elevation be accepted.
    (2) Closures. All openings must be provided with closure devices 
that are structural parts of the system during operation and design 
according to sound engineering practice.
    (3) Embankment protection. Engineering analyses must be submitted 
that demonstrate that no appreciable erosion of the levee embankment can 
be expected during the base flood, as a result of either currents or 
waves, and that anticipated erosion will not result in failure of the 
levee embankment or foundation directly or indirectly through reduction 
of the seepage path and subsequent instability. The factors to be 
addressed in such analyses include, but are not limited to: Expected 
flow velocities (especially in constricted areas); expected wind and 
wave action; ice loading; impact of debris; slope protection techniques; 
duration of flooding at various stages and velocities; embankment and 
foundation materials; levee alignment, bends, and transitions; and levee 
side slopes.

[[Page 348]]

    (4) Embankment and foundation stability. Engineering analyses that 
evaluate levee embankment stability must be submitted. The analyses 
provided shall evaluate expected seepage during loading conditions 
associated with the base flood and shall demonstrate that seepage into 
or through the levee foundation and embankment will not jeopardize 
embankment or foundation stability. An alternative analysis 
demonstrating that the levee is designed and constructed for stability 
against loading conditions for Case IV as defined in the U.S. Army Corps 
of Engineers (COE) manual, ``Design and Construction of Levees'' (EM 
1110-2-1913, Chapter 6, Section II), may be used. The factors that shall 
be addressed in the analyses include: Depth of flooding, duration of 
flooding, embankment geometry and length of seepage path at critical 
locations, embankment and foundation materials, embankment compaction, 
penetrations, other design factors affecting seepage (such as drainage 
layers), and other design factors affecting embankment and foundation 
stability (such as berms).
    (5) Settlement. Engineering analyses must be submitted that assess 
the potential and magnitude of future losses of freeboard as a result of 
levee settlement and demonstrate that freeboard will be maintained 
within the minimum standards set forth in paragraph (b)(1) of this 
section. This analysis must address embankment loads, compressibility of 
embankment soils, compressibility of foundation soils, age of the levee 
system, and construction compaction methods. In addition, detailed 
settlement analysis using procedures such as those described in the COE 
manual, ``Soil Mechanics Design--Settlement Analysis'' (EM 1100-2-1904) 
must be submitted.
    (6) Interior drainage. An analysis must be submitted that identifies 
the source(s) of such flooding, the extent of the flooded area, and, if 
the average depth is greater than one foot, the water-surface 
elevation(s) of the base flood. This analysis must be based on the joint 
probability of interior and exterior flooding and the capacity of 
facilities (such as drainage lines and pumps) for evacuating interior 
floodwaters.
    (7) Other design criteria. In unique situations, such as those where 
the levee system has relatively high vulnerability, FEMA may require 
that other design criteria and analyses be submitted to show that the 
levees provide adequate protection. In such situations, sound 
engineering practice will be the standard on which FEMA will base its 
determinations. FEMA will also provide the rationale for requiring this 
additional information.
    (c) Operation plans and criteria. For a levee system to be 
recognized, the operational criteria must be as described below. All 
closure devices or mechanical systems for internal drainage, whether 
manual or automatic, must be operated in accordance with an officially 
adopted operation manual, a copy of which must be provided to FEMA by 
the operator when levee or drainage system recognition is being sought 
or when the manual for a previously recognized system is revised in any 
manner. All operations must be under the jurisdiction of a Federal or 
State agency, an agency created by Federal or State law, or an agency of 
a community participating in the NFIP.
    (1) Closures. Operation plans for closures must include the 
following:
    (i) Documentation of the flood warning system, under the 
jurisdiction of Federal, State, or community officials, that will be 
used to trigger emergency operation activities and demonstration that 
sufficient flood warning time exists for the completed operation of all 
closure structures, including necessary sealing, before floodwaters 
reach the base of the closure.
    (ii) A formal plan of operation including specific actions and 
assignments of responsibility by individual name or title.
    (iii) Provisions for periodic operation, at not less than one-year 
intervals, of the closure structure for testing and training purposes.
    (2) Interior drainage systems. Interior drainage systems associated 
with levee systems usually include storage areas, gravity outlets, 
pumping stations, or a combination thereof. These drainage systems will 
be recognized by FEMA on NFIP maps for flood protection purposes only if 
the following minimum

[[Page 349]]

criteria are included in the operation plan:
    (i) Documentation of the flood warning system, under the 
jurisdiction of Federal, State, or community officials, that will be 
used to trigger emergency operation activities and demonstration that 
sufficient flood warning time exists to permit activation of mechanized 
portions of the drainage system.
    (ii) A formal plan of operation including specific actions and 
assignments of responsibility by individual name or title.
    (iii) Provision for manual backup for the activation of automatic 
systems.
    (iv) Provisions for periodic inspection of interior drainage systems 
and periodic operation of any mechanized portions for testing and 
training purposes. No more than one year shall elapse between either the 
inspections or the operations.
    (3) Other operation plans and criteria. Other operating plans and 
criteria may be required by FEMA to ensure that adequate protection is 
provided in specific situations. In such cases, sound emergency 
management practice will be the standard upon which FEMA determinations 
will be based.
    (d) Maintenance plans and criteria. For levee systems to be 
recognized as providing protection from the base flood, the maintenance 
criteria must be as described herein. Levee systems must be maintained 
in accordance with an officially adopted maintenance plan, and a copy of 
this plan must be provided to FEMA by the owner of the levee system when 
recognition is being sought or when the plan for a previously recognized 
system is revised in any manner. All maintenance activities must be 
under the jurisdiction of a Federal or State agency, an agency created 
by Federal or State law, or an agency of a community participating in 
the NFIP that must assume ultimate responsibility for maintenance. This 
plan must document the formal procedure that ensures that the stability, 
height, and overall integrity of the levee and its associated structures 
and systems are maintained. At a minimum, maintenance plans shall 
specify the maintenance activities to be performed, the frequency of 
their performance, and the person by name or title responsible for their 
performance.
    (e) Certification requirements. Data submitted to support that a 
given levee system complies with the structural requirements set forth 
in paragraphs (b)(1) through (7) of this section must be certified by a 
registered professional engineer. Also, certified as-built plans of the 
levee must be submitted. Certifications are subject to the definition 
given at Sec. 65.2 of this subchapter. In lieu of these structural 
requirements, a Federal agency with responsibility for levee design may 
certify that the levee has been adequately designed and constructed to 
provide protection against the base flood.

[51 FR 30316, Aug. 25, 1986]



Sec. 65.11  Evaluation of sand dunes in mapping coastal flood hazard areas.

    (a) General conditions. For purposes of the NFIP, FEMA will consider 
storm-induced dune erosion potential in its determination of coastal 
flood hazards and risk mapping efforts. The criterion to be used in the 
evaluation of dune erosion will apply to primary frontal dunes as 
defined in Sec. 59.1, but does not apply to artificially designed and 
constructed dunes that are not well-established with long-standing 
vegetative cover, such as the placement of sand materials in a dune-like 
formation.
    (b) Evaluation criterion. Primary frontal dunes will not be 
considered as effective barriers to base flood storm surges and 
associated wave action where the cross-sectional area of the primary 
frontal dune, as measured perpendicular to the shoreline and above the 
100-year stillwater flood elevation and seaward of the dune crest, is 
equal to, or less than, 540 square feet.
    (c) Exceptions. Exceptions to the evaluation criterion may be 
granted where it can be demonstrated through authoritative historical 
documentation that the primary frontal dunes at a specific site 
withstood previous base flood storm surges and associated wave action.

[53 FR 16279, May 6, 1988]

[[Page 350]]



Sec. 65.12  Revision of flood insurance rate maps to reflect base flood 
elevations caused by proposed encroachments.

    (a) When a community proposes to permit encroachments upon the flood 
plain when a regulatory floodway has not been adopted or to permit 
encroachments upon an adopted regulatory floodway which will cause base 
flood elevation increases in excess of those permitted under paragraphs 
(c)(10) or (d)(3) of Sec. 60.3 of this subchapter, the community shall 
apply to the Administrator for conditional approval of such action prior 
to permitting the encroachments to occur and shall submit the following 
as part of its application:
    (1) A request for conditional approval of map change and the 
appropriate initial fee as specified by Sec. 72.3 of this subchapter or 
a request for exemption from fees as specified by Sec. 72.5 of this 
subchapter, whichever is appropriate;
    (2) An evaluation of alternatives which would not result in a base 
flood elevation increase above that permitted under paragraphs (c)(10) 
or (d)(3) of Sec. 60.3 of this subchapter demonstrating why these 
alternatives are not feasible;
    (3) Documentation of individual legal notice to all impacted 
property owners within and outside of the community, explaining the 
impact of the proposed action on their property.
    (4) Concurrence of the Chief Executive Officer of any other 
communities impacted by the proposed actions;
    (5) Certification that no structures are located in areas which 
would be impacted by the increased base flood elevation;
    (6) A request for revision of base flood elevation determination 
according to the provisions of Sec. 65.6 of this part;
    (7) A request for floodway revision in accordance with the 
provisions of Sec. 65.7 of this part;
    (b) Upon receipt of the Administrator's conditional approval of map 
change and prior to approving the proposed encroachments, a community 
shall provide evidence to the Administrator of the adoption of flood 
plain management ordinances incorporating the increased base flood 
elevations and/or revised floodway reflecting the post-project 
condition.
    (c) Upon completion of the proposed encroachments, a community shall 
provide as-built certifications in accordance with the provisions of 
Sec. 65.3 of this part. The Administrator will initiate a final map 
revision upon receipt of such certifications in accordance with part 67 
of this subchapter.

[53 FR 16279, May 6, 1988]



Sec. 65.13  Mapping and map revisions for areas subject to alluvial fan 
flooding.

    This section describes the procedures to be followed and the types 
of information FEMA needs to recognize on a NFIP map that a structural 
flood control measure provides protection from the base flood in an area 
subject to alluvial fan flooding. This information must be supplied to 
FEMA by the community or other party seeking recognition of such a flood 
control measure at the time a flood risk study or restudy is conducted, 
when a map revision under the provisions of part 65 of this subchapter 
is sought, and upon request by the Administrator during the review of 
previously recognized flood control measures. The FEMA review will be 
for the sole purpose of establishing appropriate risk zone 
determinations for NFIP maps and shall not constitute a determination by 
FEMA as to how the flood control measure will perform in a flood event.
    (a) The applicable provisions of Sec. Sec. 65.2, 65.3, 65.4, 65.6, 
65.8 and 65.10 shall also apply to FIRM revisions involving alluvial fan 
flooding.
    (b) The provisions of Sec. 65.5 regarding map revisions based on 
fill and the provisions of part 70 of this chapter shall not apply to 
FIRM revisions involving alluvial fan flooding. In general, elevations 
of a parcel of land or a structure by fill or other means, will not 
serve as a basis for removing areas subject to alluvial fan flooding 
from an area of special food hazards.
    (c) FEMA will credit on NFIP maps only major structural flood 
control measures whose design and construction are supported by sound 
engineering analyses which demonstrate that the measures will 
effectively eliminate alluvial fan flood hazards from the area

[[Page 351]]

protected by such measures. The provided analyses must include, but are 
not necessarily limited to, the following:
    (1) Engineering analyses that quantify the discharges and volumes of 
water, debris, and sediment movement associated with the flood that has 
a one-percent probability of being exceeded in any year at the apex 
under current watershed conditions and under potential adverse 
conditions (e.g., deforestation of the watershed by fire). The potential 
for debris flow and sediment movement must be assessed using an 
engineering method acceptable to FEMA. The assessment should consider 
the characteristics and availability of sediment in the drainage basin 
above the apex and on the alluvial fan.
    (2) Engineering analyses showing that the measures will accommodate 
the estimated peak discharges and volumes of water, debris, and 
sediment, as determined in accordance with paragraph (c)(1) of this 
section, and will withstand the associated hydrodynamic and hydrostatic 
forces.
    (3) Engineering analyses showing that the measures have been 
designed to withstand the potential erosion and scour associated with 
estimated discharges.
    (4) Engineering analyses or evidence showing that the measures will 
provide protection from hazards associated with the possible relocation 
of flow paths from other parts of the fan.
    (5) Engineering analyses that assess the effect of the project on 
flood hazards, including depth and velocity of floodwaters and scour and 
sediment deposition, on other areas of the fan.
    (6) Engineering analyses demonstrating that flooding from scources 
other than the fan apex, including local runoff, is either insignificant 
or has been accounted for in the design.
    (d) Coordination. FEMA will recognize measures that are adequately 
designed and constructed, provided that: evidence is submitted to show 
that the impact of the measures on flood hazards in all areas of the fan 
(including those not protected by the flood control measures), and the 
design and maintenance requirements of the measures, were reviewed and 
approved by the impacted communities, and also by State and local 
agencies that have jurisdiction over flood control activities.
    (e) Operation and maintenance plans and criteria. The requirements 
for operation and maintenance of flood control measures on areas subject 
to alluvial fan flooding shall be those specified under Sec. 65.10, 
paragraphs (c) and (d), when applicable.
    (f) Certification requirements. Data submitted to support that a 
given flood control measure complies with the requirements set forth in 
paragraphs (c) (1) through (6) of this section must be certified by a 
registered professional engineer. Also, certified as-built plans of the 
flood control measures must be submitted. Certifications are subject to 
the definition given at Sec. 65.2.

(Approved by the Office of Management and Budget under control number 
3067-0147)

[54 FR 33551, Aug. 15, 1989]



Sec. 65.14  Remapping of areas for which local flood protection systems 
no longer provide base flood protection.

    (a) General. (1) This section describes the procedures to follow and 
the types of information FEMA requires to designate flood control 
restoration zones. A community may be eligible to apply for this zone 
designation if the Administrator determines that it is engaged in the 
process of restoring a flood protection system that was:
    (i) Constructed using Federal funds;
    (ii) Recognized as providing base flood protection on the 
community's effective FIRM; and
    (iii) Decertified by a Federal agency responsible for flood 
protection design or construction.
    (2) Where the Administrator determines that a community is in the 
process of restoring its flood protection system to provide base flood 
protection, a FIRM will be prepared that designates the temporary flood 
hazard areas as a flood control restoration zone (Zone AR). Existing 
special flood hazard areas shown on the community's effective FIRM that 
are further inundated by Zone AR flooding shall be designated as a 
``dual'' flood insurance rate zone, Zone AR/AE or AR/AH with Zone AR 
base flood elevations, and AE

[[Page 352]]

or AH with base flood elevations and Zone AR/AO with Zone AR base flood 
elevations and Zone AO with flood depths, or Zone AR/A with Zone AR base 
flood elevations and Zone A without base flood elevations.
    (b) Limitations. A community may have a flood control restoration 
zone designation only once while restoring a flood protection system. 
This limitation does not preclude future flood control restoration zone 
designations should a fully restored, certified, and accredited system 
become decertified for a second or subsequent time.
    (1) A community that receives Federal funds for the purpose of 
designing or constructing, or both, the restoration project must 
complete restoration or meet the requirements of 44 CFR 61.12 within a 
specified period, not to exceed a maximum of 10 years from the date of 
submittal of the community's application for designation of a flood 
control restoration zone.
    (2) A community that does not receive Federal funds for the purpose 
of constructing the restoration project must complete restoration within 
a specified period, not to exceed a maximum of 5 years from the date of 
submittal of the community's application for designation of a flood 
control restoration zone. Such a community is not eligible for the 
provisions of Sec. 61.12. The designated restoration period may not be 
extended beyond the maximum allowable under this limitation.
    (c) Exclusions. The provisions of these regulations do not apply in 
a coastal high hazard area as defined in 44 CFR 59.1, including areas 
that would be subject to coastal high hazards as a result of the 
decertification of a flood protection system shown on the community's 
effective FIRM as providing base flood protection.
    (d) Effective date for risk premium rates. The effective date for 
any risk premium rates established for Zone AR shall be the effective 
date of the revised FIRM showing Zone AR designations.
    (e) Application and submittal requirements for designation of a 
flood control restoration zone. A community must submit a written 
request to the Administrator, signed by the community's Chief Executive 
Officer, for a flood plain designation as a flood control restoration 
zone. The request must include a legislative action by the community 
requesting the designation. The Administrator will not initiate any 
action to designate flood control restoration zones without receipt of 
the formal request from the community that complies with all 
requirements of this section. The Administrator reserves the right to 
request additional information from the community to support or further 
document the community's formal request for designation of a flood 
control restoration zone, if deemed necessary.
    (1) At a minimum, the request from a community that receives Federal 
funds for the purpose of designing, constructing, or both, the 
restoration project must include:
    (i) A statement whether, to the best of the knowledge of the 
community's Chief Executive Officer, the flood protection system is 
currently the subject matter of litigation before any Federal, State or 
local court or administrative agency, and if so, the purpose of that 
litigation;
    (ii) A statement whether the community has previously requested a 
determination with respect to the same subject matter from the 
Administrator, and if so, a statement that details the disposition of 
such previous request;
    (iii) A statement from the community and certification by a Federal 
agency responsible for flood protection design or construction that the 
existing flood control system shown on the effective FIRM was originally 
built using Federal funds, that it no longer provides base flood 
protection, but that it continues to provide protection from the flood 
having at least a 3-percent chance of occurrence during any given year;
    (iv) An official map of the community or legal description, with 
supporting documentation, that the community will adopt as part of its 
flood plain management measures, which designates developed areas as 
defined in Sec. 59.1 and as further defined in Sec. 60.3(f).
    (v) A restoration plan to return the system to a level of base flood 
protection. At a minimum, this plan must:

[[Page 353]]

    (A) List all important project elements, such as acquisition of 
permits, approvals, and contracts and construction schedules of planned 
features;
    (B) Identify anticipated start and completion dates for each 
element, as well as significant milestones and dates;
    (C) Identify the date on which ``as built'' drawings and 
certification for the completed restoration project will be submitted. 
This date must provide for a restoration period not to exceed the 
maximum allowable restoration period for the flood protection system, 
or;
    (D) Identify the date on which the community will submit a request 
for a finding of adequate progress that meets all requirements of 
Sec. 61.12. This date may not exceed the maximum allowable restoration 
period for the flood protection system;
    (vi) A statement identifying the local project sponsor responsible 
for restoration of the flood protection system;
    (vii) A copy of a study, performed by a Federal agency responsible 
for flood protection design or construction in consultation with the 
local project sponsor, which demonstrates a Federal interest in 
restoration of the system and which deems that the flood protection 
system is restorable to a level of base flood protection.
    (viii) A joint statement from the Federal agency responsible for 
flood protection design or construction involved in restoration of the 
flood protection system and the local project sponsor certifying that 
the design and construction of the flood control system involves Federal 
funds, and that the restoration of the flood protection system will 
provide base flood protection;
    (2) At a minimum, the request from a community that receives no 
Federal funds for the purpose of constructing the restoration project 
must:
    (i) Meet the requirements of Sec. 65.14(e)(1)(i) through (iv);
    (ii) Include a restoration plan to return the system to a level of 
base flood protection. At a minimum, this plan must:
    (A) List all important project elements, such as acquisition of 
permits, approvals, and contracts and construction schedules of planned 
features;
    (B) Identify anticipated start and completion dates for each 
element, as well as significant milestones and dates; and
    (C) Identify the date on which ``as built'' drawings and 
certification for the completed restoration project will be submitted. 
This date must provide for a restoration period not to exceed the 
maximum allowable restoration period for the flood protection system;
    (iii) Include a statement identifying the local agency responsible 
for restoration of the flood protection system;
    (iv) Include a copy of a study, certified by registered Professional 
Engineer, that demonstrates that the flood protection system is 
restorable to provide protection from the base flood;
    (v) Include a statement from the local agency responsible for 
restoration of the flood protection system certifying that the restored 
flood protection system will meet the applicable requirements of Part 
65; and
    (vi) Include a statement from the local agency responsible for 
restoration of the flood protection system that identifies the source of 
funds for the purpose of constructing the restoration project and a 
percentage of the total funds contributed by each source. The statement 
must demonstrate, at a minimum, that 100 percent of the total financial 
project cost of the completed flood protection system has been 
appropriated.
    (f) Review and response by the Administrator. The review and 
response by the Administrator shall be in accordance with procedures 
specified in Sec. 65.9.
    (g) Requirements for maintaining designation of a flood control 
restoration zone. During the restoration period, the community and the 
cost-sharing Federal agency, if any, must certify annually to the FEMA 
Regional Office having jurisdiction that the restoration will be 
completed in accordance with the restoration plan within the time period 
specified by the plan. In addition, the community and the cost-sharing 
Federal agency, if any, will update the restoration plan and will 
identify

[[Page 354]]

any permitting or construction problems that will delay the project 
completion from the restoration plan previously submitted to the 
Administrator. The FEMA Regional Office having jurisdiction will make an 
annual assessment and recommendation to the Administrator as to the 
viability of the restoration plan and will conduct periodic on-site 
inspections of the flood protection system under restoration.
    (h) Procedures for removing flood control restoration zone 
designation due to adequate progress or complete restoration of the 
flood protection system. At any time during the restoration period:
    (1) A community that receives Federal funds for the purpose of 
designing, constructing, or both, the restoration project shall provide 
written evidence of certification from a Federal agency having flood 
protection design or construction responsibility that the necessary 
improvements have been completed and that the system has been restored 
to provide protection from the base flood, or submit a request for a 
finding of adequate progress that meets all requirements of Sec. 61.12. 
If the Administrator determines that adequate progress has been made, 
FEMA will revise the zone designation from a flood control restoration 
zone designation to Zone A99.
    (2) After the improvements have been completed, certified by a 
Federal agency as providing base flood protection, and reviewed by FEMA, 
FEMA will revise the FIRM to reflect the completed flood control system.
    (3) A community that receives no Federal funds for the purpose of 
constructing the restoration project must provide written evidence that 
the restored flood protection system meets the requirements of Part 65. 
A community that receives no Federal funds for the purpose of 
constructing the restoration project is not eligible for a finding of 
adequate progress under Sec. 61.12.
    (4) After the improvements have been completed and reviewed by FEMA, 
FEMA will revise the FIRM to reflect the completed flood protection 
system.
    (i) Procedures for removing flood control restoration zone 
designation due to non-compliance with the restoration schedule or as a 
result of a finding that satisfactory progress is not being made to 
complete the restoration. At any time during the restoration period, 
should the Administrator determine that the restoration will not be 
completed in accordance with the time frame specified in the restoration 
plan, or that satisfactory progress is not being made to restore the 
flood protection system to provide complete flood protection in 
accordance with the restoration plan, the Administrator shall notify the 
community and the responsible Federal agency, in writing, of the 
determination, the reasons for that determination, and that the FIRM 
will be revised to remove the flood control restoration zone 
designation. Within thirty (30) days of such notice, the community may 
submit written information that provides assurance that the restoration 
will be completed in accordance with the time frame specified in the 
restoration plan, or that satisfactory progress is being made to restore 
complete protection in accordance with the restoration plan, or that, 
with reasonable certainty, the restoration will be completed within the 
maximum allowable restoration period. On the basis of this information 
the Administrator may suspend the decision to revise the FIRM to remove 
the flood control restoration zone designation. If the community does 
not submit any information, or if, based on a review of the information 
submitted, there is sufficient cause to find that the restoration will 
not be completed as provided for in the restoration plan, the 
Administrator shall revise the FIRM, in accordance with 44 CFR Part 67, 
and shall remove the flood control restoration zone designations and 
shall redesignate those areas as Zone A1-30, AE, AH, AO, or A.

[62 FR 55717, Oct. 27, 1997]



Sec. 65.15  List of communities submitting new technical data.

    This section provides a cumulative list of communities where 
modifications of the base flood elevation determinations have been made 
because of submission of new scientific or technical data. Due to the 
need for expediting the modifications, the revised map is already in 
effect and the appeal

[[Page 355]]

period commences on or about the effective date of the modified map. An 
interim rule, followed by a final rule, will list the revised map 
effective date, local repository and the name and address of the Chief 
Executive Officer of the community. The map(s) is (are) effective for 
both flood plain management and insurance purposes.

[51 FR 30317, Aug. 25, 1986. Redesignated at 53 FR 16279, May 6, 1988, 
and further redesignated at 54 FR 33551, Aug. 15, 1989. Redesignated at 
59 FR 53599, Oct. 25, 1994]

    Editorial Note: For references to FR pages showing lists of eligible 
communities, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 65.16  Standard Flood Hazard Determination Form and Instructions.

    (a) Section 528 of the National Flood Insurance Reform Act of 1994 
(42 U.S.C. 1365(a)) directs FEMA to develop a standard form for 
determining, in the case of a loan secured by improved real estate or a 
mobile home, whether the building or mobile home is located in an area 
identified by the Director as an area having special flood hazards and 
in which flood insurance under this title is available. The purpose of 
the form is to determine whether a building or mobile home is located 
within an identified Special Flood Hazard Area (SFHA), whether flood 
insurance is required, and whether federal flood insurance is available. 
Use of this form will ensure that required flood insurance coverage is 
purchased for structures located in an SFHA, and will assist federal 
entities for lending regulation in assuring compliance with these 
purchase requirements.
    (b) The form is available by written request to Federal Emergency 
Management Agency, PO Box 2012, Jessup, MD 20794; ask for the Standard 
Flood Hazard Determination form. It is also available by fax-on-demand; 
call (202) 646-3362, form 23103. Finally, the form is available 
through the Internet at http://www.fema.gov/nfip/mpurfi.htm.

[63 FR 27857, May 21, 1998]



Sec. 65.17  Review of determinations.

    This section describes the procedures that shall be followed and the 
types of information required by FEMA to review a determination of 
whether a building or manufactured home is located within an identified 
Special Flood Hazard Area (SFHA).
    (a) General conditions. The borrower and lender of a loan secured by 
improved real estate or a manufactured home may jointly request that 
FEMA review a determination that the building or manufactured home is 
located in an identified SFHA. Such a request must be submitted within 
45 days of the lender's notification to the borrower that the building 
or manufactured home is in the SFHA and that flood insurance is 
required. Such a request must be submitted jointly by the lender and the 
borrower and shall include the required fee and technical information 
related to the building or manufactured home. Elevation data will not be 
considered under the procedures described in this section.
    (b) Data and other requirements. Items required for FEMA's review of 
a determination shall include the following:
    (1) Payment of the required fee by check or money order, in U.S. 
funds, payable to the National Flood Insurance Program;
    (2) A request for FEMA's review of the determination, signed by both 
the borrower and the lender;
    (3) A copy of the lender's notification to the borrower that the 
building or manufactured home is in an SFHA and that flood insurance is 
required (the request for review of the determination must be postmarked 
within 45 days of borrower notification);
    (4) A completed Standard Flood Hazard Determination Form for the 
building or manufactured home, together with a legible hard copy of all 
technical data used in making the determination; and
    (5) A copy of the effective NFIP map (Flood Hazard Boundary Map 
(FHBM) or Flood Insurance Rate Map (FIRM)) panel for the community in 
which the building or manufactured home is located, with the building or 
manufactured home location indicated. Portions of the map panel may be 
submitted but shall include the area of the building or manufactured 
home in question together with the map panel title block, including 
effective date, bar scale, and north arrow.

[[Page 356]]

    (c) Review and response by FEMA. Within 45 days after receipt of a 
request to review a determination, FEMA will notify the applicants in 
writing of one of the following:
    (1) Request submitted more than 45 days after borrower notification; 
no review will be performed and all materials are being returned;
    (2) Insufficient information was received to review the 
determination; therefore, the determination stands until a complete 
submittal is received; or
    (3) The results of FEMA's review of the determination, which shall 
include the following:
    (i) The name of the NFIP community in which the building or 
manufactured home is located;
    (ii) The property address or other identification of the building or 
manufactured home to which the determination applies;
    (iii) The NFIP map panel number and effective date upon which the 
determination is based;
    (iv) A statement indicating whether the building or manufactured 
home is within the Special Flood Hazard Area;
    (v) The time frame during which the determination is effective.

[60 FR 62218, Dec. 5, 1995]



PART 66_CONSULTATION WITH LOCAL OFFICIALS--Table of Contents




Sec.
66.1 Purpose of part.
66.2 Definitions.
66.3 Establishment of community case file and flood elevation study 
          docket.
66.4 Appointment of consultation coordination officer.
66.5 Responsibilities for consultation and coordination.

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978; E.O. 12127.



Sec. 66.1  Purpose of part.

    (a) The purpose of this part is to comply with section 206 of the 
Flood Disaster Protection Act of 1973 (42 U.S.C. 4107) by establishing 
procedures for flood elevation determinations of Zones A1-30, AE, AH, AO 
and V1-30, and VE within the community so that adequate consultation 
with the community officials shall be assured.
    (b) The procedures in this part shall apply when base flood 
elevations are to be determined or modified.
    (c) The Administrator or his delegate shall:
    (1) Specifically request that the community submit pertinent data 
concerning flood hazards, flooding experience, plans to avoid potential 
hazards, estimate of historical and prospective economic impact on the 
community, and such other appropriate data (particularly if such data 
will necessitate a modification of a base flood elevation).
    (2) Notify local officials of the progress of surveys, studies, 
investigations, and of prospective findings, along with data and methods 
employed in reaching such conclusions; and
    (3) Encourage local dissemination of surveys, studies, and 
investigations so that interested persons will have an opportunity to 
bring relevant data to the attention of the community and to the 
Administrator.
    (4) Carry out the responsibilities for consultation and coordination 
set forth in Sec. 66.5 of this part.

[41 FR 46988, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 47 FR 771, Jan. 7, 1982; 48 FR 44553, Sept. 29, 1983; 49 
FR 4751, Feb. 8, 1984; 50 FR 36028, Sept. 4, 1985]



Sec. 66.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.

[41 FR 46988, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 66.3  Establishment of community case file and flood elevation 
study docket.

    (a) A file shall be established for each community at the time 
initial consideration is given to studying that community in order to 
establish whether or not it contains flood-prone areas. Thereafter, the 
file shall include copies of all correspondence with officials in that 
community. As the community is tentatively identified, provided with 
base flood elevations, or suspended and reinstated, documentation of 
such actions by the Administrator shall be placed in the community file. 
Even if a map is administratively rescinded or withdrawn after notice 
under part 65 of

[[Page 357]]

this subchapter or the community successfully rebuts its flood-prone 
designation, the file will be maintained indefinitely.
    (b) A portion of the community file shall be designated a flood 
elevation study consultation docket and shall be established for each 
community at the time the contract is awarded for a flood elevation 
study. The docket shall include copies of (1) all correspondence between 
the Administrator and the community concerning the study, reports of any 
meetings among the Agency representatives, property owners of the 
community, the state coordinating agency, study contractors or other 
interested persons, (2) relevant publications, (3) a copy of the 
completed flood elevation study, and (4) a copy of the Administrator's 
final determination.
    (c) A flood elevation determination docket shall be established and 
maintained in accordance with part 67 of this subchapter.

[41 FR 46988, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 
1984]



Sec. 66.4  Appointment of consultation coordination officer.

    The Administrator may appoint an employee of the Federal Emergency 
Management Agency, or other designated Federal employee, as the 
Consultation Coordination Officer, for each community when an analysis 
is undertaken to establish or to modify flood elevations pursuant to a 
new study or a restudy. When a CCO is appointed by the Administrator, 
the responsibilities for consultation and coordination as set forth in 
Sec. 66.5 shall be carried out by the CCO. The Administrator shall 
advise the community and the state coordinating agency, in writing, of 
this appointment.

[47 FR 771, Jan. 7, 1982, as amended at 49 FR 4751, Feb. 8, 1984]



Sec. 66.5  Responsibilities for consultation and coordination.

    (a) Contact shall be made with appropriate officials of a community 
in which a proposed investigation is undertaken, and with the state 
coordinating agency.
    (b) Local dissemination of the intent and nature of the 
investigation shall be encouraged so that interested parties will have 
an opportunity to bring relevant data to the attention of the community 
and to the Administrator.
    (c) Submission of information from the community concerning the 
study shall be encouraged.
    (d) Appropriate officials of the community shall be fully informed 
of (1) The responsibilities placed on them by the Program, (2) the 
administrative procedures followed by the Federal Emergency Management 
Agency, (3) the community's role in establishing elevations, and (4) the 
responsibilities of the community if it participates or continues to 
participate in the Program.
    (e) Before the commencement of an initial Flood Insurance Study, the 
CCO or other FEMA representative, together with a representative of the 
organization undertaking the study, shall meet with officials of the 
community. The state coordinating agency shall be notified of this 
meeting and may attend. At this meeting, the local officials shall be 
informed of (1) The date when the study will commence, (2) the nature 
and purpose of the study, (3) areas involved, (4) the manner in which 
the study shall be undertaken, (5) the general principles to be applied, 
and (6) the intended use of the data obtained. The community shall be 
informed in writing if any of the six preceding items are or will be 
changed after this initial meeting and during the course of the ongoing 
study.
    (f) The community shall be informed in writing of any intended 
modification to the community's final flood elevation determinations or 
the development of new elevations in additional areas of the community 
as a result of a new study or restudy. Such information to the community 
will include the data set forth in paragraph (e) of this section. At the 
discretion of the Chief of the Natural and Technological Hazards 
Division in each FEMA Regional Office, a meeting may be held to 
accomplish this requirement.

[47 FR 771, Jan. 7, 1982, as amended at 49 FR 4751, Feb. 8, 1984]

[[Page 358]]



PART 67_APPEALS FROM PROPOSED FLOOD ELEVATION DETERMINATIONS
--Table of Contents




Sec.
67.1 Purpose of part.
67.2 Definitions.
67.3 Establishment and maintenance of a flood elevation determination 
          docket (FEDD).
67.4 Proposed flood elevation determination.
67.5 Right of appeal.
67.6 Basis of appeal.
67.7 Collection of appeal data.
67.8 Appeal procedure.
67.9 Final determination in the absence of an appeal by the community.
67.10 Rates during pendency of final determination.
67.11 Notice of final determination.
67.12 Appeal to District Court.

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 
Comp., p. 376.

    Source: 41 FR 46989, Oct. 26, 1976, unless otherwise noted. 
Redesignated at 44 FR 31177, May 31, 1979.



Sec. 67.1  Purpose of part.

    The purpose of this part is to establish procedures implementing the 
provisions of section 110 of Flood Disaster Protection Act of 1973.



Sec. 67.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.



Sec. 67.3  Establishment and maintenance of a flood elevation determination 
docket (FEDD).

    The Administrator shall establish a docket of all matters pertaining 
to flood elevation determinations. The docket files shall contain the 
following information:
    (a) The name of the community subject to the flood elevation 
determination;
    (b) A copy of the notice of the proposed flood elevation 
determination to the Chief Executive Officer (CEO) of the Community;
    (c) A copy of the notice of the proposed flood elevation 
determination published in a prominent local newspaper of the community;
    (d) A copy of the notice of the proposed flood elevation 
determination published in the Federal Register;
    (e) Copies of all appeals by private persons received by the 
Administrator from the CEO;
    (f) Copies of all comments received by the Administrator on the 
notice of the proposed flood elevation determination published in the 
Federal Register.
    (g) A copy of the community's appeal or a copy of its decision not 
to appeal the proposed flood elevation determination;
    (h) A copy of the flood insurance study for the community;
    (i) A copy of the FIRM for the community;
    (j) Copies of all materials maintained in the flood elevation study 
consultation docket; and
    (k) A copy of the final determination with supporting documents.

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 67.4  Proposed flood elevation determination.

    The Administrator shall propose flood elevation determinations in 
the following manner:
    (a) Publication of the proposed flood elevation determination for 
comment in the Federal Register;
    (b) Notification by certified mail, return receipt requested, of the 
proposed flood elevation determination to the CEO; and
    (c) Publication of the proposed flood elevation determination in a 
prominent local newspaper at least twice during the ten day period 
immediately following the notification of the CEO.

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]

    Editorial Note: For references to FR pages showing lists of flood 
elevation determinations, see the List of CFR Sections Affected, which 
appears in the Finding Aids section of the printed volume and on GPO 
Access.



Sec. 67.5  Right of appeal.

    (a) Any owner or lessee of real property, within a community where a 
proposed flood elevation determination

[[Page 359]]

has been made pursuant to section 1363 of the National Flood Insurance 
Act of 1968, as amended, who believes his property rights to be 
adversely affected by the Administrator's proposed determination, may 
file a written appeal of such determination with the CEO, or such agency 
as he shall publicly designate, within ninety days of the second 
newspaper publication of the Administrator's proposed determination.
    (b) [Reserved]

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 67.6  Basis of appeal.

    (a) The sole basis of appeal under this part shall be the possession 
of knowledge or information indicating that the elevations proposed by 
FEMA are scientifically or technically incorrect. Because scientific and 
technical correctness is often a matter of degree rather than absolute 
(except where mathematical or measurement error or changed physical 
conditions can be demonstrated), appellants are required to demonstrate 
that alternative methods or applications result in more correct 
estimates of base flood elevations, thus demonstrating that FEMA's 
estimates are incorrect.
    (b) Data requirements. (1) If an appellant believes the proposed 
base flood elevations are technically incorrect due to a mathematical or 
measurement error or changed physical conditions, then the specific 
source of the error must be identified. Supporting data must be 
furnished to FEMA including certifications by a registered professional 
engineer or licensed land surveyor, of the new data necessary for FEMA 
to conduct a reanalysis.
    (2) If an appellant believes that the proposed base flood elevations 
are technically incorrect due to error in application of hydrologic, 
hydraulic or other methods or use of inferior data in applying such 
methods, the appeal must demonstrate technical incorrectness by:
    (i) Identifying the purported error in the application or the 
inferior data.
    (ii) Supporting why the application is incorrect or data is 
inferior.
    (iii) Providing an application of the same basic methods utilized by 
FEMA but with the changes itemized.
    (iv) Providing background technical support for the changes 
indicating why the appellant's application should be accepted as more 
correct.
    (v) Providing certification of correctness of any alternate data 
utilized or measurements made (such as topographic information) by a 
registered professional engineer or licensed land surveyor, and
    (vi) Providing documentation of all locations where the appellant's 
base flood elevations are different from FEMA's.
    (3) If any appellant believes the proposed base flood elevations are 
scientifically incorrect, the appeal must demonstrate scientific 
incorrectness by:
    (i) Identifying the methods, or assumptions purported to be 
scientifically incorrect.
    (ii) Supporting why the methods, or assumptions are scientifically 
incorrect.
    (iii) Providing an alternative analysis utilizing methods, or 
assumptions purported to be correct.
    (iv) Providing technical support indicating why the appellant's 
methods should be accepted as more correct and
    (v) Providing documentation of all locations where the appellant's 
base flood elevations are different from FEMA's.

[48 FR 31644, July 1, 1983]



Sec. 67.7  Collection of appeal data.

    (a) Appeals by private persons to the CEO shall be submitted within 
ninety (90) days following the second newspaper publication of the 
Administrator's proposed flood elevation determination to the CEO or to 
such agency as he may publicly designate and shall set forth scientific 
or technical data that tend to negate or contradict the Administrator's 
findings.
    (b) Copies of all individual appeals received by the CEO shall be 
forwarded, as soon as they are received, to the Administrator for 
information and placement in the Flood Elevation Determination Docket.
    (c) The CEO shall review and consolidate all appeals by private 
persons and issue a written opinion stating whether

[[Page 360]]

the evidence presented is sufficient to justify an appeal on behalf of 
such persons by the community in its own name.
    (d) The decision issued by the CEO on the basis of his review, on 
whether an appeal by the community in its own name shall be made, shall 
be filed with the Administrator not later than ninety days after the 
date of the second newspaper publication of the Administrator's proposed 
flood elevation determination and shall be placed in the FEDD.

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 67.8  Appeal procedure.

    (a) If a community appeals the proposed flood elevation 
determination, the Administrator shall review and take fully into 
account any technical or scientific data submitted by the community that 
tend to negate or contradict the information upon which his/her proposed 
determination is based.
    (b) The Administrator shall resolve such appeal by consultation with 
officials of the local government, or by administrative hearings under 
the procedures set forth in part 68 of this subchapter, or by submission 
of the conflicting data to an independent scientific body or appropriate 
Federal agency for advice.
    (c) The final determination by the Administrator where an appeal is 
filed shall be made within a reasonable time.
    (d) Nothing in this section shall be considered to compromise an 
appellant's rights granted under Sec. 67.12.
    (e) The Administrator shall make available for public inspection the 
reports and other information used in making the final determination. 
This material shall be admissible in a court of law in the event the 
community seeks judicial review in accordance with Sec. 67.12.

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 67.9  Final determination in the absence of an appeal by the community.

    (a) If the Administrator does not receive an appeal from the 
community within the ninety days provided, he shall consolidate and 
review on their own merits the individual appeals which, in accordance 
with Sec. 67.7 are filed within the community and forwarded by the CEO.
    (b) The final determination shall be made pursuant to the procedures 
in Sec. 67.8 and, modifications shall be made of his proposed 
determination as may be appropriate, taking into account the written 
opinion, if any, issued by the community in not supporting such appeals.

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 67.10  Rates during pendency of final determination.

    (a) Until such time as a final determination is made and proper 
notice is given, no person within a participating community shall be 
denied the right to purchase flood insurance at the subsidized rate.
    (b) After the final determination and upon the effective date of a 
FIRM, risk premium rates will be charged for new construction and 
substantial improvements. The effective date of a FIRM shall begin not 
later than six months after the final flood elevation determination.



Sec. 67.11  Notice of final determination.

    The Administrator's notice of the final flood elevation 
determination for a community shall be in written form and published in 
the Federal Register, and copies shall be sent to the CEO, all 
individual appellants and the State Coordinating Agency.

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]

    Editorial Note: For the list of communities issued under this 
section, and not carried in the CFR, see the List of CFR Sections 
Affected, which appears in the Finding Aids section of the printed 
volume and on GPO Access.

[[Page 361]]



Sec. 67.12  Appeal to District Court.

    (a) An appellant aggrieved by the final determination of the 
Administrator may appeal such determination only to the United States 
District Court for the District within which the community is located 
within sixty days after receipt of notice of determination.
    (b) During the pendency of any such litigation, all final 
determinations of the Administrator shall be effective for the purposes 
of this title unless stayed by the court for good cause shown.
    (c) The scope of review of the appellate court shall be in 
accordance with the provisions of 5 U.S.C. 706, as modified by 42 U.S.C. 
4104(b).

[41 FR 46989, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 
1984; 49 FR 33879, Aug. 27, 1984]



PART 68_ADMINISTRATIVE HEARING PROCEDURES--Table of Contents




Sec.
68.1 Purpose of part.
68.2 Definitions.
68.3 Right to administrative hearings.
68.4 Hearing board.
68.5 Establishment of a docket.
68.6 Time and place of hearing.
68.7 Conduct of hearings.
68.8 Scope of review.
68.9 Admissible evidence.
68.10 Burden of proof.
68.11 Determination.
68.12 Relief.

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978; E.O. 12127.

    Source: 47 FR 23449, May 29, 1982, unless otherwise noted.



Sec. 68.1  Purpose of part.

    The purpose of this part is to establish procedures for appeals of 
the Administrator's base flood elevation determinations, whether 
proposed pursuant to section 1363(e) of the Act (42 U.S.C. 4104) or 
modified because of changed conditions or newly acquired scientific and 
technical information.

[47 FR 23449, May 29, 1982, as amended at 49 FR 33879, Aug. 27, 1984]



Sec. 68.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.

[47 FR 23449, May 29, 1982, as amended at 49 FR 33879, Aug. 27, 1984]



Sec. 68.3  Right to administrative hearings.

    If a community appeals the Administrator's flood elevation 
determination established pursuant to Sec. 67.8 of this subchapter, and 
the Administrator has determined that such appeal cannot be resolved by 
consultation with officials of the community or by submitting the 
conflicting data to an independent scientific body or appropriate 
Federal agency for advice, the Administrator shall hold an 
administrative hearing to resolve the appeal.

[47 FR 23449, May 29, 1982, as amended at 49 FR 33879, Aug. 27, 1984]



Sec. 68.4  Hearing board.

    (a) Each hearing shall be conducted by a three member hearing board 
(hereinafter ``board''). The board shall consist of a hearing officer 
(hereinafter ``Judge'') appointed by the Director based upon a 
recommendation by the Office of Personnel Management and two members 
selected by the Judge who are qualified in the technical field of flood 
elevation determinations. The Judge shall consult with anyone he deems 
appropriate to determine the technical qualifications of individuals 
being considered for appointment to the board. The board members shall 
not be FEMA employees.
    (b) The Judge shall be responsible for conducting the hearing, and 
shall make all procedural rulings during the course of the hearing. Any 
formal orders and the final decision on the merits of the hearing shall 
be made by a majority of the board. A dissenting member may submit a 
separate opinion for the record.
    (c) A technically qualified alternate will be appointed by the Judge 
as a member of the board when a technically qualified appointed member 
becomes unavailable. The Director will appoint an alternate Judge if the 
appointed Judge becomes unavailable.

[[Page 362]]



Sec. 68.5  Establishment of a docket.

    The General Counsel shall establish a docket for appeals referred to 
him/her by the Administrator for administrative hearings. This docket 
shall include, for each appeal, copies of all materials contained in the 
flood elevation determination docket (FEDD) file on the matter, copies 
of all correspondence in connection with the appeal, all motions, 
orders, statements, and other legal documents, a transcript of the 
hearing, and the board's final determination.

[47 FR 23449, May 29, 1982, as amended at 49 FR 33879, Aug. 27, 1984]



Sec. 68.6  Time and place of hearing.

    (a) The time and place of each hearing shall be designated by the 
Judge for that hearing. The Administrator and the General Counsel shall 
be promptly advised of such designations.
    (b) The board's notice of the time and place of hearing shall be 
sent by the Flood Insurance Docket Clerk by registered or certified 
mail, return receipt requested, to all appellants. Such notice shall 
include a statement indicating the nature of the proceedings and their 
purpose and all appellants' entitlement to counsel. Notice of the 
hearing shall be sent no later than 30 days before the date of hearing 
unless such period is waived by all appellants.

[47 FR 23449, May 29, 1982, as amended at 49 FR 33879, Aug. 27, 1984]



Sec. 68.7  Conduct of hearings.

    (a) The Judge shall be responsible for the fair and expeditious 
conduct of proceedings.
    (b) The Administrator shall be represented by the General Counsel or 
his/her designee.
    (c) One administrative hearing shall be held for any one community 
unless the Administrator for good cause shown grants a separate hearing 
or hearings.
    (d) The Chief Executive Officer (CEO) of the community or his/her 
designee shall represent all appellants from that community; Provided, 
That any appellant may petition the board to allow such appellant to 
make an appearance on his/her own behalf. Such a petition shall be 
granted only upon a showing of good cause.
    (e) Hearings shall be open to the public.
    (f) A verbatim transcript will be made of the hearing. An appellant 
may order copies of the transcribed verbatim record directly from the 
reporter and will be responsible for payments.

[47 FR 23449, May 29, 1982, as amended at 49 FR 33879, Aug. 27, 1984]



Sec. 68.8  Scope of review.

    Review at administrative hearings shall be limited to: An 
examination of any information presented by each appellant within the 90 
day appeal period indicating that elevations proposed by the 
Administrator are scientifically or technically incorrect; the FIRM; the 
flood insurance study; its backup data and the references used in 
development of the flood insurance study; and responses by FEMA to the 
issues raised by the appellant(s).

[47 FR 23449, May 29, 1982, as amended at 49 FR 33879, Aug. 27, 1984]



Sec. 68.9  Admissible evidence.

    (a) Legal rules of evidence shall not be in effect at adminstrative 
hearings. However, only evidence relevant to issues within the scope of 
review under Sec. 68.8 shall be admissible.
    (b) Documentary and oral evidence shall be admissible.
    (c) Admissibility of non-expert testimony shall be within the 
discretion of the board.
    (d) All testimony shall be under oath.
    (e) Res judicata/ collateral estoppel. Where there has been a 
previous determination, decision or finding of fact by the Director, one 
of his delegees, an administrative law judge, hearing officer, or 
hearing board regarding the base flood elevations of any other 
community, such determination, decision, or finding of fact shall not be 
binding on the board and may only be admissible into evidence if 
relevant.



Sec. 68.10  Burden of proof.

    The burden shall be on appellant(s) to prove that the flood 
elevation determination is not scientifically or technically correct.

[[Page 363]]



Sec. 68.11  Determination.

    The board shall render its written decision within 45 days after the 
conclusion of the hearing. The entire record of the hearing including 
the board's decision will be sent to the Director for review and 
approval. The Director shall make the final base flood elevation 
determination by accepting in whole or in part or by rejecting the 
board's decision.



Sec. 68.12  Relief.

    The final determination may be appealed by the appellant(s) to the 
United States district court as provided in section 1363(f) of the Act 
(42 U.S.C. 4104).

                           PART 69 [RESERVED]



PART 70_PROCEDURE FOR MAP CORRECTION--Table of Contents




       Mapping Deficiencies Unrelated to Community-Wide Elevation 
                             Determinations

Sec.
70.1 Purpose of part.
70.2 Definitions.
70.3 Right to submit technical information.
70.4 Review by the Director.
70.5 Letter of Map Amendment.
70.6 Distribution of Letter of Map Amendment.
70.7 Notice of Letter of Map Amendment.
70.8 Premium refund after Letter of Map Amendment.
70.9 Review of proposed projects.

    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.

       Mapping Deficiencies Unrelated to Community-Wide Elevation 
                             Determinations



Sec. 70.1  Purpose of part.

    The purpose of this part is to provide an administrative procedure 
whereby the Administrator will review the scientific or technical 
submissions of an owner or lessee of property who believes his property 
has been inadvertently included in designated A, AO, A1-30, AE, AH, A99, 
AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE, and V Zones, as 
a result of the transposition of the curvilinear line to either street 
or to other readily identifiable features. The necessity for this part 
is due in part to the technical difficulty of accurately delineating the 
curvilinear line on either an FHBM or FIRM. These procedures shall not 
apply when there has been any alteration of topography since the 
effective date of the first NFIP map (i.e., FHBM or FIRM) showing the 
property within an area of special flood hazard. Appeals in such 
circumstances are subject to the provisions of part 65 of this 
subchapter.

[62 FR 55718, Oct. 27, 1997]



Sec. 70.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.

[41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 70.3  Right to submit technical information.

    (a) Any owner or lessee of property (applicant) who believes his 
property has been inadvertently included in a designated A, AO, A1-30, 
AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE, and 
V Zones on a FHBM or a FIRM, may submit scientific or technical 
information to the Administrator for the Administrator's review.
    (b) Scientific and technical information for the purpose of this 
part may include, but is not limited to the following:
    (1) An actual copy of the recorded plat map bearing the seal of the 
appropriate recordation official (e.g. County Clerk, or Recorder of 
Deeds) indicating the official recordation and proper citation (Deed or 
Plat Book Volume and Page Numbers), or an equivalent identification 
where annotation of the deed or plat book is not the practice.
    (2) A topographical map showing (i) ground elevation contours in 
relation to the National Geodetic Vertical Datum (NVGD) of 1929, (ii) 
the total area of the property in question, (iii) the location of the 
structure or structures located on the property in question, (iv) the 
elevation of the lowest

[[Page 364]]

adjacent grade to a structure or structures and (v) an indication of the 
curvilinear line which represents the area subject to inundation by a 
base flood. The curvilinear line should be based upon information 
provided by any appropriate authoritative source, such as a Federal 
Agency, the appropriate state agency (e.g. Department of Water 
Resources), a County Water Control District, a County or City Engineer, 
a Federal Emergency Management Agency Flood Insurance Study, or a 
determination by a Registered Professional Engineer;
    (3) A copy of the FHBM or FIRM indicating the location of the 
property in question;
    (4) A certification by a Registered Professional Engineer or 
Licensed Land Surveyor that the lowest grade adjacent to the structure 
is above the base flood elevation.

[41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 
1984; 50 FR 36028, Sept. 4, 1985; 51 FR 30317, Aug. 25, 1986; 53 FR 
16280, May 6, 1988; 59 FR 53601, Oct. 25, 1994; 62 FR 55719, Oct. 27, 
1997]



Sec. 70.4  Review by the Director.

    The Director, after reviewing the scientific or technical 
information submitted under the provisions of Sec. 70.3, shall notify 
the applicant in writing of his/her determination within 60 days after 
we receive the applicant's scientific or technical information that we 
have compared either the ground elevations of an entire legally defined 
parcel of land or the elevation of the lowest adjacent grade to a 
structure with the elevation of the base flood and that:
    (a) The property is within a designated A, A0, A1-30, AE, AH, A99, 
AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, V0, V1-30, VE, or V Zone, and 
will state the basis of such determination; or
    (b) The property should not be within a designated A, A0, A1-30, AE, 
AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A,V0, V1-30, VE, or V 
Zone and that we will modify the FHBM or FIRM accordingly; or
    (c) The property is not within a designated A, A0, A1-30, AE, AH, 
A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A,V0, V1-30, VE, or V Zone as 
shown on the FHBM or FIRM and no modification of the FHBM or FIRM is 
necessary; or
    (d) We need an additional 60 days to make a determination.

[66 FR 33900, June 26, 2001]



Sec. 70.5  Letter of Map Amendment.

    Upon determining from available scientific or technical information 
that a FHBM or a FIRM requires modification under the provisions of 
Sec. 70.4(b), the Administrator shall issue a Letter of Map Amendment 
which shall state:
    (a) The name of the Community to which the map to be amended was 
issued;
    (b) The number of the map;
    (c) The identification of the property to be excluded from a 
designated A, AO, A1-30, AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, 
AR/A, VO, V1-30, VE, or V Zone.

[41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 50 
FR 36028, Sept. 4, 1985; 59 FR 53601, Oct. 25, 1994; 62 FR 55719, Oct. 
27, 1997]



Sec. 70.6  Distribution of Letter of Map Amendment.

    (a) A copy of the Letter of Map Amendment shall be sent to the 
applicant who submitted scientific or technical data to the 
Administrator.
    (b) A copy of the Letter of Map Amendment shall be sent to the local 
map repository with instructions that it be attached to the map which 
the Letter of Map Amendment is amending.
    (c) A copy of the Letter of Map Amendment shall be sent to the map 
repository in the state with instructions that it be attached to the map 
which it is amending.
    (d) A copy of the Letter of Map Amendment will be sent to any 
community or governmental unit that requests such Letter of Map 
Amendment.
    (e) [Reserved]
    (f) A copy of the Letter of Map Amendment will be maintained by the 
Agency in its community case file.

[41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544 and 44553, Sept. 29, 1983; 49 FR 4751, Feb. 8, 
1984]

[[Page 365]]



Sec. 70.7  Notice of Letter of Map Amendment.

    (a) The Administrator, shall not publish a notice in the Federal 
Register that the FIRM for a particular community has been amended by 
letter determination pursuant to this part unless such amendment 
includes alteration or change of base flood elevations established 
pursuant to part 67. Where no change of base flood elevations has 
occurred, the Letter of Map Amendment provided under Sec. Sec. 70.5 and 
70.6 serves to inform the parties affected.
    (b) [Reserved]

    Editorial Note: For a list of communities issued under this section 
and not carried in the CFR see the List of CFR Sections Affected, which 
appears in the Finding Aids Section of the printed volume and on GPO 
Access.



Sec. 70.8  Premium refund after Letter of Map Amendment.

    A Standard Flood Insurance Policyholder whose property has become 
the subject of a Letter of Map Amendment under this part may cancel the 
policy within the current policy year and receive a premium refund under 
the conditions set forth in Sec. 62.5 of this subchapter.

[41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 70.9  Review of proposed projects.

    An individual who proposes to build one or more structures on a 
portion of property that may be included inadvertently in a Special 
Flood Hazard Area (SFHA) may request FEMA's comments on whether the 
proposed structure(s), if built as proposed, will be in the SFHA. FEMA's 
comments will be issued in the form of a letter, termed a Conditional 
Letter of Map Amendment. The data required to support such requests are 
the same as those required for final Letters of Map Amendment in 
accordance with Sec. 70.3, except as-built certification is not 
required and the requests shall be accompanied by the appropriate 
payment, in accordance with 44 CFR part 72. All such requests for CLOMAs 
shall be submitted to the FEMA Regional Office servicing the community's 
geographic area or to the FEMA Headquarters Office in Washington, DC.

[62 FR 5736, Feb. 6, 1997]



PART 71_IMPLEMENTATION OF COASTAL BARRIER LEGISLATION--Table of Contents




Sec.
71.1 Purpose of part.
71.2 Definitions.
71.3 Denial of flood insurance.
71.4 Documentation.
71.5 Violations.

    Authority: 42 U.S.C. 4001, et seq.; Reorganization Plan No. 3 of 
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 
Comp., p. 376; 42 U.S.C. 4028; secs. 9 and 14, Pub. L. 101-591, 42 
U.S.C. 4028(b).

    Source: 48 FR 37039, Aug. 16, 1983, unless otherwise noted.



Sec. 71.1  Purpose of part.

    This part implements section 11 of the Coastal Barrier Resources Act 
(Pub. L. 97-348) and section 9 of the Coastal Barrier Improvement Act of 
1990 (Pub. L. 101-591), as those Acts amend the National Flood Insurance 
Act of 1968 (42 U.S.C. 4001 et seq.).

[48 FR 37039, Aug. 16, 1983, as amended at 57 FR 22661, May 29, 1992]



Sec. 71.2  Definitions.

    (a) Except as otherwise provided in this part, the definitions set 
forth in part 59 of this subchapter are applicable to this part.
    (b) For the purpose of this part, a structure located in an area 
identified as being in the Coastal Barrier Resources System (CBRS) both 
as of October 18, 1982, and as of November 16, 1990, is ``new 
construction'' unless it meets the following criteria:
    (1)(i) A legally valid building permit or equivalent documentation 
was obtained for the construction of such structure prior to October 18, 
1982; and
    (ii) The start of construction (see part 59) took place prior to 
October 18, 1982; or
    (2)(i) A legally valid building permit or equivalent documentation 
was obtained for the construction of such structure prior to October 1, 
1983; and
    (ii) The structure constituted an insurable building, having walls 
and a

[[Page 366]]

roof permanently in place no later than October 1, 1983.
    (c) For the purpose of this part, a structure located in an area 
newly identified as being in the CBRS as of November 16, 1990, is ``new 
construction'' unless it meets the following criteria:
    (1) A legally valid building permit or equivalent documentation was 
obtained for the construction of such structure prior to November 16, 
1990; and
    (2) The start of construction (see 44 CFR part 59) took place prior 
to November 16, 1990.
    (d) For the purpose of this part, a structure located in an 
``otherwise protected area'' is ``new construction'' unless it meets the 
following criteria:
    (1)(i) A legally valid building permit or equivalent documentation 
was obtained for the construction of such structure prior to November 
16, 1990; and
    (ii) The start of construction took place prior to November 16, 
1990; or
    (2)(i) A legally valid building permit or equivalent documentation 
was obtained for the construction of such structure prior to November 
16, 1991; and
    (ii) The structure constituted an insurable building, having walls 
and a roof permanently in place, no later than November 16, 1991.
    (e) For the purpose of this part, a structure located in an area 
identified as being in the CBRS both as of October 18, 1982, and as of 
November 16, 1990, is a ``substantial improvement'' if the substantial 
improvement (see 44 CFR part 59) of such structure took place on or 
after October 1, 1983.
    (f) For the purpose of this part, a structure located in an area 
newly identified as being in the CBRS as of November 16, 1990, is a 
``substantial improvement'' if the substantial improvement of such 
structure took place on or after November 16, 1990.
    (g) For the purpose of this part, a structure located in an 
``otherwise protected area'' is a ``substantial improvement'' if the 
substantial improvement of such structure took place after November 16, 
1991.
    (h) For the purpose of this part, a policy of flood insurance means 
a policy issued pursuant to the National Flood Insurance Act of 1968, as 
amended. This includes a policy issued directly by the Federal 
Government as well as by a private sector insurance company under the 
Write Your Own Program as authorized by 44 CFR part 62.
    (i) For the purpose of this part, new policy of flood insurance 
means a policy of flood insurance other than one issued by an insurer 
(Write Your Own insurer or the Federal Government as the direct insurer) 
effective upon the expiration of a prior policy of flood insurance 
issued by the same insurer without any lapse in coverage between these 
two policies.
    (j) For the purpose of this part, new flood insurance coverage means 
a new or renewed policy of flood insurance.
    (k) For the purpose of this part, otherwise protected area means an 
undeveloped coastal barrier within the boundaries of an area established 
under Federal, State, or local law, or held by a qualified organization, 
primarily for wildlife refuge, sanctuary, recreational, or natural 
resource conservation purposes and identified and depicted on the maps 
referred to in section 4(a) of the Coastal Barrier Resources Act, as 
amended by the Coastal Barrier Improvement Act of 1990, as an area that 
is:
    (1) Not within the CBRS and
    (2) In an ``otherwise protected area.''

[48 FR 37039, Aug. 16, 1983, as amended at 49 FR 33879, Aug. 27, 1984; 
57 FR 22661, May 29, 1992]



Sec. 71.3  Denial of flood insurance.

    (a) No new flood insurance coverage may be provided on or after 
October 1, 1983, for any new construction or substantial improvement of 
a structure located in an area identified as being in the CBRS both as 
of October 18, 1982, and as of November 16, 1990.
    (b) No new flood insurance coverage may be provided on or after 
November 16, 1990, for any new construction or substantial improvement 
of a structure located in any area newly identified as being in the CBRS 
as of November 16, 1990.
    (c) No new flood insurance coverage may be provided after November 
16, 1991, for any new construction or substantial improvement of a 
structure

[[Page 367]]

which is located in an ``otherwise protected area.''
    (d) Notwithstanding paragraph (c) of this section, new flood 
insurance coverage may be provided for a structure which is newly 
constructed or substantially improved in an ``otherwise protected area'' 
if the building is used in a manner consistent with the purpose for 
which the area is protected.

[57 FR 22662, May 29, 1992]



Sec. 71.4  Documentation.

    (a) In order to obtain a new policy of flood insurance for a 
structure which is located in an area identified as being in the CBRS as 
of November 16, 1990, or in order to obtain a new policy of flood 
insurance after November 16, 1991, for a structure located in an 
``otherwise protected area,'' the owner of the structure must submit the 
documentation described in this section in order to show that such 
structure is eligible to receive flood insurance. However, if the new 
policy of flood insurance is being obtained from an insurer (Write Your 
Own or the Federal Government as direct insurer) that has previously 
obtained the documentation described in this section, the property owner 
need only submit a signed written certification that the structure has 
not been substantially improved since the date of the previous 
documentation.
    (b) The documentation must be submitted along with the application 
for the flood insurance policy.
    (c) For a structure located in an area identified as being in the 
CBRS both as of October 18, 1982, and as of November 16, 1990, where the 
start of construction of the structure took place prior to October 18, 
1982, the documentation shall consist of:
    (1) A legally valid building permit or its equivalent for the 
construction of the structure dated prior to October 18, 1982;
    (i) If the community did not have a building permit system at the 
time the structure was built, a written statement to this effect signed 
by the responsible community official will be accepted in lieu of the 
building permit;
    (ii) If the building permit was lost or destroyed, a written 
statement to this effect signed by the responsible community official 
will be accepted in lieu of the building permit. This statment must also 
include a certification that the official has inspected the structure 
and found no evidence that the structure was not in compliance with the 
building code at the time it was built; and
    (2) A written statement signed by the community official responsible 
for building permits, attesting to the fact that he or she knows of his/
her own knowledge or from official community records, that:
    (i) The start of construction took place prior to October 18, 1982; 
and
    (ii) The structure has not been substantially improved since 
September 30, 1983.
    (d) For a structure located in an area identified as being in the 
CBRS both as of October 18, 1982, and as of November 16, 1990, where the 
start of construction of the structure took place on or after October 
18, 1982, but the structure was completed (walls and roof permanently in 
place) prior to October 1, 1983, the documentation shall consist of:
    (1) A legally valid building permit or its equivalent for the 
construction of the structure dated prior to October 1, 1983;
    (i) If the community did not have a building permit system at the 
time the structure was built, a written statement to this effect signed 
by the responsible community official will be accepted in lieu of the 
building permit;
    (ii) If the building permit was lost or destroyed, a written 
statement to this effect signed by the responsible community official 
will be accepted in lieu of the building permit. This statement must 
also include a certification that the official has inspected the 
structure and found no evidence that the structure was not in compliance 
with the building code at the time it was built; and
    (2) A written statement signed by the community official responsible 
for building permits, attesting to the fact that he or she knows of his/
her own knowledge or from official community records, that:
    (i) The structure constituted an insurable building, having walls 
and a roof permanently in place no later than October 1, 1983; and

[[Page 368]]

    (ii) The structure has not been substantially improved since 
September 30, 1983; and
    (3) A community issued final certificate of occupancy or other use 
permit or equivalent proof certifying the the building was completed 
(walled and roofed) by October 1, 1983.
    (e) For a structure located in an area newly identified as being in 
the CBRS as of November 16, 1990, where the start of construction of the 
structure took place prior to November 16, 1990, the documentation shall 
consist of:
    (1) A legally valid building permit or its equivalent for the 
construction of the structure, dated prior to November 16, 1990.
    (i) If the community did not have a building permit system at the 
time the structure was built, a written statement to this effect signed 
by the responsible community official will be accepted in lieu of the 
building permit;
    (ii) If the building permit was lost or destroyed, a written 
statement to this effect signed by the responsible community official 
will be accepted in lieu of the building permit. This statement must 
also include a certification that the official has inspected the 
structure and found no evidence that the structure was not in compliance 
with the building code at the time it was built; and
    (2) A written statement signed by the community official responsible 
for building permits, attesting to the fact that he or she knows of his 
or her own knowledge or from official community records, that:
    (i) The start of construction took place prior to November 16, 1990; 
and
    (ii) The structure has not been substantially improved since 
November 15, 1990.
    (f) For a structure located in an area identified as an ``otherwise 
protected area'' where the start of construction of the structure took 
place prior to November 16, 1990, the documentation shall consist of:
    (1) A legally valid building permit or its equivalent for the 
construction of the structure, dated prior to November 16, 1990.
    (i) If the community did not have a building permit system at the 
time the structure was built, a written statement to this effect signed 
by the responsible community official will be accepted in lieu of the 
building permit;
    (ii) If the building permit was lost or destroyed, a written 
statement to this effect signed by the responsible community official 
will be accepted in lieu of the building permit. This statement must 
also include a certification that the official has inspected the 
structure and found no evidence that the structure was not in compliance 
with the building code at the time it was built; and
    (2) A written statement signed by the community official responsible 
for building permits, attesting to the fact that he or she knows of his 
or her own knowledge or from official community records, that:
    (i) The start of construction took place prior to November 16, 1990; 
and
    (ii) The structure has not been substantially improved since 
November 16, 1991.
    (g) For a structure located in an area identified as an ``otherwise 
protected area'' where the start of construction of the structure took 
place after November 15, 1990, but construction was completed with the 
walls and a roof permanently in place no later than November 16, 1991, 
the documentation shall consist of:
    (1) A legally valid building permit or its equivalent for the 
construction of the structure, dated prior to November 16, 1991.
    (i) If the community did not have a building permit system at the 
time the structure was built, a written statement to this effect signed 
by the responsible community official will be accepted in lieu of the 
building permit;
    (ii) If the building permit was lost or destroyed, a written 
statement to this effect signed by the responsible community official 
will be accepted in lieu of the building permit. This statement must 
also include a certification that the official has inspected the 
structure and found no evidence that the structure was not in compliance 
with the building code at the time it was built; and
    (2) A statement signed by the community official responsible for 
building permits, attesting to the fact that he

[[Page 369]]

or she knows of his or her own knowledge or from official community 
records that:
    (i) The structure constituted an insurable building, having walls 
and a roof permanently in place, no later than November 16, 1991; and
    (ii) The structure has not been substantially improved since 
November 16, 1991; and
    (3) A community issued final certificate of occupancy or other use 
permit or equivalent proof certifying that the building was completed 
(walled and roofed) by November 16, 1991.
    (h) For a structure located in an area identified as an ``otherwise 
protected area'' for which the documentation requirements of neither 
paragraph (f) nor paragraph (g) of this section have been met, the 
documentation shall consist of a written statement from the governmental 
body or qualified organization overseeing the ``otherwise protected 
area'' certifying that the building is used in a manner consistent with 
the purpose for which the area is protected.

(Approved by the Office of Management and Budget under control number 
3067-0120)

[48 FR 37039, Aug. 16, 1983, as amended at 57 FR 22662, May 29, 1992]



Sec. 71.5  Violations.

    (a) Any flood insurance policy which has been issued where the terms 
of this section have not been complied with or is otherwise inconsistent 
with the provisions of this section, is void ab initio and without 
effect.
    (b) Any false statements or false representations of any kind made 
in connection with the requirements of this part may be punishable by 
fine or imprisonment under 18 U.S. Code section 1001.



PART 72_PROCEDURES AND FEES FOR PROCESSING MAP CHANGES--Table of Contents




Sec.
72.1 Purpose of part.
72.2 Definitions.
72.3 Fee schedule.
72.4 Submittal/payment procedures and FEMA response.
72.5 Exemptions.
72.6 Unfavorable response.
72.7 Resubmittals.

    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, 44 FR 19367, 3 
CFR, 1979 Comp., p. 376.



Sec. 72.1  Purpose of part.

    This part provides administrative and cost-recovery procedures for 
the engineering review and administrative processing associated with 
FEMA's response to requests for Conditional Letters of Map Amendment 
(CLOMAs), Conditional Letters of Map Revision (CLOMRs), Conditional 
Letters of Map Revision Based on Fill (CLOMR-Fs), Letters of Map 
Revision Based on Fill (LOMR-Fs), Letters of Map Revision (LOMRs), and 
Physical Map Revisions (PMRs). Such requests are based on proposed or 
actual manmade alterations within the floodplain, such as the placement 
of fill; modification of a channel; construction or modification of a 
bridge, culvert, levee, or similar measure; or construction of single or 
multiple residential or commercial structures on single or multiple 
lots.

[62 FR 5736, Feb. 6, 1997]



Sec. 72.2  Definitions.

    Except as otherwise provided in this part, the definitions in 44 CFR 
part 59 are applicable to this part. For the purposes of this part, the 
products are defined as follows:
    CLOMA. A CLOMA is FEMA's comment on a proposed structure or group of 
structures that would, upon construction, be located on existing natural 
ground above the base (1-percent-annual-chance) flood elevation on a 
portion of a legally defined parcel of land that is partially inundated 
by the base flood.
    CLOMR. A CLOMR is FEMA's comment on a proposed project that would, 
upon construction, affect the hydrologic or hydraulic characteristics of 
a flooding source and thus result in the modification of the existing 
regulatory floodway, the effective base flood elevations, or the Special 
Flood Hazard Area (SFHA).
    CLOMR-F. A CLOMR-F is FEMA's comment on a proposed project that 
would, upon construction, result in a modification of the SFHA through 
the placement of fill outside the existing regulatory floodway.

[[Page 370]]

    LOMR. A LOMR is FEMA's modification to an effective Flood Insurance 
Rate Map (FIRM), or Flood Boundary and Floodway Map (FBFM), or both. 
LOMRs are generally based on the implementation of physical measures 
that affect the hydrologic or hydraulic characteristics of a flooding 
source and thus result in the modification of the existing regulatory 
floodway, the effective base flood elevations, or the SFHA. The LOMR 
officially revises the FIRM or FBFM, and sometimes the Flood Insurance 
Study (FIS) report, and, when appropriate, includes a description of the 
modifications. The LOMR is generally accompanied by an annotated copy of 
the affected portions of the FIRM, FBFM, or FIS report.
    LOMR-F. A LOMR-F is FEMA's modification of the SFHA shown on the 
FIRM based on the placement of fill outside the existing regulatory 
floodway.
    PMR. A PMR is FEMA's physical revision and republication of an 
effective FIRM, FBFM, or FIS report. PMRs are generally based on 
physical measures that affect the hydrologic or hydraulic 
characteristics of a flooding source and thus result in the modification 
of the existing regulatory floodway, the effective base flood 
elevations, or the SFHA.

[62 FR 5737, Feb. 6, 1997]



Sec. 72.3  Fee schedule.

    (a) For requests for CLOMRs, LOMRs, and PMRs based on structural 
measures on alluvial fans, an initial fee of $5,000, subject to the 
provisions of Sec. 72.4, shall be paid to FEMA before FEMA begins its 
review of the request. The initial fee represents the minimum cost for 
reviewing these requests and is based on the prevailing private-sector 
labor rate. A revision to this initial fee, if necessary, will be 
published as a notice in the Federal Register.
    (b) For requests for CLOMRs, LOMRs, and PMRs based on structural 
measures on alluvial fans, the total fee will be calculated based on the 
total hours by FEMA to review and process the request multiplied by an 
hourly rate based on the prevailing private-sector labor rate. The 
hourly rate is published as a notice in the Federal Register. A revision 
to the hourly rate, if necessary, shall be published as a notice in the 
Federal Register.
    (c) For conditional and final map revision requests for the 
following categories, flat user fees, subject to the provisions of Sec. 
72.4, shall be paid to FEMA before FEMA begins its review of the 
request:
    (1) Requests for CLOMAs, CLOMR-Fs, and LOMR-Fs for single structures 
or single lots;
    (2) Requests for CLOMAs for multiple structures or multiple lots;
    (3) Requests for CLOMR-Fs and LOMR-Fs for multiple structures or 
multiple lots;
    (4) Requests LOMR-Fs for single structures or single lots based on 
as-built information for projects for which FEMA issued CLOMR-Fs 
previously;
    (5) Requests for LOMR-Fs for multiple structures or multiple lots 
based on as-built information for projects for which FEMA issued CLOMR-
Fs previously;
    (6) Requests for LOMRs and PMRs based on projects involving bridges, 
culverts, or channels, or combinations thereof;
    (7) Requests for LOMRs and PMRs based on projects involving levees, 
berms, or other structural measures;
    (8) Requests for LOMRs and PMRs based on as-built information for 
projects for which FEMA issued CLOMRs previously, except those based on 
structural measures on alluvial fans;
    (9) Requests for LOMRs and PMRs based solely on more detailed data;
    (10) Requests for CLOMRs based on projects involving new hydrologic 
information, bridges, culverts, or channels, or combinations thereof; 
and
    (11) Requests for CLOMRs based on projects involving levees, berms, 
or other structural measures.
    (d) If a request involves more than one of the categories listed 
above, the highest applicable flat user fee must be submitted.
    (e) The flat user fees for conditional and final map amendments and 
map revisions are based on the actual costs for reviewing and processing 
the requests. The fees for requests for LOMR-Fs, LOMRs, and PMRs also 
include a fee of $35 to cover FEMA's costs for physically revising 
affected FIRM

[[Page 371]]

and FBFM panels to reflect the map changes.
    (f) Revisions to the fees, if necessary, shall be published as a 
notice in the Federal Register.

[62 FR 5737, Feb. 6, 1997]



Sec. 72.4  Submittal/payment procedures and FEMA response.

    (a) The initial fee shall be submitted with a request for FEMA 
review and processing of CLOMRs, LOMRs, and PMRs based on structural 
measures on alluvial fans; the appropriate flat user fee shall be 
submitted with all other requests for FEMA review and processing.
    (b) FEMA must receive initial or flat user fees before it will begin 
any review. The fee is non-refundable once FEMA begins its review.
    (c) Following completion of FEMA's review for any CLOMR, LOMR, or 
PMR based on structural measures on alluvial fans, FEMA shall invoice 
the requester at the established hourly rate for any actual costs 
exceeding the initial fee incurred for review and processing. FEMA shall 
not issue a determination letter or revised map panel(s) until it 
receives the invoiced amount.
    (d) For all map revision requests, FEMA shall bear the cost of 
reprinting and distributing the revised FIRM panel(s), FBFM panel(s), or 
combination.
    (e) The entity that applies to FEMA through the local community for 
review is responsible for the cost of the review. The local community 
incurs no financial obligation under the reimbursement procedures of 
this part when another party sends the application to FEMA.
    (f) Requesters shall submit payments by check or money order or by 
credit card. Checks or money orders, in U.S. funds, shall be made 
payable to the National Flood Insurance Program.
    (g) For CLOMA, CLOMR-F, LOMA, and LOMR-F requests, FEMA shall:
    (1) Notify the requester and community within 30 days as to the 
adequacy of the submittal, and
    (2) Provide to the requester and the community, within 60 days of 
receipt of adequate information and fee, a determination letter or other 
written comment in response to the request.
    (h) For CLOMR, LOMR, and PMR requests, FEMA shall:
    (1) Notify the requester and community within 60 days as to the 
adequacy of the submittal; and
    (2) Provide to the requester and the community, within 90 days of 
receipt of adequate information and fee, a CLOMR, a LOMR, other written 
comment in response to the request, or preliminary copies of the revised 
FIRM panels, FBFM panels, and/or affected portions of the FIS report for 
review and comment.

[62 FR 5737, Feb. 6, 1997]



Sec. 72.5  Exemptions.

    Requesters are exempt from submitting review and processing fees 
for:
    (a) Requests for map changes based on mapping or study analysis 
errors;
    (b) Requests for map changes based on the effects of natural changes 
within SFHAs;
    (c) Requests for a Letter of Map Amendment (LOMA);
    (d) Requests for map changes based on federally sponsored flood-
control projects where 50 percent or more of the project's costs are 
federally funded;
    (e) Requests for map changes based on detailed hydrologic and 
hydraulic studies conducted by Federal, State, or local agencies to 
replace approximate studies conducted by FEMA and shown on the effective 
FIRM; and
    (f) Requests for map changes based on flood hazard information meant 
to improve upon that shown on the flood map or within the flood study 
will be exempt from review and processing fees. Improvements to flood 
maps or studies that partially or wholly incorporate man-made 
modifications within the special flood hazard area will not be exempt 
from review and processing fees.

[64 FR 51462, Sept. 23, 1999]



Sec. 72.6  Unfavorable response.

    (a) Requests for CLOMAs, CLOMRs, or CLOMR-Fs may be denied or the 
determinations may contain specific comments, concerns, or conditions 
regarding proposed projects or designs and their impacts on flood 
hazards in a

[[Page 372]]

community. Requesters are not entitled to any refund of fees paid if the 
determinations contain such comments, concerns, or conditions, or if the 
requests are denied. Requesters are not entitled to any refund of fees 
paid if the requesters are unable to provide the appropriate scientific 
or technical documentation or to obtain required authorizations, 
permits, financing, etc., for which requesters seek the CLOMAs, CLOMRs, 
or CLOMR-Fs.
    (b) Requests for LOMRs, LOMR-Fs, or PMRs may be denied or the 
revisions to the FIRM, FBFM, or both, may not be in the manner or to the 
extent desired by the requesters. Requesters are not entitled to any 
refund of fees paid if the revision requests are denied or if the LOMRs, 
LOMR-Fs, or PMRs do not revise the map specifically as requested.

[62 FR 5738, Feb. 6, 1997]



Sec. 72.7  Resubmittals.

    (a) Resubmittals of CLOMA, CLOMR, CLOMR-F, LOMR, LOMR-F, or PMR 
requests more than 90 days after FEMA notification that the requests 
were denied or after FEMA ended its review because the requester 
provided insufficient information will be treated as original 
submissions and subject to all submittal/payment procedures described in 
Sec. 72.4. The procedure in Sec. 72.4 also applies to a resubmitted 
request (regardless of when submitted) if the project on which the 
request is based has been altered significantly in design or scope other 
than as necessary to respond to comments, concerns, or other findings 
made by FEMA regarding the original submission.
    (b) When LOMR, LOMR-F, or PMR requests are made after FEMA issues 
CLOMRs or CLOMR-Fs, the procedures in Sec. 72.4 and the appropriate fee 
apply, as referenced in Sec. 72.3(c). When the as-built conditions 
differ from the proposed conditions on which FEMA issued the CLOMRs or 
CLOMR-Fs, the reduced fee for as-built requests will not apply.

[62 FR 5738, Feb. 6, 1997]



PART 73_IMPLEMENTATION OF SECTION 1316 OF THE NATIONAL FLOOD INSURANCE 
ACT OF 1968--Table of Contents




Sec.
73.1 Purpose of part.
73.2 Definitions.
73.3 Denial of flood insurance coverage.
73.4 Restoration of flood insurance coverage.

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978; E.O. 12127.

    Source: 51 FR 30318, Aug. 25, 1986, unless otherwise noted.



Sec. 73.1  Purpose of part.

    This part implements section 1316 of the National Flood Insurance 
Act of 1968.



Sec. 73.2  Definitions.

    (a) Except as otherwise provided in this part, the definitions set 
forth in part 59 of this subchapter are applicable to this part.
    (b) For the purpose of this part a duly constituted State or local 
zoning authority or other authorized public body means an official or 
body authorized under State or local law to declare a structure to be in 
violation of a law, regulation or ordinance.
    (c) For the purpose of this part, State or local laws, regulations 
or ordinances intended to discourage or restrict development or 
occupancy of flood-prone areas are measures such as those defined as 
Flood plain management regulations in Sec. 59.1 of this subchapter. 
Such measures are referred to in this part as State or local flood plain 
management regulations.



Sec. 73.3  Denial of flood insurance coverage.

    (a) No new flood insurance shall be provided for any property which 
the Administrator finds has been declared by a duly constituted State or 
local zoning authority or other authorized public body, to be in 
violation of State or local laws, regulations or ordinances which are 
intended to discourage or otherwise restrict land development or 
occupancy in flood-prone areas.
    (b) New and renewal flood insurance shall be denied to a structure 
upon a

[[Page 373]]

finding by the Administrator of a valid declaration of a violation.
    (c) States and communities shall determine whether to submit a 
declaration to the Administrator for the denial of insurance.
    (d) A valid declaration shall consist of:
    (1) The name(s) of the property owner(s) and address or legal 
description of the property sufficient to confirm its identity and 
location;
    (2) A clear and unequivocal declaration that the property is in 
violation of a cited State or local law, regulation or ordinance;
    (3) A clear statement that the public body making the declaration 
has authority to do so and a citation to that authority;
    (4) Evidence that the property owner has been provided notice of the 
violation and the prospective denial of insurance; and
    (5) A clear statement that the declaration is being submitted 
pursuant to section 1316 of the National Flood Insurance Act of 1968, as 
amended.



Sec. 73.4  Restoration of flood insurance coverage.

    (a) Insurance availability shall be restored to a property upon a 
finding by the Administrator of a valid rescission of a declaration of a 
violation.
    (b) A valid rescission shall be submitted to the Administrator and 
shall consist of:
    (1) The name of the property owner(s) and an address or legal 
description of the property sufficient to identify the property and to 
enable FEMA to identify the previous declaration;
    (2) A clear and unequivocal statement by an authorized public body 
rescinding the declaration and giving the reason(s) for the rescission;
    (3) A description of and supporting documentation for the measures 
taken in lieu of denial of insurance in order to bring the structure 
into compliance with the local flood plain management regulations; and
    (4) A clear statement that the public body rescinding the 
declaration has the authority to do so and a citation to that authority.

                           PART 74 [RESERVED]



PART 75_EXEMPTION OF STATE-OWNED PROPERTIES UNDER SELF-INSURANCE PLAN
--Table of Contents




                            Subpart A_General

Sec.
75.1 Purpose of part.
75.2 Definitions.
75.3 Burden of proof.

                    Subpart B_Standards for Exemption

75.10 Applicability.
75.11 Standards.
75.12 Application by a State for exemption.
75.13 Review by the Director.
75.14 States exempt under this part.

    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.

    Source: 41 FR 46991, Oct. 26, 1976, unless otherwise noted. 
Redesignated at 44 FR 31177, May 31, 1979.



                            Subpart A_General



Sec. 75.1  Purpose of part.

    The purpose of this part is to establish standards with respect to 
the Administrator's determinations that a State's plan of self-insurance 
is adequate and satisfactory for the purposes of exempting such State, 
under the provisions of section 102(c) of the Act, from the requirement 
of purchasing flood insurance coverage for State-owned structures and 
their contents in areas identified by the Administrator as A, AO, AH, 
A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-
30, VE, and E Zones, in which the sale of insurance has been made 
available, and to establish the procedures by which a State may request 
exemption under section 102(c).

[62 FR 55719, Oct. 27, 1997]



Sec. 75.2  Definitions.

    The definitions set forth in part 59 of this subchapter are 
applicable to this part.



Sec. 75.3  Burden of proof.

    In any application made by a State to the Administrator for 
certification of its self-insurance plan, the burden of proof shall rest 
upon the State making application to establish that its policy

[[Page 374]]

of self-insurance is adequate and equals or exceeds the standards 
provided in this part.



                    Subpart B_Standards for Exemption



Sec. 75.10  Applicability.

    A State shall be exempt from the requirement to purchase flood 
insurance in respect to State-owned structures and, where applicable, 
their contents located or to be located in areas identified by the 
Administrator as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/
AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones, and in which the sale 
of flood insurance has been made available under the National Flood 
Insurance Act of 1968, as amended, provided that the State has 
established a plan of self-insurance determined by the Administrator to 
equal or exceed the standards set forth in this subpart.

[62 FR 55719, Oct. 27, 1997]



Sec. 75.11  Standards.

    (a) In order to be exempt under this part, the State's self-
insurance plan shall, as a minimum:
    (1) Constitute a formal policy or plan of self-insurance created by 
statute or regulation authorized pursuant to statute.
    (2) Specify that the hazards covered by the self-insurance plan 
expressly include the flood and flood-related hazards which are covered 
under the Standard Flood Insurance Policy.
    (3) Provide coverage to state-owned structures and their contents 
equal to that which would otherwise be available under a Standard Flood 
Insurance Policy.
    (4) Consist of a self-insurance fund, or a commercial policy of 
insurance or reinsurance, for which provision is made in statute or 
regulation and that is funded by periodic premiums or charges allocated 
for state-owned structures and their contents in areas identified by the 
Administrator as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/
AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones. The person or persons 
responsible for such self-insurance fund shall report on its status to 
the chief executive authority of the State, or to the legislature, or 
both, not less frequently than annually. The loss experience shall be 
shown for each calendar or fiscal year from inception to current date 
based upon loss and loss adjustment expense incurred during each 
separate calendar or fiscal year compared to the premiums or charges for 
each of the respective calendar or fiscal years. Such incurred losses 
shall be reported in aggregate by cause of loss under a loss coding 
system adequate, as a minimum, to identify and isolate loss caused by 
flood, mudslide (i.e., mudflow) or flood-related erosion. The 
Administrator may, subject to the requirements of paragraph (a)(5) of 
this section, accept and approve in lieu of, and as the reasonable 
equivalent of the self-insurance fund, an enforceable commitment of 
funds by the State, the enforceability of which shall be certified to by 
the State's Attorney General, or other principal legal officer. Such 
funds, or enforceable commitment of funds in amounts not less than the 
limits of coverage that would be applicable under Standard Flood 
Insurance Policies, shall be used by the State for the repair or 
restoration of State-owned structures and their contents damaged as a 
result of flood-related losses occurring in areas identified by the 
Administrator as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/
AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones.
    (5) Provide for the maintaining and updating by a designated State 
official or agency not less frequently than annually of an inventory of 
all State-owned structures and their contents within A, AO, AH, A1-30, 
AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, 
and E zones. The inventory shall:
    (i) Include the location of individual structures;
    (ii) Include an estimate of the current replacement costs of such 
structures and their contents, or of their current economic value; and
    (iii) Include an estimate of the anticipated annual loss due to 
flood damage.
    (6) Provide the flood loss experience for State-owned structures and 
their

[[Page 375]]

contents based upon incurred losses for a period of not less than the 5 
years immediately preceding application for exemption, and certify that 
such historical information shall be maintained and updated.
    (7) Include, pursuant to Sec. 60.12 of this subchapter, a certified 
copy of the flood plain management regulations setting forth standards 
for State-owned properties within A, AO, AH, A1-30, AE, AR, AR/A1-30, 
AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones.
    (b) The Administrator shall determine the adequacy of the insurance 
provisions whether they be based on available funds, an enforceable 
commitment of funds, commercial insurance, or some combination thereof, 
but has discretion to waive specific requirements under this part.

[41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 49 
FR 5621, Feb. 14, 1984; 50 FR 36029, Sept. 4, 1985; 59 FR 53601, Oct. 
25, 1994; 62 FR 55719, Oct. 27, 1997]



Sec. 75.12  Application by a State for exemption.

    Application for exemption made pursuant to this part shall be made 
by the Governor or other duly authorized official of the State 
accompanied by sufficient supporting documentation which certifies that 
the plan of self-insurance upon which the application for exemption is 
based meets or exceeds the standards set forth in Sec. 75.11.



Sec. 75.13  Review by the Director.

    (a) The Administrator may return the application for exemption upon 
finding it incomplete or upon finding that additional information is 
required in order to make a determination as to the adequacy of the 
self-insurance plan.
    (b) Upon determining that the State's plan of self-insurance is 
inadequate, the Administrator shall in writing reject the application 
for exemption and shall state in what respects the plan fails to comply 
with the standards set forth in Sec. 75.11 of this subpart.
    (c) Upon determining that the State's plan of self-insurance equals 
or exceeds the standards set forth in Sec. 75.11 of this subpart, the 
Administrator shall certify that the State is exempt from the 
requirement for the purchase of flood insurance for State-owned 
structures and their contents located or to be located in areas 
identified by the Administrator as A, AO, AH, A1-30, AE, AR, AR/A1-30, 
AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones. Such 
exemption, however, is in all cases provisional. The Administrator shall 
review the plan for continued compliance with the criteria set forth in 
this part and may request updated documentation for the purpose of such 
review. If the plan is found to be inadequate and is not corrected 
within ninety days from the date that such inadequacies were identified, 
the Administrator may revoke his certification.
    (d) Documentation which cannot reasonably be provided at the time of 
application for exemption shall be submitted within six months of the 
application date. The Administrator may revoke his certification for a 
State's failure to submit adequate documentation after the six month 
period.

[41 FR 46991, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44544, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 49 
FR 5621, Feb. 14, 1984; 50 FR 36029, Sept. 4, 1985; 59 FR 53601, Oct. 
25, 1994; 62 FR 55719, Oct. 27, 1997]



Sec. 75.14  States exempt under this part.

    The following States have submitted applications and adequate 
supporting documentation and have been determined by the Administrator 
to be exempt from the requirement of flood insurance on State-owned 
structures and their contents because they have in effect adequate State 
plans of self-insurance: Florida, Georgia, Iowa, Kentucky, Maine, New 
Jersey, New York, North Carolina, Oregon, Pennsylvania, South Carolina, 
Tennessee, and Vermont.

[48 FR 44544, Sept. 29, 1983, as amended at 57 FR 19542, May 7, 1992]

                         PARTS 76-77 [RESERVED]

[[Page 376]]



PART 78_FLOOD MITIGATION ASSISTANCE--Table of Contents




Sec.
78.1 Purpose.
78.2 Definitions.
78.3 Responsibilities.
78.4 Applicant eligibility.
78.5 Flood Mitigation Plan development.
78.6 Flood Mitigation Plan approval process.
78.7 Grant application procedures.
78.8 Grant funding limitations.
78.9 Planning grant approval process.
78.10 Project grant approval process.
78.11 Minimum project eligibility criteria.
78.12 Eligible types of projects.
78.13 Grant administration.
78.14 Alternative procedures.

    Authority: 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 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 
376.

    Source: 62 FR 13347, Mar. 20, 1997, unless otherwise noted.



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.
    (b) The purpose of FMA is to assist State and local governments in 
funding cost-effective actions that reduce or eliminate the long-term 
risk of flood damage to buildings, manufactured homes, and other 
insurable structures. The long-term goal of FMA is to reduce or 
eliminate claims under the National Flood Insurance Program (NFIP) 
through mitigation activities. The program provides cost-shared grants 
for three purposes: Planning Grants to States and communities to assess 
the flood risk and identify actions to reduce that risk; Project Grants 
to execute measures to reduce flood losses; and Technical Assistance 
Grants that States may use to assist communities to develop viable FMA 
applications and implement FMA projects. FMA also outlines a process for 
development and approval of Flood Mitigation Plans.



Sec. 78.2  Definitions.

    (a) Except as otherwise provided in this part, the definitions set 
forth in part 59 of this subchapter are applicable to this part.
    (b) Community means:
    (1) A political subdivision, including any Indian tribe or 
authorized tribal organization or 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 to develop and administer a mitigation plan by political 
subdivisions, all of which meet the requirements of paragraph (b)(1) of 
this section.



Sec. 78.3  Responsibilities.

    (a) Federal. The Director will allocate available funds to each FEMA 
Region. The FEMA Regional Director will:
    (1) Allocate Technical Assistance and Planning Grants to each State 
through the annual Cooperative Agreements;
    (2) Approve Flood Mitigation Plans in accordance with Sec. 78.6; 
and
    (3) Award all FMA project grants, after evaluating applications for 
minimum eligibility criteria and ensuring compliance with applicable 
Federal laws.
    (b) State. The State will serve as grantee through the State Point 
of Contact (POC) designated by the Governor. The POC must have working 
knowledge of NFIP goals and processes and will ensure that FMA is 
coordinated with other mitigation activities at the State level. If a 
Governor chooses not to identify a POC to coordinate the FMA, 
communities may follow alternative procedures as described in Sec. 
78.14. States will:
    (1) Provide technical assistance to communities to assist them in 
developing applications and implementing approved applications;
    (2) Award planning grants;
    (3) Submit plans to the FEMA Regional Director for approval;
    (4) Evaluate project applications, selecting projects to forward to 
the FEMA Regional Director for final approval; and

[[Page 377]]

    (5) Submit performance and financial reports to FEMA in compliance 
with 44 CFR 13.40 and 13.41.
    (c) Community. The community will:
    (1) Complete and submit applications to the State POC for the 
Planning and Projects Grants;
    (2) Prepare and submit the Flood Mitigation Plan;
    (3) Implement all approved projects;
    (4) Comply with FMA requirements, 44 CFR parts 13 and 14, the grant 
agreement, applicable Federal, State and local laws and regulations (as 
applicable); and
    (5) Account for the appropriate use of grant funds to the State POC.



Sec. 78.4  Applicant eligibility.

    (a) The State is eligible to apply for grants for Technical 
Assistance.
    (b) State agencies and communities are eligible to apply for 
Planning and Project Grants and to act as subgrantee. Communities on 
probation or suspended under 44 CFR part 60 of the NFIP are not 
eligible. To be eligible for Project Grants, an eligible applicant will 
develop, and have approved by the FEMA Regional Director, a Flood 
Mitigation Plan in accordance with Sec. 78.5.



Sec. 78.5  Flood Mitigation Plan development.

    A Flood Mitigation Plan will articulate a comprehensive strategy for 
implementing technically feasible flood mitigation activities for the 
area affected by the plan. At a minimum, plans will include the 
following elements:
    (a) Description of the planning process and public involvement. 
Public involvement may include workshops, public meetings, or public 
hearings.
    (b) Description of the existing flood hazard and identification of 
the flood risk, including estimates of the number and type of structures 
at risk, repetitive loss properties, and the extent of flood depth and 
damage potential.
    (c) The applicant's floodplain management goals for the area covered 
by the plan.
    (d) Identification and evaluation of cost-effective and technically 
feasible mitigation actions considered.
    (e) Presentation of the strategy for reducing flood risks and 
continued compliance with the NFIP, and procedures for ensuring 
implementation, reviewing progress, and recommending revisions to the 
plan.
    (f) Documentation of formal plan adoption by the legal entity 
submitting the plan (e.g., Governor, Mayor, County Executive).



Sec. 78.6  Flood Mitigation Plan approval process.

    The State POC will forward all Flood Mitigation Plans to the FEMA 
Regional Director for approval. The Regional Director will notify the 
State POC of the approval or disapproval of the plan within 120 days 
after submission. If the Regional Director does not approve a mitigation 
plan, the Regional Director will notify the State POC of the reasons for 
non-approval and offer suggestions for improvement.



Sec. 78.7  Grant application procedures.

    States will apply for Technical Assistance and Planning Grants 
through the annual Cooperative Agreement between FEMA and the State. The 
State POC will be notified regarding their available funds for project 
grants each fiscal year. The State may forward project applications to 
FEMA for review at any time.



Sec. 78.8  Grant funding limitations.

    (a) The Director will allocate the available funds for FMA each 
fiscal year. Each State will receive a base amount of $10,000 for 
Planning Grants and $100,000 for Project Grants, with the remaining 
funds distributed based on the number of NFIP policies, repetitive loss 
structures, and other such criteria as the Director may determine in 
furtherance of the disaster resistant community concept.
    (b) A maximum of $1,500,000 may be allocated for Planning Grants 
nationally each fiscal year. 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 applicant. The total Planning Grant made in 
any fiscal year to any State, including all communities located in the 
State, will not exceed $300,000.

[[Page 378]]

    (c) A maximum of ten percent of the funds available for Project 
Grants will be allocated to Technical Assistance grants each fiscal 
year.
    (d) The total amount of FMA Project Grant funds provided during any 
5-year period will not exceed $10,000,000 to any State 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.



Sec. 78.9  Planning grant approval process.

    The State POC will evaluate and approve applications for Planning 
Grants. Funds will be provided only for the flood portion of any 
mitigation plan, and Planning Grants will not be awarded to develop new 
or improved floodplain maps. The performance period for each Planning 
Grant will not exceed 3 years.



Sec. 78.10  Project grant approval process.

    The State POC will solicit applications from eligible applicants, 
review projects for eligibility, and select applications for funding. 
Those project applications will then be forwarded to FEMA for final 
approval. FEMA will provide funding on a project by project basis 
through a supplement to the annual Cooperative Agreement. The FEMA 
Regional Director will notify States regarding the program schedule at 
the beginning of each fiscal year.



Sec. 78.11  Minimum project eligibility criteria.

    The identification of a project or activity in an approved Flood 
Mitigation Plan does not mean it meets FMA eligibility criteria. 
Projects must:
    (a) Be cost-effective, not costing more than the anticipated value 
of the reduction in both direct damages and subsequent negative impacts 
to the area if future floods were to occur. Both costs and benefits are 
computed on a net present value basis.
    (b) Be in conformance with 44 CFR part 9, Floodplain Management and 
Protection of Wetlands; Executive Order 12699, Seismic Safety of Federal 
and Federally Assisted or Regulated New Building Construction; 44 CFR 
part 10, Environmental Considerations; and any applicable environmental 
laws and regulations.
    (c) Be technically feasible.
    (d) Be in conformance with the minimum standards of the NFIP 
Floodplain Management Regulations at 44 CFR part 60.
    (e) Be in conformance with the Flood Mitigation Plan; the type of 
project being proposed must be identified in the plan.
    (f) Be located physically in a participating NFIP community that is 
not on probation or must benefit such community directly by reducing 
future flood damages.



Sec. 78.12  Eligible types of projects.

    The following types of projects are eligible for funding through 
FMA, providing they meet all other eligibility criteria.
    (a) Acquisition of insured structures and underlying real property 
in fee simple and easements restricting real property to open space 
uses.
    (b) Relocation of insured structures from acquired or restricted 
real property to non hazard-prone sites.
    (c) Demolition and removal of insured structures on acquired or 
restricted real property.
    (d) Elevation of insured residential structures in accordance with 
44 CFR 60.3.
    (e) Elevation or dry floodproofing of insured non-residential 
structures in accordance with 44 CFR 60.3.
    (f) Other activities that bring an insured structure into compliance 
with the floodplain management requirements at 44 CFR 60.3.
    (g) Minor physical flood mitigation projects that reduce localized 
flooding problems and do not duplicate the flood prevention activities 
of other Federal agencies.
    (h) Beach nourishment activities.



Sec. 78.13  Grant administration.

    (a) FEMA may contribute up to 75 percent of the total eligible costs 
of each grant. At least 25 percent of the total eligible costs will be 
provided from a nonFederal source. Of this amount, not more than one 
half will be provided from in-kind contributions.

[[Page 379]]

Allowable costs will be governed by OMB Circular A-87 and 44 CFR part 
13.
    (b) The grantee must submit performance and financial reports to 
FEMA and must ensure that all subgrantees are aware of their 
responsibilities under 44 CFR parts 13 and 14.
    (c) FEMA will recapture any funds provided to a State or a community 
under FMA and deposit the amounts in the National Flood Mitigation Fund 
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 the regulations in this part.



Sec. 78.14  Alternative procedures.

    For the purposes of this part, alternative procedures are available 
which allow the community to coordinate directly with FEMA in 
implementing the program. These alternative procedures are available in 
the following circumstances. Native American tribes or authorized tribal 
organizations may submit plans and applications to the State POC or 
directly to the FEMA Regional Director. If a Governor chooses not to 
identify a POC to coordinate the FMA, communities may also submit plans 
and applications to the FEMA Regional Director.

                           PART 79 [RESERVED]

                     Federal Crime Insurance Program

                         PARTS 80-149 [RESERVED]

[[Page 380]]



                SUBCHAPTER C_FIRE PREVENTION AND CONTROL





PART 150_PUBLIC SAFETY AWARDS TO PUBLIC SAFETY OFFICERS--Table of Contents




Sec.
150.1 Background and purpose.
150.2 Definitions.
150.3 Nomination process.
150.4 Nomination and selection criteria.
150.5 Joint Public Safety Awards Board.
150.6 Design and procurement of awards.
150.7 Selection process.
150.8 Presentation of awards.
150.9 Funding.
150.10 Date of submission of nominations.

    Authority: Federal Fire Prevention and Control Act of 1974, sec. 15, 
15 U.S.C. 2214; Reorg. Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329, 
and E.O. 12127, dated Mar. 31, 1979, 3 CFR, 1979 Comp., p. 376.

    Source: 49 FR 39845, Oct. 11, 1984, unless otherwise noted.



Sec. 150.1  Background and purpose.

    The regulations in this part are issued under the authority of the 
Federal Fire Prevention and Control Act of 1974 (the Act), 15 U.S.C. 
2201 et seq. The Act establishes two classes of honorary awards for 
public safety officers and directs the issuance of the necessary joint 
regulations by the Director of the Federal Emergency Management Agency 
(FEMA) and the Attorney General. The functions of the Secretary of 
Commerce were transferred by Reorganization Plan No. 3 of 1978 to the 
Director, FEMA. Since initial passage of the Act, civil defense 
functions which then were delegated to the Secretary of Defense have 
been delegated to the Director, FEMA. Section 15 of the Act has been 
amended to delete the Secretary of Defense from participating in the 
granting of awards. See Public Law 98-241, 98 Stat. 95, 96 (1984). The 
Director, FEMA, and the Attorney General are issuing this regulation to 
implement the statutory provisions for FEMA and the Department of 
Justice.



Sec. 150.2  Definitions.

    Civil defense officer (or member of a recognized civil defense or 
emergency preparedness organization) means any individual who is 
assigned to and is performing the assigned tasks of the unit or 
organization which has been given a mission under the direction or 
operational control of a Civil Defense or Emergency Preparedness 
Director/Coordinator in accordance with a Federal, State or local 
emergency plan and sanctioned by the government concerned. This also 
includes emergency management officers. This includes volunteers and 
paid employees for any governmental entity.
    Distinguished Public Safety Service Award means the Secretary's 
Award for Distinguished Public Safety Service, presented by either the 
Attorney General or the Director of FEMA to public safety officers for 
distinguished service in the field of public safety.
    FEMA means the Federal Emergency Management Agency.
    Firefighter means a member, regardless of rank or duties, of any 
organization (including such Federal organizations) in any State 
consisting of personnel, apparatus, and equipment which has as its 
purpose protecting property and maintaining the safety and welfare of 
the public from the dangers of fire. This term includes volunteer or 
paid employees. The location of any such organization may include, but 
is not limited to, a Federal installation, a State, city, town, borough, 
parish, county, fire district, rural fire district or other special 
district.
    Joint Board means the Joint Public Safety Awards Board established 
by the Director of the Federal Emergency Management Agency and the 
Attorney General to carry out the purposes of the Federal Fire 
Prevention and Control Act of 1974.
    Law enforcement officer means a person involved in the control or 
reduction of crime and juvenile delinquency or enforcement of the 
criminal laws. This includes, but is not limited to, police, 
corrections, probation, parole, and court officers, and Federal civilian 
officers in such capacities.
    Nominating official means the head of a Federal government 
department or agency, or his delegatee(s), the governor or other head of 
a State, or the chief executive or executives of any

[[Page 381]]

general governmental unit within any State.
    President's Award means the President's Award for Outstanding Public 
Safety Service, presented by the President of the United States to 
public safety officers for extraordinary valor in the line of duty or 
for outstanding contributions to public safety.
    Public safety officer means a person serving a public agency, with 
or without compensation, as a firefighter, a civil defense officer (or 
member of a recognized civil defense or emergency preparedness 
organization), or a law enforcement officer, including a corrections or 
court officer.
    State means any State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Commonwealth of the Northern Mariana Islands, the 
Virgin Islands, Guam, American Samoa, the Trust Territory of the Pacific 
Islands and any other territory or possession of the United States.



Sec. 150.3  Nomination process.

    (a) The Nominating Officials nominating Firefighters and Civil 
Defense Officers shall submit their nominations for the President's 
Award or Distinguished Public Safety Service Award to the Executive 
Secretary, Joint Public Safety Awards Board, National Emergency Training 
Center, Emmitsburg, MD 21727. Copies of all nominations shall also be 
forwarded, depending on the category of the nominee, as follows:
    (1) Firefighter:

FEMA, Attention: Superintendent, National Fire Academy, Emmitsburg, MD 
21727

    (2) Civil defense officer (or member of a recognized civil defense 
or emergency preparedness organization):

FEMA, Attention: Superintendent, Emergency Management Institute, 
Emmitsburg, MD 21727

    (b) The Nominating Officials nominating law enforcement, corrections 
or court officers shall submit their nominations for the President's 
Award or Distinguished Public Safety Service Awards to: Assistant 
Attorney General for Administration, U.S. Department of Justice, 
Washington, DC 20530.
    (c) All nominations shall be submitted in writing in accordance with 
the requirements prescribed in this section and Sec. 150.4 at the 
earliest practicable date after the performance of the act or acts for 
which the nomination is made. Nominations for each year shall be made 
before November 15; any received thereafter will be considered as having 
been made for the following year. However, for the year 1983, 
nominations may be made by February 28, 1985.
    (d) Nominations for the President's Award or the Distinguished 
Public Safety Service Award should include the name of the candidate, 
his/her position, title and address, and public agency served, the 
locale where the candidate performs his/her duties, the name, address 
and telephone number of the nominating official, a summary describing 
the outstanding contribution, distinguished service or extraordinary 
valor, and the dates relating thereto. The description should be 
sufficiently concise and specific to justify the request for recognition 
of the public safety officer through the presentation of either of the 
awards. Copies of any published factual accounts of the nominee's 
accomplishment should also be attached when available.
    (e) An annual invitation shall be issued by the Joint Board for 
nominations for the President's Award and, on behalf of the Attorney 
General and the Director of FEMA, for the Distinguished Public Safety 
Service Award. The invitation shall be issued by letter or by notice in 
apporpriate publications of interest to the public safety community. 
However, nominating officials need not wait for such invitation but may 
nominate at the most appropriate time in accordance with the other 
provisions of this part. Approved by the Office of Management and Budget 
under Control No. 3067-0150.

[49 FR 39845, Oct. 11, 1984, as amended at 50 FR 3350, Jan. 24, 1985]



Sec. 150.4  Nomination and selection criteria.

    (a) Nominations for the President's Award of the Distinguished 
Public Safety Service Award shall be made on the basis of, and in 
conformity with, the following uniform criteria.
    (1) President's Award. Documentation accompanying the nomination for 
this

[[Page 382]]

Award must indicate not only that the nominee unquestionably meets the 
standards established for the Distinguished Public Safety Service Award 
(see paragraph (a)(2) of this section), but also deserves greater public 
recognition because he/she has demonstrated unique qualities of courage, 
imagination or ability, which have resulted in outstanding contributions 
to the public safety.
    (2) Distinguished Public Safety Service Award. Nomination for this 
award shall clearly show that the public safety officer's qualifying 
service or act is marked by courage, imagination or ability or has 
resulted in a significant contribution to the public safety accomplished 
through an originality of effort which far exceeds the expected quality 
of performance of the normal duties assigned to the nominee.
    (b) A nomination shall specify whether it is being submitted for the 
President's Award or the Distinguished Public Safety Award.



Sec. 150.5  Joint Public Safety Awards Board.

    (a) A Joint Public Safety Awards Board (Joint Board) is hereby 
established to fulfill the responsibilities of the Director of FEMA and 
the Attorney General by administering the process of nomination for the 
President's Award and by participating in the selection process with the 
Executive Office of the President. The Joint Board shall consist of ten 
representatives who are Federal employees and are of appropriate rank 
(at or equivalent to grades GM-14 or above). Five persons shall be named 
by and represent the Director of FEMA, and five persons shall be named 
by and represent the Attorney General. The representatives serving on 
the Joint Board shall select one of their number to act as the 
chairperson.
    (b) Representatives on the Joint Board shall serve in addition to 
their regular duties and without additional compensation. Consistent 
with the requirements of this part, the members of the Joint Board shall 
establish the procedures by which the selections for the President's 
Award shall be made to assure the timely presentation of these awards.
    (c) A National Emergency Training Center employee shall act as 
Executive Secretary of the Joint Board. The Executive Secretary shall 
perform such functions as are appropriate to the Board's 
responsibilities, including the receipt of all nominations and the 
communication of nomination information, for the purpose of receiving 
comments thereon, from members of the public safety community pursuant 
to Sec. 150.5(e). The Executive Secretary shall be appointed by the 
Associate Director, Training and Fire Programs of FEMA.
    (d) The Joint Board shall review the nomimations for the President's 
Award and shall recommend to the Director, FEMA, and the Attorney 
General by February 1 of each year, those nominees determined by it to 
merit consideration for the President's Award together with reasons 
therefor. The Director and the Attorney General shall then recommend to 
the President those nominees determined by them to merit the President's 
Award, together with the reasons therefor. Recommendations for 1983 
shall be submitted on or before March 29, 1985.
    (e) The Joint Board may request that persons representing a cross-
section of the national public safety community comment upon nominations 
made to the Board for the President's Award. Both the request for 
comments and the comments themselves shall be made in writing.

[49 FR 39845, Oct. 11, 1984, as amended at 50 FR 3350, Jan. 24, 1985]



Sec. 150.6  Design and procurement of awards.

    (a) The Joint Board shall consult with the Department of the 
Treasury and the Executive Office of the President in regard to the 
design and procurement of the appropriate citations and medal for the 
President's Award in accordance with applicable laws and regulations.
    (b) Insofar as practicable, the designs for Distinguised Public 
Safety Service Awards of FEMA and the Department of Justice shall be 
coordinate so as to avoid distinctly different recognition of the 
various public safety officers.

[[Page 383]]



Sec. 150.7  Selection process.

    (a) President's Award. Nominations for the President's Award shall 
be reviewed, and winners selected by the President (or his designee) in 
accordance with the reqirements of Sec. 150.3, the criteria in Sec. 
150.4(a)(1), and the procedures of Sec. 150.5.
    (b) Distinguished Public Safety Service Award. Upon receipt of 
nominations for this Award, the Director of FEMA or the Attorney General 
shall cause an evaluation and selection of the nominees to be made in 
accordance with the requirements of Sec. 150.3 and the criteria 
prescribed in Sec. 150.4(a)(2). In reviewing nominations, the Attorney 
General or the Director of FEMA may request that persons representing 
the relevant segment of the national public safety community comment 
upon the nomination and accompanying documentation. Both the request for 
comments and the comments themselves shall be made in writing.
    (c) Individuals nominated for the President's Award who are 
considered not to meet the criteria for the Award by the Joint Board or 
who are not recommended to or selected by the President shall be 
automatically considered by the appropriate authority for nomination for 
the Distinguished Public Safety Service Award.
    (d) Individuals nominated for the Distinguished Public Safety 
Service Award may be considered by the Joint Board for the President's 
Award if the Director of FEMA or the Attorney General determines that 
consideration for the President's Award is merited.



Sec. 150.8  Presentation of awards.

    (a) Presentation of the President's Award shall be made at such 
time, place and circumstances as the Executive Office of the President 
directs. There shall not be more twelve President's Awards given out 
during any calendar year.
    (b) Presentation of the Distinguished Public Safety Service Award 
shall be made by the Attorney General or the Director of FEMA or a 
designee at such time, place and circumstances as the Director of FEMA 
or the Attorney General determines. There is no limit on the number of 
these awards made during any calendar year.



Sec. 150.9  Funding.

    (a) President's Award. The costs involved in designing and striking 
the medal to be presented in conjunction with the President's Award 
shall be prorated among the agencies concerned. The cost of producing 
the medal and printing the certificate shall be borne by FEMA if the 
recipient is a firefighter or a civil defense officer. If the award 
recipient is a law enforcement officer, then such cost shall be borne by 
the Department of Justice.
    (b) Distinguished Public Safety Service Award. All expenses in 
connection with this Award shall be borne by the appropriate Agency.



Sec. 150.10  Date of submission of nominations.

    Nominations may only be submitted for acts, services, or 
contributions occurring within two years preceding the November 15 cut-
off date described in Sec. 150.3(c) of this part. However, nominations 
submitted prior to the February 28, 1985 cut-off date may be made for 
acts, services or contributions occurring on or after October 29, 1972 
(two years before the effective date of the Act).

[50 FR 3350, Jan. 24, 1985]



PART 151_REIMBURSEMENT FOR COSTS OF FIREFIGHTING ON FEDERAL PROPERTY
--Table of Contents




                  Subpart A_Purpose, Scope, Definitions

Sec.
151.01 Purpose.
151.02 Scope.
151.03 Definitions.

               Subpart B_Submission, Determination, Appeal

151.11 Submission of claims.
151.12 Determination of amount authorized for payment.
151.13 Reconsideration of amount authorized for payment.
151.14 Adjudication.

                   Subpart C_Administration, Penalties

151.21 [Reserved]
151.22 Audits.
151.23 Penalties.

    Authority: Secs. 11 and 21(b)(5), Federal Fire Prevention and 
Control Act of 1974 (15

[[Page 384]]

U.S.C. 2210 and 2218(b)(5)); Reorganization Plan No. 3 of 1978 (3 CFR, 
1978 Comp., p. 379) and E.O. 12127, dated Mar. 31, 1979 (3 CFR, 1979 
Comp., p. 376).

    Source: 49 FR 5929, Feb. 16, 1984, unless otherwise noted.



                  Subpart A_Purpose, Scope, Definitions



Sec. 151.01  Purpose.

    Section 11 of the Federal Fire Prevention and Control Act of 1974, 
provides that ``each fire service that engages in the fighting of a fire 
on property which is under the jurisdiction of the United States may 
file a claim with the Director of the Federal Emergency Management 
Agency for the amount of direct expenses and direct losses incurred by 
such fire service as a result of fighting such fire.'' This part, 
implements section 11 of the Act and governs the submission, 
determination, and appeal of claims under section 11.



Sec. 151.02  Scope.

    Fire services, in any State, may file claims for reimbursement under 
section 11 and this part for the direct expenses and losses which are 
additional firefighting costs over and above normal operating costs 
incurred while fighting a fire on property which is under the 
jurisdiction of the United States. Section 11 requires that certain 
payments be deducted from those costs and that the Treasury Department 
will ordinarily pay the amount resulting from the application of that 
formula. Where the United States has entered into a contract (which is 
not a mutual aid agreement, defined in Sec. 151.03) for the provision 
of fire protection, and it is the intent of the parties that 
reimbursement under section 11 is unavailable, this intent will normally 
govern. Where a mutual aid agreement is in effect between the claimant 
and an agency of the United States for the property upon which the fire 
occurred, reimbursement will be available in otherwise proper 
situations. However, any payments (including the value of services) 
rendered under the agreement during the term of the agreement (or the 
Federal fiscal year in which the fire occurred, if no term is 
discernible) shall be deducted from the costs claimed, pursuant to Sec. 
151.12.



Sec. 151.03  Definitions.

    (a) The Act means the Federal Fire Prevention and Control Act of 
1974, 15 U.S.C. 2201 et seq.
    (b) Additional firefighting costs over and above normal operating 
costs means reasonable and authorized (or ratified by a responsible 
Federal official) costs ordinarily associated with the function of 
firefighting as performed by a fire service. Such costs would normally 
arise out of response of personnel and apparatus to the site of the 
fire, search and rescue, exposure protection, fire containment, 
ventilation, salvage, extinguishment, overhaul, and preparation of the 
equipment for further use. This would also include costs associated with 
emergency medical services to the extent normally rendered by a fire 
service in connection with a fire. Not included are administrative 
expenses, costs of employee benefits, insurance, disability, death, 
litigation or health care, and the costs associated with processing 
claims under section 11 of the Act and this part.
    (c) Director means the Director of the Federal Emergency Management 
Agency, or his/her designee.
    (d) Claimant means a fire service as defined in paragraph (g) of 
this section.
    (e) Direct expenses and losses means expenses and losses which would 
not have been incurred had not the fire in question taken place. This 
includes salaries for specially employed personnel, overtime pay, the 
cost of supplies expended, and the depreciated value of equipment 
destroyed or damaged. It does not include such costs as the ordinary 
wages of firefighters, overhead costs, or depreciation (if based on 
other than hours of use during fires). Expenses as defined herein would 
normally be incurred after the first call or alarm and would normally 
cease upon the first of the following: Return to station, report in-
service and ready for further operations, or commence response to 
another incident.
    (f) Fire means any instance of destructive or uncontrolled burning, 
including scorch burns and explosions of combustible dusts or solids, 
flammable liquids, and gases. The definition does

[[Page 385]]

not include the following except where they cause fire or occur as a 
consequence of fire: Lightning or electrical discharge, explosion of 
steam boilers, hot water tanks, or other pressure vessels, explosions of 
ammunition or other detonating materials, overheating, mechanical 
failures, or breakdown of electrical equipment in power transmission 
facilities, and accidents involving ships, aircraft, or other vehicles. 
Not included in this definition are any costs associated with false 
alarms, regardless of cause.
    (g) Fire service means any organization in any State consisting of 
personnnel, apparatus, and equipment which has as its purpose protecting 
property and maintaining the safety and welfare of the public from the 
dangers of fire, including a private firefighting brigade. The personnel 
of any such organization may be paid employees or unpaid volunteers or 
any combination thereof. The location of any such organization and its 
responsibility for extinguishment and suppression of fires may include, 
but need not be limited to, a State, city, town, borough, parish, 
county, fire district, fire protection district, rural fire district, or 
other special district.
    (h) Mutual aid agreement means any reciprocal agreement whether 
written or oral between a Federal agency and the claimant fire service, 
or its parent jurisdiction, for the purpose of providing fire protection 
for the property of the United States upon which the fire which gave 
rise to the claim occurred and for other property for which the claimant 
normally provides fire protection. Such agreement must be primarily one 
of service rendered for service, or must be entered into under 42 U.S.C. 
1856 through 1856d. Not included are all other agreements and contracts, 
particularly those in which the intent of the parties is that the United 
States pays for fire protection.
    (i) FEMA means the Federal Emergency Management Agency.
    (j) Over and above normal operating expenses means costs, losses and 
expenses which are not ordinarily and necessarily associated with the 
maintenance, administration, and day-to-day operations of a fire service 
and which would not have been incurred absent the fire out of which the 
claim arises.
    (k) Payments to the fire service or its parent jurisdiction, 
including taxes or payments in lieu of taxes, the United States has made 
for the support of fire services on the property in question means any 
Federal monies, or the value of services, including those made available 
through categorical or block grants, contracts, mutual aid agreements, 
taxes, and payments in lieu of taxes which the United States has paid to 
the fire service or its parent jurisdiction for fire protection and 
firefighting services. Such payments will be determined on the basis of 
the term of the arrangement, or if no such term is discernible, on the 
basis of the Federal fiscal year in which the fire occurred.
    (l) Property which is under the jurisdiction of the United States 
means real property and Federal improvements thereon and appurtenances 
thereto in which the United States holds legal fee simple title. This 
excludes Federal leasehold interests. This likewise excludes Federal 
personal property on land in which the United States does not hold fee 
simple title.
    (m) State means any State of the United States of America, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, American Samoa, The Commonwealth of the Northern Mariana 
Islands, the Trust Territory of the Pacific Islands, and any other 
territory or possession of the United States.



               Subpart B_Submission, Determination, Appeal



Sec. 151.11  Submission of claims.

    Any fire service in any State which believes it has a claim(s) 
cognizable under section 11 shall submit its claim(s) in writing within 
90 days of the occurrence of the fire(s) for which a claim(s) is made. 
If the fire is of such duration that the claimant desires to submit a 
claim before its conclusion, it may do so, but only for the eligible 
costs actually incurred to date. Additional claims may be filed for 
costs

[[Page 386]]

later incurred. Claims shall be submitted to the Director, FEMA, 
Washington, DC, 20472. Each claim shall include the following 
information:
    (a) Name, address, jurisdiction and nature (volunteer, private, 
municipal, etc.) of claimant's fire service organization;
    (b) Name, title, address and telephone number of individual 
authorized by the claimant fire service to make this claim in its behalf 
and his/her certification as to the accuracy of the information 
provided;
    (c) Name and telephone number of Federal employee familiar with the 
facts of the event and the name and address of the Federal agency having 
jurisdiction over the property on which the fire occurred;
    (d) Proof of authority to fight the fire (source of alarm, whether 
fire service was requested by responsible Federal official or whether 
such an official accepted the assistance when offered);
    (e) Personnel and equipment committed to fighting of fire (type of 
equipment and number of items); and an itemized list of direct expenses 
(e.g., hours of equipment operation, fuel costs, consumables, overtime 
pay and wages for any specially hired personnel) and direct losses 
(e.g., damaged or destroyed equipment, to include purchase cost, 
estimate of the cost of repairs, statement of depreciated value 
immediately preceding and subsequent to the damage or destruction and 
the extent of insurance coverage) actually incurred in fighting the 
fire. A statement should be included explaining why each such expense or 
loss is considered by the claimant not be a normal operating cost, or to 
be in excess of normal operating costs;
    (f) Copy of fire report which includes the location of the fire, a 
description of the property burned, the time of alarm, etc.;
    (g) Such other information or documentation as the Director 
considers relevant to those considerations to be made in determining the 
amount authorized for payment, as set forth in Sec. 151.12 of these 
regulations;
    (h) Source and amount of any payments received or to be received for 
the fiscal year in which the fire occurred, including taxes or payments 
in lieu of taxes and including all monies received or receivable from 
the United States through any program or agreement including categorical 
or block grants, and contracts, by the claimant fire service or its 
parent jurisdiction for the support of fire services on the property on 
which the fire occurred. If this information is available when the claim 
is submitted, it should accompany the claim. If it is not, the 
information should be submitted as soon as practicable, but no later 
than 15 days after the end of the Federal fiscal year in which the fire 
occurred.

(Approved by Office of Management and Budget under control number 3067-
0141)



Sec. 151.12  Determination of amount authorized for payment.

    (a) The Director shall determine the amount to be paid on a claim 
(subject to payment by the Department of the Treasury). The amount to be 
paid is the total of eligible expenses, costs and losses under paragraph 
(a)(1) of this section which exceeds the amount of payments under 
paragraph (a)(2) of this section. The Director shall establish the 
reimbursable amount by determining:
    (1) The extent to which the fire service incurred additional 
firefighting costs, over and above its normal operating costs, in 
connection with the fire which is the subject of the claim, i.e., the 
``amount of costs''; and
    (2) What payments, if any, including taxes or payments in lieu of 
taxes, the fire service or its parent jurisdiction has received from the 
United States for the support of fire services on the property on which 
the fire occurred.

The reimbursable amount is the amount, if any, by which the amount of 
costs, determined under paragraph (a)(1) of this section exceeds the 
amount of payments determined under paragraph (a)(2) of this section. 
Where more than one claim is filed the aggregate reimbursable amount is 
the amount by which the total amount of costs, determined under 
paragraph (a)(1) of this section exceed the amount of Federal payments 
(in the case of a mutual aid agreement--its term or if none is 
determinable, the Federal fiscal year) determined under paragraph (a)(2) 
of this section.

[[Page 387]]

    (b) The Director will first determine the costs as contemplated in 
paragraph (a)(1) of this section. The Director will then notify the 
claimant as to that amount. The claimant must indicate within 30 days 
its acceptance or rejection of that amount.
    (1) If the determination is accepted by the claimant, this will be 
the final and conclusive determination of the amount of costs by the 
claimant in conjunction with the fire for which the claims are 
submitted.
    (2) If the claimant rejects this amount, it must notify the 
Director, within 30 days, of its reasons for its rejection. Upon receipt 
of notification of rejection, the Director shall reconsider his 
determination and notify the claimant of the results of the 
reconsideration. The amont determined on reconsideration will constitute 
the costs to be used by the Director in determining the reimbursable 
amount.
    (c) Upon receipt of documentation from the claimant on the amount of 
payments the Federal Government has made for the support of fire 
services on the property in question, the Director will, following such 
verification or investigation as the Director may deem appropriate, 
calculate the full amount to be reimbursed under the section 11 formula 
as set forth in Sec. 151.12(a). This calculation of the reimbursable 
amount is based upon the costs determined pursuant to Sec. 151.12(b) 
and the documentation of Federal payments that the claimant submitted.
    (d) The Director's determination of the reimbursable amount will be 
sent to the Secretary of the Treasury. The Secretary of the Treasury 
shall, upon receipt of the claim and determination made under Sec. 
151.12 (a), (b), and (c), determine the amount authorized for payment, 
which shall be the amount actually available for payment from any monies 
in the Treasury not otherwise appropriated but subject to reimbursement 
(from any appropriations which may be available or which may be made 
available for the purpose) by the Federal department or agency under 
whose jurisdiction the fire occurred. This shall be a sum no greater, 
although it may be less, that the reimbursable amount determined by the 
Director, FEMA, with respect to the claim under Sec. 151.12 (a), (b) 
and (c).
    (e) Upon receipt of written notification from the claimant of its 
intention to accept the amount authorized as full settlement of the 
claim, accompanied by a properly executed document of release, the 
Director will forward the claim, a copy of the Director's determination 
and the claimant's document of release to the Secretary of the Treasury 
for payment of the claim in the amount authorized.
    (f) Subject to the discovery of additional material evidence, the 
Director may reconsider any determination in this section, whether or 
not made as his final determination.

[49 FR 5929, Feb. 16, 1984, as amended at 49 FR 38119, Sept. 27, 1984]



Sec. 151.13  Reconsideration of amount authorized for payment.

    (a) If the claimant elects to protest the amount authorized for 
payment, after the applicable procedures of Sec. 151.12 have been 
followed, it must within 30 days of receipt of notification of the 
amount authorized notify the Director in writing of its objections and 
set forth the reasons why the Director should reconsider the 
determination. The Director will upon notice of protest and receipt of 
additional evidence reconsider the determination of the amount of 
Federal payments under Sec. 151.12(a)(2) but not the determination of 
the amount of costs under Sec. 151.12(a)(1). The Director shall cause a 
reconsideration by the Secretary of the Treasury of the amount actually 
available and authorized for payment by the Treasury. The Director, upon 
receipt of the Secretary of the Treasury's reconsidered determination, 
will notify the claimant in writing of the amount authorized, upon 
reconsideration, for payment in full settlement of the claim.
    (b) If the claimant elects to accept the amount authorized, upon 
reconsideration, for payment in full settlement of its claims, it must 
within 30 days (or a longer period of time acceptable to the Director) 
of its receipt of that determination notify the Director of its 
acceptance in writing accompanied by a properly executed document of 
release. Upon receipt of such notice and document of release, the 
Director will

[[Page 388]]

forward the claim, a copy of the Director's final determination, and the 
claimant's document of release to the Secretary of the Treasury for 
payment of the claim in the amount of final authorization.



Sec. 151.14  Adjudication.

    If the claimant, after written notice by the Director of the amount 
authorized for payment in full settlement of the claim and after all 
applicable procedures of Sec. Sec. 151.12 and 151.13 have been followed 
elects to dispute the amount authorized, it may then initiate action in 
the United States Claims Court, which shall have jurisdiction to 
adjudicate the claim and enter judgment in accordance with section 11(d) 
of the Act.



                   Subpart C_Administration, Penalties



Sec. 151.21  [Reserved]



Sec. 151.22  Audits.

    At the discretion of the Director, all claims submitted under 
section 11 of the Act and all records of the claimant will be subject to 
audit by the Director or his/her designee. In addition, the Comptroller 
General of the United States or his/her designee shall have access to 
all books and records of all claimants making claims under section 11.



Sec. 151.23  Penalties.

    Claimant's officials or others who provide information or 
documentation under this part are subject to, among other laws, the 
criminal penalties of Title 18 of the United States Code, sections 287 
and 1001, which punish the submission of false, fictitious or fraudulent 
claims and the making of false, fictitious or fraudulent statements and 
which provide for a fine of not more than $10,000 or imprisonment for 
not more than five years, or both. For such a violation, the person is 
likewise subject to the civil penalties set out in 31 U.S.C. 3729 and 
3730.



PART 152_ASSISTANCE TO FIREFIGHTERS GRANT PROGRAM--Table of Contents




Sec.
152.1 Purpose and eligible uses of grant funds.
152.2 Definitions.
152.3 Availability of funds.
152.4 Roles and responsibilities.
152.5 Review process and evaluation criteria.
152.6 Application review and award process.
152.7 Grant payment, reporting and other requirements.
152.8 Application submission and deadline.
152.9 Reconsideration.

    Authority: Federal Fire Protection and Control Act, 15 U.S.C. 2201 
et seq.

    Source: 68 FR 12547, Mar. 14, 2003, unless otherwise noted.



Sec. 152.1  Purpose and eligible uses of grant funds.

    (a) This competitive grant program will provide funding directly to 
fire departments of a State for the purpose of enhancing departments 
abilities to protect the health and safety of the public, as well as 
that of firefighting personnel, facing fire and fire-related hazards. 
Eligible applicants can submit only one application per application 
period. Departments that submit multiple applications in one application 
period will have each of their applications deemed ineligible.
    (b) Eligible applicants are fire departments or fire departments of 
a State which is defined as an agency or organization that has a 
``formally recognized arrangement'' with a State, local or tribal 
authority (city, county, parish, fire district, township, town, or other 
non-Federal governing body) to provide fire suppression services within 
a fixed geographical area. A fire department can apply for assistance 
for its emergency medical services unit provided the unit falls 
organizationally under the auspices of the fire department. A 
municipality or fire district may submit an application on behalf of a 
fire department when the fire department lacks the legal status to do 
so, e.g., where the fire department falls within the auspices of the 
municipality. When a municipality or fire district submits an 
application on behalf of a fire department, the fire department is 
precluded from submitting an

[[Page 389]]

additional application. Non-Federal airport and/or port authority fire 
departments are eligible, but only if they have a formally recognized 
arrangement with the local jurisdiction to provide fire suppression, on 
a first-due basis, outside the confines of the airport or port 
facilities. Airport or port authority fire departments whose sole 
responsibility is suppression of fires on the airport grounds or port 
facilities are not eligible for this grant program. Fire departments 
that are Federal or contracted by the Federal government and whose sole 
responsibility is suppression of fires on Federal installations are not 
eligible for this grant program. Fire stations that are not independent 
but are part of, or controlled by a larger fire department or agency, 
are typically not eligible. Fire departments that are for-profit 
departments (i.e., do not have specific non-profit status or are not 
municipally based) are not eligible to apply for assistance under this 
program. Also not eligible for this program are ambulance services, 
rescue squads, auxiliaries, dive teams, urban search and rescue teams, 
fire service organizations or associations, and State/local agencies 
such as a forest service, fire marshal, hospitals, and training offices.
    (c) Congress included in the legislation a list of fourteen 
activities eligible for funding under this program. Those activities are 
as follows:
    (1) To hire additional firefighting personnel;
    (2) To train firefighting personnel in firefighting, emergency 
response (including response to a terrorism incident or use of a weapon 
of mass destruction), arson prevention and detection, or the handling of 
hazardous materials, or to train firefighting personnel to provide any 
of the training in this paragraph (c);
    (3) To fund the creation of rapid intervention teams to protect 
firefighting personnel at scenes of fires and other emergencies;
    (4) To certify fire inspectors;
    (5) To establish wellness and fitness programs for firefighting 
personnel to ensure that the firefighting personnel can carry out their 
duties;
    (6) To fund emergency medical services provided by fire departments;
    (7) To acquire additional firefighting vehicles, including fire 
trucks;
    (8) To acquire additional firefighting equipment, including 
equipment for communications, monitoring, and response to a terrorism 
incident or use of a weapon of mass destruction;
    (9) To acquire personal protective equipment required for 
firefighting personnel by the Occupational Safety and Health 
Administration, and other personal protective equipment for firefighting 
personnel, including protective equipment to respond to a terrorism 
incident or the use of a weapon of mass destruction;
    (10) To modify fire stations, fire training facilities, and other 
facilities to protect the health and safety of firefighting personnel;
    (11) To enforce fire codes;
    (12) To fund fire prevention programs;
    (13) To educate the public about arson prevention and detection; and
    (14) To provide incentives for the recruitment and retention of 
volunteer firefighting personnel for volunteer firefighting departments 
and other firefighting departments that utilize volunteers.
    (d) The specific activities that will be eligible for funding will 
be announced in the Notice of Funding Availability (NOFA) that we will 
publish pursuant to the program's annual appropriation.



Sec. 152.2  Definitions.

    Active firefighter is a member of a fire department or organization 
in good standing that is qualified to respond to and extinguish fires or 
perform other fire department emergency services and has actively 
participated in such activities during the past year.
    Bay is the part or compartment of a building that provides parking 
for one or more pieces of firefighting apparatus.
    Career department is a fire suppression agency or organization in 
which all active firefighters are considered full-time employees, are 
assigned regular duty shifts, and receive financial compensation for 
their services rendered on behalf of the department. Departments with 
active firefighters that are paid stipends on a per-call basis are not 
career departments. See the definition of

[[Page 390]]

combination department in this section.
    Combination department is a fire suppression agency or organization 
in which at least one active firefighter receives financial compensation 
for his/her services rendered on behalf of the department and at least 
one active firefighter does not receive financial compensation for his/
her services rendered on behalf of the department other than life/health 
insurance, workmen's compensation insurance, length of service awards, 
pay per-call or per-hour, or similar token compensation.
    Construction is the creation of a new structure or any modification 
of the footprint or profile of an existing structure. Changes or 
renovations to an existing structure that do not change the footprint or 
profile of the structure but exceed either $10,000 or 50 percent of the 
value of the structure, are also considered construction for the 
purposes of this grant program. Changes that are less than $10,000 and/
or 50 percent of the value of the structure are considered renovations, 
for the purposes of this grant program.
    Direct delivery of training is training conducted within a training 
organization's own jurisdiction using the organization's own resources 
(trainers, facilities, equipment, etc.).
    Fire boat is a vessel designed primarily for firefighting 
operations, however, may also be capable of water rescue and hazardous 
materials spills mitigation, etc. These vessels may also have the 
capability to pump a large volume of water from a drafting operation.
    Fire department or fire department of a State is an agency or 
organization that has a ``formally recognized arrangement'' with a 
State, local or tribal authority (city, county, parish, fire district, 
township, town, or other non-Federal governing body) to provide fire 
suppression services within a fixed geographical area. A fire department 
can apply for assistance for its emergency medical services unit 
provided the unit falls organizationally under the auspices of the fire 
department. A municipality or fire district may submit an application on 
behalf of a fire department when the fire department lacks the legal 
status to do so, e.g., where the fire department falls within the 
auspices of the municipality. When a municipality or fire district 
submits an application on behalf of a fire department, the fire 
department is precluded from submitting an additional application. Non-
Federal airport and/or port authority fire departments are eligible, but 
only if they have a formally recognized arrangement with the local 
jurisdiction to provide fire suppression services, on a first-due basis, 
outside the confines of the airport or port facilities. Airport or port 
authority fire departments whose sole responsibility is suppression of 
fires on the airport grounds or port facilities are not eligible for 
this grant program. Fire departments that are Federal or contracted by 
the Federal government and whose sole responsibility is suppression of 
fires on Federal installations are not eligible for this grant program. 
Fire departments or fire stations that are not independent but are part 
of, or controlled by a larger fire department or agency, are typically 
not eligible. Fire departments that are for-profit departments (i.e., do 
not have specific non-profit status or are not municipally based) are 
not eligible to apply for assistance under this program. Also not 
eligible for this program are ambulance services, rescue squads, 
auxiliaries, dive teams, urban search and rescue teams, fire service 
organizations or associations, and State/local agencies such as a forest 
service, fire marshal, hospitals, and training offices.
    Firefighter. See the definition of Active firefighter in this 
section.
    First-due response area is a geographical area in proximity to a 
fire or rescue facility and normally served by the personnel and 
apparatus from that facility in the event of a fire or other emergency.
    Formally recognized arrangement is an agreement between the fire 
department and a local jurisdiction such that the jurisdiction has 
publicly or otherwise formally deemed that the fire department has the 
first-due response responsibilities within a fixed geographical area of 
the jurisdiction. Often this agreement is recognized or reported to the 
appropriate State entity with cognizance over fire departments, such as

[[Page 391]]

registration with the State Fire Marshal's office, or the agreement is 
specifically contained in the fire department's or jurisdiction's 
charter.
    Integrated communication systems and devices are equipment or 
systems for dispatch centers or communication infrastructure. Examples 
of these include 911 systems, computer-aided dispatch systems, global 
positioning systems, fixed repeaters, etc. Towers are an integral part 
of any communication system, but they are not eligible to be included in 
any award under this program.
    New mission is a first-responder function that a department has 
never delivered in the past or that was once delivered but has since 
been abandoned by the department due to the lack of funding or community 
support. Examples include technical search and rescue, emergency medical 
services, hazardous materials response, etc. A new mission does not 
include services already provided from existing facilities. Opening 
additional stations to provide similar services would be considered an 
expansion of existing services.
    Population means permanent residents in the first-due response area 
or jurisdiction served by the applicant. It would include students but 
does not include seasonal population or any population in area that the 
fire department responds to under mutual/automatic aid agreements.
    Prop is something that can be held up in a classroom or moved from 
site to site in order to facilitate or enhance the training experience. 
A training tower (pre-fabricated or constructed) is not a prop.
    Renovation is changes or alterations or modifications to an existing 
structure that do not exceed either $10,000 and/or 50 percent of the 
market value of the structure and do not involve a change in the 
footprint or profile of the structure.
    Rural community is a community that has low population density, 
zoned agricultural or parkland, and whose fire department has a 
relatively low volume of fire calls.
    State means any of the fifty States, the District of Columbia, 
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands.
    Suburban community is a community that has a medium density 
population with a portion of their jurisdiction being zoned for 
industrial and/or commercial uses, and whose fire department has a high 
call volume relative to a rural community.
    Supplies means any expendable property that typically has a one-time 
use limit and an expectation of being replaced within one year.
    The United States Fire Administrator's (USFA) operational and 
performance objectives are to reduce losses of life and reduce economic 
losses due to fire and related emergencies. Specific target groups are 
children under 14 years old, seniors over 65 years old, and 
firefighters.
    Urban community is a community with a high density population with a 
major proportion of its jurisdiction zoned for commercial and/or 
industrial use and a significant call volume.
    Vehicle is a mechanized device used for carrying passengers, goods, 
or equipment. Examples of vehicles include, but are not limited to: 
pumpers, brush trucks, tankers, tenders, attack pumpers, rescue 
(transport and non-transport), ambulances, foam units, quints, aerials, 
ladders, hazmat vehicles, squads, crash rescue (ARFF), boats, 
hovercraft, planes, and helicopters. Details concerning vehicle 
eligibility will be provided in the NOFA that will be published pursuant 
to this program's annual appropriation.
    Volunteer department is a fire suppression agency or organization in 
which no active firefighters are considered full-time employees, and 
which no members receive financial compensation for their services 
rendered on behalf of the department other than life/health insurance, 
workers' compensation insurance, length of service awards, pay per-call 
or per-hour, or similar token compensation.
    Watercraft is a small boat (less than 13 feet in length) or other 
watercraft designed and equipped for water and/or ice rescue, rather 
than basic firefighting operations. Generally, these vessels will be 
equipped with water rescue equipment, flotation devices, and

[[Page 392]]

other basic medical and rescue equipment and their primary function will 
be rescue activities.



Sec. 152.3  Availability of funds.

    (a) Fire departments that have received funding under the Assistance 
to Firefighter Grant Program in previous years are eligible to apply for 
funding in the current year. However, due to our responsibilities under 
this program to assure adequate distribution of awards amongst certain 
types of departments (career, combination and volunteer) and certain 
types of communities (urban, suburban or rural) as well as a equitable 
geographic distribution, we reserve the right to fund or not to fund 
previous recipients of grants under this program in order for us to 
fulfill these responsibilities.
    (b) No applicant can receive more than $750,000 in Federal grant 
funds under this program in any fiscal year.
    (c) No applicant can submit more than one application per fiscal 
year. Applicants that submit multiple applications will have each of 
their applications deemed ineligible.
    (d) The scoring of the applications will determine the distribution 
of the funding across the eligible programs. Notwithstanding anything in 
this part, no more than twenty-five (25) percent of the funds 
appropriated for grants shall be used to assist grant recipients to 
purchase firefighting vehicles and not less than five (5) percent of the 
funds shall be used for fire prevention programs.
    (e) We will not provide assistance under this part for activities 
for which another Federal agency has more specific or primary authority 
to provide assistance for the same purpose. We may disallow or recoup 
amounts that fall within other Federal agency's authority.



Sec. 152.4  Roles and responsibilities.

    (a) Applicants must:
    (1) Complete the application and certify to the accuracy of all the 
information contained therein;
    (2) Certify that they are an eligible applicant, i.e., a fire 
department, as defined in this part;
    (3) Certify that the person submitting the application is duly 
authorized to do so, and
    (b) Recipients (Grantees) must agree to:
    (1) Share in the costs of the projects funded under this grant 
program. Fire departments in areas serving populations over 50,000 must 
agree to match the Federal grant funds with an amount of non-Federal 
funds equal to thirty (30) percent of the total project cost. Fire 
departments serving areas with a population of 50,000 or less will have 
to match the Federal grant funds with an amount of non-Federal funds 
equal to ten (10) percent of the total project cost. No waivers of this 
requirement will be granted except for fire departments of Insular Areas 
as provided for in 48 U.S.C. 1469a.
    (2) Maintain operating expenditures during the grant's period of 
performance in the areas funded by a grant at a level equal to or 
greater than the average of their operating expenditures in the two 
years preceding the year in which this assistance is received.
    (3) Obtain the appropriate Federal, State, or local permits 
necessary to fulfill the grant's scope of work including historical and/
or environmental clearances as required.
    (4) Retain grant files and supporting documentation for three years 
after the official closeout of the grant.
    (5) Report to FEMA on the progress made on the grant and financial 
status of the grant. The award documents will detail the specific period 
of performance for each grantee and provide instructions on the 
frequency and timing of the required performance reports.
    (6) Maintain documentation to support the expenditure of grant funds 
as well as pertinent grant decisions.
    (7) Make their grant files and other books and records related to 
the grant, available if requested for an audit to ensure compliance with 
any requirement of the grant program.
    (8) Agree to provide information to the U.S. Fire Administration's 
National Fire Incident Reporting System (NFIRS) for the period covered 
by the grant. If a grantee does not currently participate in the 
incident reporting system and does not have the capacity to report at 
the time of the award, that

[[Page 393]]

grantee must agree to provide information to the system for a twelve-
month period commencing as soon as they develop the capacity to report. 
Capacity to report to the NFIRS must be established prior to the 
termination of the one-year performance period. [NFIRS is under review 
for approval by the Office of Management and Budget under OMB control 
number 3067-0161.]
    (c) FEMA activities:
    (1) We will ensure that the funds are awarded based on the 
priorities and expected benefits articulated in the statute, this part, 
USFA's strategic plan, and the Notice of Funds Availability.
    (2) We will ensure that not more than twenty-five (25) percent of 
the appropriated funding will be used to purchase firefighting vehicles.
    (3) We will ensure that not less than five (5) percent of the funds 
are made available to national, State, local, or community 
organizations, including fire departments, for the purpose of carrying 
out fire prevention programs.
    (4) We will ensure that fire departments with volunteer staff, or 
staff comprised of a combination of career fire fighters and volunteers, 
receive a proportion of the total grant funding that is not less than 
the proportion of the United States population that those firefighting 
departments protect.
    (5) We will ensure that grants are made to fire departments located 
in urban, suburban, and rural communities.
    (6) We will strive to ensure geographic diversity of awards as 
stipulated in Sec. 152.6.
    (7) We will strive to ensure that activities funded under this grant 
program are consistent with the programs goals and intent, and generally 
in the government's best interest.
    (8) We will provide the chief executives of the States with 
information concerning the total number and dollar amount of awards made 
to fire departments in their States; the program areas and activities 
supported by these grants; and other information about specific awards 
when generated and available.



Sec. 152.5  Review process and evaluation criteria.

    (a) Every application will be evaluated based on the answers to the 
activity-specific questions during our initial screening. The 
applications that are determined to best address the Assistance to 
Firefighters Grant Program's established priorities during this initial 
screening will be in the ``competitive range'' and subject to a second 
level of review. We will use the narratives/supplemental information 
provided by the applicants in their grant applications to evaluate, on a 
competitive basis, the merits and benefits of each request for funding. 
In selecting applications for award, we will evaluate each application 
for assistance independently based on established eligibility criteria 
and the program priorities. Eligible applicants that best address the 
priorities will advance to a second level of review. The second level of 
review involves an assessment of the financial needs of the applicant, 
and an analysis of the benefits that would result from the grant award.
    (b) In order to be successful at this second level of the 
evaluation, an applicant must complete the narrative section of the 
application package. The narrative should include a detailed description 
of the planned program, uses for the grant funds including details of 
each budget line item. For example, if personnel costs are included in 
the budget, please provide a break down of what those costs are for. The 
narrative should explain why the grant funds are needed and why the 
department has not been able to obtain funding for the planned 
activities on its own. A discussion of financial need should include a 
discussion of any Federal funding received for similar activities. 
Finally, the applicant's narrative should detail the benefits the 
department or community will realize as a result of the grant award.
    (c) This second level of review will be conducted using a panel of 
technical evaluation panelists. These panelists are largely made up of 
non-Federal experts with a fire service background. The panelists will 
assess the application's merits with respect to the clarity and detail 
provided in the narrative

[[Page 394]]

about the project, the applicant's financial need, and the project's 
purported benefit to be derived from the cost. Technical evaluation 
panelists will independently score each application before them and then 
discuss the merits/shortcomings of the application in an effort to 
reconcile any major discrepancies. A consensus on the score is not 
required. The highest scoring applications resulting from this second 
level of review will then be considered for award. We seek to maximize 
the benefits derived from the funding by crediting applicants with the 
greatest financial need and whose proposed activities provide the 
greatest benefit versus the cost.
    (d) In addition to the project narrative, the applicant must provide 
an itemized budget detailing the use of the grant funds. If an applicant 
is seeking funds in more than one eligible activity within a program, 
separate budgets will have to be generated for each activity and then an 
overall or summary budget will have to be generated. For those 
applicants applying on line, the summary budget will be automatically 
generated by the e-grants system.
    (e) Specific rating criteria for each of the eligible programs will 
be published in a Notice of Funding Availability that we will publish 
pursuant to the program's annual appropriation.



Sec. 152.6  Application review and award process.

    (a) As stated in Sec. 152.5, we will evaluate each application in 
the preliminary screening process to determine which applications best 
address the program's established priorities. The best applications as 
determined in this preliminary step will be deemed to be in the 
``competitive range.'' All applications in the competitive range will 
advance to a second level review by a technical evaluation panel. Using 
the evaluation criteria detailed in the Program Guidance and in the NOFA 
(both of which are published pursuant to this program's annual 
appropriation), the panelists will score each application they evaluate. 
The assigned score will reflect the degree to which the applicant: 
clearly relates their proposed project; demonstrates financial need; 
and, details a high benefit to cost value of the proposed activities. We 
will provide the panelists the complete application content for their 
evaluation. We will also provide them with reference materials for 
national standards or regulations and guidelines with respect to typical 
costs for proposed apparatus and equipment purchases.
    (b) Our award decisions will be based on the stated priorities of 
the grant program first, then on the demonstrated need of the applicant 
and the benefits to be derived from the proposed projects. We will make 
awards on a competitive basis, i.e., we will fund the highest scored 
applications before considering lower scored applications.
    (c) In a few cases, to fulfill our obligations under the law to make 
grants to a variety of departments, we may also make funding decisions 
using rank order as the preliminary basis, and then analyze the type of 
fire department (paid, volunteer, or combination fire departments), the 
size and character of the community it serves (urban, suburban, or 
rural), and/or the geographic location of the fire department. In these 
instances where we are making decisions based on geographic location, we 
will use States as the basic geographic unit. We may also base our 
funding decisions on previous grant awards funded by this program and/or 
grantees' performance on previous grants and a technical evaluation of 
reasonable costs for labor, services, materials or equipment.



Sec. 152.7  Grant payment, reporting and other requirements.

    (a) Grantees will have twelve months to incur obligations and 
complete the scope of work to fulfill their responsibilities under this 
grant program. The performance period of each grant will be detailed in 
the Articles of Agreement that we provide each grantee. Grantees may 
request funds from FEMA as reimbursement for expenditures made under the 
grant program or they may request funds for immediate cash needs under 
FEMA regulations (44 CFR 13.21). Advances of funds may also be approved 
to meet immediate cash needs.
    (b) Generally, fire departments cannot use grant funds to pay for 
products

[[Page 395]]

and services contracted for, or purchased prior to the effective date of 
the grant. However, we will consider requests for reimbursement for 
these on an exception basis. Expenses incurred after the application 
deadline but prior to award may be eligible for reimbursement if the 
expenses were justified, unavoidable (i.e., urgent and compelling), 
consistent with the scope of work, and specifically approved by the 
Assistance Officer. Expenses, obligations, commitments or contracts 
incurred or entered into prior to the application deadline are not 
eligible to be included as an expense.
    (c) All grantees must follow their own established procurement 
process when buying anything with Federal grant funds (as provided in 44 
CFR 13.26). If the grantee does not have an established procurement 
process, they must seek a minimum of two bids for any acquisition.
    (d) When requesting funding, grantees can only request an amount 
that is necessary to satisfy their immediate cash needs directly related 
to the grant, i.e., an amount equal to the total eligible grant expenses 
due within 30 days. Grantees can request payments of up to one hundred 
(100) percent of the federal share of the award amount but only if 
delivery of the ordered products and/or services is imminent 
(approximately 30 days) and the resulting payment will require the 
entire amount of funds.
    (e) A grantee may request sufficient funding for a down payment if 
required to do so by the seller, such as in grants involving some 
purchases of firefighting vehicles. The grantee may request as much as 
fifty (50) percent of the federal share of the award amount at the time 
of the order placement to pay the down payment. The grantee may request 
the balance of the federal share upon delivery of the ordered equipment 
or vehicle.
    (f) The recipients of funding under this program must report to us 
on how the grant funding was used and the benefits that resulted. This 
will be accomplished via submission of performance reports. Details 
regarding the reporting requirements will be provided in the Articles of 
Agreement provided to each grantee.
    (g) Fire departments that receive funding under this program must 
agree to provide information to the National Fire Incident Reporting 
System (NFIRS) for the period covered by the assistance. If a grantee 
does not currently participate in the incident reporting system and does 
not have the capacity to report at the time of the award, that grantee 
must agree to provide information to the system for a twelve-month 
period commencing as soon as possible after they develop the capacity to 
report. Capacity to report to the NFIRS must be established prior to the 
termination of the one-year performance period. [NFIRS is under review 
for approval by the Office of Management and Budget under OMB control 
number 3067-0161.]



Sec. 152.8  Application submission and deadline.

    In each year that this program is authorized and receives an 
appropriation, we will announce the grants availability via Notice of 
Funds Availability. That Notice will contain all pertinent information 
concerning the eligible funding activities, funding priorities, funding 
levels, application period, timelines, and deadlines.



Sec. 152.9  Reconsideration.

    (a) Reconsideration of initial grant award decisions. We will review 
our decision with respect to an initial grant award decision only when 
the applicant asserts that we have made a material technical or 
procedural error in the processing of the application and can 
substantiate such assertions. As grants are awarded on a competitive 
basis, in accordance with the findings of an independent panel of 
experts, we cannot consider requests for reconsideration based upon the 
merits of an original application. Similarly, we will not consider new 
information provided after the submission of the original application. 
In the case of new information, we encourage applicants to incorporate 
their changed circumstances into their applications for future grant 
cycles.
    (b) Reconsideration of other decisions. We will consider requests 
for reconsideration of decisions other than those

[[Page 396]]

related to the initial grant award on their merits.
    (c) We must receive a request for reconsideration under this section 
within 60 days of the date of the notice of the decision for which 
reconsideration is requested.
    (d) Requests for reconsideration should be directed to: Director, 
Grants Program Office, U.S. Fire Administration, FEMA, 500 C Street, 
SW., Room 330, Washington, DC 20472.

                        PARTS 153-199 [RESERVED]

[[Page 397]]



                    SUBCHAPTER D_DISASTER ASSISTANCE



                           PART 200 [RESERVED]



PART 201_MITIGATION PLANNING--Table of Contents




Sec.
201.1 Purpose.
201.2 Definitions.
201.3 Responsibilities.
201.4 Standard State Mitigation Plans.
201.5 Enhanced State Mitigation Plans.
201.6 Local Mitigation Plans.

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121-5206; 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; 
and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214.

    Source: 67 FR 8848, Feb. 26, 2002, unless otherwise noted.



Sec. 201.1  Purpose.

    (a) The purpose of this part is to provide information on the 
polices and procedures for mitigation planning as required by the 
provisions of section 322 of the Stafford Act, 42 U.S.C. 5165.
    (b) The purpose of mitigation planning is for State, local, and 
Indian tribal governments to identify the natural hazards that impact 
them, to identify actions and activities to reduce any losses from those 
hazards, and to establish a coordinated process to implement the plan, 
taking advantage of a wide range of resources.



Sec. 201.2  Definitions.

    Grantee means the government to which a grant is awarded, 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. Generally, the State is the 
grantee. However, after a declaration, an Indian tribal government may 
choose to be a grantee, or may act as a subgrantee under the State. An 
Indian tribal government acting as grantee will assume the 
responsibilities of a ``state'', as described in this part, for the 
purposes of administering the grant.
    Hazard mitigation means any sustained action taken to reduce or 
eliminate the long-term risk to human life and property from hazards.
    Hazard Mitigation Grant Program means the program authorized under 
section 404 of the Stafford Act, 42 U.S.C 5170c and implemented at 44 
CFR Part 206, Subpart N, which authorizes funding for certain mitigation 
measures identified through the evaluation of natural hazards conducted 
under section 322 of the Stafford Act 42 U.S.C 5165.
    Indian tribal government means any Federally recognized governing 
body of an Indian or Alaska Native tribe, band, nation, pueblo, village, 
or community that the Secretary of Interior acknowledges to exist as an 
Indian tribe under the Federally Recognized Tribe List Act of 1994, 25 
U.S.C. 479a. This does not include Alaska Native corporations, the 
ownership of which is vested in private individuals.
    Local government is any county, municipality, city, town, township, 
public authority, school district, special district, intrastate 
district, council of governments (regardless of whether the council of 
governments is incorporated as a nonprofit corporation under State law), 
regional or interstate government entity, or agency or instrumentality 
of a local government; any Indian tribe or authorized tribal 
organization, or Alaska Native village or organization; and any rural 
community, unincorporated town or village, or other public entity.
    Managing State means a State to which FEMA has delegated the 
authority to administer and manage the HMGP under the criteria 
established by FEMA pursuant to 42 U.S.C. 5170c(c). FEMA may also 
delegate authority to tribal governments to administer and manage the 
HMGP as a Managing State.
    Regional Director is a director of a regional office of FEMA, or 
his/her designated representative.
    Small and impoverished communities means a community of 3,000 or 
fewer individuals that is identified by the State as a rural community, 
and is not a remote area within the corporate

[[Page 398]]

boundaries of a larger city; is economically disadvantaged, by having an 
average per capita annual income of residents not exceeding 80 percent 
of national, per capita income, based on best available data; the local 
unemployment rate exceeds by one percentage point or more, the most 
recently reported, average yearly national unemployment rate; and any 
other factors identified in the State Plan in which the community is 
located.
    The Stafford Act refers to the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act, Public Law 93-288, as amended (42 U.S.C. 
5121-5206).
    State is 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.
    State Hazard Mitigation Officer is the official representative of 
State government who is the primary point of contact with FEMA, other 
Federal agencies, and local governments in mitigation planning and 
implementation of mitigation programs and activities required under the 
Stafford Act.
    Subgrantee means the 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. Subgrantees can be a State agency, local 
government, private non-profit organizations, or Indian tribal 
government. Indian tribal governments acting as a subgrantee are 
accountable to the State grantee.



Sec. 201.3  Responsibilities.

    (a) General. This section identifies the key responsibilities of 
FEMA, States, and local/tribal governments in carrying out section 322 
of the Stafford Act, 42 U.S.C. 5165.
    (b) FEMA. The key responsibilities of the Regional Director are to:
    (1) Oversee all FEMA related pre- and post-disaster hazard 
mitigation programs and activities;
    (2) Provide technical assistance and training to State, local, and 
Indian tribal governments regarding the mitigation planning process;
    (3) Review and approve all Standard and Enhanced State Mitigation 
Plans;
    (4) Review and approve all local mitigation plans, unless that 
authority has been delegated to the State in accordance with Sec. 
201.6(d);
    (5) Conduct reviews, at least once every three years, of State 
mitigation activities, plans, and programs to ensure that mitigation 
commitments are fulfilled, and when necessary, take action, including 
recovery of funds or denial of future funds, if mitigation commitments 
are not fulfilled.
    (c) State. The key responsibilities of the State are to coordinate 
all State and local activities relating to hazard evaluation and 
mitigation and to:
    (1) Prepare and submit to FEMA a Standard State Mitigation Plan 
following the criteria established in Sec. 201.4 as a condition of 
receiving Stafford Act assistance (except emergency assistance).
    (2) In order to be considered for the 20 percent HMGP funding, 
prepare and submit an Enhanced State Mitigation Plan in accordance with 
Sec. 201.5, which must be reviewed and updated, if necessary, every 
three years from the date of the approval of the previous plan.
    (3) At a minimum, review and, if necessary, update the Standard 
State Mitigation Plan by November 1, 2004 and every three years from the 
date of the approval of the previous plan in order to continue program 
eligibility.
    (4) Make available the use of up to the 7 percent of HMGP funding 
for planning in accordance with Sec. 206.434.
    (5) Provide technical assistance and training to local governments 
to assist them in applying for HMGP planning grants, and in developing 
local mitigation plans.
    (6) For Managing States that have been approved under the criteria 
established by FEMA pursuant to 42 U.S.C. 5170c(c), review and approve 
local mitigation plans in accordance with Sec. 201.6(d).
    (7) If necessary, submit a request from the Governor to the Director 
of FEMA, requesting an extension to the plan deadline in accordance with 
Sec. 201.4(a)(2).
    (d) Local governments. The key responsibilities of local governments 
are to:
    (1) Prepare and adopt a jurisdiction-wide natural hazard mitigation 
plan as

[[Page 399]]

a condition of receiving project grant funds under the HMGP, in 
accordance with Sec. 201.6.
    (2) At a minimum, review and, if necessary, update the local 
mitigation plan every five years from date of plan approval to continue 
program eligibility.
    (e) Indian tribal governments. Indian tribal governments will be 
given the option of applying directly to us for Hazard Mitigation Grant 
Program funding, or they may choose to apply through the State. If they 
apply directly to us, they will assume the responsibilities of the 
State, or grantee, and if they apply through the State, they will assume 
the responsibilities of the local government, or subgrantee.

[67 FR 8848, Feb. 26, 2002, as amended at 67 FR 61515, Oct. 1, 2002; 69 
FR 55096, Sept. 13, 2004]



Sec. 201.4  Standard State Mitigation Plans.

    (a) Plan requirement. (1) By November 1, 2004, States must have an 
approved Standard State Mitigation Plan meeting the requirements of this 
section in order to receive assistance under the Stafford Act, although 
assistance authorized under disasters declared prior to November 1, 2004 
will continue to be made available. Until that date, existing, FEMA 
approved State Mitigation Plans will be accepted. In any case, 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 Robert T. Stafford Disaster 
Relief and Emergency Assistance 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. States may choose to include the 
requirements of the HMGP Administrative Plan in their mitigation plan, 
but must comply with the requirement for updates, amendments, or 
revisions listed under 44 CFR 206.437.
    (2) A Governor, or Indian tribal leader, may request an extension to 
the plan approval deadline by submitting a request in writing to the 
Director of FEMA, through the Regional Director. At a minimum, this must 
be signed by the Governor or the Indian tribal leader, and must include 
justification for the extension, identification of the reasons the plan 
has not been completed, identification of the amount of additional time 
required to complete the plan, and a strategy for finalizing the plan. 
The Director of FEMA will review each request and may grant a plan 
approval extension of up to six months. However, any extended plan 
approval deadline will be no later than May 1, 2005.
    (b) Planning process. An effective planning process is essential in 
developing and maintaining a good plan. The mitigation planning process 
should include coordination with other State agencies, appropriate 
Federal agencies, interested groups, and be integrated to the extent 
possible with other ongoing State planning efforts as well as other FEMA 
mitigation programs and initiatives.
    (c) Plan content. To be effective the plan must include the 
following elements:
    (1) Description of the planning process used to develop the plan, 
including how it was prepared, who was involved in the process, and how 
other agencies participated.
    (2) Risk assessments that provide the factual basis for activities 
proposed in the strategy portion of the mitigation plan. Statewide risk 
assessments must characterize and analyze natural hazards and risks to 
provide a statewide overview. This overview will allow the State to 
compare potential losses throughout the State and to determine their 
priorities for implementing mitigation measures under the strategy, and 
to prioritize jurisdictions for receiving technical and financial 
support in developing more detailed local risk and vulnerability 
assessments. The risk assessment shall include the following:
    (i) An overview of the type and location of all natural hazards that 
can affect the State, including information on previous occurrences of 
hazard

[[Page 400]]

events, as well as the probability of future hazard events, using maps 
where appropriate;
    (ii) An overview and analysis of the State's vulnerability to the 
hazards described in this paragraph (c)(2), based on estimates provided 
in local risk assessments as well as the State risk assessment. The 
State shall describe vulnerability in terms of the jurisdictions most 
threatened by the identified hazards, and most vulnerable to damage and 
loss associated with hazard events. State owned critical or operated 
facilities located in the identified hazard areas shall also be 
addressed;
    (iii) An overview and analysis of potential losses to the identified 
vulnerable structures, based on estimates provided in local risk 
assessments as well as the State risk assessment. The State shall 
estimate the potential dollar losses to State owned or operated 
buildings, infrastructure, and critical facilities located in the 
identified hazard areas.
    (3) A Mitigation Strategy that provides the State's blueprint for 
reducing the losses identified in the risk assessment. This section 
shall include:
    (i) A description of State goals to guide the selection of 
activities to mitigate and reduce potential losses.
    (ii) A discussion of the State's pre- and post-disaster hazard 
management policies, programs, and capabilities to mitigate the hazards 
in the area, including: an evaluation of State laws, regulations, 
policies, and programs related to hazard mitigation as well as to 
development in hazard-prone areas; a discussion of State funding 
capabilities for hazard mitigation projects; and a general description 
and analysis of the effectiveness of local mitigation policies, 
programs, and capabilities.
    (iii) An identification, evaluation, and prioritization of cost-
effective, environmentally sound, and technically feasible mitigation 
actions and activities the State is considering and an explanation of 
how each activity contributes to the overall mitigation strategy. This 
section should be linked to local plans, where specific local actions 
and projects are identified.
    (iv) Identification of current and potential sources of Federal, 
State, local, or private funding to implement mitigation activities.
    (4) A section on the Coordination of Local Mitigation Planning that 
includes the following:
    (i) A description of the State process to support, through funding 
and technical assistance, the development of local mitigation plans.
    (ii) A description of the State process and timeframe by which the 
local plans will be reviewed, coordinated, and linked to the State 
Mitigation Plan.
    (iii) Criteria for prioritizing communities and local jurisdictions 
that would receive planning and project grants under available funding 
programs, which should include consideration for communities with the 
highest risks, repetitive loss properties, and most intense development 
pressures. Further, that for non-planning grants, a principal criterion 
for prioritizing grants shall be the extent to which benefits are 
maximized according to a cost benefit review of proposed projects and 
their associated costs.
    (5) A Plan Maintenance Process that includes:
    (i) An established method and schedule for monitoring, evaluating, 
and updating the plan.
    (ii) A system for monitoring implementation of mitigation measures 
and project closeouts.
    (iii) A system for reviewing progress on achieving goals as well as 
activities and projects identified in the Mitigation Strategy.
    (6) A Plan Adoption Process. The plan must be formally adopted by 
the State prior to submittal to us for final review and approval.
    (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). The State will amend its plan whenever 
necessary to reflect changes in State or Federal laws and statutes as 
required in 44 CFR 13.11(d).
    (d) Review and updates. Plan must be reviewed and revised to reflect 
changes in development, progress in statewide mitigation efforts, and 
changes in priorities and resubmitted for approval to the appropriate 
Regional Director

[[Page 401]]

every three years. The Regional review will be completed within 45 days 
after receipt from the State, whenever possible. We also encourage a 
State to review its plan in the post-disaster timeframe to reflect 
changing priorities, but it is not required.

[67 FR 8848, Feb. 26, 2002, as amended at 67 FR 61515, Oct. 1, 2002; 69 
FR 55096, Sept. 13, 2004]



Sec. 201.5  Enhanced State Mitigation Plans.

    (a) A State with a FEMA approved Enhanced State Mitigation Plan at 
the time of a disaster declaration is eligible to receive increased 
funds under the HMGP, based on twenty percent of the total estimated 
eligible Stafford Act disaster assistance. The Enhanced State Mitigation 
Plan must demonstrate that a State has developed a comprehensive 
mitigation program, that the State effectively uses available mitigation 
funding, and that it is capable of managing the increased funding. In 
order for the State to be eligible for the 20 percent HMGP funding, FEMA 
must have approved the plan within three years prior to the disaster 
declaration.
    (b) Enhanced State Mitigation Plans must include all elements of the 
Standard State Mitigation Plan identified in Sec. 201.4, as well as 
document the following:
    (1) Demonstration that the plan is integrated to the extent 
practicable with other State and/or regional planning initiatives 
(comprehensive, growth management, economic development, capital 
improvement, land development, and/or emergency management plans) and 
FEMA mitigation programs and initiatives that provide guidance to State 
and regional agencies.
    (2) Documentation of the State's project implementation capability, 
identifying and demonstrating the ability to implement the plan, 
including:
    (i) Established eligibility criteria for multi-hazard mitigation 
measures.
    (ii) A system to determine the cost effectiveness of mitigation 
measures, consistent with OMB Circular A-94, Guidelines and Discount 
Rates for Benefit-Cost Analysis of Federal Programs, and to rank the 
measures according to the State's eligibility criteria.
    (iii) Demonstration that the State has the capability to effectively 
manage the HMGP as well as other mitigation grant programs, including a 
record of the following:
    (A) Meeting HMGP and other mitigation grant application timeframes 
and submitting complete, technically feasible, and eligible project 
applications with appropriate supporting documentation;
    (B) Preparing and submitting accurate environmental reviews and 
benefit-cost analyses;
    (C) Submitting complete and accurate quarterly progress and 
financial reports on time; and
    (D) Completing HMGP and other mitigation grant projects within 
established performance periods, including financial reconciliation.
    (iv) A system and strategy by which the State will conduct an 
assessment of the completed mitigation actions and include a record of 
the effectiveness (actual cost avoidance) of each mitigation action.
    (3) Demonstration that the State effectively uses existing 
mitigation programs to achieve its mitigation goals.
    (4) Demonstration that the State is committed to a comprehensive 
state mitigation program, which might include any of the following:
    (i) A commitment to support local mitigation planning by providing 
workshops and training, State planning grants, or coordinated capability 
development of local officials, including Emergency Management and 
Floodplain Management certifications.
    (ii) A statewide program of hazard mitigation through the 
development of legislative initiatives, mitigation councils, formation 
of public/private partnerships, and/or other executive actions that 
promote hazard mitigation.
    (iii) The State provides a portion of the non-Federal match for HMGP 
and/or other mitigation projects.
    (iv) To the extent allowed by State law, the State requires or 
encourages local governments to use a current version of a nationally 
applicable model building code or standard that addresses natural 
hazards as a basis for

[[Page 402]]

design and construction of State sponsored mitigation projects.
    (v) A comprehensive, multi-year plan to mitigate the risks posed to 
existing buildings that have been identified as necessary for post-
disaster response and recovery operations.
    (vi) A comprehensive description of how the State integrates 
mitigation into its post-disaster recovery operations.
    (c) Review and updates. (1) A State must review and revise its plan 
to reflect changes in development, progress in statewide mitigation 
efforts, and changes in priorities, and resubmit it for approval to the 
appropriate Regional Director every three years. The Regional review 
will be completed within 45 days after receipt from the State, whenever 
possible.
    (2) In order for a State to be eligible for the 20 percent HMGP 
funding, the Enhanced State Mitigation plan must be approved by FEMA 
within the three years prior to the current major disaster declaration.



Sec. 201.6  Local Mitigation Plans.

    The local mitigation plan is the representation of the 
jurisdiction'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. Local plans will also serve as the basis for 
the State to provide technical assistance and to prioritize project 
funding.
    (a) Plan requirements.
    (1) For disasters declared on or after November 1, 2004, a local 
government must have a mitigation plan approved pursuant to this section 
in order to receive HMGP project grants.
    (2) Local governments must have a mitigation plan approved pursuant 
to this section in order to receive a project grant through the Pre-
Disaster Mitigation (PDM) program under any Notice of funding 
opportunity issued after November 1, 2003. The PDM program is authorized 
under Sec. 203 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5133. PDM planning grants will continue to be 
made available to local governments after this time to enable them to 
meet the requirements of this section.
    (3) Regional Directors may grant an exception to the plan 
requirement in extraordinary circumstances, such as in a small and 
impoverished community, when justification is provided. In these cases, 
a plan will be completed within 12 months of the award of the project 
grant. If a plan is not provided within this timeframe, the project 
grant will be terminated, and any costs incurred after notice of grant's 
termination will not be reimbursed by FEMA.
    (4) Multi-jurisdictional plans (e.g. watershed plans) may be 
accepted, as appropriate, as long as each jurisdiction has participated 
in the process and has officially adopted the plan. State-wide plans 
will not be accepted as multi-jurisdictional plans.
    (b) Planning process. An open public involvement process is 
essential to the development of an effective plan. In order to develop a 
more comprehensive approach to reducing the effects of natural 
disasters, the planning process shall include:
    (1) An opportunity for the public to comment on the plan during the 
drafting stage and prior to plan approval;
    (2) An opportunity for neighboring communities, local 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 non-profit interests to be involved in 
the planning process; and
    (3) Review and incorporation, if appropriate, of existing plans, 
studies, reports, and technical information.
    (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.
    (2) A risk assessment that provides the factual basis for activities 
proposed in the strategy to reduce losses from identified hazards. Local 
risk assessments must provide sufficient information to enable the 
jurisdiction to identify and prioritize appropriate mitigation actions 
to reduce losses from identified

[[Page 403]]

hazards. The risk assessment shall include:
    (i) A description of the type, location, and extent of all natural 
hazards that can affect the jurisdiction. The plan shall include 
information on previous occurrences of hazard events and on the 
probability of future hazard events.
    (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. 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) Providing a general description of land uses and development 
trends within the community so that mitigation options can be considered 
in future land use decisions.
    (iii) For multi-jurisdictional plans, the risk assessment section 
must assess each jurisdiction's risks where they vary from the risks 
facing the entire planning area.
    (3) A mitigation strategy that provides the jurisdiction'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 local jurisdiction. Prioritization shall include 
a special emphasis on the extent to which benefits are maximized 
according to a cost benefit review of the proposed projects and their 
associated costs.
    (iv) For multi-jurisdictional plans, there must be identifiable 
action items specific to the jurisdiction requesting FEMA approval or 
credit of the plan.
    (4) A plan maintenance process that includes:
    (i) A section describing the method and schedule of monitoring, 
evaluating, and updating the mitigation plan within a five-year cycle.
    (ii) A process by which local governments incorporate the 
requirements of the mitigation plan into other planning mechanisms such 
as comprehensive or capital improvement plans, when appropriate.
    (iii) Discussion on how the community will continue public 
participation in the plan maintenance process.
    (5) Documentation that the plan has been formally adopted by the 
governing body of the jurisdiction requesting approval of the plan 
(e.g., City Council, County Commissioner, Tribal Council). For multi-
jurisdictional plans, each jurisdiction requesting approval of the plan 
must document that it has been formally adopted.
    (d) Plan review. (1) Plans must be submitted to the State Hazard 
Mitigation Officer for initial review and coordination. The State will 
then send the plan to the appropriate FEMA Regional Office for formal 
review and approval.
    (2) The Regional review will be completed within 45 days after 
receipt from the State, whenever possible.
    (3) Plans must be reviewed, revised if appropriate, and resubmitted 
for approval within five years in order to continue to be eligible for 
HMGP project grant funding.
    (4) Managing States that have been approved under the criteria 
established by FEMA pursuant to 42 U.S.C. 5170c(c) will be delegated 
approval authority for local mitigation plans, and the review will be 
based on the criteria in this part. Managing States will review the 
plans within 45 days of receipt of

[[Page 404]]

the plans, whenever possible, and provide a copy of the approved plans 
to the Regional Office.

[67 FR 8848, Feb. 26, 2002, as amended at 67 FR 61515, Oct. 1, 2002; 68 
FR 61370, Oct. 28, 2003; 69 FR 55096, Sept. 13, 2004]

                        PARTS 202-203 [RESERVED]



PART 204_FIRE MANAGEMENT ASSISTANCE GRANT PROGRAM--Table of Contents




                            Subpart A_General

Sec.
204.1 Purpose.
204.2 Scope.
204.3 Definitions used throughout this part.
204.4-204.20 [Reserved]

                      Subpart B_Declaration Process

204.21 Fire management assistance declaration criteria.
204.22 Submitting a request for a fire management assistance 
          declaration.
204.23 Processing a request for a fire management assistance 
          declaration.
204.24 Determination on request for a fire management assistance 
          declaration.
204.25 FEMA-State agreement for fire management assistance grant 
          program.
204.26 Appeal of fire management assistance declaration denial.
204.27-204.40 [Reserved]

                          Subpart C_Eligibility

204.41 Applicant eligibility.
204.42 Eligible costs.
204.43 Ineligible costs.
204.44-204.50 [Reserved]

                    Subpart D_Application Procedures

204.51 Application and approval procedures for a fire management 
          assistance grant.
204.52 Application and approval procedures for a subgrant under a fire 
          management assistance grant.
204.53 Certifying costs and payments.
204.54 Appeals.
204.55-204.60 [Reserved]

                     Subpart E_Grant Administration

204.61 Cost share.
204.62 Duplication and recovery of assistance.
204.63 Allowable costs.
204.64 Reporting and audit requirements.

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121-5206; 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; 
and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214.

    Source: 66 FR 57347, Nov. 14, 2001, unless otherwise noted.



                            Subpart A_General



Sec. 204.1  Purpose.

    This part provides information on the procedures for the declaration 
and grants management processes for the Fire Management Assistance Grant 
Program in accordance with the provisions of section 420 of the Stafford 
Act. This part also details applicant eligibility and the eligibility of 
costs to be considered under the program. We (FEMA) will actively work 
with State and Tribal emergency managers and foresters on the efficient 
delivery of fire management assistance as directed by this part.



Sec. 204.2  Scope.

    This part is intended for those individuals responsible for 
requesting declarations and administering grants under the Fire 
Management Assistance Grant Program, as well as those applying for 
assistance under the program.



Sec. 204.3  Definitions used throughout this part.

    Applicant. A State or Indian tribal government submitting an 
application to us for a fire management assistance grant, or a State, 
local, or Indian tribal government submitting an application to the 
Grantee for a subgrant under an approved fire management assistance 
grant.
    Associate Director. The Associate Director or Assistant Director, as 
applicable, of the Readiness, Response and Recovery Directorate of FEMA, 
or his/her designated representative.
    Declared fire. An uncontrolled fire or fire complex, threatening 
such destruction as would constitute a major disaster, which the 
Associate Director has approved in response to a State's request for a 
fire management assistance declaration and in accordance with the 
criteria listed in Sec. 204.21.
    Demobilization. The process and procedures for deactivating, 
disassembling, and transporting back to their

[[Page 405]]

point of origin all resources that had been provided to respond to and 
support a declared fire.
    FEMA Form 90-91. See Project Worksheet.
    Fire complex. Two or more individual fires located in the same 
general area, which are assigned to a single Incident Commander.
    Governor's Authorized Representative (GAR). The person empowered by 
the Governor to execute, on behalf of the State, all necessary documents 
for fire management assistance, including the request for a fire 
management assistance declaration.
    Grant. An award of financial assistance, including cooperative 
agreements, by FEMA to an eligible Grantee. The grant award will be 
based on the projected amount of total eligible costs for which a State 
submits an application and that FEMA approves related to a declared 
fire.
    Grantee. The Grantee is the government to which a grant is awarded 
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. Generally, the State, 
as designated in the FEMA-State Agreement for the Fire Management 
Assistance Grant Program, is the Grantee. However, after a declaration, 
an Indian tribal government may choose to be a Grantee, or it may act as 
a subgrantee under the State. An Indian tribal government acting as 
Grantee will assume the responsibilities of a ``state'', as described in 
this Part, for the purpose of administering the grant.
    Hazard mitigation plan. A plan to develop actions the State, local, 
or tribal government will take to reduce the risk to people and property 
from all hazards. The intent of hazard mitigation planning under the 
Fire Management Assistance Grant Program is to identify wildfire hazards 
and cost-effective mitigation alternatives that produce long-term 
benefits. We address mitigation of fire hazards as part of the State's 
comprehensive Mitigation Plan, described in 44 CFR part 201.
    Incident commander. The ranking official responsible for overseeing 
the management of fire operations, planning, logistics, and finances of 
the field response.
    Incident period. The time interval during which the declared fire 
occurs. The Regional Director, in consultation with the Governor's 
Authorized Representative and the Principal Advisor, will establish the 
incident period. Generally, costs must be incurred during the incident 
period to be considered eligible.
    Indian tribal government. An Indian tribal government is any 
Federally recognized governing body of an Indian or Alaska Native tribe, 
band, nation, pueblo, village, or community that the Secretary of 
Interior acknowledges to exist as an Indian tribe under the Federally 
Recognized Tribe List Act of 1994, 25 U.S.C. 479a. This does not include 
Alaska Native corporations, the ownership of which is vested in private 
individuals.
    Individual assistance. Supplementary Federal assistance provided 
under the Stafford Act to individuals and families adversely affected by 
a major disaster or an emergency. Such assistance may be provided 
directly by the Federal Government or through State or local governments 
or disaster relief organizations. For further information, see subparts 
D, E, and F of part 206.
    Local government. A local government is any county, municipality, 
city, town, township, public authority, school district, special 
district, intrastate district, council of governments (regardless of 
whether the council of governments is incorporated as a nonprofit 
corporation under State law), regional or interstate government entity, 
or agency or instrumentality of a local government; any Indian tribal 
government or authorized tribal organization, or Alaska Native village 
or organization; and any rural community, unincorporated town or 
village, or other public entity, for which an application for assistance 
is made by a State or political subdivision of a State.
    Mitigation, management, and control. Those activities undertaken, 
generally during the incident period of a declared fire, to minimize 
immediate adverse effects and to manage and control the

[[Page 406]]

fire. Eligible activities may include associated emergency work and pre-
positioning directly related to the declared fire.
    Mobilization. The process and procedures used for activating, 
assembling, and transporting all resources that the Grantee requested to 
respond to support a declared fire.
    Performance period. The time interval designated in block 13 on the 
Application for Federal Assistance (Standard Form 424) for the Grantee 
and all subgrantees to submit eligible costs and have those costs 
processed, obligated, and closed out by FEMA.
    Pre-positioning. Moving existing fire prevention or suppression 
resources from an area of lower fire danger to one of higher fire danger 
in anticipation of an increase in fire activity likely to constitute the 
threat of a major disaster.
    Principal advisor. An individual appointed by the Forest Service, 
United States Department of Agriculture, or Bureau of Land Management, 
Department of the Interior, who is responsible for providing FEMA with a 
technical assessment of the fire or fire complex for which a State is 
requesting a fire management assistance declaration. The Principal 
Advisor also frequently participates with FEMA on other wildland fire 
initiatives.
    Project worksheet. FEMA Form 90-91, which identifies actual costs 
incurred by eligible applicants as a result of the eligible firefighting 
activities.
    Public assistance. Supplementary Federal assistance provided under 
the Stafford Act to State and local governments or certain private, 
nonprofit organizations for eligible emergency measures and repair, 
restoration, and replacement of damaged facilities. For further 
information, see Subparts G and H of Part 206.
    Regional Director. A director of a regional office of FEMA, or his/
her designated representative.
    Request for Federal Assistance. See Standard Form (SF) 424.
    Standard Form (SF) 424. The SF 424 is the Request for Federal 
Assistance. This is the form the State submits to apply for a grant 
under a fire management assistance declaration.
    Subgrant. An award of financial assistance under a grant by a 
Grantee to an eligible subgrantee.
    Subgrantee. An applicant that is awarded a subgrant and is 
accountable to the Grantee for the use of grant funding provided.
    Threat of a major disaster. The potential impact of the fire or fire 
complex is of a severity and magnitude that would result in a 
presidential major disaster declaration for the Public Assistance 
Program, the Individual Assistance Program, or both.
    Uncontrolled fire. Any fire not safely confined to predetermined 
control lines as established by firefighting resources.
    We, our, us mean FEMA.

[66 FR 57347, Nov. 14, 2001, as amended at 68 FR 61370, Oct. 28, 2003]



Sec. Sec. 204.4-204.20  [Reserved]



                      Subpart B_Declaration Process



Sec. 204.21  Fire management assistance declaration criteria.

    (a) Determinations. We will approve declarations for fire management 
assistance when the Associate Director determines that a fire or fire 
complex threatens such destruction as would constitute a major disaster.
    (b) Evaluation criteria. We will evaluate the threat posed by a fire 
or fire complex based on consideration of the following specific 
criteria:
    (1) Threat to lives and improved property, including threats to 
critical facilities/infrastructure, and critical watershed areas;
    (2) Availability of State and local firefighting resources;
    (3) High fire danger conditions, as indicated by nationally accepted 
indices such as the National Fire Danger Ratings System;
    (4) Potential major economic impact.



Sec. 204.22  Submitting a request for a fire management assistance 
declaration.

    The Governor of a State, or the Governor's Authorized Representative 
(GAR), may submit a request for a fire management assistance 
declaration. The request must be submitted while the fire is burning 
uncontrolled and threatens such destruction as would

[[Page 407]]

constitute a major disaster. The request must be submitted to the 
Regional Director and should address the relevant criteria listed in 
Sec. 204.21, with supporting documentation that contains factual data 
and professional estimates on the fire or fire complex. To ensure that 
we can process a State's request for a fire management assistance 
declaration as expeditiously as possible, the State should transmit the 
request by telephone, promptly followed by written documentation (FEMA 
Form 90-58).



Sec. 204.23  Processing a request for a fire management assistance 
declaration.

    (a) In processing a State's request for a fire management assistance 
declaration, the Regional Director, in coordination with the Principal 
Advisor, will verify the information submitted in the State's request.
    (b) The Regional Director will then forward the State's request to 
the Associate Director for determination along with the Principal 
Advisor's Assessment and the Regional Summary.
    (1) Principal Advisor's assessment. The Principal Advisor, at the 
request of the Regional Director, is responsible for providing us with a 
technical assessment of the fire or fire complex for which the State is 
requesting a fire management assistance declaration. The Principal 
Advisor may consult with State agencies, usually emergency management or 
forestry, as well as the Incident Commander, in order to provide us with 
an accurate assessment.
    (2) Regional summary and recommendation. Upon obtaining all 
necessary information on the fire or fire complex from the State and the 
Principal Advisor, the Regional Director will provide the Associate 
Director with a summary and recommendation to accompany the State's 
request. The summary and recommendation should include a discussion of 
the threat of a major disaster.



Sec. 204.24  Determination on request for a fire management assistance 
declaration.

    The Associate Director will review all information submitted in the 
State's request along with the Principal Advisor's assessment and 
Regional summary and render a determination. The determination will be 
based on the conditions of the fire or fire complex existing at the time 
of the State's request. When possible, the Associate Director will 
evaluate the request and make a determination within several hours. Once 
the Associate Director makes a determination, the Associate Director 
will promptly notify the Regional Director. The Regional Director will 
then inform the State of the determination.



Sec. 204.25  FEMA-State agreement for fire management assistance grant 
program.

    (a) After a State's request for a fire management assistance 
declaration has been approved, the Governor and Regional Director will 
enter into a standing FEMA-State Agreement (the Agreement) for the 
declared fire and for future declared fires in that calendar year. The 
State must have a signed and up-to-date FEMA-State Agreement before 
receiving Federal funding for fire management assistance grants. FEMA 
will provide no funding absent a signed and up-to-date Agreement. An 
Indian tribal government serving as Grantee, must sign a FEMA-Tribal 
Agreement, modeled upon the FEMA-State Agreement.
    (b) The Agreement states the understandings, commitments, and 
conditions under which we will provide Federal assistance, including the 
cost share provision and articles of agreement necessary for the 
administration of grants approved under fire management assistance 
declarations. The Agreement must also identify the State legislative 
authority for firefighting, as well as the State's compliance with the 
laws, regulations, and other provisions applicable to the Fire 
Management Assistance Grant Program.
    (c) For each subsequently declared fire within the calendar year, 
the parties must add a properly executed amendment, which defines the 
incident period and contains the official declaration number. Other 
amendments modifying the standing Agreement may be added throughout the 
year to reflect changes in the program or signatory parties.

[[Page 408]]



Sec. 204.26  Appeal of fire management assistance declaration denial.

    (a) Submitting an appeal. When we deny a State's request for a fire 
management assistance declaration, the Governor or GAR may appeal the 
decision in writing within 30 days after the date of the letter denying 
the request. The State should submit this one-time request for 
reconsideration in writing, with appropriate additional information, to 
the Associate Director through the Regional Director. The Associate 
Director will notify the State of his/her determination on the appeal, 
in writing, within 90 days of receipt of the appeal or the receipt of 
additional requested information.
    (b) Requesting a time-extension. The Associate Director may extend 
the 30-day period provided that the Governor or the GAR submits a 
written request for such an extension within the 30-day period. The 
Associate Director will evaluate the need for an extension based on the 
reasons cited in the request and either approve or deny the request for 
an extension.



Sec. Sec. 204.27-204.40  [Reserved]



                          Subpart C_Eligibility



Sec. 204.41  Applicant eligibility.

    (a) The following entities are eligible to apply through a State 
Grantee for a subgrant under an approved fire management assistance 
grant:
    (1) State agencies;
    (2) Local governments; and
    (3) Indian tribal governments.
    (b) Entities that are not eligible to apply for a subgrant as 
identified in (a), such as privately owned entities and volunteer 
firefighting organizations, may be reimbursed through a contract or 
compact with an eligible applicant for eligible costs associated with 
the fire or fire complex.
    (c) Eligibility is contingent upon a finding that the Incident 
Commander or comparable State official requested the applying entity's 
resources.
    (d) The activities performed must be the legal responsibility of the 
applying entity, required as the result of the declared fire, and 
located within the designated area.



Sec. 204.42  Eligible costs.

    (a) General. (1) All eligible work and related costs must be 
associated with the incident period of a declared fire.
    (2) Before obligating Federal funds the Regional Director must 
review and approve the initial grant application, along with Project 
Worksheets submitted with the application and any subsequent amendments 
to the application.
    (3) Grantees will award Federal funds to subgrantees under State law 
and procedure and complying with 44 CFR part 13.
    (b) Equipment and supplies. Eligible costs include:
    (1) Personal comfort and safety items normally provided by the State 
under field conditions for firefighter health and safety, including:
    (2) Firefighting supplies, tools, materials, expended or lost, to 
the extent not covered by reasonable insurance, will be replaced with 
comparable items.
    (3) Operation and maintenance costs of publicly owned, contracted, 
rented, or volunteer firefighting department equipment used in eligible 
firefighting activities to the extent any of these costs are not 
included in applicable equipment rates.
    (4) Use of U.S. Government-owned equipment based on reasonable costs 
as billed by the Federal agency and paid by the State. (Only direct 
costs for use of Federal Excess Personal Property (FEPP) vehicles and 
equipment on loan to State Forestry and local cooperators may be 
eligible.)
    (5) Repair of equipment damaged in firefighting activities to the 
extent not covered by reasonable insurance. We will use the lowest 
applicable equipment rates, or other rates that we determine, to 
calculate the eligible cost of repairs.
    (6) Replacement of equipment lost or destroyed in firefighting 
activities, to the extent not covered by reasonable insurance, will be 
replaced with comparable equipment.
    (c) Labor costs. Eligible costs include:
    (1) Overtime for permanent or reassigned State and local employees.
    (2) Regular time and overtime for temporary and contract employees 
hired to perform fire-related activities.

[[Page 409]]

    (d) Travel and per diem costs. Eligible costs include:
    (1) Travel and per diem of employees who are providing services 
directly associated with eligible fire-related activities may be 
eligible.
    (2) Provision of field camps and meals when made available in place 
of per diem;
    (e) Pre-positioning costs. (1) The actual costs of pre-positioning 
Federal, out-of-State (including compact), and international resources 
for a limited period may be eligible when those resources are used in 
response to a declared fire.
    (2) The Regional Director must approve all pre-positioning costs.
    (i) Upon approval of a State's request for a fire management 
assistance declaration by the Associate Director, the State should 
immediately notify the Regional Director of its intention to seek 
funding for pre-positioning resources.
    (ii) The State must document the number of pre-positioned resources 
to be funded and their respective locations throughout the State, 
estimate the cost of the pre-positioned resources that were used on the 
declared fire and the amount of time the resources were pre-positioned, 
and provide a detailed explanation of the need to fund the pre-
positioned resources .
    (iii) The State will base the detailed explanation on recognized 
scientific indicators, that include, but are not limited to, drought 
indices, short-term weather forecasts, the current number of fires 
burning in the State, and the availability of in-State firefighting 
resources. The State may also include other quantitative indicators with 
which to measure the increased risk of the threat of a major disaster.
    (iv) Based on the information contained in the State's notification, 
the Regional Director will determine the number of days of pre-
positioning to be approved for Federal funding, up to a maximum of 21 
days before the fire declaration.
    (3) Upon rendering his/her determination on pre-positioning costs, 
the Regional Director will notify the Associate Director of his/her 
determination.
    (f) Emergency work. We may authorize the use of section 403 of the 
Stafford Act, Essential Assistance, under an approved fire management 
assistance grant when directly related to the mitigation, management, 
and control of the declared fire. Essential assistance activities that 
may be eligible include, but are not limited to, police barricading and 
traffic control, extraordinary emergency operations center expenses, 
evacuations and sheltering, search and rescue, arson investigation 
teams, public information, and the limited removal of trees that pose a 
threat to the general public.
    (g) Temporary repair of damage caused by firefighting activities. 
Temporary repair of damage caused by eligible firefighting activities 
listed in this subpart involves short-term actions to repair damage 
directly caused by the firefighting effort or activities. This includes 
minimal repairs to bulldozer lines, camps, and staging areas to address 
safety concerns; as well as minimal repairs to facilities damaged by the 
firefighting activities such as fences, buildings, bridges, roads, etc. 
All temporary repair work must be completed within thirty days of the 
close of the incident period for the declared fire.
    (h) Mobilization and demobilization. Costs for mobilization to, and 
demobilization from, a declared fire may be eligible for reimbursement. 
Demobilization may be claimed at a delayed date if deployment involved 
one or more declared fires. If resources are being used on more than one 
declared fire, mobilization and demobilization costs must be claimed 
against the first declared fire.
    (i) Fires on co-mingled Federal/State lands. Reasonable costs for 
the mitigation, management, and control of a declared fire burning on 
co-mingled Federal and State land may be eligible in cases where the 
State has a responsibility for suppression activities under an agreement 
to perform such action on a non-reimbursable basis. (This provision is 
an exception to normal FEMA policy under the Stafford Act and is 
intended to accommodate only those rare instances that involve State 
firefighting on a Stafford Act section 420 fire incident involving co-
mingled Federal/State and privately-owned forest or grassland.)

[[Page 410]]



Sec. 204.43  Ineligible costs.

    Costs not directly associated with the incident period are 
ineligible. Ineligible costs include the following:
    (a) Costs incurred in the mitigation, management, and control of 
undeclared fires;
    (b) Costs related to planning, pre-suppression (i.e., cutting fire-
breaks without the presence of an imminent threat, training, road 
widening, and other similar activities), and recovery (i.e., land 
rehabilitation activities, such as seeding, planting operations, and 
erosion control, or the salvage of timber and other materials, and 
restoration of facilities damaged by fire);
    (c) Costs for the straight or regular time salaries and benefits of 
a subgrantee's permanently employed or reassigned personnel;
    (d) Costs for mitigation, management, and control of a declared fire 
on co-mingled Federal land when such costs are reimbursable to the State 
by a Federal agency under another statute (See 44 CFR part 51);
    (e) Fires fought on Federal land are generally the responsibility of 
the Federal Agency that owns or manages the land. Costs incurred while 
fighting fires on federally owned land are not eligible under the Fire 
Management Assistance Grant Program except as noted in Sec. 204.42(i).



Sec. Sec. 204.44-204.50  [Reserved]



                    Subpart D_Application Procedures



Sec. 204.51  Application and approval procedures for a fire management 
assistance grant.

    (a) Preparing and submitting an application. (1) After the approval 
of a fire management assistance declaration, the State may submit an 
application package for a grant to the Regional Director. The 
application package must include the SF 424 (Request for Federal 
Assistance) and FEMA Form 20-16a (Summary of Assurances--Non-
construction Programs), as well as supporting documentation for the 
budget.
    (2) The State should submit its grant application within 9 months of 
the declaration. Upon receipt of the written request from the State, the 
Regional Director may grant an extension for up to 3 months. The State's 
request must include a justification for the extension.
    (b) Fire cost threshold. (1) We will approve the initial grant award 
to the State when we determine that the State's application demonstrates 
either of the following:
    (i) Total eligible costs for the declared fire meet or exceed the 
individual fire cost threshold; or
    (ii) Total costs of all declared and non-declared fires for which a 
State has assumed responsibility in a given calendar year meet the 
cumulative fire cost threshold.
    (2) The individual fire cost threshold for a State is the greater of 
the following:
    (i) $100,000; or
    (ii) Five percent x $1.07 x the State population, adjusted annually 
for inflation using the Consumer Price Index for All Urban Consumers 
published annually by the Department of Labor.
    (3) The cumulative fire cost threshold for a State is the greater of 
the following:
    (i) $500,000; or
    (ii) Three times the five percent x $1.07 x the State population as 
described in Sec. 204.51(b)(2)(ii).
    (4) States must document the total eligible costs for a declared 
fire on Project Worksheets, which they must submit with the grant 
application.
    (5) We will not consider the costs of pre-positioning resources for 
the purposes of determining whether the grant application meets the fire 
cost threshold.
    (6) When the State's total eligible costs associated with the fire 
management assistance declaration meet or exceed the fire cost threshold 
eligible costs will be cost shared in accordance with Sec. 204.61.
    (c) Approval of the State's grant application. The Regional Director 
has 45 days from receipt the State's grant application or an amendment 
to the State's grant application, including attached supporting Project 
Worksheet(s), to review and approve or deny the grant application or 
amendment; or to notify the Grantee of a delay in processing funding.

[[Page 411]]

    (d) Obligation of the grant. Before we approve the State's grant 
application, the State must have an up-to-date State Administrative Plan 
and a Hazard Mitigation Plan that has been reviewed and approved by the 
Regional Director. Once these plans are approved by the Regional 
Director, the State's grant application may be approved and we may begin 
to obligate the Federal share of funding for subgrants to the Grantee.
    (1) State administrative plan.(i) The State must develop an 
Administrative Plan (or have a current Administrative Plan on file with 
FEMA) that describes the procedures for the administration of the Fire 
Management Assistance Grant Program. The Plan will include, at a 
minimum, the items listed below:
    (A) The designation of the State agency or agencies which will have 
responsibility for program administration.
    (B) The identification of staffing functions for the Fire Management 
Assistance Program, the sources of staff to fill these functions, and 
the management and oversight responsibilities of each.
    (C) The procedures for:
    (1) Notifying potential applicants of the availability of the 
program;
    (2) Assisting FEMA in determining applicant eligibility;
    (3) Submitting and reviewing subgrant applications;
    (4) Processing payment for subgrants;
    (5) Submitting, reviewing, and accepting subgrant performance and 
financial reports;
    (6) Monitoring, close-out, and audit and reconciliation of 
subgrants;
    (7) Recovering funds for disallowed costs;
    (8) Processing appeal requests and requests for time extensions; and
    (9) Providing technical assistance to applicants and subgrant 
recipients, including briefings for potential applicants and materials 
on the application procedures, program eligibility guidance and program 
deadlines.
    (ii) The Grantee may request the Regional Director to provide 
technical assistance in the preparation of the State Administrative 
Plan.
    (2) Hazard Mitigation Plan. As a requirement of receiving funding 
under a fire management assistance grant, a State, or tribal 
organization, acting as Grantee, must:
    (i) Develop a Mitigation Plan in accordance with 44 CFR part 201 
that addresses wildfire risks and mitigation measures; or
    (ii) Incorporate wildfire mitigation into the existing Mitigation 
Plan developed and approved under 44 CFR part 201 that also addresses 
wildfire risk and contains a wildfire mitigation strategy and related 
mitigation initiatives.

[66 FR 57347, Nov. 14, 2001, as amended at 68 FR 61371, Oct. 28, 2003]



Sec. 204.52  Application and approval procedures for a subgrant under 
a fire management assistance grant.

    (a) Request for Fire Management Assistance. (1) State, local, and 
tribal governments interested in applying for subgrants under an 
approved fire management assistance grant must submit a Request for Fire 
Management Assistance to the Grantee in accordance with State procedures 
and within timelines set by the Grantee, but no longer than 30 days 
after the close of the incident period.
    (2) The Grantee will review and forward the Request to the Regional 
Director for final review and determination. The Grantee may also 
forward a recommendation for approval of the Request to the Regional 
Director when appropriate.
    (3) The Regional Director will approve or deny the request based on 
the eligibility requirements outlined in Sec. 204.41.
    (4) The Regional Director will notify the Grantee of his/her 
determination; the Grantee will inform the applicant.
    (b) Preparing a Project Worksheet. (1) Once the Regional Director 
approves an applicant's Request for Fire Management Assistance, the 
Regional Director's staff may begin to work with the Grantee and local 
staff to prepare Project Worksheets (FEMA Form 90-91).
    (2) The Regional Director may request the Principal Advisor to 
assist in the preparation of Project Worksheets.
    (3) The State will be the primary contact for transactions with and 
on behalf of the applicant.

[[Page 412]]

    (c) Submitting a Project Worksheet. (1) Applicants should submit all 
Project Worksheets through the Grantee for approval and transmittal to 
the Regional Director as amendments to the State's application.
    (2) The Grantee will determine the deadline for an applicant to 
submit completed Project Worksheets, but the deadline must be no later 
than six months from close of the incident period.
    (3) At the request of the Grantee, the Regional Director may grant 
an extension of up to three months. The Grantee must include a 
justification in its request for an extension.
    (4) Project Worksheets will not be accepted after the deadline and 
extension specified in paragraphs (c)(2) and (c)(3) of this section has 
expired.
    (5) $1,000 Project Worksheet minimum. When the costs reported are 
less than $1,000, that work is not eligible and we will not approve that 
Project Worksheet.



Sec. 204.53  Certifying costs and payments.

    (a) By submitting applicants' Project Worksheets to us, the Grantee 
is certifying that all costs reported on applicant Project Worksheets 
were incurred for work that was performed in compliance with FEMA laws, 
regulations, policy and guidance applicable to the Fire Management 
Assistance Grant Program, as well as with the terms and conditions 
outlined for the administration of the grant in the FEMA-State Agreement 
for the Fire Management Assistance Grant Program.
    (b) Advancement/Reimbursement for State grant costs will be 
processed as follows:
    (1) Through the U.S. Department of Health and Human Services 
SMARTLINK system; and
    (2) In compliance with 44 CFR 13.21 and U. S. Treasury 31 CFR part 
205, Cash Management Improvement Act.



Sec. 204.54  Appeals.

    An eligible applicant, subgrantee, or grantee may appeal any 
determination we make related to an application for the provision of 
Federal assistance according to the procedures below.
    (a) Format and content. The applicant or subgrantee will make the 
appeal in writing through the grantee to the Regional Director. The 
grantee will review and evaluate all subgrantee appeals before 
submission to the Regional Director. The grantee may make grantee-
related appeals to the Regional Director. The appeal will contain 
documented justification supporting the appellant's position, specifying 
the monetary figure in dispute and the provisions in Federal law, 
regulation, or policy with which the appellant believes the initial 
action was inconsistent.
    (b) Levels of appeal. (1) The Regional Director will consider first 
appeals for fire management assistance grant-related decisions under 
subparts A through E of this part.
    (2) The Associate Director will consider appeals of the Regional 
Director's decision on any first appeal under paragraph (b)(1) of this 
section.
    (c) Time limits. (1) Appellants must file appeals within 60 days 
after receipt of a notice of the action that is being appealed.
    (2) The grantee will review and forward appeals from an applicant or 
subgrantee, with a written recommendation, to the Regional Director 
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional 
Director (for first appeals) or Associate Director (for second appeals) 
will notify the grantee in writing of the disposition of the appeal or 
of the need for additional information. A request by the Regional 
Director or Associate Director for additional information will include a 
date by which the information must be provided. Within 90 days following 
the receipt of the requested additional information or following 
expiration of the period for providing the information, the Regional 
Director or Associate Director will notify the grantee in writing of the 
disposition of the appeal. If the decision is to grant the appeal, the 
Regional Director will take appropriate implementing action.
    (d) Technical advice. In appeals involving highly technical issues, 
the Regional Director or Associate Director may, at his or her 
discretion, submit the appeal to an independent scientific

[[Page 413]]

or technical person or group having expertise in the subject matter of 
the appeal for advice or recommendation. The period for this technical 
review may be in addition to other allotted time periods. Within 90 days 
of receipt of the report, the Regional Director or Associate Director 
will notify the grantee in writing of the disposition of the appeal.
    (e) The decision of the Associate Director at the second appeal 
level will be the final administrative decision of FEMA.



Sec. Sec. 204.55-204.60  [Reserved]



                     Subpart E_Grant Administration



Sec. 204.61  Cost share.

    (a) All fire management assistance grants are subject to a cost 
share. The Federal cost share for fire management assistance grants is 
seventy-five percent (75%).
    (b) As stated in Sec. 204.25, the cost share provision will be 
outlined in the terms and conditions of the FEMA-State Agreement for the 
Fire Management Assistance Grant Program.



Sec. 204.62  Duplication and recovery of assistance.

    (a) Duplication of benefits. We provide supplementary assistance 
under the Stafford Act, which generally may not duplicate benefits 
received by or available to the applicant from insurance, other 
assistance programs, legal awards, or any other source to address the 
same purpose. An applicant must notify us of all benefits that it 
receives or anticipates from other sources for the same purpose, and 
must seek all such benefits available to them. We will reduce the grant 
by the amounts available for the same purpose from another source. We 
may provide assistance under this Part when other benefits are available 
to an applicant, but the applicant will be liable to us for any 
duplicative amounts that it receives or has available to it from other 
sources, and must repay us for such amounts.
    (b) Duplication of programs. We will not provide assistance under 
this part for activities for which another Federal agency has more 
specific or primary authority to provide assistance for the same 
purpose. We may disallow or recoup amounts that fall within another 
Federal agency's authority. We may provide assistance under this part, 
but the applicant must agree to seek assistance from the appropriate 
Federal agency and to repay us for amounts that are within another 
Agency's authority.
    (c) Negligence. We will provide no assistance to an applicant for 
costs attributable to applicant's own negligence. If the applicant 
suspects negligence by a third party for causing a condition for which 
we made assistance available under this Part, the applicant is 
responsible for taking all reasonable steps to recover all costs 
attributable to the negligence of the third party. We generally consider 
such amounts to be duplicated benefits available to the Grantee or 
subgrantee, and will treat them consistent with (a) of this section.
    (d) Intentional acts. Any person who intentionally causes a 
condition for which assistance is provided under this part shall be 
liable to the United States to the extent that we incur costs 
attributable to the intentional act or omission that caused the 
condition. We may provide assistance under this part, but it will be 
conditioned on an agreement by the applicant to cooperate with us in 
efforts to recover the cost of the assistance from the liable party. A 
person shall not be liable under this section as a result of actions the 
person takes or omits in the course of rendering care or assistance in 
response to the fire.



Sec. 204.63  Allowable costs.

    44 CFR 13.22 establishes general policies for determining allowable 
costs.
    (a) We will reimburse direct costs for the administration of a fire 
management assistance grant under 44 CFR part 13.
    (b) We will reimburse indirect costs for the administration of a 
fire management assistance grant in compliance with the Grantee's 
approved indirect cost rate under OMB Circular A-87.

[[Page 414]]



Sec. 204.64  Reporting and audit requirements

    (a) Reporting. Within 90-days of the Performance Period expiration 
date, the State will submit a final Financial Status Report (FEMA Form 
20-10), which reports all costs incurred within the incident period and 
all administrative costs incurred within the performance period; and
    (b) Audit. (1) Audits will be performed, for both the Grantee and 
the subgrantees, under 44 CFR 13.26.
    (2) FEMA may elect to conduct a program-specific Federal audit on 
the Fire Management Assistance Grant or a subgrant.

                           PART 205 [RESERVED]



PART 206_FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR AFTER 
NOVEMBER 23, 1988--Table of Contents




                            Subpart A_General

Sec.
206.1 Purpose.
206.2 Definitions.
206.3 Policy.
206.4 State emergency plans.
206.5 Assistance by other Federal agencies.
206.6 Donation or loan of Federal equipment and supplies.
206.7 Implementation of assistance from other Federal agencies.
206.8 Reimbursement of other Federal agencies.
206.9 Nonliability.
206.10 Use of local firms and individuals.
206.11 Nondiscrimination in disaster assistance.
206.12 Use and coordination of relief organizations.
206.13 Standards and reviews.
206.14 Criminal and civil penalties.
206.15 Recovery of assistance.
206.16 Audit and investigations.
206.17 Effective date.
206.18-206.30 [Reserved]

                    Subpart B_The Declaration Process

206.31 Purpose.
206.32 Definitions.
206.33 Preliminary damage assessment.
206.34 Request for utilization of Department of Defense (DOD) resources.
206.35 Requests for emergency declarations.
206.36 Requests for major disaster declarations.
206.37 Processing requests for declarations of a major disaster or 
          emergency.
206.38 Presidential determination.
206.39 Notification.
206.40 Designation of affected areas and eligible assistance.
206.41 Appointment of disaster officials.
206.42 Responsibilities of coordinating officers.
206.43 Emergency support teams.
206.44 FEMA-State Agreements.
206.45 Loans of non-Federal share.
206.46 Appeals.
206.47 Cost-share adjustments.
206.48 Factors considered when evaluating a Governor's request for major 
          disaster declaration.
206.49-206.60 [Reserved]

                     Subpart C_Emergency Assistance

206.61 Purpose.
206.62 Available assistance.
206.63 Provision of assistance.
206.64 Coordination of assistance.
206.65 Cost sharing.
206.66 Limitation on expenditures.
206.67 Requirement when limitation is exceeded.
206.68-206.100 [Reserved]

       Subpart D_Federal Assistance to Individuals and Households

206.101 Temporary housing assistance for emergencies and major disasters 
          declared on or before October 14, 2002.
206.102-206.109 [Reserved]
206.110 Federal assistance to individuals and households.
206.111 Definitions.
206.112 Registration period.
206.113 Eligibility factors.
206.114 Criteria for continued assistance.
206.115 Appeals.
206.116 Recovery of funds.
206.117 Housing assistance.
206.118 Disposal of housing units.
206.119 Financial assistance to address other needs.
206.120 State administration of other needs assistance.
206.121-206.130 [Reserved]

             Subpart E_Individual and Family Grant Programs

206.131 Individual and Family Grant Program for major disasters declared 
          on or before October 14, 2002.
206.132-206.140 [Reserved]

                  Subpart F_Other Individual Assistance

206.141 Disaster unemployment assistance.
206.142-206.150 [Reserved]
206.151 Food commodities.
206.152-206.160 [Reserved]

[[Page 415]]

206.161 Relocation assistance.
206.162-206.163 [Reserved]
206.164 Disaster legal services.
206.165-206.170 [Reserved]
206.171 Crisis counseling assistance and training.
206.172-206.180 [Reserved]
206.181 Use of gifts and bequests for disaster assistance purposes.
206.182-206.190 [Reserved]
206.191 Duplication of benefits.
206.192-206.199 [Reserved]

           Subpart G_Public Assistance Project Administration

206.200 General.
206.201 Definitions used in this subpart.
206.202 Application procedures.
206.203 Federal grant assistance.
206.204 Project performance.
206.205 Payment of claims.
206.206 Appeals.
206.207 Administrative and audit requirements.
206.208 Direct Federal assistance.
206.209-206.219 [Reserved]

                 Subpart H_Public Assistance Eligibility

206.220 General.
206.221 Definitions.
206.222 Applicant eligibility.
206.223 General work eligibility.
206.224 Debris removal.
206.225 Emergency work.
206.226 Restoration of damaged facilities.
206.227 Snow assistance.
206.228 Allowable costs.
206.229-206.249 [Reserved]

           Subpart I_Public Assistance Insurance Requirements

206.250 General.
206.251 Definitions.
206.252 Insurance requirements for facilities damaged by flood.
206.253 Insurance requirements for facilities damaged by disasters other 
          than flood.
206.254-206.339 [Reserved]

                 Subpart J_Coastal Barrier Resources Act

206.340 Purpose of subpart.
206.341 Policy.
206.342 Definitions.
206.343 Scope.
206.344 Limitations on Federal expenditures.
206.345 Exceptions.
206.346 Applicability to disaster assistance.
206.347 Requirements.
206.348 Consultation.
206.349 Consistency determinations.
206.350-206.359 [Reserved]

                   Subpart K_Community Disaster Loans

206.360 Purpose.
206.361 Loan program.
206.362 Responsibilities.
206.363 Eligibility criteria.
206.364 Loan application.
206.365 Loan administration.
206.366 Loan cancellation.
206.367 Loan repayment.
206.368-206.389 [Reserved]

                  Subpart L_Fire Suppression Assistance

206.390 General.
206.391 FEMA-State Agreement.
206.392 Request for assistance.
206.393 Providing assistance.
206.394 Cost eligibility.
206.395 Grant administration.
206.396-206.399 [Reserved]

                       Subpart M_Minimum Standards

206.400 General.
206.401 Local standards.
206.402 Compliance.

                Subpart N_Hazard Mitigation Grant Program

206.430 General.
206.431 Definitions.
206.432 Federal grant assistance.
206.433 State responsibilities.
206.434 Eligibility.
206.435 Project identification and selection criteria.
206.436 Application procedures.
206.437 State administrative plan.
206.438 Project management.
206.439 Allowable costs.
206.440 Appeals.

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121-5206; 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; 
and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214.

    Source: 54 FR 11615, Mar. 21, 1989, unless otherwise noted.



                            Subpart A_General

    Source: 55 FR 2288, Jan. 23, 1990, unless otherwise noted.



Sec. 206.1  Purpose.

    (a) Purpose. The purpose of this subpart is to prescribe the 
policies and procedures to be followed in implementing those sections of 
Public Law

[[Page 416]]

93-288, as amended, delegated to the Director, Federal Emergency 
Management Agency (FEMA). The rules in this subpart apply to major 
disasters and emergencies declared by the President on or after November 
23, 1988, the date of enactment of the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq.
    (b) Prior regulations. Prior regulations relating to major disasters 
and emergencies declared by the President before November 23, 1988 were 
published in 44 CFR part 205 (see 44 CFR part 205 as contained in the 
CFR edition revised as of October 1, 1994).

[59 FR 53363, Oct. 24, 1994]



Sec. 206.2  Definitions.

    (a) General. The following definitions have general applicability 
throughout this part:
    (1) The Stafford Act: The Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, Public Law 93-288, as amended.
    (2) Applicant: Individuals, families, States and local governments, 
or private nonprofit organizations who apply for assistance as a result 
of a declaration of a major disaster or emergency.
    (3) Associate Director or Executive Associate Director: (i) Unless 
otherwise specified in subparts A through K of this part, the Associate 
Director or Assistant Director of the Readiness, Response and Recovery 
Directorate, or his/her designated representative.
    (ii) Unless otherwise specified in subparts M and N of this part, 
the Associate Director or Executive Associate Director of the Mitigation 
Directorate, or his/her designated representative.
    (4) Concurrent, multiple major disasters: In considering a request 
for an advance, the term concurrent multiple major disasters means major 
disasters which occur within a 12-month period immediately preceding the 
major disaster for which an advance of the non-Federal share is 
requested pursuant to section 319 of the Stafford Act.
    (5) Contractor: Any individual, partnership, corporation, agency, or 
other entity (other than an organization engaged in the business of 
insurance) performing work by contract for the Federal Government or a 
State or local agency.
    (6) Designated area: Any emergency or major disaster-affected 
portion of a State which has been determined eligible for Federal 
assistance.
    (7) Director: The Director, FEMA.
    (8) Disaster Recovery Manager (DRM): The person appointed to 
exercise the authority of a Regional Director for a particular emergency 
or major disaster.
    (9) Emergency: Any occasion or instance for which, in the 
determination of the President, Federal assistance is needed to 
supplement State and local efforts and capabilities to save lives and to 
protect property and public health and safety, or to lessen or avert the 
threat of a catastrophe in any part of the United States.
    (10) Federal agency: Any department, independent establishment, 
Government corporation, or other agency of the executive branch of the 
Federal Government, including the United States Postal Service, but 
shall not include the American National Red Cross.
    (11) Federal Coordinating Officer (FCO): The person appointed by the 
Director, or in his absence, the Deputy Director, or alternatively the 
Associate Director, to coordinate Federal assistance in an emergency or 
a major disaster.
    (12) Governor: The chief executive of any State or the Acting 
Governor.
    (13) Governor's Authorized Representative (GAR): The person 
empowered by the Governor to execute, on behalf of the State, all 
necessary documents for disaster assistance.
    (14) Hazard mitigation: Any cost effective measure which will reduce 
the potential for damage to a facility from a disaster event.
    (15) Individual assistance: Supplementary Federal assistance 
provided under the Stafford Act to individuals and families adversely 
affected by a major disaster or an emergency. Such assistance may be 
provided directly by the Federal Government or through State or local 
governments or disaster relief organizations. For further information, 
see subparts D, E, and F of these regulations.
    (16) Local government:
    (i) A county, municipality, city, town, township, local public 
authority,

[[Page 417]]

school district, special district, intrastate district, council of 
governments (regardless of whether the council of governments is 
incorporated as a nonprofit corporation under State law), regional or 
interstate government entity, or agency or instrumentality of a local 
government;
    (ii) An Indian tribe or authorized tribal organization, or Alaska 
Native village or organization; and
    (iii) A rural community, unincorporated town or village, or other 
public entity, for which an application for assistance is made by a 
State or political subdivision of a State.
    (17) Major disaster: Any natural catastrophe (including any 
hurricane, tornado, storm, high water, winddriven water, tidal wave, 
tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, 
or drought), or, regardless of cause, any fire, flood, or explosion, in 
any part of the United States, which in the determination of the 
President causes damage of sufficient severity and magnitude to warrant 
major disaster assistance under this Act to supplement the efforts and 
available resources of States, local governments, and disaster relief 
organizations in alleviating the damage, loss, hardship, or suffering 
caused thereby.
    (18) Mission assignment: Work order issued to a Federal agency by 
the Regional Director, Associate Director, or Director, directing 
completion by that agency of a specified task and citing funding, other 
managerial controls, and guidance.
    (19) Private nonprofit organization: Any nongovernmental agency or 
entity that currently has:
    (i) An effective ruling letter from the U.S. Internal Revenue 
Service granting tax exemption under section 501 (c), (d), or (e) of the 
Internal Revenue Code of 1954; or
    (ii) Satisfactory evidence from the State that the organization or 
entity is a nonprofit one organized or doing business under State law.
    (20) Public Assistance: Supplementary Federal assistance provided 
under the Stafford Act to State and local governments or certain 
private, nonprofit organizations other than assistance for the direct 
benefit of individuals and families. For further information, see 
subparts G and H of this part. Fire Management Assistance Grants under 
section 420 of the Stafford Act are also considered Public Assistance. 
See subpart K of this part and part 204 of this chapter.
    (21) Regional Director: A director of a regional office of FEMA, or 
his/her designated representative. As used in these regulations, 
Regional Director also means the Disaster Recovery Manager who has been 
appointed to exercise the authority of the Regional Director for a 
particular emergency or major disaster.
    (22) State: 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.
    (23) State Coordinating Officer (SCO): The person appointed by the 
Governor to act in cooperation with the Federal Coordinating Officer to 
administer disaster recovery efforts.
    (24) State emergency plan: As used in section 401 or section 501 of 
the Stafford Act means that State plan which is designated specifically 
for State-level response to emergencies or major disasters and which 
sets forth actions to be taken by the State and local governments, 
including those for implementing Federal disaster assistance.
    (25) Temporary housing: Temporary accommodations provided by the 
Federal Government to individuals or families whose homes are made 
unlivable by an emergency or a major disaster.
    (26) United States: The 50 States, the District of Columbia, Puerto 
Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of 
the Northern Mariana Islands.
    (27) Voluntary organization: Any chartered or otherwise duly 
recognized tax-exempt local, State, or national organization or group 
which has provided or may provide needed services to the States, local 
governments, or individuals in coping with an emergency or a major 
disaster.

[[Page 418]]

    (b) Additional definitions. Definitions which apply to individual 
subparts are found in those subparts.

[54 FR 11615, Mar. 21, 1989, as amended at 63 FR 17110, Apr. 8, 1998; 66 
FR 57352, 57353, Nov. 14, 2001; 69 FR 24083, May 3, 2004]



Sec. 206.3  Policy.

    It is the policy of FEMA to provide an orderly and continuing means 
of assistance by the Federal Government to State and local governments 
in carrying out their responsibilities to alleviate the suffering and 
damage that result from major disasters and emergencies by:
    (a) Providing Federal assistance programs for public and private 
losses and needs sustained in disasters;
    (b) Encouraging the development of comprehensive disaster 
preparedness and assistance plans, programs, capabilities, and 
organizations by the States and local governments;
    (c) Achieving greater coordination and responsiveness of disaster 
preparedness and relief programs;
    (d) Encouraging individuals, States, and local governments to obtain 
insurance coverage and thereby reduce their dependence on governmental 
assistance; and
    (e) Encouraging hazard mitigation measures, such as development of 
land-use and construction regulations, floodplain management, protection 
of wetlands, and environmental planning, to reduce losses from 
disasters.



Sec. 206.4  State emergency plans.

    The State shall set forth in its emergency plan all responsibilities 
and actions specified in the Stafford Act and these regulations that are 
required of the State and its political subdivisions to prepare for and 
respond to major disasters and emergencies and to facilitate the 
delivery of Federal disaster assistance. Although not mandatory, prior 
to the adoption of the final plan, the State is encouraged to circulate 
the plan to local governments for review and comment.

[55 FR 2288, Jan. 23, 1990, 55 FR 5458, Feb. 15, 1990]



Sec. 206.5  Assistance by other Federal agencies.

    (a) In any declared major disaster, the Associate Director or the 
Regional Director may direct any Federal agency to utilize its 
authorities and the resources granted to it under Federal law (including 
personnel, equipment, supplies, facilities, and managerial, technical, 
and advisory services) to support State and local assistance efforts.
    (b) In any declared emergency, the Associate Director or the 
Regional Director may direct any Federal agency to utilize its 
authorities and the resources granted to it under Federal law (including 
personnel, equipment, supplies, facilities, and managerial, technical, 
and advisory services) to support emergency efforts by State and local 
governments to save lives; protect property, public health and safety; 
and lessen or avert the threat of a catastrophe.
    (c) In any declared major disaster or emergency, the Associate 
Director or the Regional Director may direct any Federal agency to 
provide emergency assistance necessary to save lives and to protect 
property, public health, and safety by:
    (1) Utilizing, lending, or donating to State and local governments 
Federal equipment, supplies, facilities, personnel, and other resources, 
other than the extension of credit, for use or distribution by such 
governments in accordance with the purposes of this Act;
    (2) Distributing medicine, food, and other consumable supplies; or
    (3) Performing work or services to provide emergency assistance 
authorized in the Stafford Act.
    (d) Disaster assistance by other Federal agencies is subject to the 
coordination of the FCO. Federal agencies shall provide any reports or 
information about disaster assistance rendered under the provisions of 
these regulations or authorities independent of the Stafford Act, that 
the FCO or Regional Director considers necessary and requests from the 
agencies.
    (e) Assistance furnished by any Federal agency under paragraphs (a), 
(b), or (c) of this section is subject to the criteria provided by the 
Associate Director under these regulations.

[[Page 419]]

    (f) Assistance under paragraphs (a), (b), or (c) of this section, 
when directed by the Associate Director or Regional Director, does not 
apply to nor shall it affect the authority of any Federal agency to 
provide disaster assistance independent of the Stafford Act.
    (g) In carrying out the purposes of the Stafford Act, any Federal 
agency may accept and utilize, with the consent of the State or local 
government, the services, personnel, materials, and facilities of any 
State or local government, agency, office, or employee. Such utilization 
shall not make such services, materials, or facilities Federal in nature 
nor make the State or local government or agency an arm or agent of the 
Federal Government.
    (h) Any Federal agency charged with the administration of a Federal 
assistance program may, if so requested by the applicant State or local 
authorities, modify or waive, for a major disaster, such administrative 
conditions for assistance as would otherwise prevent the giving of 
assistance under such programs if the inability to meet such conditions 
is a result of the major disaster.



Sec. 206.6  Donation or loan of Federal equipment and supplies.

    (a) In any major disaster or emergency, the Associate Director or 
the Regional Director may direct Federal agencies to donate or loan 
their equipment and supplies to State and local governments for use and 
distribution by them for the purposes of the Stafford Act.
    (b) A donation or loan may include equipment and supplies determined 
under applicable laws and regulations to be surplus to the needs and 
responsibilities of the Federal Government. The State shall certify that 
the surplus property is usable and necessary for current disaster 
purposes in order to receive a donation or loan. Such a donation or loan 
is made in accordance with procedures prescribed by the General Services 
Administration.



Sec. 206.7  Implementation of assistance from other Federal agencies.

    All directives, known as mission assignments, to other Federal 
agencies shall be in writing, or shall be confirmed in writing if made 
orally, and shall identify the specific task to be performed and the 
requirements or criteria to be followed. If the Federal agency is to be 
reimbursed, the letter will also contain a dollar amount which is not to 
be exceeded in accomplishing the task without prior approval of the 
issuing official.



Sec. 206.8  Reimbursement of other Federal agencies.

    (a) Assistance furnished under Sec. 206.5 (a) or (b) of this 
subpart may be provided with or without compensation as considered 
appropriate by the Associate Director or Regional Director.
    (b) The Associate Director or the Regional Director may not approve 
reimbursement of costs incurred while performing work pursuant to 
disaster assistance authorities independent of the Stafford Act.
    (c) Expenditures eligible for reimbursement. The Associate Director 
or the Regional Director may approve reimbursement of the following 
costs which are incurred in providing requested assistance.
    (1) Overtime, travel, and per diem of permanent Federal agency 
personnel.
    (2) Wages, travel, and per diem of temporary Federal agency 
personnel assigned solely to performance of services directed by the 
Associate Director or the Regional Director in the major disaster or 
emergency area designated by the Regional Director.
    (3) Travel and per diem of Federal military personnel assigned 
solely to the performance of services directed by the Associate Director 
or the Regional Director in the major disaster or emergency area 
designated by the Regional Director.
    (4) Cost of work, services, and materials procured under contract 
for the purposes of providing assistance directed by the Associate 
Director or the Regional Director.
    (5) Cost of materials, equipment, and supplies (including 
transportation, repair, and maintenance) from regular stocks used in 
providing directed assistance.
    (6) All costs incurred which are paid from trust, revolving, or 
other funds, and whose reimbursement is required by law.

[[Page 420]]

    (7) Other costs submitted by an agency with written justification or 
otherwise agreed to in writing by the Associate Director or the Regional 
Director and the agency.
    (d) Procedures for reimbursement. Federal agencies performing work 
under a mission assignment will submit requests for reimbursement, as 
follows:
    (1) Federal agencies may submit requests for reimbursement of 
amounts greater than $1,000 at any time. Requests for lesser amounts may 
be submitted only quarterly. An agency shall submit a final accounting 
of expenditures after completion of the agency's work under each 
directive for assistance. The time limit and method for submission of 
reimbursement requests will be stipulated in the mission assignment 
letter.
    (2) An agency shall document its request for reimbursement with 
specific details on personnel services, travel, and all other expenses 
by object class as specified in OMB Circular A-12 and by any other 
subobject class used in the agency's accounting system. Where contracts 
constitute a significant portion of the billings, the agency shall 
provide a listing of individual contracts and their associated costs.
    (3) Reimbursement requests shall cite the specific mission 
assignment under which the work was performed, and the major disaster or 
emergency identification number. Requests for reimbursement of costs 
incurred under more than one mission assignment may not be combined for 
billing purposes.
    (4) Unless otherwise agreed, an agency shall direct all requests for 
reimbursement to the Regional Director of the region in which the costs 
were incurred.
    (5) A Federal agency requesting reimbursement shall retain all 
financial records, supporting documents, statistical records, and other 
records pertinent to the provision of services or use of resources by 
that agency. These materials shall be accessible to duly authorized 
representatives of FEMA and the U.S. Comptroller General, for the 
purpose of making audits, excerpts, and transcripts, for a period of 3 
years starting from the date of submission of the final billing.



Sec. 206.9  Nonliability.

    The Federal Government shall not be liable for any claim based upon 
the exercise or performance of, or the failure to exercise or perform a 
discretionary function or duty on the part of a Federal agency or an 
employee of the Federal Government in carrying out the provisions of the 
Stafford Act.



Sec. 206.10  Use of local firms and individuals.

    In the expenditure of Federal funds for debris removal, distribution 
of supplies, reconstruction, and other major disaster or emergency 
assistance activities which may be carried out by contract or agreement 
with private organizations, firms, or individuals, preference shall be 
given, to the extent feasible and practicable, to those organizations, 
firms, and individuals residing or doing business primarily in the area 
affected by such major disaster or emergency. This shall not be 
considered to restrict the use of Department of Defense resources in the 
provision of major disaster assistance under the Stafford Act.



Sec. 206.11  Nondiscrimination in disaster assistance.

    (a) Federal financial assistance to the States or their political 
subdivisions is conditioned on full compliance with 44 CFR part 7, 
Nondiscrimination in Federally-Assisted Programs.
    (b) All personnel carrying out Federal major disaster or emergency 
assistance functions, including the distribution of supplies, the 
processing of the applications, and other relief and assistance 
activities, shall perform their work in an equitable and impartial 
manner, without discrimination on the grounds of race, color, religion, 
nationality, sex, age, or economic status.
    (c) As a condition of participation in the distribution of 
assistance or supplies under the Stafford Act, or of receiving 
assistance under the Stafford Act, government bodies and other 
organizations shall provide a written assurance of their intent to 
comply with regulations relating to nondiscrimination.
    (d) The agency shall make available to employees, applicants, 
participants,

[[Page 421]]

beneficiaries, and other interested parties such information regarding 
the provisions of this regulation and its applicability to the programs 
or activities conducted by the agency, and make such information 
available to them in such manner as the head of the agency finds 
necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this regulation.



Sec. 206.12  Use and coordination of relief organizations.

    (a) In providing relief and assistance under the Stafford Act, the 
FCO or Regional Director may utilize, with their consent, the personnel 
and facilities of the American National Red Cross, the Salvation Army, 
the Mennonite Disaster Service, and other voluntary organizations in the 
distribution of medicine, food, supplies, or other items, and in the 
restoration, rehabilitation, or reconstruction of community services and 
essential facilities, whenever the FCO or Regional Director finds that 
such utilization is necessary.
    (b) The Associate Director is authorized to enter into agreements 
with the American Red Cross, The Salvation Army, the Mennonite Disaster 
Service, and other voluntary organizations engaged in providing relief 
during and after a major disaster or emergency. Any agreement shall 
include provisions assuring that use of Federal facilities, supplies, 
and services will be in compliance with Sec. 206.11, Nondiscrimination 
in Disaster Assistance, and Sec. 206.191, Duplication of Benefits, of 
these regulations and such other regulations as the Associate Director 
may issue. The FCO may coordinate the disaster relief activities of the 
voluntary organizations which agree to operate under his/her direction.
    (c) Nothing contained in this section shall be construed to limit or 
in any way affect the responsibilities of the American National Red 
Cross as stated in Public Law 58-4.



Sec. 206.13  Standards and reviews.

    (a) The Associate Director shall establish program standards and 
assess the efficiency and effectiveness of programs administered under 
the Stafford Act by conducting annual reviews of the activities of 
Federal agencies and State and local governments involved in major 
disaster or emergency response efforts.
    (b) In carrying out this provision, the Associate Director or 
Regional Director may direct Federal agencies to submit reports relating 
to their disaster assistance activities. The Associate Director or the 
Regional Director may request similar reports from the States relating 
to these activities on the part of State and local governments. 
Additionally, the Associate Director or Regional Director may conduct 
independent investigations, studies, and evaluations as necessary to 
complete the reviews.

[55 FR 2288, Jan. 23, 1990; 55 FR 5458, Feb. 15, 1990]



Sec. 206.14  Criminal and civil penalties.

    (a) Misuse of funds. Any person who knowingly misapplies the 
proceeds of a loan or other cash benefit obtained under this Act shall 
be fined an amount equal to one and one-half times the misapplied amount 
of the proceeds or cash benefit.
    (b) Civil enforcement. Whenever it appears that any person has 
violated or is about to violate any provision of this Act, including any 
civil penalty imposed under this Act, the Attorney General may bring a 
civil action for such relief as may be appropriate. Such action may be 
brought in an appropriate United States district court.
    (c) Referral to Attorney General. The Associate Director shall 
expeditously refer to the Attorney General for appropriate action any 
evidence developed in the performance of functions under this Act that 
may warrant consideration for criminal prosecution.
    (d) Civil penalty. Any individual who knowingly violates any order 
or regulation issued under this Act shall be subject to a civil penalty 
of not more than $5,000 for each violation.



Sec. 206.15  Recovery of assistance.

    (a) Party liable. Any person who intentionally causes a condition 
for which Federal assistance is provided under this Act or under any 
other Federal law as a result of a declaration of a major disaster or 
emergency under this Act shall be liable to the United

[[Page 422]]

States for the reasonable costs incurred by the United States in 
responding to such disaster or emergency to the extent that such costs 
are attributable to the intentional act or omission of such person which 
caused such condition. Such action shall be brought in an appropriate 
United States District Court.
    (b) Rendering of care. A person shall not be liable under this 
section for costs incurred by the United States as a result of actions 
taken or omitted by such person in the course of rendering care or 
assistance in response to a major disaster or emergency.



Sec. 206.16  Audit and investigations.

    (a) Subject to the provisions of chapter 75 of title 31, United 
States Code, and 44 CFR part 14, relating to requirements for single 
audits, the Associate Director or Regional Director shall conduct audits 
and investigations as necessary to assure compliance with the Stafford 
Act, and in connection therewith may question such persons as may be 
necessary to carry out such audits and investigations.
    (b) For purposes of audits and investigations under this section, 
FEMA or State auditors, the Governor's Authorized Representative, the 
Regional Director, the Associate Director, and the Comptroller General 
of the United States, or their duly authorized representatives, may 
inspect any books, documents, papers, and records of any person relating 
to any activity undertaken or funded under the Stafford Act.



Sec. 206.17  Effective date.

    These regulations are effective for all major disasters or 
emergencies declared on or after November 23, 1988.



Sec. Sec. 206.18-206.30  [Reserved]



                    Subpart B_The Declaration Process

    Source: 55 FR 2292, Jan. 23, 1990, unless otherwise noted.



Sec. 206.31  Purpose.

    The purpose of this subpart is to describe the process leading to a 
Presidential declaration of a major disaster or an emergency and the 
actions triggered by such a declaration.



Sec. 206.32  Definitions.

    All definitions in the Stafford Act and in Sec. 206.2 apply. In 
addition, the following definitions apply:
    (a) Appeal: A request for reconsideration of a determination on any 
action related to Federal assistance under the Stafford Act and these 
regulations. Specific procedures for appeals are contained in the 
relevant subparts of these regulations.
    (b) Commitment: A certification by the Governor that the State and 
local governments will expend a reasonable amount of funds to alleviate 
the effects of the major disaster or emergency, for which no Federal 
reimbursement will be requested.
    (c) Disaster Application Center: A center established in a 
centralized location within the disaster area for individuals, families, 
or businesses to apply for disaster aid.
    (d) FEMA-State Agreement: A formal legal document stating the 
understandings, commitments, and binding conditions for assistance 
applicable as the result of the major disaster or emergency declared by 
the President.
    (e) Incident: Any condition which meets the definition of major 
disaster or emergency as set forth in Sec. 206.2 which causes damage or 
hardship that may result in a Presidential declaration of a major 
disaster or an emergency.
    (f) Incident period: The time interval during which the disaster-
causing incident occurs. No Federal assistance under the Act shall be 
approved unless the damage or hardship to be alleviated resulted from 
the disaster-causing incident which took place during the incident 
period or was in anticipation of that incident. The incident period will 
be established by FEMA in the FEMA-State Agreement and published in the 
Federal Register.



Sec. 206.33  Preliminary damage assessment.

    The preliminary damage assessment (PDA) process is a mechanism used 
to determine the impact and magnitude of damage and the resulting unmet 
needs of individuals, businesses, the

[[Page 423]]

public sector, and the community as a whole. Informtion collected is 
used by the State as a basis for the Governor's request, and by FEMA to 
document the recommendation made to the President in response to the 
Governor's request. It is in the best interest of all parties to combine 
State and Federal personnel resources by performing a joint PDA prior to 
the initiation of a Governor's request, as follows.
    (a) Preassessment by the State. When an incident occurs, or is 
imminent, which the State official responsible for disaster operations 
determines may be beyond the State and local government capabilities to 
respond, the State will request the Regional Director to perform a joint 
FEMA-State preliminary damage assessment. It is not anticipated that all 
occurrences will result in the requirement for assistance; therefore, 
the State will be expected to verify their initial information, in some 
manner, before requesting this support.
    (b) Damage assessment teams. Damage assessment teams will be 
composed of at least one representative of the Federal Government and 
one representative of the State. A local government representative, 
familiar with the extent and location of damage in his/her community, 
should also be included, if possible. Other State and Federal agencies, 
and voluntary relief organizations may also be asked to participate, as 
needed. It is the State's responsibility to coordinate State and local 
participation in the PDA and to ensure that the participants receive 
timely notification concerning the schedule. A FEMA official will brief 
team members on damage criteria, the kind of information to be collected 
for the particular incident, and reporting requirements.
    (c) Review of findings. At the close of the PDA, FEMA will consult 
with State officials to discuss findings and reconcile any differences.
    (d) Exceptions. The requirement for a joint PDA may be waived for 
those incidents of unusual severity and magnitude that do not require 
field damage assessments to determine the need for supplemental Federal 
assistance under the Act, or in such other instances determined by the 
Regional Director upon consultation with the State. It may be necessary, 
however, to conduct an assessment to determine unmet needs for 
managerial response purposes.



Sec. 206.34  Request for utilization of Department of Defense (DOD) 
resources.

    (a) General. During the immediate aftermath of an incident which may 
ultimately qualify for a Presidential declaration of a major disaster or 
emergency, when threats to life and property are present which cannot be 
effectively dealt with by the State or local governments, the Associate 
Director may direct DOD to utilize DOD personnel and equipment for 
removal of debris and wreckage and temporary restoration of essential 
public facilities and services.
    (b) Request process. The Governor of a State, or the Acting Governor 
in his/her absence, may request such DOD assistance. The Governor should 
submit the request to the Associate Director through the appropriate 
Regional Director to ensure prompt acknowledgment and processing. The 
request must be submitted within 48 hours of the occurrence of the 
incident. Requests made after that time may still be considered if 
information is submitted indicating why the request for assistance could 
not be made during the initial 48 hours. The request shall include:
    (1) Information describing the types and amount of DOD emergency 
assistance being requested;
    (2) Confirmation that the Governor has taken appropriate action 
under State law and directed the execution of the State emergency plan;
    (3) A finding that the situation is of such severity and magnitude 
that effective response is beyond the capabilities of the State and 
affected local governments and that Federal assistance is necessary for 
the preservation of life and property;
    (4) A certification by the Governor that the State and local 
government will reimburse FEMA for the non-Federal share of the cost of 
such work; and
    (5) An agreement:

[[Page 424]]

    (i) To provide all lands, easements and rights-of-way necessary to 
accomplish the approved work without cost to the United States;
    (ii) To hold and save the United States free from damages due to the 
requested work, and to indemnify the Federal government against any 
claims arising from such work; and
    (iii) To assist DOD in all support and local jurisdictional matters.
    (c) Processing the request. Upon receipt of the request, the 
Regional Director shall gather adequate information to support a 
recommendation and forward it to the Associate Director. If the 
Associate Director determines that such work is essential to save lives 
and protect property, he/she will issue a mission assignment to DOD 
authorizing direct Federal assistance to the extent deemed appropriate.
    (d) Implementation of assistance. The performance of emergency work 
may not exceed a period of 10 days from the date of the mission 
assignment.
    (e) Limits. Generally, no work shall be approved under this section 
which falls within the statutory authority of DOD or another Federal 
agency. However, where there are significant unmet needs of sufficient 
severity and magnitude, not addressed by other assistance, which could 
appropriately be addressed under this section of the Stafford Act, the 
involvement of other Federal agencies would not preclude the 
authorization of DOD assistance by the Associate Director.
    (f) Federal share. The Federal share of assistance under this 
section shall be not less than 75 percent of the cost of eligible work.
    (g) Project management. DOD shall ensure that the work is completed 
in accordance with the approved scope of work, costs, and time 
limitations in the mission assignment. DOD shall also keep the Regional 
Director and the State advised of work progress and other project 
developments. It is the responsibility of DOD to ensure compliance with 
applicable Federal, State and local legal requirements. A final report 
will be submitted to the Regional Director upon termination of all 
direct Federal assistance work. Final reports shall be signed by a 
representative of DOD and the State. Once the final eligible cost is 
determined, DOD will request reimbursement from FEMA and FEMA will 
submit a bill to the State for the non-Federal share of the mission 
assignment.
    (h) Reimbursement of DOD. Reimbursement will be made in accordance 
with Sec. 206.8 of these regulations.



Sec. 206.35  Requests for emergency declarations.

    (a) When an incident occurs or threatens to occur in a State, which 
would not qualify under the definition of a major disaster, the Governor 
of a State, or the Acting Governor in his/her absence, may request that 
the President declare an emergency. The Governor should submit the 
request to the President through the appropriate Regional Director to 
ensure prompt acknowledgment and processing. The request must be 
submitted within 5 days after the need for assistance under title V 
becomes apparent, but no longer than 30 days after the occurrence of the 
incident, in order to be considered. The period may be extended by the 
Associate Director provided that a written request for such extension is 
made by the Governor, or Acting Governor, during the 30-day period 
immediately following the incident. The extension request must stipulate 
the reason for the delay.
    (b) The basis for the Governor's request must be the finding that 
the situation:
    (1) Is of such severity and magnitude that effective response is 
beyond the capability of the State and the affected local government(s); 
and
    (2) Requires supplementary Federal emergency assistance to save 
lives and to protect property, public health and safety, or to lessen or 
avert the threat of a disaster.
    (c) In addition to the above findings, the complete request shall 
include:
    (1) Confirmation that the Governor has taken appropriate action 
under State law and directed the execution of the State emergency plan;
    (2) Information describing the State and local efforts and resources 
which have been or will be used to alleviate the emergency;
    (3) Information describing other Federal agency efforts and 
resources which

[[Page 425]]

have been or will be used in responding to this incident; and
    (4) Identification of the type and extent of additional Federal aid 
required.
    (d) Modified declaration for Federal emergencies. The requirement 
for a Governor's request under paragraph (a) of this section can be 
waived when an emergency exists for which the primary responsibility 
rests in the Federal government because the emergency involves a subject 
area for which, under the Constitution or laws of the United States, the 
Federal government exercises exclusive or preeminent responsibility and 
authority. Any party may bring the existence of such a situation to the 
attention of the FEMA Regional Director. Any recommendation for a 
Presidential declaration of emergency in the absence of a Governor's 
request must be initiated by the Regional Director or transmitted 
through the Regional Director by another Federal agency. In determining 
that such an emergency exists, the Associate Director or Regional 
Director shall consult the Governor of the affected State, if 
practicable.
    (e) Other authorities. It is not intended for an emergency 
declaration to preempt other Federal agency authorities and/or 
established plans and response mechanisms in place prior to the 
enactment of the Stafford Act.



Sec. 206.36  Requests for major disaster declarations.

    (a) When a catastrophe occurs in a State, the Governor of a State, 
or the Acting Governor in his/her absence, may request a major disaster 
declaration. The Governor should submit the request to the President 
through the appropriate Regional Director to ensure prompt 
acknowledgment and processing. The request must be submitted within 30 
days of the occurrence of the incident in order to be considered. The 
30-day period may be extended by the Associate Director, provided that a 
written request for an extension is submitted by the Governor, or Acting 
Governor, during this 30-day period. The extension request will 
stipulate reasons for the delay.
    (b) The basis for the request shall be a finding that:
    (1) The situation is of such severity and magnitude that effective 
response is beyond the capabilities of the State and affected local 
governments; and
    (2) Federal assistance under the Act is necessary to supplement the 
efforts and available resources of the State, local governments, 
disaster relief organizations, and compensation by insurance for 
disaster-related losses.
    (c) In addition to the above findings, the complete request shall 
include:
    (1) Confirmation that the Governor has taken appropriate action 
under State law and directed the execution of the State emergency plan;
    (2) An estimate of the amount and severity of damages and losses 
stating the impact of the disaster on the public and private sector;
    (3) Information describing the nature and amount of State and local 
resources which have been or will be committed to alleviate the results 
of the disaster;
    (4) Preliminary estimates of the types and amount of supplementary 
Federal disaster assistance needed under the Stafford Act; and
    (5) Certification by the Governor that State and local government 
obligations and expenditures for the current disaster will comply with 
all applicable cost sharing requirements of the Stafford Act.
    (d) For those catastrophes of unusual severity and magnitude when 
field damage assessments are not necessary to determine the requirement 
for supplemental Federal assistance, the Governor or Acting Governor may 
send an abbreviated written request through the Regional Director for a 
declaration of a major disaster. This may be transmitted in the most 
expeditious manner available. In the event the FEMA Regional Office is 
severely impacted by the catastrophe, the request may be addressed to 
the Director of FEMA. The request must indicate a finding in accordance 
with Sec. 206.36(b), and must include as a minimum the information 
requested by Sec. 206.36 (c)(1), (c)(3), and (c)(5). Upon receipt of 
the request, FEMA shall expedite the processing of reports and 
recommendations to the President. Notification to the Governor of the 
Presidential declaration shall be in accordance with 44 CFR 206.39. The

[[Page 426]]

Associate Director shall assure that documentation of the declaration is 
later assembled to comply fully with these regulations.



Sec. 206.37  Processing requests for declarations of a major disaster or 
emergency.

    (a) Acknowledgment. The Regional Director shall provide written 
acknowledgment of the Governor's request.
    (b) Regional summary. Based on information obtained by FEMA/State 
preliminary damage assessments of the affected area(s) and consultations 
with appropriate State and Federal officials and other interested 
parties, the Regional Director shall promptly prepare a summary of the 
PDA findings. The data will be analyzed and submitted with a 
recommendation to the Associate Director. The Regional Analysis shall 
include a discussion of State and local resources and capabilities, and 
other assistance available to meet the major disaster or emergency-
related needs.
    (c) FEMA recommendation. Based on all available information, the 
Director shall formulate a recommendation which shall be forwarded to 
the President with the Governor's request.
    (1) Major disaster recommendation. The recommendation will be based 
on a finding that the situation is or is not of such severity and 
magnitude as to be beyond the capabilities of the State and its local 
governments. It will also contain a determination of whether or not 
supplemental Federal assistance under the Stafford Act is necessary and 
appropriate. In developing a recommendation, FEMA will consider such 
factors as the amount and type of damages; the impact of damages on 
affected individuals, the State, and local governments; the available 
resources of the State and local governments, and other disaster relief 
organizations; the extent and type of insurance in effect to cover 
losses; assistance available from other Federal programs and other 
sources; imminent threats to public health and safety; recent disaster 
history in the State; hazard mitigation measures taken by the State or 
local governments, especially implementation of measures required as a 
result of previous major disaster declarations; and other factors 
pertinent to a given incident.
    (2) Emergency recommendation. The recommendation will be based on a 
report which will indicate whether or not Federal emergency assistance 
under section 502 of the Stafford Act is necessary to supplement State 
and local efforts to save lives, protect property and public health and 
safety, or to lessen or avert the threat of a catastrophe. Only after it 
has been determined that all other resources and authorities available 
to meet the crisis are inadequate, and that assistance provided in 
section 502 of the Stafford Act would be appropriate, will FEMA 
recommend an emergency declaration to the President.
    (d) Modified Federal emergency recommendation. The recommendation 
will be based on a report which will indicate that an emergency does or 
does not exist for which assistance under section 502 of the Stafford 
Act would be appropriate. An emergency declaration will not be 
recommended in situations where the authority to respond or coordinate 
is within the jurisdiction of one or more Federal agencies without a 
Presidential declaration. However, where there are significant unmet 
needs of sufficient severity and magnitude, not addressed by other 
assistance, which could appropriately be addressed under the Stafford 
Act, the involvement of other Federal agencies would not preclude a 
declaration of an emergency under the Act.



Sec. 206.38  Presidential determination.

    (a) The Governor's request for a major disaster declaration may 
result in either a Presidential declaration of a major disaster or an 
emergency, or denial of the Governor's request.
    (b) The Governor's request for an emergency declaration may result 
only in a Presidential declaration of an emergency, or denial of the 
Governor's request.

[55 FR 2292, Jan. 23, 1990; 55 FR 5458, Feb. 15, 1990]



Sec. 206.39  Notification.

    (a) The Governor will be promptly notified by the Director or his/
her designee of a declaration by the President that an emergency or a 
major disaster

[[Page 427]]

exists. FEMA also will notify other Federal agencies and other 
interested parties.
    (b) The Governor will be promptly notified by the Director or his/
her designee of a determination that the Governor's request does not 
justify the use of the authorities of the Stafford Act.
    (c) Following a major disaster or emergency declaration, the 
Regional Director or Associate Director will promptly notify the 
Governor of the designations of assistance and areas eligible for such 
assistance.



Sec. 206.40  Designation of affected areas and eligible assistance.

    (a) Eligible assistance. The Associate Director has been delegated 
authority to determine and designate the types of assistance to be made 
available. The initial designations will usually be announced in the 
declaration. Determinations by the Associate Director of the types and 
extent of FEMA disaster assistance to be provided are based upon 
findings whether the damage involved and its effects are of such 
severity and magnitude as to be beyond the response capabilities of the 
State, the affected local governments, and other potential recipients of 
supplementary Federal assistance. The Associate Director may authorize 
all, or only particular types of, supplementary Federal assistance 
requested by the Governor.
    (b) Areas eligible to receive assistance. The Associate Director 
also has been delegated authority to designate the disaster-affected 
areas eligible for supplementary Federal assistance under the Stafford 
Act. These designations shall be published in the Federal Register. A 
disaster-affected area designated by the Associate Director includes all 
local government jurisdictions within its boundaries. The Associate 
Director may, based upon damage assessments in any given area, designate 
all or only some of the areas requested by the Governor for 
supplementary Federal assistance.
    (c) Requests for additional designations after a declaration. After 
a declaration by the President, the Governor, or the GAR, may request 
that additional areas or types of supplementary Federal assistance be 
authorized by the Associate Director. Such requests shall be accompanied 
by appropriate verified assessments and commitments by State and local 
governments to demonstrate that the requested designations are justified 
and that the unmet needs are beyond State and local capabilities without 
supplementary Federal assistance. Additional assistance or areas added 
to the declaration will be published in the Federal Register.
    (d) Time limits to request. In order to be considered, all 
supplemental requests under paragraph (c) of this section must be 
submitted within 30 days from the termination date of the incident, or 
30 days after the declaration, whichever is later. The 30-day period may 
be extended by the Associate Director provided that a written request is 
made by the appropriate State official during this 30-day period. The 
request must include justification of the State's inability to meet the 
deadline.



Sec. 206.41  Appointment of disaster officials.

    (a) Federal Coordinating Officer. Upon a declaration of a major 
disaster or of an emergency by the President, the Director, or in his 
absence, the Deputy Director, or alternately, the Associate Director 
shall appoint an FCO who shall initiate action immediately to assure 
that Federal assistance is provided in accordance with the declaration, 
applicable laws, regulations, and the FEMA-State Agreement.
    (b) Disaster Recovery Manager. The Regional Director shall designate 
a DRM to exercise all the authority of the Regional Director in a major 
disaster or an emergency.
    (c) State Coordinating Officer. Upon a declaration of a major 
disaster or of an emergency, the Governor of the affected State shall 
designate an SCO who shall coordinate State and local disaster 
assistance efforts with those of the Federal Government.
    (d) Governor's Authorized Representative. In the FEMA-State 
Agreement, the Governor shall designate the GAR, who shall administer 
Federal disaster assistance programs on behalf of the State and local 
governments and other grant or loan recipients. The GAR is responsible 
for the State compliance with the FEMA-State Agreement.

[[Page 428]]



Sec. 206.42  Responsibilities of coordinating officers.

    (a) Following a declaration of a major disaster or an emergency, the 
FCO shall:
    (1) Make an initial appraisal of the types of assistance most 
urgently needed;
    (2) In coordination with the SCO, establish field offices and 
Disaster Application Centers as necessary to coordinate and monitor 
assistance programs, disseminate information, accept applications, and 
counsel individuals, families and businesses concerning available 
assistance;
    (3) Coordinate the administration of relief, including activities of 
State and local governments, activities of Federal agencies, and those 
of the American Red Cross, the Salvation Army, the Mennonite Disaster 
Service, and other voluntary relief organizations which agree to operate 
under the FCO's advice and direction;
    (4) Undertake appropriate action to make certain that all of the 
Federal agencies are carrying out their appropriate disaster assistance 
roles under their own legislative authorities and operational policies; 
and
    (5) Take other action, consistent with the provisions of the 
Stafford Act, as necessary to assist citizens and public officials in 
promptly obtaining assistance to which they are entitled.
    (b) The SCO coordinates State and local disaster assistance efforts 
with those of the Federal Government working closely with the FCO. The 
SCO is the principal point of contact regarding coordination of State 
and local disaster relief activities, and implementation of the State 
emergency plan. The functions, responsibilities, and authorities of the 
SCO are set forth in the State emergency plan. It is the responsibility 
of the SCO to ensure that all affected local jurisdictions are informed 
of the declaration, the types of assistance authorized, and the areas 
eligible to receive such assistance.



Sec. 206.43  Emergency support teams.

    The Federal Coordinating Officer may activate emergency support 
teams, composed of Federal program and support personnel, to be deployed 
into an area affected by a major disaster or emergency. These emergency 
support teams assist the FCO in carrying out his/her responsibilities 
under the Stafford Act and these regulations. Any Federal agency can be 
directed to detail personnel within the agency's administrative 
jurisdiction to temporary duty with the FCO. Each detail shall be 
without loss of seniority, pay, or other employee status.



Sec. 206.44  FEMA-State Agreements.

    (a) General. Upon the declaration of a major disaster or an 
emergency, the Governor, acting for the State, and the FEMA Regional 
Director or his/her designee, acting for the Federal Government, shall 
execute a FEMA-State Agreement. The FEMA-State Agreement states the 
understandings, commitments, and conditions for assistance under which 
FEMA disaster assistance shall be provided. This Agreement imposes 
binding obligations on FEMA, States, their local governments, and 
private nonprofit organizations within the States in the form of 
conditions for assistance which are legally enforceable. No FEMA funding 
will be authorized or provided to any grantees or other recipients, nor 
will direct Federal assistance be authorized by mission assignment, 
until such time as this Agreement for the Presidential declaration has 
been signed, except where it is deemed necessary by the Regional 
Director to begin the process of providing essential emergency services 
or housing assistance under the Individuals and Households Program.
    (b) Terms and conditions. This Agreement describes the incident and 
the incident period for which assistance will be made available, the 
type and extent of the Federal assistance to be made available, and 
contains the commitment of the State and local government(s) with 
respect to the amount of funds to be expended in alleviating damage and 
suffering caused by the major disaster or emergency. The Agreement also 
contains such other terms and conditions consistent with the declaration 
and the provisions of applicable laws, Executive Order and regulations.
    (c) Provisions for modification. In the event that the conditions 
stipulated in the original Agreement are changed or

[[Page 429]]

modified, such changes will be reflected in properly executed amendments 
to the Agreement, which may be signed by the GAR and the Regional 
Director or his/her designee for the specified major disaster or 
emergency. Amendments most often occur to close or amend the incident 
period, to add forms of assistance not originally authorized, or to 
designate additional areas eligible for assistance.
    (d) In a modified declaration for a Federal emergency, a FEMA-State 
Agreement may or may not be required based on the type of assistance 
being provided.

[55 FR 2292, Jan. 23, 1990, as amended at 67 FR 61460, Sept. 30, 2002]



Sec. 206.45  Loans of non-Federal share.

    (a) Conditions for making loans. At the request of the Governor, the 
Associate Director may lend or advance to a State, either for its own 
use or for the use of public or private nonprofit applicants for 
disaster assistance under the Stafford Act, the portion of assistance 
for which the State or other eligible disaster assistance applicant is 
responsible under the cost-sharing provisions of the Stafford Act in any 
case in which:
    (1) The State or other eligible disaster assistance applicant is 
unable to assume their financial responsibility under such cost sharing 
provisions:
    (i) As a result of concurrent, multiple major disasters in a 
jurisdiction, or
    (ii) After incurring extraordinary costs as a result of a particular 
disaster;
    (2) The damages caused by such disasters or disaster are so 
overwhelming and severe that it is not possible for the State or other 
eligible disaster assistance applicant to immediately assume their 
financial responsibility under the Act; and
    (3) The State and the other eligible disaster applicants are not 
delinquent in payment of any debts to FEMA incurred as a result of 
Presidentially declared major disasters or emergencies.
    (b) Repayment of loans. Any loan made to a State under paragraph (a) 
of this section must be repaid to the United States. The Governor must 
include a repayment schedule as part of the request for advance.
    (1) The State shall repay the loan (the principal disbursed plus 
interest) in accordance with the repayment schedule approved by the 
Associate Director.
    (2) If the State fails to make payments in accordance with the 
approved repayment schedule, FEMA will offset delinquent amounts against 
the current, prior, or any subsequent disasters, or monies due the State 
under other FEMA programs, in accordance with the established Claims 
Collection procedures.
    (c) Interest. Loans or advances under paragraph (a) of this section 
shall bear interest at a rate determined by the Secretary of the 
Treasury, taking into consideration the current market yields on 
outstanding marketable obligations of the United States with remaining 
periods to maturity comparable to the reimbursement period of the loan 
or advance. Simple interest will be computed from the date of the 
disbursement of each drawdown of the loan/advance by the State based on 
365 days/year.



Sec. 206.46  Appeals.

    (a) Denial of declaration request. When a request for a major 
disaster declaration or for any emergency declaration is denied, the 
Governor may appeal the decision. An appeal must be made within 30 days 
after the date of the letter denying the request. This one-time request 
for reconsideration, along with appropriate additional information, is 
submitted to the President through the appropriate Regional Director. 
The processing of this request is similar to the initial request.
    (b) Denial of types of assistance or areas. In those instances when 
the type of assistance or certain areas requested by the Governor are 
not designated or authorized, the Governor, or the GAR, may appeal the 
decision. An appeal must be submitted in writing within 30 days of the 
date of the letter denying the request. This one-time request for 
reconsideration, along with justification and/or additional information, 
is sent to the Associate Director through the appropriate Regional 
Director.
    (c) Denial of advance of non-Federal share. In those instances where 
the Governor's request for an advance is

[[Page 430]]

denied, the Governor may appeal the decision. An appeal must be 
submitted in writing within 30 days of the date of the letter denying 
the request. This one-time request for reconsideration, along with 
justification and/or additional information, is sent to the Associate 
Director through the appropriate Regional Director.
    (d) Extension of time to appeal. The 30-day period referred to in 
paragraphs (a), (b), or (c) of this section may be extended by the 
Associate Director provided that a written request for such an 
extension, citing reasons for the delay, is made during this 30-day 
period, and if the Associate Director agrees that there is a legitimate 
basis for extension of the 30-day period. Only the Governor may request 
a time extension for appeals covered in paragraphs (a) and (c) of this 
section. The Governor, or the GAR if one has been named, may submit the 
time extension request for appeals covered in paragraph (b) of this 
section.



Sec. 206.47  Cost-share adjustments.

    (a) We pay seventy-five percent (75%) of the eligible cost of 
permanent restorative work under section 406 of the Stafford Act and for 
emergency work under section 403 and section 407 of the Stafford Act, 
unless the Federal share is increased under this section.
    (b) We recommend an increase in the Federal cost share from seventy-
five percent (75%) to not more than ninety percent (90%) of the eligible 
cost of permanent work under section 406 and of emergency work under 
section 403 and section 407 whenever a disaster is so extraordinary that 
actual Federal obligations under the Stafford Act, excluding FEMA 
administrative cost, meet or exceed a qualifying threshold of:
    (1) Beginning in 1999 and effective for disasters declared on or 
after May 21, 1999, $75 per capita of State population;
    (2) Effective for disasters declared after January 1, 2000, and 
through December 31, 2000, $85 per capita of State population;
    (3) Effective for disasters declared after January 1, 2001, $100 per 
capita of State population; and,
    (4) Effective for disasters declared after January 1, 2002 and for 
later years, $100 per capita of State population, adjusted annually for 
inflation using the Consumer Price Index for All Urban Consumers 
published annually by the Department of Labor.
    (c) When we determine whether to recommend a cost-share adjustment 
we consider the impact of major disaster declarations in the State 
during the preceding twelve-month period.
    (d) If warranted by the needs of the disaster, we recommend up to 
one hundred percent (100%) Federal funding for emergency work under 
section 403 and section 407, including direct Federal assistance, for a 
limited period in the initial days of the disaster irrespective of the 
per capita impact.

[64 FR 19498, Apr. 21, 1999]



Sec. 206.48  Factors considered when evaluating a Governor's request for 
a major disaster declaration.

    When we review a Governor's request for major disaster assistance 
under the Stafford Act, these are the primary factors in making a 
recommendation to the President whether assistance is warranted. We 
consider other relevant information as well.
    (a) Public Assistance Program. We evaluate the following factors to 
evaluate the need for assistance under the Public Assistance Program.
    (1) Estimated cost of the assistance. We evaluate the estimated cost 
of Federal and nonfederal public assistance against the statewide 
population to give some measure of the per capita impact within the 
State. We use a figure of $1 per capita as an indicator that the 
disaster is of such size that it might warrant Federal assistance, and 
adjust this figure annually based on the Consumer Price Index for all 
Urban Consumers. We are establishing a minimum threshold of $1 million 
in public assistance damages per disaster in the belief that we can 
reasonably expect even the lowest population States to cover this level 
of public assistance damage.
    (2) Localized impacts. We evaluate the impact of the disaster at the 
county and local government level, as well as impacts at the American 
Indian and Alaskan Native Tribal Government levels, because at times 
there are extraordinary concentrations of damages that

[[Page 431]]

might warrant Federal assistance even if the statewide per capita is not 
met. This is particularly true where critical facilities are involved or 
where localized per capita impacts might be extremely high. For example, 
we have at times seen localized damages in the tens or even hundreds of 
dollars per capita though the statewide per capita impact was low.
    (3) Insurance coverage in force. We consider the amount of insurance 
coverage that is in force or should have been in force as required by 
law and regulation at the time of the disaster, and reduce the amount of 
anticipated assistance by that amount.
    (4) Hazard mitigation. To recognize and encourage mitigation, we 
consider the extent to which State and local government measures 
contributed to the reduction of disaster damages for the disaster under 
consideration. For example, if a State can demonstrate in its disaster 
request that a Statewide building code or other mitigation measures are 
likely to have reduced the damages from a particular disaster, we 
consider that in the evaluation of the request. This could be especially 
significant in those disasters where, because of mitigation, the 
estimated public assistance damages fell below the per capita indicator.
    (5) Recent multiple disasters. We look at the disaster history 
within the last twelve-month period to evaluate better the overall 
impact on the State or locality. We consider declarations under the 
Stafford Act as well as declarations by the Governor and the extent to 
which the State has spent its own funds.
    (6) Programs of other Federal assistance. We also consider programs 
of other Federal agencies because at times their programs of assistance 
might more appropriately meet the needs created by the disaster.
    (b) Factors for the Individual Assistance Program. We consider the 
following factors to measure the severity, magnitude and impact of the 
disaster and to evaluate the need for assistance to individuals under 
the Stafford Act.
    (1) Concentration of damages. We evaluate the concentrations of 
damages to individuals. High concentrations of damages generally 
indicate a greater need for Federal assistance than widespread and 
scattered damages throughout a State.
    (2) Trauma. We consider the degree of trauma to a State and to 
communities. Some of the conditions that might cause trauma are:
    (i) Large numbers of injuries and deaths;
    (ii) Large scale disruption of normal community functions and 
services; and
    (iii) Emergency needs such as extended or widespread loss of power 
or water.
    (3) Special populations. We consider whether special populations, 
such as low-income, the elderly, or the unemployed are affected, and 
whether they may have a greater need for assistance. We also consider 
the effect on American Indian and Alaskan Native Tribal populations in 
the event that there are any unique needs for people in these 
governmental entities.
    (4) Voluntary agency assistance. We consider the extent to which 
voluntary agencies and State or local programs can meet the needs of the 
disaster victims.
    (5) Insurance. We consider the amount of insurance coverage because, 
by law, Federal disaster assistance cannot duplicate insurance coverage.
    (6) Average amount of individual assistance by State. There is no 
set threshold for recommending Individual Assistance, but the following 
averages may prove useful to States and voluntary agencies as they 
develop plans and programs to meet the needs of disaster victims.

                                    Average Amount of Assistance per Disaster
                                            [July 1994 to July 1999]
----------------------------------------------------------------------------------------------------------------
                                       Small states  (under 2     Medium states  (2-10    Large states  (over 10
                                            million pop.)            million pop.)            million pop.)
----------------------------------------------------------------------------------------------------------------
Average Population (1990 census       1,000,057...............  4,713,548..............  15,522,791
 data).
Number of Disaster Housing            1,507...................  2,747..................  4,679
 Applications Approved.
Number of Homes Estimated Major       173.....................  582....................  801
 Damage/Destroyed.

[[Page 432]]

 
Dollar Amount of Housing Assistance.  $2.8 million              $4.6 million             $9.5 million
Number of Individual and Family       495.....................  1,377..................  2,071
 Grant Applications Approved.
Dollar Amount of Individual and       1.1 million.............  2.9 million............  4.6 million
 Family Grant Assistance.
Disaster Housing/IFG Combined         3.9 million.............  7.5 million............  14.1 million
 Assistance.
----------------------------------------------------------------------------------------------------------------

    Note: The high 3 and low 3 disasters, based on Disaster Housing 
Applications, are not considered in the averages. Number of Damaged/
Destroyed Homes is estimated based on the number of owner-occupants who 
qualify for Eligible Emergency Rental Resources. Data source is FEMA's 
National Processing Service Centers. Data are only available from July 
1994 to the present.
    Small Size States (under 2 million population, listed in order of 
1990 population): Wyoming, Alaska, Vermont, District of Columbia, North 
Dakota, Delaware, South Dakota, Montana, Rhode Island, Idaho, Hawaii, 
New Hampshire, Nevada, Maine, New Mexico, Nebraska, Utah, West Virginia. 
U.S. Virgin Islands and all Pacific Island dependencies.
    Medium Size States (2-10 million population, listed in order of 1990 
population): Arkansas, Kansas, Mississippi, Iowa, Oregon, Oklahoma, 
Connecticut, Colorado, South Carolina, Arizona, Kentucky, Alabama, 
Louisiana, Minnesota, Maryland, Washington, Tennessee, Wisconsin, 
Missouri, Indiana, Massachusetts, Virginia, Georgia, North Carolina, New 
Jersey, Michigan. Puerto Rico.
    Large Size States (over 10 million population, listed in order of 
1990 population): Ohio, Illinois, Pennsylvania, Florida, Texas, New 
York, California.

[64 FR 47698, Sept. 1, 1999]



Sec. Sec. 206.49-206.60  [Reserved]



                     Subpart C_Emergency Assistance

    Source: 55 FR 2296, Jan. 23, 1990, unless otherwise noted.



Sec. 206.61  Purpose.

    The purpose of this subpart is to identify the forms of assistance 
which may be made available under an emergency declaration.



Sec. 206.62  Available assistance.

    In any emergency declaration, the Associate Director or Regional 
Director may provide assistance, as follows:
    (a) Direct any Federal agency, with or without reimbursement, to 
utilize its authorities and the resources granted to it under Federal 
law (including personnel, equipment, supplies, facilities, and 
managerial, technical and advisory services) in support of State and 
local emergency assistance efforts to save lives, protect property and 
public health and safety, and lessen or avert the threat of a 
catastrophe;
    (b) Coordinate all disaster relief assistance (including voluntary 
assistance) provided by Federal agencies, private organizations, and 
State and local governments;
    (c) Provide technical and advisory assistance to affected State and 
local governments for:
    (1) The performance of essential community services;
    (2) Issuance of warnings of risks or hazards;
    (3) Public health and safety information, including dissemination of 
such information;
    (4) Provision of health and safety measures; and
    (5) Management, control, and reduction of immediate threats to 
public health and safety;
    (d) Provide emergency assistance under the Stafford Act through 
Federal agencies;
    (e) Remove debris in accordance with the terms and conditions of 
section 407 of the Stafford Act;
    (f) Provide assistance in accordance with section 408 of the 
Stafford Act.; and
    (g) Assist State and local governments in the distribution of 
medicine, food, and other consumable supplies, and emergency assistance.

[55 FR 2296, Jan. 23, 1990, as amended at 67 FR 61460, Sept. 30, 2002]

[[Page 433]]



Sec. 206.63  Provision of assistance.

    Assistance authorized by an emergency declaration is limited to 
immediate and short-term assistance, essential to save lives, to protect 
property and public health and safety, or to lessen or avert the threat 
of a catastrophe.



Sec. 206.64  Coordination of assistance.

    After an emergency declaration by the President, all Federal 
agencies, voluntary organizations, and State and local governments 
providing assistance shall operate under the coordination of the Federal 
Coordinating Officer.



Sec. 206.65  Cost sharing.

    The Federal share for assistance provided under this title shall not 
be less than 75 percent of the eligible costs.



Sec. 206.66  Limitation on expenditures.

    Total assistance provided in any given emergency declaration may not 
exceed $5,000,000, except when it is determined by the Associate 
Director that:
    (a) Continued emergency assistance is immediately required;
    (b) There is a continuing and immediate risk to lives, property, 
public health and safety; and
    (c) Necessary assistance will not otherwise be provided on a timely 
basis.



Sec. 206.67  Requirement when limitation is exceeded.

    Whenever the limitation described in Sec. 206.66 is exceeded, the 
Director must report to the Congress on the nature and extent of 
continuing emergency assistance requirements and shall propose 
additional legislation if necessary.



Sec. Sec. 206.68-206.100  [Reserved]



       Subpart D_Federal Assistance to Individuals and Households



Sec. 206.101  Temporary housing assistance for emergencies and major 
disasters declared on or before October 14, 2002.

    (a) Purpose. This section prescribes the policy to be followed by 
the Federal Government or any other organization when implementing 
section 408 of the Stafford Act for Presidentially-declared emergencies 
and major disasters declared on or before October 14, 2002 (Note that 
the reference to section 408 of the Stafford Act refers to prior 
legislation amended by the Disaster Mitigation Act 2000).
    (b) Program intent. Assistance under this program is made available 
to applicants who require temporary housing as a result of a major 
disaster or emergency that is declared by the President. Eligibility for 
assistance is based on need created by disaster-related unlivability of 
a primary residence or other disaster-related displacement, combined 
with a lack of adequate insurance coverage. Eligible applicants may be 
paid for authorized accommodations and/or repairs. In the interest of 
assisting the greatest number of people in the shortest possible time, 
applicants who are able to do so will be encouraged to make their own 
arrangements for temporary housing. Although numerous instances of minor 
damage may cause some inconvenience to the applicant, the determining 
eligibility factor must be the livability of the primary residence. FEMA 
has also determined that it is reasonable to expect applicants or their 
landlords to make some repairs of a minor nature. Temporary housing will 
normally consist of a check to cover housing-related costs wherever 
possible.
    (c) Definitions.
    (1) Adequate alternate housing means housing that:
    (i) Accommodates the needs of the occupants.
    (ii) Is within reasonable commuting distance of work, school, or 
agricultural activities which provide over 25% of the household income.
    (iii) Is within the financial ability of the occupant in the 
realization of a permanent housing plan.
    (2) Effective date of assistance means the date the eligible 
applicant received temporary housing assistance but, where applicable, 
only after appropriate insurance benefits are exhausted.
    (3) Essential living area means that area of the residence essential 
to normal living, i.e., kitchen, one bathroom, dining area, living room, 
entrances and exits, and essential sleeping areas. It does not include 
family rooms, guest rooms, garages, or other nonessential

[[Page 434]]

areas, unless hazards exist in these areas which impact the safety of 
the essential living area.
    (4) Fair market rent means a reasonable amount to pay in the local 
area for the size and type of accommodations which meets the applicant's 
needs.
    (5) Financial ability is the determination of the occupant's ability 
to pay housing costs. The determination is based upon the amount paid 
for housing before the disaster, provided the household income has not 
changed subsequent to or as a result of the disaster or 25 percent of 
gross post disaster income if the household income changed as a result 
of the disaster. When computing financial ability, extreme or unusual 
financial circumstances may be considered by the Regional Director.
    (6) Household means all residents of the predisaster residence who 
request temporary housing assistance, plus any additions during the 
temporary housing period, such as infants, spouses, or part-time 
residents who were not present at the time of the disaster but who are 
expected to return during the temporary housing period.
    (7) Housing costs means shelter rent and mortgage payments including 
principal, interest, real estate taxes, real property insurance, and 
utility costs, where appropriate.
    (8) Occupant means an eligible applicant residing in temporary 
housing provided under this section.
    (9) Owner-occupied means that the residence is occupied by: the 
legal owner; a person who does not hold formal title to the residence 
and pays no rent but is responsible for the payment of taxes, or 
maintenance of the residence; or a person who has lifetime occupancy 
rights with formal title vested in another.
    (10) Primary residence means the dwelling where the applicant 
normally lives during the major portion of the calendar year, a dwelling 
which is required because of proximity to employment, or to agricultural 
activities as referenced in paragraph (c)(1)(ii) of this section.
    (d) Duplication of benefits--(1) Requirement to avoid duplication. 
Temporary housing assistance shall not be provided to an applicant if 
such assistance has been provided by any other source. If any State or 
local government or voluntary agency has provided temporary housing, the 
assistance under this section begins at the expiration of such 
assistance, and may continue for a period not to exceed l8 months from 
the date of declaration, provided the criteria for continued assistance 
in paragraph (k)(3) of this section are met. If it is determined that 
temporary housing assistance will be provided under this section, 
notification shall be given those agencies which have the potential for 
duplicating such assistance. In the instance of insured applicants, 
temporary housing assistance shall be provided only when:
    (i) Payment of the applicable benefits has been significantly 
delayed;
    (ii) Applicable benefits have been exhausted;
    (iii) Applicable benefits are insufficient to cover the temporary 
housing need; or
    (iv) Housing is not available on the private market.
    (2) Recovery of funds. Prior to provision of assistance, the 
applicant must agree to repay to FEMA from insurance proceeds or 
recoveries from any other source an amount equivalent to the value of 
the temporary housing assistance provided. In no event shall the amount 
repaid to FEMA exceed the amount recovered by the applicant. All claims 
shall be collected in accordance with agency procedures for debt 
collection.
    (e) Applications-- (1) Application period. The standard FEMA 
application period is the 60 days following the date the President 
declares an incident a major disaster or an emergency. The Regional 
Director may, however, extend the application period, when we anticipate 
that we need more time to collect applications from the affected 
population or to establish the same application deadline for contiguous 
Counties or States. After the application period has ended, FEMA will 
accept and process applications for an additional 60 days only from 
persons who can provide an acceptable explanation (and documentation to 
substantiate their explanation) for why they were not able to contact 
FEMA before the application period ended.

[[Page 435]]

    (2) Household composition. Members of a household shall be included 
on a single application and be provided one temporary housing residence 
unless it is determined by the Regional Director that the size of the 
household requires that more than one residence be provided.
    (f) General eligibility guidelines. Temporary housing assistance may 
be made available to those applicants who, as a result of a major 
disaster or emergency declared by the President, are qualified for such 
assistance.
    (1) Conditions of eligibility. Temporary housing assistance may be 
provided only when both of the following conditions are met:
    (i) The applicant's primary residence has been made unlivable or the 
applicant has been displaced as the result of a major disaster or 
emergency because:
    (A) The residence has been destroyed, essential utility service has 
been interrupted, or the essential living area has been damaged as a 
result of the disaster to such an extent as to constitute a serious 
health or safety hazard which did not exist prior to the disaster. The 
Regional Director shall prepare additional guidelines when necessary to 
respond to a particular disaster;
    (B) The residence has been made inaccessible as a result of the 
incident to the extent that the applicant cannot reasonably be expected 
to gain entry due to the disruption or destruction of transportation 
routes, other impediments to access, or restrictions placed on movement 
by a responsible official due to continued health and safety problems;
    (C) The owner of the applicant's residence requires the residence to 
meet their personal needs because the owner's predisaster residence was 
made unlivable as a result of the disaster;
    (D) Financial hardship resulting from the disaster has led to 
eviction or dispossession; or
    (E) Other circumstances resulting from the disaster, as determined 
by the Regional Director, prevent the applicant from occupying their 
predisaster primary residence.
    (ii) Insured applicants have made every reasonable effort to secure 
insurance benefits, and the insured has agreed to repay FEMA from 
whatever insurance proceeds are later received, pursuant to paragraph 
(d)(2) of this section.
    (2) Conditions of ineligibility. Except as provided for in section 
408(b), Temporary Housing Assistance shall not be provided:
    (i) To an applicant who is displaced from other than their primary 
residence; or
    (ii) When the residence in question is livable, i.e., only minor 
damage exists and it can reasonably be expected to be repaired by the 
applicant/owner or the landlord; or
    (iii) When the applicant owns a secondary or vacation residence, or 
unoccupied rental property which meets their temporary housing needs; or
    (iv) To an applicant who has adequate rent-free housing 
accommodations; or
    (v) To an applicant who has adequate insurance coverage and there is 
no indication that benefits will be delayed; or
    (vi) When a late application is not approved for processing by the 
Regional Director; or
    (vii) To an applicant who evacuated the residence in response to 
official warnings solely as a precautionary measure, and who is able to 
return to the residence immediately after the incident (i.e., the 
applicant is not otherwise eligible for temporary housing assistance).
    (g) Forms of Temporary Housing Assistance. All proceeds received or 
receivable by the applicant under Sec. 206.101 shall be exempt from 
garnishment, seizure, encumbrance, levy, execution, pledge, attachment, 
release, or waiver. No rights under this provision are assignable or 
transferable.
    (1) Temporary Housing Assistance is normally provided in the form of 
a check to cover the cost of rent or essential home repairs. The 
exceptions to this are when existing rental resources are not available 
and repairs to the home will not make it livable in a reasonable period 
of time, or when the eligible applicant is unable to physically leave 
the home due to the need to tend crops or livestock.
    (i) Government-owned, private, and commercial properties. When an 
eligible

[[Page 436]]

applicant is unable to obtain an available temporary housing unit, FEMA 
may enter into a leasing agreement for the eligible applicant. Rent 
payments shall be in accordance with the fair market rent (FMR) rates 
established for each operation for the type and size residence.
    (ii) Transient accommodations. Immediately following a 
Presidentially declared major disaster or emergency, disaster victims 
are expected to stay with family or friends without FEMA assistance, or 
to make use of mass shelters to the fullest extent possible for short-
term housing. Transient accommodations may be provided when individual 
circumstances warrant such assistance for only a short period of time or 
pending provision of other temporary housing resources. Transient 
accommodations may be provided for up to 30 days unless this period is 
extended by the Regional Director. Authorized expenditures for transient 
accommodations shall be restricted to the rental cost including 
utilities except for those which are separately metered. Payment for 
food, telephone, or other similar services is not authorized under this 
section.
    (2) Mobile homes, travel trailers, and other manufactured housing 
units. Government-owned or privately owned mobile homes, travel 
trailers, and other manufactured housing units may be placed on 
commercial, private, or group sites. The placement must comply with 
applicable State and local codes and ordinances as well as FEMA'S 
regulations at 44 CFR part 9, Floodplain Management and Protection of 
Wetlands, and the regulations at 44 CFR part 10, Environmental 
Considerations.
    (i) A commercial site is a site customarily leased for a fee because 
it is fully equipped to accommodate a housing unit. In accordance with 
section 408(a)(2)(B), the Associate Director has determined that leasing 
commercial sites at Federal expense is in the public interest. When the 
Regional Director determines that upgrading of commercial sites or 
installation of utilities on such sites will provide more cost-
effective, timely, and suitable temporary housing than other types of 
resources, they may authorize such action at Federal expense.
    (ii) A private site is a site provided or obtained by the applicant 
at no cost to the Federal Government. Also in accordance with section 
408(a)(2)(B), the Associate Director has determined that the cost of 
installation or repairs of essential utilities on private sites is 
authorized at Federal expense when such actions will provide more cost-
effective, timely, and suitable temporary housing than other types of 
resources.
    (iii) A group site is a site which accommodates two or more units. 
In accordance with section 408(a)(2)(A), locations for group sites shall 
be provided by State or local government complete with utilities. 
However, the Associate Director may authorize development of group 
sites, including installation of essential utilities, by the Federal 
Government, based on a recommendation from the Regional Director; 
provided, however, that the Federal expense is limited to 75 percent of 
the cost of construction and development (including installation of 
utilities). In accordance with section 408(a)(4) of the Stafford Act, 
the State or local government shall pay any cost which is not paid for 
from the Federal share, including long-term site maintenance such as 
snow removal, street repairs and other services of a governmental 
nature.
    (3) Temporary mortgage and rental payments. Assistance in the form 
of mortgage or rental payments may be paid to or be provided on behalf 
of eligible applicants who, as a result of a major disaster or 
emergency, have received written notice of dispossession or eviction 
from their primary residence by foreclosure of any mortgage or lien, 
cancellation of any contract of sale, or termination of any lease 
entered into prior to the disaster. Written notice, for the purpose of 
this paragraph, means a communication in writing by a landlord, mortgage 
holder, or other party authorized under State law to file such notice. 
The purpose of such notice is to notify a person of impending 
termination of a lease, foreclosure of a mortgage or lien, or 
cancellation of any contract of sale, which would result in the person's 
dispossession or eviction. Applications for this type of assistance may 
be filed for up to 6

[[Page 437]]

months following the date of declaration. This assistance may be 
provided for a period not to exceed 18 months or for the duration of the 
period of financial hardship, as determined by the Regional Director, 
whichever is less. The location of the residence of an applicant for 
assistance under this section shall not be a consideration of 
eligibility.
    (4) Home repairs. Repairs may be authorized to quickly repair or 
restore to a livable condition that portion of or areas affecting the 
essential living area of, or private access to, an owner-occupied 
primary residence which was damaged as a result of the disaster. 
Installation of utilities or conveniences not available in the residence 
prior to the disaster shall not be provided. However, repairs which are 
authorized shall conform to applicable local and/or State building 
codes; upgrading of existing damaged utilities may be authorized when 
required by these codes.
    (i) Options for repairs. Eligible applicants approved for repairs 
may be assisted through one or a combination of the following methods:
    (A) Cash payment. Payment shall be limited to the reasonable costs 
for the repairs and replacements in the locality, as determined by the 
Regional Director. This will be the method normally used, unless unusual 
circumstances warrant the methods listed under paragraph (g)(4), (i) (B) 
or (C) of this section.
    (B) Provision of materials and replacement items.
    (C) Government awarded repair contracts when authorized by the 
Associate Director.
    (ii) Feasibility. Repairs may be provided to those eligible 
applicants:
    (A) Who are owner-occupants of the residence to be made livable;
    (B) Whose residence can be made livable by repairs to the essential 
living area within 30 days following the feasibility determination. The 
Regional Director may extend this period for extenuating circumstances 
by determining that this type of assistance is still more cost 
effective, timely and otherwise suitable than other forms for temporary 
housing; and
    (C) Whose residence can be made livable by repairs to the essential 
living area, the cost of which do not exceed the dollar limitations 
established by the Associate Director. The Regional Director may, on a 
case-by-case basis, waive the dollar limitations when repairs are more 
cost effective and appropriate than other forms of housing assistance or 
when extenuating circumstances warrant.
    (iii) Scope of work. The type of repair or replacement authorized 
may vary depending upon the nature of the disaster. Items will be 
repaired where feasible or replaced only when necessary to insure the 
safety or health of the occupant. Replacement items shall be of average 
quality, size, and capacity taking into consideration the needs of the 
occupant. Repairs shall be disaster related and shall be limited to:
    (A) Repairs to the plumbing system, including repairs to or 
replacement of fixtures, providing service to the kitchen and one 
bathroom;
    (B) Repairs to the electrical system providing service to essential 
living areas, including repairs to or replacement of essential fixtures;
    (C) Repairs to the heating unit, including repairs to duct work, 
vents, and integral fuel and electrical systems. If repair or 
replacement through other forms of assistance cannot be accomplished 
before the start of the season requiring heat, home repairs may be 
authorized by the Regional Director when an inspection shows that the 
unit has been damaged beyond repair, or when the availability of 
necessary parts or components makes repair impossible;
    (D) Repairs to or replacement of essential components of the fuel 
system to provide for cooking;
    (E) Pumping and cleaning of the septic system, repairs to or 
replacement of the tank, drainfield, or repairs to sewer lines;
    (F) Flushing and/or purifying the water well, and repairs to or 
replacement of the pump, controls, tank, and pipes;
    (G) Repairs to or replacement of exterior doors, repair of windows 
and/or screens needed for health purposes;
    (H) Repairs to the roof, when the damages affect the essential 
living area;

[[Page 438]]

    (I) Repairs to interior floors, when severe buckling or 
deterioration creates a serious safety hazard;
    (J) Blocking, leveling, and anchoring of a mobile home; and 
reconnecting and/or resetting mobile home sewer, water, electrical and 
fuel lines, and tanks;
    (K) Emergency repairs to private access routes, limited to those 
repairs that meet the minimum safety standards and using the most 
economical materials available. Such repairs are provided on a one-time 
basis when no alternative access facilities are immediately available 
and when the repairs are more cost effective, timely or otherwise 
suitable than other forms of temporary housing.
    (L) Repairs to the foundation piers, walls or footings when the 
damages affect the structural integrity of the essential living area;
    (M) Repairs to the stove and refrigerator, when feasible; and
    (N) Elimination of other health and safety hazards or performance of 
essential repairs which are authorized by the Regional Director as not 
available through emergency services provided by voluntary or community 
agencies, and cannot reasonably be expected to be completed on a timely 
basis by the occupant without FEMA assistance.
    (iv) Requirements of the Flood Disaster Protection Act. FEMA has 
determined that flood insurance purchase requirements need not be 
imposed as a condition of receiving assistance under paragraph (g)(4) of 
this section. Repair recipients will normally receive assistance for 
further repairs from other programs which will impose the purchase and 
maintenance requirements. Home repairs may not be provided in Zones A or 
V of a sanctioned or suspended community except for items that are not 
covered by flood insurance.
    (h) Appropriate form of temporary housing. The form of temporary 
housing provided should not exceed occupants' minimum requirements, 
taking into consideration items such as timely availability, cost 
effectiveness, permanent housing plans, special needs (handicaps, the 
location of crops and livestock, etc.) of the occupants, and the 
requirements of FEMA'S floodplain management regulations at 44 CFR part 
9. An eligible applicant shall receive one form of temporary housing, 
except for transient accommodations or when provision of an additional 
form is in the best interest of the Government. An eligible applicant is 
expected to accept the first offer of temporary housing; unwarranted 
refusal shall result in forfeiture of temporary housing assistance. 
Existing rental resources and home repairs shall be utilized to the 
fullest extent practicable prior to provision of government-owned mobile 
homes.
    (i) Utility costs and security deposits. All utility costs shall be 
the responsibility of the occupant except where utility services are not 
metered separately and are therefore a part of the rental charge. 
Utility use charges and deposits shall always be the occupants 
responsibility. When authorized by the Regional Director, the Federal 
Government may pay security deposits; however, the owner or occupant 
shall reimburse the full amount of the security deposit to the Federal 
Government before or at the time that the temporary housing assistance 
is terminated.
    (j) Furniture. An allowance for essential furniture may be provided 
to occupants when such assistance is required to occupy the primary or 
temporary housing residence. However, loss of furniture does not in and 
of itself constitute eligibility for temporary housing assistance. 
Luxury items shall not be provided.
    (k) Duration of assistance--(1) Commencement. Temporary housing 
assistance may be provided as of the date of the incident of the major 
disaster or emergency as specified in the Federal Register notice and 
may continue for 18 months from the date of declaration. An effective 
date of assistance shall be established for each applicant.
    (2) Continued assistance. Predisaster renters normally shall be 
provided no more than 1 month of assistance unless the Regional Director 
determines that continued assistance is warranted in accordance with 
paragraph (k)(3) of this section. All other occupants of temporary 
housing shall be certified eligible for continued assistance in 
increments not to exceed 3 months. Recertification of eligibility for 
continued assistance shall be in accordance with

[[Page 439]]

paragraph (k)(3) of this section, taking into consideration the 
occupant's permanent housing plan. A realistic permanent housing plan 
shall be established for each occupant requesting additional assistance 
no later than at the time of the first recertification.
    (3) Criteria for continued assistance. A temporary housing occupant 
shall make every effort to obtain and occupy permanent housing at the 
earliest possible time. A temporary housing occupant will be required to 
provide receipts documenting disaster related housing costs and shall be 
eligible for continued assistance when:
    (i) Adequate alternate housing is not available;
    (ii) The permanent housing plan has not been realized through no 
fault of the occupant; or
    (iii) In the case of FEMA-owner leases, the occupant is in 
compliance with the terms of the lease/rental agreement.
    (l) Period of assistance. Provided the occupant is eligible for 
continued assistance, assistance shall be provided for a period not to 
exceed 18 months from the declaration date.
    (m) Appeals. Occupants shall have the right to appeal a program 
determination in accordance with the following:
    (1) An applicant declared ineligible for temporary housing 
assistance, an applicant whose application has been cancelled for cause, 
an applicant whose application has been refused because of late filing, 
and an occupant who received a direct housing payment but is not 
eligible for continued assistance in accordance with paragraph (k) of 
this section, shall have the right to dispute such a determination 
within 60 calendar days following notification of such action. The 
Regional Director shall reconsider the original decision within 15 
calendar days after its receipt. The appellant shall be given a written 
notice of the disposition of the dispute. The decision of the Regional 
Director is final.
    (2) An occupant who has been notified that his/her request to 
purchase a mobile home or manufactured housing unit or that a request 
for an adjustment to the sales price has been denied shall have the 
right to dispute such a determination within 60 business days after 
receipt of such notice. The Regional Director shall reconsider the 
original decision within 15 calendar days after receipt of the appeal. 
The appellant shall receive written notice of the disposition of the 
dispute. The decision of the Regional Director is final.
    (3) Termination of assistance provided through a FEMA lease 
agreement shall be initiated with a 15-day written notice after which 
the occupant shall be liable for such additional charges as are deemed 
appropriate by the Regional Director including, but not limited to, the 
fair market rental for the temporary housing residence.
    (i) Grounds for termination. Temporary housing assistance may be 
terminated for reasons including, but not limited to the following:
    (A) Adequate alternate housing is available to the occupant(s);
    (B) The temporary housing assistance was obtained either through 
misrepresentation or fraud; or
    (C) Failure to comply with any term of the lease/rental agreement.
    (ii) Termination procedures. These procedures shall be utilized in 
all instances except when a State is administering the Temporary Housing 
Assistance program. States shall be subject to their own procedures 
provided they afford the occupant(s) with due process safeguards 
described in paragraph (m)(2)(v)(B) of this section.
    (A) Notification to occupant. Written notice shall be given by FEMA 
to the occupant(s) at least 15 days prior to the proposed termination of 
assistance. This notice shall specify: the reasons for termination of 
assistance/occupancy; the date of termination, which shall be not less 
than 15 days after receipt of the notice; the administrative procedure 
available to the occupant if they wish to dispute the action; and the 
occupant's liability after the termination date for additional charges.
    (B) Filing of appeal. If the occupant desires to dispute the 
termination, upon receipt of the written notice specified in paragraph 
(m)(2)(i) of this section, he/she shall present an appeal in writing to 
the appropriate office in person or by mail within 60 days from the date 
of the termination notice. The appeal must be signed by the occupant

[[Page 440]]

and state the reasons why the assistance or occupancy should not be 
terminated. If a hearing is desired, the appeal should so state.
    (C) Response to appeal. If a hearing pursuant to paragraph 
(m)(2)(ii) of this section has not been requested, the occupant has 
waived the right to a hearing. The appropriate program official shall 
deliver or mail a written response to the occupant within 5 business 
days after the receipt of the appeal.
    (D) Request for hearing. If the occupant requests a hearing pursuant 
to paragraph (m)(2)(ii) of this section, FEMA shall schedule a hearing 
date within 10 business days from the receipt of the appeal, at a time 
and place reasonably convenient to the occupant, who shall be notified 
promptly thereof in writing. The notice of hearing shall specify the 
procedure governing the hearing.
    (E) Hearing--(1) Hearing officer. The hearing shall be conducted by 
a Hearing Officer, who shall be designated by the Regional Director, and 
who shall not have been involved with the decision to terminate the 
occupant's temporary housing assistance, nor be a subordinate of any 
individual who was so involved.
    (2) Due process. The occupant shall be afforded a fair hearing and 
provided the basic safeguards of due process, including cross-
examination of the responsible official(s), access to the documents on 
which FEMA is relying, the right to counsel, the right to present 
evidence, and the right to a written decision.
    (3) Failure to appear. If an occupant fails to appear at a hearing, 
the Hearing Officer may make a determination that the occupant has 
waived the right to a hearing, or may, for good cause shown, postpone 
the hearing for no more than 5 business days.
    (4) Proof. At the hearing, the occupant must first attempt to 
establish that continued assistance is appropriate; thereafter, FEMA 
must sustain the burden of proof in justifying that termination of 
assistance is appropriate. The occupant shall have the right to present 
evidence and arguments in support of their complaint, to controvert 
evidence relied on by FEMA, and to cross examine all witnesses on whose 
testimony or information FEMA relies. The hearing shall be conducted by 
the Hearing Officer, and any evidence pertinent to the facts and issues 
raised may be received without regard to its admissibility under rules 
of evidence employed in formal judicial proceedings.
    (F) Decision. The decision of the Hearing Officer shall be based 
solely upon applicable Federal and State law, and FEMA regulations and 
requirements promulgated thereunder. The Hearing Officer shall prepare a 
written decision setting forth a statement of findings and conclusions 
together with the reasons therefor, concerning all material issues 
raised by the complainant within 5 business days after the hearing. The 
decision of the Hearing Officer shall be binding on FEMA, which shall 
take all actions necessary to carry out the decision or refrain from any 
actions prohibited by the decision.
    (1) The decision shall include a notice to the occupant that he/she 
must vacate the premises within 3 days of receipt of the written notice 
or on the termination date stated in the original notice of termination, 
as required in paragraph (m)(2)(i) of this section, whichever is later. 
If the occupant does not quit the premises, appropriate action shall be 
taken and, if suit is brought, the occupant may be required to pay court 
costs and attorney fees.
    (2) If the occupant is required to give a specific number of days' 
notice which exceeds the number of days in the termination notice, the 
Regional Director may approve the payment of rent for this period of 
time if requested by the occupant.
    (n) Disposition of temporary housing units--(1) Acquisition. The 
Associate Director may purchase mobile homes or other manufactured 
housing units for those who require temporary housing. After such 
temporary housing is vacated, it shall be returned to one of the FEMA-
operated Strategic Storage Centers for refurbishment and storage until 
needed in a subsequent major disaster or emergency. When returning the 
unit to a Strategic Storage Center

[[Page 441]]

is not feasible or cost effective, the Associate Director may prescribe 
a different method of disposition in accordance with applicable Federal 
statutes and regulations.
    (2) Sales--(i) Eligibility. When adequate alternate housing is not 
available, the Regional Director shall make available for sale directly 
to a temporary housing occupant(s) any mobile home or manufactured 
housing unit acquired by purchase, in accordance with the following:
    (A) The unit is to be used as a primary residence;
    (B) The purchaser has a site that complies with local codes and 
ordinances as well as FEMA's floodplain management regulations at 44 CFR 
part 9 (in particular Sec. 9.13(e)); and
    (C) The purchaser has sufficient funds to purchase and, if 
necessary, relocate the unit. The Associate Director may approve the 
sale of a mobile home or manufactured housing unit to a temporary 
housing occupant when adequate alternate housing is available but only 
when such sales are clearly in the best interest of the Government.
    (ii) Sales price. Units shall be sold at prices that are fair and 
equitable to the purchaser and to the Government, as determined by the 
Associate Director. The purchaser shall pay the total sales price at the 
time of sale.
    (iii) Adjustment to the sales price.
    (A) Adjustments to the sales price may be provided only when both of 
the following conditions are met:
    (1) There is a need to purchase the unit for use as the purchaser's 
primary residence because other adequate alternate housing is 
unavailable. Adequate alternate housing must meet the criteria in 
paragraph (c)(1) of this section, and may consist of:
    (i) Existing housing;
    (ii) Additional resources such as disaster-damaged rental 
accommodations which can reasonably be expected to be repaired and 
become available in the near future;
    (iii) New housing construction or housing to be made available 
through Government subsidy which is included in the immediate recovery 
plans for the area; and
    (iv) Residences which can be repaired by the predisaster owner/
occupant through funds available from insurance, other disaster 
assistance programs, or through their own resources.
    (2) In addition to his/her resources, the purchaser cannot obtain 
sufficient funds through insurance proceeds, disaster loans, grants, and 
commercial lending institutions to cover the sales price.
    (B) To determine the adjusted sales price, the current available 
financial resources of the purchaser shall be calculated. If the 
financial resources are equal to or greater than the basic sales price, 
then no adjustment shall be approved. If the purchaser's financial 
resources are less than the basic sales price, the sales price shall be 
adjusted to take into consideration the financial resources available 
but shall include some consideration. Deviations from this rule may be 
reviewed on a case-by-case basis by the Associate Director.
    (C) The Regional Director must approve all adjustments to the sales 
price of a mobile home.
    (iv) Other conditions of sale.
    (A) A unit shall be sold ``as is, where is'' except for repairs 
necessary to protect health or safety, which are to be completed prior 
to sale. There shall be no implied warranties. In addition, the 
purchaser must be informed that he/she may have to bring the unit up to 
codes and standards which are applicable at the proposed site.
    (B) In accordance with the Flood Disaster Protection Act of 1973, 
Public Law 93-234, as amended, the sale of a unit for the purpose of 
meeting the permanent housing need of an individual or family may not be 
approved where the unit would be placed in a designated special flood 
hazard area which has been identified by the Director for at least 1 
year as floodprone unless the community in which the unit is to be 
located after the sale is, at the time of approval, participating in the 
National Flood Insurance Program. The purchaser must agree to buy and 
maintain an adequate flood insurance policy for as long as the unit is 
occupied by the purchaser. An adequate policy for purposes of this 
paragraph shall mean one which provides coverage for the basic sales 
price of the unit. The purchaser must provide proof of purchase of the 
initial flood insurance policy.

[[Page 442]]

    (3) Transfer. The Associate Director may lend temporary housing 
units purchased under section 408(a) of the Act directly to States, 
other Governmental entities, or voluntary organizations. Such transfers 
may be made only in connection with a Presidential declaration of a 
major disaster or emergency. Donations may be made only when it is in 
the best interest of the Government, such as when future re-use by the 
Federal Government would not be economically feasible. As a condition of 
such transfers, the Associate Director shall require that the recipient:
    (i) Utilize the units for the purpose of providing temporary housing 
for victims of major disasters or emergencies in accordance with the 
written agreement; and
    (ii) Comply with the current applicable FEMA policies and 
regulations, including this section; 44 CFR part 9 (especially 
Sec. Sec. 9.13 and 9.14), Floodplain Management and Protection of 
Wetlands; 44 CFR part 10, Environmental Considerations. The Associate 
Director may order returned any temporary housing unit made available 
under this section which is not used in accordance with the terms of 
transfer.
    (o) Reports. The Associate Director, Regional Director, or Federal 
Coordinating Officer may require from field operations such reports, 
plans, and evaluations as they deem necessary to carry out their 
responsibilities under the Act and these regulations.
    (p) Federal responsibility. The Federal financial and operational 
responsibility for the Temporary Housing Assistance program shall not 
exceed 18 months from the date of the declaration of the major disaster 
or emergency. This period may be extended in writing by the Associate 
Director, based on a determination that an extension is necessary and in 
the public interest. The Regional Director may authorize continued use 
on a non-reimbursable basis of Government property, office space, and 
equipment by a State, other Government entity, or voluntary organization 
after the 18 month period.
    (q) Applicant notification--(1) General. All applicants for 
temporary housing assistance will be notified regarding the type and 
amount of assistance for which they are qualified. Whenever practicable, 
such notification will be provided within 7 days of their application 
and will be in writing.
    (2) Eligible applicants for temporary housing assistance will be 
provided information regarding:
    (i) All forms of housing assistance available;
    (ii) The criteria which must be met to qualify for each type of 
assistance;
    (iii) Any limitations which apply to each type of assistance; and
    (iv) The address and telephone number of offices responsible for 
responding to appeals and requests for changes in the type or amount of 
assistance provided.
    (r) Location. In providing temporary housing assistance, 
consideration will be given to the location of:
    (1) The eligible applicants' home and place of business;
    (2) Schools which the eligible applicant or members of the household 
attend; and
    (3) Agricultural activities which provide 25 percent or more of the 
eligible applicants' annual income.
    (s) NonFederal administration of temporary housing assistance. A 
State may request authority to administer all or part of the temporary 
housing assistance program in the Governor's request for a declaration 
or in a subsequent written request to the Regional Director from the 
Governor or his/her authorized representative. The Associate Director 
shall approve such a request based on the Regional Director's 
recommendation and based on a finding that State administration is both 
in the interest of the Federal Government and those needing temporary 
housing assistance. The State must have an approved plan prior to the 
incident and an approved operational annex within 3 days of the 
declaration in order to administer the program. When administering the 
program the State must comply with FEMA program regulations and 
policies.
    (1) State temporary housing assistance plan. (i) States which have 
an interest in administering the Temporary Housing Assistance program 
shall be required to develop a plan that includes, at a minimum, the 
items listed below:

[[Page 443]]

    (A) Assignment of temporary housing assistance responsibilities to 
State and/or local officials and agencies;
    (B) A description of the program, its functions, goals and 
objectives of the program, and proposed organization and staffing plan;
    (C) Procedures for:
    (1) Accepting applications at Disaster Application Centers and 
subsequently at a State established disaster housing office;
    (2) Determining eligibility utilizing FEMA's habitability contract 
and notifying applicants of the determination;
    (3) Preventing duplication of benefits between temporary housing 
assistance and assistance from other means, as well as a recoupment 
procedure when duplication occurs;
    (4) Providing the various types of assistance (home repairs, 
existing rental resources, transient accommodations, and mobile homes);
    (5) Providing furniture assistance;
    (6) Recertifying occupants for continued assistance;
    (7) Terminating assistance;
    (8) Contracting for services and/or supplies;
    (9) Quality control;
    (10) Maintaining a management information system;
    (11) Financial management;
    (12) Public information;
    (13) Processing appeals; and
    (14) Arranging for a program review.
    (ii) The Governor or his/her designee may request the Regional 
Director to provide technical assistance in the preparation of an 
administrative plan.
    (iii) The Governor or designee shall submit the plan to the Regional 
Director for approval. Plans shall be revised, as necessary, and shall 
be reviewed at least annually by the Regional Director.
    (2) Operational annex. Prior to the State administering the program, 
the state must submit an operational annex which tailors the approved 
State plan to the particular disaster or emergency. The annex must be 
reviewed and approved by the Regional Director within 3 days of the 
declaration or the State shall not be permitted to administer the 
program. The operational annex shall include but not be limited to:
    (i) Organization and staffing specific to the major disaster or 
emergency;
    (ii) Pertinent goals and management objectives;
    (iii) A proposed budget; and
    (iv) A narrative which describes methods for orderly tracking and 
processing of applications; assuring timely delivery of assistance; 
identification of potential problem areas; and any deviations from the 
approved plan. The Regional Director may require additional annexes as 
necessary for subsequent phases of the operation.
    (3) Evaluation of capability. State and local government assumption 
of the temporary housing assistance program for a particular disaster 
shall be approved by the Associate Director based on an evaluation of 
the capabilities and commitment of the entity by the Regional Director. 
At a minimum, the evaluation shall include a review of the following:
    (i) The State temporary housing assistance plan which has been 
approved by the Regional Director prior to the incident, and the 
specific operational annex which has been approved in accordance with 
paragraph (s)(2) of this section.
    (ii) Past performance in administration of temporary housing 
assistance or other similar operations;
    (iii) Management and staff capabilities; and
    (iv) Demonstrated understanding of the tasks to be performed.
    (4) Grant application. Approval of funding shall be obtained through 
submission of a project application by the State or local government 
through the Governor's Authorized Representative. The State shall 
maintain adequate documentation according to the requirements of 44 CFR 
part 13, Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments, to enable analysis of the 
program. Final reimbursement to the State, or final debt collection, 
shall be based on an examination of the voucher filed by the State.
    (5) Authorized costs. All expenditures associated with administering 
the program are authorized if in compliance with 44 CFR 13.22, Allowable 
Costs, and the associated OMB Circular A-87, Cost

[[Page 444]]

Principles for State and Local Governments. Examples of program costs 
allowable under the Temporary Housing Assistance program include home 
repairs, costs associated with rental payments, reimbursements for 
temporary housing including transient accommodations and commercial site 
rental, mobile home installation and maintenance, mobile home private 
site development, cost of supplemental assistance, mortgage and rental 
payments, other necessary costs, when approved by the Associate 
Director. All contracts require the review and approval of the Regional 
Director prior to award, in order to be considered as an authorized 
expenditure.
    (6) Federal monitoring and oversight. The Regional Director shall 
monitor State-administered activities since he/she remains responsible 
for the overall delivery of temporary housing assistance. In addition, 
policy guidance and interpretations to meet specific needs of a disaster 
shall be provided through the oversight function.
    (7) Technical assistance. The Regional Director shall provide 
technical assistance as necessary to support State-administered 
operations through training, procedural issuances, and by providing 
experienced personnel to assist the State and local staff.
    (8) Operational resources. The Regional Director shall make 
available for use in State or locally administered temporary housing 
programs Federal stand-by contracts, memoranda of understanding with 
Government and voluntary agencies, and Federal property, such as 
government-owned mobile homes and travel trailers.
    (9) Program reviews and audits. The State shall conduct program 
review of each operation. All operations are subject to Federal audit.

(Approved by the Office of Management and Budget under OMB control 
numbers 3067-0009 and 3067-0043)

[55 FR 2296, Jan. 23, 1990, as amended at 61 FR 7224, Feb. 27, 1996; 64 
FR 46853, Aug. 27, 1999; 67 FR 61460, Sept. 30, 2002]



Sec. Sec. 206.102-206.109  [Reserved]



Sec. 206.110  Federal assistance to individuals and households.

    (a) Purpose. This section implements the policy and procedures set 
forth in section 408 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, 42 U.S.C. 5174, as amended by the Disaster 
Mitigation Act of 2000. This program provides financial assistance and, 
if necessary, direct assistance to eligible individuals and households 
who, as a direct result of a major disaster or emergency, have uninsured 
or under-insured, necessary expenses and serious needs and are unable to 
meet such expenses or needs through other means.
    (b) Maximum amount of assistance. No individual or household will 
receive financial assistance greater than $25,000 under this subpart 
with respect to a single major disaster or emergency. FEMA will adjust 
the $25,000 limit annually to reflect changes in the Consumer Price 
Index (CPI) for All Urban Consumers that the Department of Labor 
publishes.
    (c) Multiple types of assistance. One or more types of housing 
assistance may be made available under this section to meet the needs of 
individuals and households in the particular disaster situation. FEMA 
shall determine the appropriate types of housing assistance to be 
provided under this section based on considerations of cost 
effectiveness, convenience to the individuals and households and the 
suitability and availability of the types of assistance. An applicant is 
expected to accept the first offer of housing assistance; unwarranted 
refusal of assistance may result in the forfeiture of future housing 
assistance. Temporary housing and repair assistance shall be utilized to 
the fullest extent practicable before other types of housing assistance.
    (d) Date of eligibility. Eligibility for Federal assistance under 
this subpart will begin on the date of the incident that results in a 
presidential declaration that a major disaster or emergency exists, 
except that reasonable lodging expenses that are incurred in 
anticipation of and immediately preceding such event may be eligible for 
Federal assistance under this chapter.

[[Page 445]]

    (e) Period of assistance. FEMA may provide assistance under this 
subpart for a period not to exceed 18 months from the date of 
declaration. The Associate Director (AD) may extend this period if he/
she determines that due to extraordinary circumstances an extension 
would be in the public interest.
    (f) Assistance not counted as income. Assistance under this subpart 
is not to be counted as income or a resource in the determination of 
eligibility for welfare, income assistance or income-tested benefit 
programs that the Federal Government funds.
    (g) Exemption from garnishment. All assistance provided under this 
subpart is exempt from garnishment, seizure, encumbrance, levy, 
execution, pledge, attachment, release or waiver. Recipients of rights 
under this provision may not reassign or transfer the rights. These 
exemptions do not apply to FEMA recovering assistance fraudulently 
obtained or misapplied.
    (h) Duplication of benefits. In accordance with the requirements of 
section 312 of the Stafford Act, 42 U.S.C. 5155, FEMA will not provide 
assistance under this subpart when any other source has already provided 
such assistance or when such assistance is available from any other 
source. In the instance of insured applicants, we will provide 
assistance under this subpart only when:
    (1) Payment of the applicable benefits are significantly delayed;
    (2) Applicable benefits are exhausted;
    (3) Applicable benefits are insufficient to cover the housing or 
other needs; or
    (4) Housing is not available on the private market.
    (i) Cost sharing. (1) Except as provided in paragraph (i)(2) of this 
section, the Federal share of eligible costs paid under this subpart 
shall be 100 percent.
    (2) Federal and State cost shares for ``Other Needs'' assistance 
under subsections 408 (e) and (f) of the Stafford Act will be as 
follows;
    (i) The Federal share shall be 75 percent; and
    (ii) The non-federal share shall be paid from funds made available 
by the State. If the State does not provide the non-Federal share to 
FEMA before FEMA begins to provide assistance to individuals and 
households under subsection 408(e) of the Stafford Act, FEMA will still 
process applications. The State will then be obliged to reimburse FEMA 
for the non-Federal cost share of such assistance on a monthly basis. If 
the State does not provide such reimbursement on a monthly basis, then 
FEMA will issue a Bill for Collection to the State on a monthly basis 
for the duration of the program. FEMA will charge interest, penalties, 
and administrative fees on delinquent Bills for Collection in accordance 
with the Debt Collection Improvement Act. Cost shared funds, interest, 
penalties and fees owed to FEMA through delinquent Bills for Collections 
may be offset from other FEMA disaster assistance programs (i.e. Public 
Assistance) from which the State is receiving, or future grant awards 
from FEMA or other Federal Agencies. Debt Collection procedures will be 
followed as outlined in 44 CFR part 11.
    (j) Application of the Privacy Act.
    (1) All provisions of the Privacy Act of 1974, 5 U.S.C. 552a, apply 
to this subpart. FEMA may not disclose an applicant's record except:
    (i) In response to a release signed by the applicant that specifies 
the purpose for the release, to whom the release is to be made, and that 
the applicant authorizes the release;
    (ii) In accordance with one of the published routine uses in our 
system of records; or
    (iii) As provided in paragraph (j)(2) of this section.
    (2) Under section 408(f)(2) of the Stafford Act, 42 U.S.C. 
5174(f)(2), FEMA must share applicant information with States in order 
for the States to make available any additional State and local disaster 
assistance to individuals and households.
    (i) States receiving applicant information under this paragraph must 
protect such information in the same manner that the Privacy Act 
requires FEMA to protect it.
    (ii) States receiving such applicant information shall not further 
disclose the information to other entities, and shall not use it for 
purposes other than providing additional State or local disaster 
assistance to individuals and households.

[[Page 446]]

    (k) Flood Disaster Protection Act requirement. (1) The Flood 
Disaster Protection Act of 1973, Public Law 93-234, as amended (42 
U.S.C. 4106), imposes certain restrictions on federal financial 
assistance for acquisition and construction purposes. For the purpose of 
this paragraph, financial assistance for acquisition or construction 
purposes means assistance to an individual or household to buy, receive, 
build, repair or improve insurable portions of a home and/or to purchase 
or repair insurable contents. For a discussion of what elements of a 
home and contents are insurable, See 44 CFR part 61, Insurance Coverage 
and Rates.
    (2) Individuals or households that are located in a special flood 
hazard area may not receive Federal Assistance for National Flood 
Insurance Program (NFIP)--insurable real and/or personal property, 
damaged by a flood, unless the community in which the property is 
located is participating in the NFIP (See 44 CFR part 59.1), or the 
exception in 42 U.S.C. 4105(d) applies. However, if the community in 
which the damaged property is located qualifies for and enters the NFIP 
during the six-month period following the declaration, the Governor's 
Authorized Representative may request a time extension for FEMA (See 
Sec. 206.112) to accept registrations and to process assistance 
applications in that community.
    (3) Flood insurance purchase requirement: (i) As a condition of the 
assistance and in order to receive any Federal assistance for future 
flood damage to any insurable property, individuals and households named 
by FEMA as eligible recipients under section 408 of the Stafford Act who 
receive assistance, due to flood damages, for acquisition or 
construction purposes under this subpart must buy and maintain flood 
insurance, as required in 42 U.S.C. 4012a, for at least the assistance 
amount. This applies only to real and personal property that is in or 
will be in a designated Special Flood Hazard Area and that can be 
insured under the National Flood Insurance Program.
    (A) If the applicant is a homeowner, flood insurance coverage must 
be maintained at the address of the flood-damaged property for as long 
as the address exists. The flood insurance requirement is reassigned to 
any subsequent owner of the flood-damaged address.
    (B) If the applicant is a renter, flood insurance coverage must be 
maintained on the contents for as long as the renter resides at the 
flood-damaged rental unit. The restriction is lifted once the renter 
moves from the rental unit.
    (C) When financial assistance is used to purchase a dwelling, flood 
insurance coverage must be maintained on the dwelling for as long as the 
dwelling exists and is located in a designated Special Flood Hazard 
Area. The flood insurance requirement is reassigned to any subsequent 
owner of the dwelling.
    (ii) FEMA may not provide financial assistance for acquisition or 
construction purposes to individuals or households who fail to buy and 
maintain flood insurance required under paragraph (k)(3)(i) of this 
section or required by the Small Business Administration.
    (l) Environmental requirements. Assistance provided under this 
subpart must comply with the National Environmental Policy Act (NEPA) 
and other environmental laws and Executive Orders, consistent with 44 
CFR part 10.
    (m) Historic preservation. Assistance provided under this subpart 
generally does not have the potential to affect historic properties and 
thus is exempted from review in accordance with section 106 of the 
National Historic Preservation Act, with the exception of ground 
disturbing activities and construction related to Sec. Sec. 
206.117(b)(1)(ii) (Temporary housing), 206.117(b)(3) (Replacement 
housing), and 206.117(b)(4) (Permanent housing construction).

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.111  Definitions.

    Adequate, alternate housing means housing that accommodates the 
needs of the occupants; is within the normal commuting patterns of the 
area or is within reasonable commuting distance of work, school, or 
agricultural activities that provide over 50 percent of the household 
income; and is within the financial ability of the occupant.
    Alternative housing resources means any housing that is available or 
can

[[Page 447]]

quickly be made available in lieu of permanent housing construction and 
is cost-effective when compared to permanent construction costs. Some 
examples are rental resources, mobile homes and travel trailers.
    Applicant means an individual or household who has applied for 
assistance under this subpart.
    Assistance from other means includes monetary or in-kind 
contributions from voluntary or charitable organizations, insurance, 
other governmental programs, or from any sources other than those of the 
applicant.
    Dependent means someone who is normally claimed as such on the 
Federal tax return of another, according to the Internal Revenue Code. 
It may also mean the minor children of a couple not living together, 
where the children live in the affected residence with the parent or 
guardian who does not actually claim them on the tax return.
    Displaced applicant means one whose primary residence is 
uninhabitable, inaccessible, made unavailable by the landlord (to meet 
their disaster housing need) or not functional as a direct result of the 
disaster and has no other housing available in the area, i.e., a 
secondary home or vacation home.
    Effective date of assistance means the date that the applicant was 
determined eligible for assistance.
    Eligible hazard mitigation measures are home improvements that an 
applicant can accomplish in order to reduce or prevent future disaster 
damages to essential components of the home.
    Fair market rent means housing market-wide estimates of rents that 
provide opportunities to rent standard quality housing throughout the 
geographic area in which rental housing units are in competition. The 
fair market rent rates applied are those identified by the Department of 
Housing and Urban Development as being adequate for existing rental 
housing in a particular area.
    Financial ability means the applicant's capability to pay housing 
costs. If the household income has not changed subsequent to or as a 
result of the disaster then the determination is based upon the amount 
paid for housing before the disaster. If the household income is reduced 
as a result of the disaster then the applicant will be deemed capable of 
paying 30 percent of gross post disaster income for housing. When 
computing financial ability, extreme or unusual financial circumstances 
may be considered by the Regional Director.
    Financial assistance means cash that may be provided to eligible 
individuals and households, usually in the form of a check or electronic 
funds transfer.
    Functional means an item or home capable of being used for its 
intended purpose.
    Household means all persons (adults and children) who lived in the 
pre-disaster residence who request assistance under this subpart, as 
well as any persons, such as infants, spouse, or part-time residents who 
were not present at the time of the disaster, but who are expected to 
return during the assistance period.
    Housing costs means rent and mortgage payments, including principal, 
interest, real estate taxes, real property insurance, and utility costs.
    Inaccessible means as a result of the incident, the applicant cannot 
reasonably be expected to gain entry to his or her pre-disaster 
residence due to the disruption, or destruction, of access routes or 
other impediments to access, or restrictions placed on movement by a 
responsible official due to continued health, safety or security 
problems.
    In-kind contributions mean something other than monetary assistance, 
such as goods, commodities or services.
    Lodging expenses means expenses for reasonable short-term 
accommodations that individuals or households incur in the immediate 
aftermath of a disaster. Lodging expenses may include but are not 
limited to the cost of brief hotel stays.
    Manufactured housing sites means those sites used for the placement 
of government or privately owned mobile homes, travel trailers, and 
other manufactured housing units, including:
    (1) Commercial site, a site customarily leased for a fee, which is 
fully equipped to accommodate a housing unit;
    (2) Private site, a site that the applicant provides or obtains at 
no cost to the Federal Government, complete with utilities; and

[[Page 448]]

    (3) Group site, a site provided by the State or local government 
that accommodates two or more units and is complete with utilities.
    Necessary expense means the cost associated with acquiring an item 
or items, obtaining a service, or paying for any other activity that 
meets a serious need.
    Occupant means a resident of a housing unit.
    Owner-occupied means that the residence is occupied by:
    (1) The legal owner;
    (2) A person who does not hold formal title to the residence and 
pays no rent, but is responsible for the payment of taxes or maintenance 
of the residence; or
    (3) A person who has lifetime occupancy rights with formal title 
vested in another.
    Permanent housing plan means a realistic plan that, within a 
reasonable timeframe, puts the disaster victim back into permanent 
housing that is similar to the victim's pre-disaster housing situation. 
A reasonable timeframe includes sufficient time for securing funds, 
locating a permanent dwelling, and moving into the dwelling.
    Primary residence means the dwelling where the applicant normally 
lives, during the major portion of the calendar year; or the dwelling 
that is required because of proximity to employment, including 
agricultural activities, that provide 50 percent of the household's 
income.
    Reasonable commuting distance means a distance that does not place 
undue hardship on an applicant. It also takes into consideration the 
traveling time involved due to road conditions, e.g., mountainous 
regions or bridges out and the normal commuting patterns of the area.
    Safe means secure from disaster-related hazards or threats to 
occupants.
    Sanitary means free of disaster-related health hazards.
    Serious need means the requirement for an item, or service, that is 
essential to an applicant's ability to prevent, mitigate, or overcome a 
disaster-related hardship, injury or adverse condition.
    Significantly delayed means the process has taken more than 30 days.
    Uninhabitable means the dwelling is not safe, sanitary or fit to 
occupy.
    We, our, and us mean FEMA.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.112  Registration period.

    (a) Initial period. The standard FEMA registration period is 60 days 
following the date that the President declares an incident a major 
disaster or an emergency.
    (b) Extension of the registration period. The regional director or 
his/her designee may extend the registration period when the State 
requests more time to collect registrations from the affected 
population. The Regional Director or his/her designee may also extend 
the standard registration period when necessary to establish the same 
registration deadline for contiguous counties or States.
    (c) Late registrations. After the standard or extended registration 
period ends, FEMA will accept late registrations for an additional 60 
days. We will process late registrations for those registrants who 
provide suitable documentation to support and justify the reason for the 
delay in their registration.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.113  Eligibility factors.

    (a) Conditions of eligibility. In general, FEMA may provide 
assistance to individuals and households who qualify for such assistance 
under section 408 of the Stafford Act and this subpart. FEMA may only 
provide assistance:
    (1) When the individual or household has incurred a disaster-related 
necessary expense or serious need in the state in which the disaster has 
been declared, without regard to their residency in that state;
    (2) In a situation where the applicant has insurance, when the 
individual or household files a claim with their insurance provider for 
all potentially applicable types of insurance coverage and the claim is 
denied;
    (3) In a situation where the applicant has insurance, when the 
insured individual or household's insurance proceeds have been 
significantly delayed

[[Page 449]]

through no fault of his, her or their own, and the applicant has agreed 
to repay the assistance to FEMA or the State from insurance proceeds 
that he, she or they receive later;
    (4) In a situation where the applicant has insurance, when the 
insured individual or household's insurance proceeds are less than the 
maximum amount of assistance FEMA can authorize and the proceeds are 
insufficient to cover the necessary expenses or serious needs;
    (5) In a situation where the applicant has insurance, when housing 
is not available on the private market;
    (6) In a situation where the applicant has insurance, when the 
insured individual or household has accepted all assistance from other 
sources for which he, she, or they are eligible, including insurance, 
when the insured individual or household's insurance proceeds and all 
other assistance are less than the maximum amount of assistance FEMA can 
authorize and the proceeds are insufficient to cover the necessary 
expense or serious needs;
    (7) When the applicant agrees to refund to FEMA or the State any 
portion of the assistance that the applicant receives or is eligible to 
receive as assistance from another source;
    (8) With respect to housing assistance, if the primary residence has 
been destroyed, is uninhabitable, or is inaccessible; and
    (9) With respect to housing assistance, if a renter's primary 
residence is no longer available as a result of the disaster.
    (b) Conditions of ineligibility. We may not provide assistance under 
this subpart:
    (1) For housing assistance, to individuals or households who are 
displaced from other than their pre-disaster primary residence;
    (2) For housing assistance, to individuals or households who have 
adequate rent-free housing accommodations;
    (3) For housing assistance, to individuals or households who own a 
secondary or vacation residence within reasonable commuting distance to 
the disaster area, or who own available rental property that meets their 
temporary housing needs;
    (4) For housing assistance, to individuals or households who 
evacuated the residence in response to official warnings solely as a 
precautionary measure and who are able to return to the residence 
immediately after the incident;
    (5) For housing assistance, for improvements or additions to the 
pre-disaster condition of property, except those required to comply with 
local and State ordinances or eligible mitigation measures;
    (6) To individuals or households who have adequate insurance 
coverage and where there is no indication that insurance proceeds will 
be significantly delayed, or who have refused assistance from insurance 
providers;
    (7) To individuals or households whose damaged primary residence is 
located in a designated special flood hazard area, and in a community 
that is not participating in the National Flood Insurance Program, 
except that financial assistance may be provided to rent alternate 
housing and for medical, dental, funeral expenses and uninsurable items 
to such individuals or households. However, if the community in which 
the damaged property is located qualifies for and enters the NFIP during 
the six-month period following the declaration then the individual or 
household may be eligible;
    (8) To individuals or households who did not fulfill the condition 
to purchase and maintain flood insurance as a requirement of receiving 
previous Federal disaster assistance;
    (9) For business losses, including farm businesses and self-
employment; or
    (10) For any items not otherwise authorized by this section.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.114  Criteria for continued assistance.

    (a) FEMA expects all recipients of assistance under this subpart to 
obtain and occupy permanent housing at the earliest possible time. FEMA 
may provide continued housing assistance during the period of 
assistance, but not to exceed the maximum amount of assistance for the 
program, based on need, and generally only when adequate, alternate 
housing is not available or

[[Page 450]]

when the permanent housing plan has not been fulfilled through no fault 
of the applicant.
    (b) Additional criteria for continued assistance. (1) All applicants 
requesting continued rent assistance must establish a realistic 
permanent housing plan no later than the first certification for 
continued assistance. Applicants will be required to provided 
documentation showing that they are making efforts to obtain permanent 
housing.
    (2) Applicants requesting continued rent assistance must submit rent 
receipts to show that they have exhausted the FEMA rent funds, and 
provide documentation identifying the continuing need.
    (3) FEMA generally expects that pre-disaster renters will use their 
initial rental assistance to obtain permanent housing. However, we may 
certify them, during the period of assistance, for continued rent 
assistance when adequate, alternate housing is not available, or when 
they have not realized a permanent housing plan through no fault of 
their own.
    (4) FEMA may certify pre-disaster owners for continued rent 
assistance, during the period of assistance, when adequate, alternate 
housing is not available, or when they have not realized a permanent 
housing plan through no fault of their own.
    (5) Individuals or households requesting additional repair 
assistance will be required to submit information and/or documentation 
identifying the continuing need.
    (6) Individuals or households requesting additional assistance for 
personal property, transportation, medical, dental, funeral, moving and 
storage, or other necessary expenses and serious needs will be required 
to submit information and/or documentation identifying the continuing 
need.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.115  Appeals.

    (a) Under the provisions of section 423 of the Stafford Act, 
applicants for assistance under this subpart may appeal any 
determination of eligibility for assistance made under this subpart. 
Applicants must file their appeal within 60 days after the date that we 
notify the applicant of the award or denial of assistance. Applicants 
may appeal the following:
    (1) Eligibility for assistance, including recoupment;
    (2) Amount or type of assistance;
    (3) Cancellation of an application;
    (4) The rejection of a late application;
    (5) The denial of continued assistance under Sec. 206.114, Criteria 
for continued assistance;
    (6) FEMA's intent to collect rent from occupants of a housing unit 
that FEMA provides;
    (7) Termination of direct housing assistance;
    (8) Denial of a request to purchase a FEMA-provided housing unit at 
the termination of eligibility;
    (9) The sales price of a FEMA-provided housing unit they want to 
purchase; or
    (10) Any other eligibility-related decision.
    (b) Appeals must be in writing and explain the reason(s) for the 
appeal. The applicant or person who the applicant authorizes to act on 
his or her behalf must sign the appeal. If someone other than the 
applicant files the appeal, then the applicant must also submit a signed 
statement giving that person authority to represent him, her or them.
    (c) Applicants must appeal to the Regional Director or his/her 
designee for decisions made under this subpart, unless FEMA has made a 
grant to the State to provide assistance to individuals and households 
under Sec. 206.120(a), State administration of other needs assistance; 
then the applicant must appeal to the State.
    (d) An applicant may ask for a copy of information in his or her 
file by writing to FEMA or the State as appropriate. If someone other 
than the applicant is submitting the request, then the applicant must 
also submit a signed statement giving that person authority to represent 
him or her.
    (e) The appropriate FEMA or State program official will notify the 
applicant in writing of the receipt of the appeal.
    (f) The Regional Director or his/her designee or appropriate State 
official will review the original decision after

[[Page 451]]

receiving the appeal. FEMA or the State, as appropriate, will give the 
appellant a written notice of the disposition of the appeal within 90 
days of the receiving the appeal. The decision of the appellate 
authority is final.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.116  Recovery of funds.

    (a) The applicant must agree to repay to FEMA (when funds are 
provided by FEMA) and/or the State (when funds are provided by the 
State) from insurance proceeds or recoveries from any other source an 
amount equivalent to the value of the assistance provided. In no event 
must the amount repaid to FEMA and/or the State exceed the amount that 
the applicant recovers from insurance or any other source.
    (b) An applicant must return funds to FEMA and/or the State (when 
funds are provided by the State) when FEMA and/or the State determines 
that the assistance was provided erroneously, that the applicant spent 
the funds inappropriately, or that the applicant obtained the assistance 
through fraudulent means.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.117  Housing assistance.

    (a) Purpose. FEMA may provide financial or direct assistance under 
this section to respond to the disaster-related housing needs of 
individuals and households.
    (b) Types of housing assistance--(1) Temporary housing assistance--
(i) Financial assistance. Eligible individuals and households may 
receive financial assistance to rent alternate housing resources, 
existing rental units, manufactured housing, recreational vehicles, or 
other readily fabricated dwellings. FEMA may also provide assistance for 
the reasonable cost of any transportation, utility hookups, or 
installation of a manufactured housing unit or recreational vehicle to 
be used for housing. This includes reimbursement for reasonable short-
term lodging expenses that individuals or households incur in the 
immediate aftermath of a disaster.
    (A) FEMA will include all members of a pre-disaster household in a 
single registration and will provide assistance for one temporary 
housing residence, unless the Regional Director or his/her designee 
determines that the size or nature of the household requires that we 
provide assistance for more than one residence.
    (B) FEMA will base the rental assistance on the Department of 
Housing and Urban Development's current fair market rates for existing 
rental units. FEMA will further base the applicable rate on the 
household's bedroom requirement and the location of the rental unit.
    (C) All utility costs and utility security deposits are the 
responsibility of the occupant except where the utility does not meter 
utility services separately and utility services are a part of the 
rental charge.
    (D) The occupant is responsible for all housing security deposits. 
In extraordinary circumstances, the Regional Director or his/her 
designee may authorize the payment of security deposits; however, the 
owner or occupant must reimburse the full amount of the security deposit 
to the Federal Government before or at the time that the temporary 
housing assistance ends.
    (ii) Direct assistance. (A) FEMA may provide direct assistance in 
the form of purchased or leased temporary housing units directly to 
individuals or households who lack available housing resources and would 
be unable to make use of the assistance provided under paragraph 
(b)(1)(i) of this section.
    (B) FEMA will include all members of a pre-disaster household in a 
single application and will provide assistance for one temporary housing 
residence, unless the Regional Director or his/her designee determines 
that the size or nature of the household requires that we provide 
assistance for more than one residence.
    (C) Any site upon which a FEMA-provided housing unit is placed must 
comply with applicable State and local codes and ordinances, as well as 
44 CFR part 9, Floodplain Management and Protection of Wetlands, and 44 
CFR part 10, Environmental Considerations, and all other applicable 
environmental laws and Executive Orders.
    (D) All utility costs and utility security deposits are the 
responsibility of

[[Page 452]]

the occupant except where the utility does not meter utility services 
separately and utility services are a part of the rental charge.
    (E) FEMA-provided or funded housing units may be placed in the 
following locations:
    (1) A commercial site that is complete with utilities; when the 
Regional Director or his/her designee determines that the upgrading of 
commercial sites, or installation of utilities on such sites, will 
provide more cost-effective, timely and suitable temporary housing than 
other types of resources, then Federal assistance may be authorized for 
such actions.
    (2) A private site that an applicant provides, complete with 
utilities; when the Regional Director or his/her designee determines 
that the cost of installation or repairs of essential utilities on 
private sites will provide more cost effective, timely, and suitable 
temporary housing than other types of resources, then Federal assistance 
may be authorized for such actions.
    (3) A group site that the State or local government provides that 
accommodates two or more units and is complete with utilities; when the 
Regional Director or his/her designee determines that the cost of 
developing a group site provided by the State or local government, to 
include installation or repairs of essential utilities on the sites, 
will provide more cost effective, timely, and suitable temporary housing 
than other types of resources, then Federal assistance may be authorized 
for such actions.
    (4) A group site provided by FEMA, if the Regional Director or his/
her designee determines that such a site would be more economical or 
accessible than one that the State or local government provides.
    (F) After the end of the 18-month period of assistance, FEMA may 
begin to charge up to the fair market rent rate for each temporary 
housing unit provided. We will base the rent charged on the number of 
bedrooms occupied and needed by the household. When establishing the 
amount of rent, FEMA will take into account the financial ability of the 
household.
    (G) We may terminate direct assistance for reasons that include, but 
are not limited to, the following:
    (1) The period of assistance expired under Sec. 206.110(e) and has 
not been extended;
    (2) Adequate alternate housing is available to the occupant(s);
    (3) The occupant(s) obtained housing assistance through either 
misrepresentation or fraud;
    (4) The occupant(s) failed to comply with any term of the lease/
rental agreement or other rules of the site where the unit is located.
    (5) The occupant(s) does not provide evidence documenting that they 
are working towards a permanent housing plan.
    (H) FEMA will provide a 15 day written notice when initiating the 
termination of direct assistance that we provide under our lease 
agreements. This notice will specify the reasons for termination of 
assistance and occupancy, the date of termination, the procedure for 
appealing the determination, and the occupant's liability for such 
additional charges as the Regional Director or his/her designee deems 
appropriate after the termination date, including fair market rent for 
the unit.
    (I) Duplication of benefits may occur when an applicant has 
additional living expense insurance benefits to cover the cost of 
renting alternate housing. In these instances, FEMA may provide a 
temporary housing unit if adequate alternate housing is not available, 
or if doing so is in the best interest of the household and the 
government. We will establish fair market rent, not to exceed insurance 
benefits available.
    (2) Repairs. (i) FEMA may provide financial assistance for the 
repairs of uninsured disaster-related damages to an owner's primary 
residence. The funds are to help return owner-occupied primary 
residences to a safe and sanitary living or functioning condition. 
Repairs may include utilities and residential infrastructure (such as 
private access routes, privately owned bridge, wells and/or septic 
systems) damaged by a major disaster.
    (ii) The type of repair FEMA authorizes may vary depending upon the 
nature of the disaster. We may authorize

[[Page 453]]

repair of items where feasible or replacement when necessary to insure 
the safety or health of the occupant and to make the residence 
functional.
    (iii) FEMA may also provide assistance for eligible hazard 
mitigation measures that reduce the likelihood of future damage to 
damaged residences, utilities or infrastructure.
    (iv) Eligible individuals or households may receive up to $5,000 
under this paragraph, adjusted annually to reflect changes in the CPI, 
to repair damages to their primary residence without first having to 
show that the assistance can be met through other means, except 
insurance proceeds.
    (v) The individual or household is responsible for obtaining all 
local permits or inspections that applicable State or local building 
codes may require.
    (3) Replacement. FEMA may provide financial assistance under this 
paragraph to replace the primary residence of an owner-occupied dwelling 
if the dwelling was damaged by the disaster and there was at least 
$10,000 of damage (as adjusted annually to reflect changes in the CPI). 
The applicant may either replace the dwelling in its entirety for 
$10,000 (as adjusted annually to reflect changes in the CPI) or less, or 
may use the assistance toward the cost of acquiring a new permanent 
residence that is greater in cost than $10,000 (as adjusted annually to 
reflect changes in the CPI). All replacement assistance awards must be 
individually approved by the Associate Director. The Associate Director 
may approve replacement assistance for applicants whose damages are less 
than $10,000 in extraordinary circumstances where replacement assistance 
is more appropriate than other forms of housing assistance.
    (4) Permanent housing construction. FEMA may provide financial or 
direct assistance to applicants for the purpose of constructing 
permanent housing in insular areas outside the continental United States 
and in other remote locations when alternative housing resources are not 
available and the types of financial or direct temporary housing 
assistance described at paragraph (b)(1) of this section are 
unavailable, infeasible, or not cost-effective.
    (c) Eligible costs. (1) Repairs to the primary residence or 
replacement of items must be disaster-related and must be of average 
quality, size, and capacity, taking into consideration the needs of the 
occupant. Repairs to the primary residence are limited to restoration of 
the dwelling to a safe and sanitary living or functioning condition and 
may include:
    (i) Repair or replacement of the structural components, including 
foundation, exterior walls, and roof;
    (ii) Repair or replacement of the structure's windows and doors;
    (iii) Repair or replacement of the structure's Heating, Ventilation 
and Air Conditioning System;
    (iv) Repair or replacement of the structure's utilities, including 
electrical, plumbing, gas, water and sewage systems;
    (v) Repair or replacement of the structure's interior, including 
floors, walls, ceilings, doors and cabinetry;
    (vi) Repair to the structure's access and egress, including 
privately owned access road and privately owned bridge;
    (vii) Blocking, leveling, and anchoring of a mobile home, and 
reconnecting or resetting mobile home sewer, water, electrical and fuel 
lines and tanks; and
    (viii) Items or services determined to be eligible hazard mitigation 
measures.
    (2) Replacement assistance, will be based on the verified disaster-
related level of damage to the dwelling, or the statutory maximum, 
whichever is less.
    (3) Permanent housing construction, in general, must be consistent 
with current minimal local building codes and standards where they 
exist, or minimal acceptable construction industry standards in the 
area, including reasonable hazard mitigation measures, and federal 
environmental laws and regulations Dwellings will be of average quality, 
size and capacity, taking into consideration the needs of the occupant.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.118  Disposal of housing units.

    (a) FEMA may sell housing units purchased under Sec. 
206.117(b)(1)(ii), Temporary housing, direct assistance, as follows:
    (1) Sale to an applicant.

[[Page 454]]

    (i) Sale to the individual or household occupying the unit, if the 
occupant lacks permanent housing, has a site that complies with local 
codes and ordinances and part 9 of this Title.
    (ii) Adjustment to the sales price. FEMA may approve adjustments to 
the sales price when selling a housing unit to the occupant of a unit if 
the purchaser is unable to pay the fair market value of the home or unit 
and when doing so is in the best interest of the applicant and FEMA.
    (iii) FEMA may sell a housing unit to the occupant only on the 
condition that the purchaser agrees to obtain and maintain hazard 
insurance, as well as flood insurance on the unit if it is or will be in 
a designated Special Flood Hazard Area.
    (2) Other methods of disposal:
    (i) FEMA may sell, transfer, donate, or otherwise make a unit 
available directly to a State or other governmental entity, or to a 
voluntary organization, for the sole purpose of providing temporary 
housing to disaster victims in major disasters and emergencies. As a 
condition of the sale, transfer, or donation, or other method of 
provision, the State, governmental entity, or voluntary organization 
must agree to:
    (A) Comply with the nondiscrimination provisions of the Stafford 
Act, 42 U.S.C. 5151; and
    (B) Obtain and maintain hazard insurance on the unit, as well as 
flood insurance if the housing unit is or will be in a designated 
Special Flood Hazard Area.
    (ii) FEMA may also sell housing units at a fair market value to any 
other person.
    (b) A unit will be sold ``as is, where is'', except for repairs FEMA 
deems necessary to protect health or safety, which are to be completed 
before the sale. There will be no implied warranties. In addition, FEMA 
will inform the purchaser that he/she may have to bring the unit up to 
codes and standards that are applicable at the proposed site.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.119  Financial assistance to address other needs.

    (a) Purpose. FEMA and the State may provide financial assistance to 
individuals and households who have other disaster-related necessary 
expenses or serious needs. To qualify for assistance under this section, 
an applicant must also:
    (1) Apply to the United States Small Business Administration's (SBA) 
Disaster Home Loan Program for all available assistance under that 
program; and
    (2) Be declined for SBA Disaster Home Loan Program assistance; or
    (3) Demonstrate that the SBA assistance received does not satisfy 
their total necessary expenses or serious needs arising out of the major 
disaster.
    (b) Types of assistance. (1) Medical, dental, and funeral expenses. 
FEMA may provide financial assistance for medical, dental and funeral 
items or services to meet the disaster-related necessary expenses and 
serious needs of individuals and households.
    (2) Personal property, transportation, and other expenses.
    (i) FEMA may provide financial assistance for personal property and 
transportation items or services to meet the disaster-related necessary 
expenses and serious needs of individuals and households.
    (ii) FEMA may provide financial assistance for other items or 
services that are not included in the specified categories for other 
assistance but which FEMA approves, in coordination with the State, as 
eligible to meet unique disaster-related necessary expenses and serious 
needs of individuals and households.
    (c) Eligible costs--(1) Personal property. Necessary expenses and 
serious needs for repair or replacement of personal property are 
generally limited to the following:
    (i) Clothing;
    (ii) Household items, furnishings or appliances;
    (iii) Tools, specialized or protective clothing, and equipment 
required by an employer as a condition of employment;
    (iv) Computers, uniforms, schoolbooks and supplies required for 
educational purposes; and

[[Page 455]]

    (v) Cleaning or sanitizing any eligible personal property item.
    (2) Transportation. Necessary expenses or serious needs for 
transportation are generally limited to the following:
    (i) Repairing or replacing vehicles; and
    (ii) Financial assistance for public transportation and any other 
transportation related costs or services.
    (3) Medical expenses. Medical expenses are generally limited to the 
following:
    (i) Medical costs;
    (ii) Dental costs; and
    (iii) Repair or replacement of medical equipment.
    (4) Funeral expenses. Funeral expenses are generally limited to the 
following
    (i) Funeral services;
    (ii) Burial or cremation; and
    (iii) Other related funeral expenses.
    (5) Moving and storage expenses. Necessary expenses and serious 
needs related to moving and storing personal property to avoid 
additional disaster damage generally include storage of personal 
property while disaster-related repairs are being made to the primary 
residence, and return of the personal property to the individual or 
household's primary residence.
    (6) Other. Other disaster-related expenses not addressed in this 
section may include:
    (i) The purchase of a Group Flood Insurance Policy as described in 
paragraph (d) of this section.
    (ii) Other miscellaneous items or services that FEMA, in 
consultation with the State, determines are necessary expenses and 
serious needs.
    (d) Group Flood Insurance purchase. Individuals identified by FEMA 
as eligible for ``Other Needs'' assistance under section 408 of the 
Stafford Act as a result of flood damage caused by a Presidentially-
declared major disaster and who reside in a special flood hazard area 
(SFHA) may be included in a Group Flood Insurance Policy (GFIP) 
established under the National Flood Insurance Program (NFIP) 
regulations at 44 CFR 61.17.
    (1) The premium for the GFIP is a necessary expense within the 
meaning of this section. FEMA or the State shall withhold this portion 
of the Other Needs award and provide it to the NFIP on behalf of 
individuals and households who are eligible for coverage. The coverage 
shall be equivalent to the maximum assistance amount established under 
section 408 of the Stafford Act.
    (2) FEMA or the State IHP staff shall provide the NFIP with records 
of individuals who received an ``Other Needs'' award and are to be 
insured through the GFIP. Records of ``Other Needs'' applicants to be 
insured shall be accompanied by payments to cover the premium amounts 
for each applicant for the 3-year policy term. The NFIP will then issue 
a Certificate of Flood Insurance to each applicant. Flood insurance 
coverage becomes effective on the 30th day following the receipt of 
records of GFIP insureds and their premium payments from the State or 
FEMA, and such coverage terminates 36 months from the inception date of 
the GFIP, which is 60 days from the date of the disaster declaration.
    (3) Insured applicants would not be covered if they are determined 
to be ineligible for coverage based on a number of exclusions 
established by the NFIP. Therefore, once applicants/policyholders 
receive the Certificate of Flood Insurance that contains a list of the 
policy exclusions, they should review that list to see if they are 
ineligible for coverage. Those applicants who fail to do this may find 
that their property is, in fact, not covered by the insurance policy 
when the next flooding incident occurs and they file for losses. Once 
the applicants find that their damaged buildings, contents, or both, are 
ineligible for coverage, they should notify the NFIP in writing in order 
to have their names removed from the GFIP, and to have the flood 
insurance maintenance requirement expunged from the data-tracking 
system.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002]



Sec. 206.120  State administration of other needs assistance.

    (a) State administration of other needs assistance. A State may 
request a grant from FEMA to provide financial assistance to individuals 
and households in the State under Sec. 206.119. The State may also 
expend administrative costs not to exceed 5 percent of the amount of the 
grant in accordance with section

[[Page 456]]

408(f)(1)(b) of the Stafford Act. Any State that administers the program 
to provide financial assistance to individuals and households must 
administer the program consistent with Sec. 206.119 and the State 
Administrative Option and the State Administrative Plan that we describe 
at paragraph (b) and (c) of this section.
    (b) State administrative options. The delivery of assistance under 
Sec. 206.119 is contingent upon the State choosing an administrator for 
the assistance. The State may either request that FEMA administer the 
assistance or the State may request a grant from FEMA for State 
administration. The Governor or designee will execute the State 
Administrative Option annually. During non-disaster periods the State 
may submit any proposed amendments to the administrative option in 
writing to the FEMA Regional Director. FEMA shall review the request and 
respond to the Governor or his/her designee within 45 days of receipt of 
the proposed amendment;
    (c) State Administrative Plan (SAP). The delivery of assistance by a 
State under this section is contingent upon approval of a SAP, which 
describes the procedures the State will use to deliver assistance under 
section 408 of the Stafford Act, 42 U.S.C. 5174, when a State requests a 
grant to administer Other Needs assistance. All implementation 
procedures must be in compliance with Federal laws and requirements, 
State laws and procedures, and paragraphs (c) and (d) of this section.
    (1) Timeframe for submission of SAP. A signed SAP, or renewal, must 
be provided to the FEMA Regional Director prior to November 30 of each 
year. A SAP shall be effective for at least one year, and must be 
resubmitted in full every three years.
    (2) Renewals. Annual updates/revisions to the SAP must be submitted 
by November 30 of each year for FEMA's review and approval by December 
31. If the SAP does not need to be updated/revised, a letter from the 
State stating the SAP is still current must be submitted by November 30 
to document the SAP submission requirement.
    (3) Amendments. The State may request amendments to the SAP at any 
time. An amendment is effective upon signature by the FEMA Regional 
Director and the Governor or his/her designee. The State may request an 
amendment to the administrative plan as follows:
    (i) During non-disaster periods. The State may submit any proposed 
amendments to the SAP in writing to the FEMA Regional Director. FEMA 
shall review the request and respond to the Governor or his/her designee 
within 45 days of receipt of the proposed amendment;
    (ii) During Presidentially-declared disasters. The State shall 
submit any proposed amendments to the SAP in writing to FEMA within 
three days after disaster declaration. FEMA shall review the request and 
respond to the Governor or his/her designee within three days of 
receipt.
    (d) State administrative plan requirements. The State shall develop 
a plan for the administration of the Other Needs assistance that 
describes, at a minimum, the following items:
    (1) Assignment of grant program responsibilities to State officials 
or agencies.
    (2) Staffing Schedule that identifies the position, salary and 
percent of time for each staff person assigned to program administration 
and/or implementation.
    (3) Procedures for interaction with applicants:
    (i) Procedures for notifying potential applicants of the 
availability of the program, to include the publication of application 
deadlines, pertinent program descriptions, and further program 
information on the requirements which must be met by the applicant in 
order to receive assistance;
    (ii) Procedures for registration and acceptance of applications, 
including late applications, up to the prescribed time limitations as 
described in Sec. 206.112;
    (iii) Procedures for damage inspection and/or other verifications.
    (iv) Eligibility determinations.
    (A) Under a cooperative agreement: The procedure for eligibility 
determinations when the FEMA application and inspection systems are used 
by the State but additional eligibility criteria are necessary to make 
State eligibility determinations.

[[Page 457]]

    (B) Under a grant: The procedure for eligibility determinations when 
the FEMA application and inspection systems are not used by the State, 
including the method for determination of costs for personal property 
and provision of a standard list for personal property items with 
allowable costs identified for each item.
    (v) Procedures for checking compliance for mandated flood insurance 
in accordance with Sec. 206.110(k);
    (vi) Procedures for notifying applicants of the State's eligibility 
decision;
    (vii) Procedures for disbursement of funds to applicants;
    (viii) Procedures for applicant appeal processing. Procedures must 
provide for any appealable determination as identified in Sec. 
206.115(a);
    (ix) Procedures for expeditious reporting of allegations of fraud, 
waste or abuse to FEMA Office of Inspector General.
    (x) Capacity to investigate allegations of waste, fraud and abuse 
independently if requested by FEMA OIG, or in conjunction with FEMA OIG.
    (xi) Provisions for safeguarding the privacy of applicants and the 
confidentiality of information, in accordance with Sec. 206.110(j).
    (xii) Provisions for complying with Sec. 206.116(b), Recovery of 
funds.
    (4) Procedures for financial management, accountability and 
oversight.
    (i) Procedures for verifying by random sample that assistance funds 
are meeting applicants' needs, are not duplicating assistance from other 
means, and are meeting flood insurance requirements.
    (ii) Provisions for specifically identifying, in the accounts of the 
State, all Federal and State funds committed to each grant program; and 
for immediately returning, upon discovery, all Federal funds that are 
excess to program needs.
    (iii) Provisions for accounting for cash in compliance with State 
law and procedure and the Cash Management Improvement Act of 1990, as 
amended.
    (iv) Reports.
    (A) Procedures for preparing and submitting quarterly and final 
Financial Status Reports in compliance with 44 CFR 13.41.
    (B) Procedures for submitting Program Status Reports in compliance 
with paragraph (f)(2)(iii) of this section.
    (C) Procedures for preparing and submitting the PSC 272, Federal 
Cash Transactions Report.
    (v) Procedures for inventory control, including a system for 
identifying and tracking placement of equipment purchased with grant 
funds or loaned by FEMA to the State for purposes of administering the 
Individuals and Households Program.
    (vi) Procedures for return of funds to FEMA.
    (vii) State criteria and requirements for closing out Federal 
grants.
    (viii) Process for retention of records.
    (e) Application for assistance procedure. This section describes the 
procedures that must be followed by the State to submit an application 
to administer the Individuals and Households Program through a Grant 
Award or a Cooperative Agreement.
    (1) The State must submit an Other Needs assistance application to 
the Regional Director within 72 hours of the major disaster declaration 
before IHP assistance may be provided. FEMA will work with the State to 
approve the application or to modify it so it can be approved.
    (2) The application shall include:
    (i) Standard Form (SF) 424, Application for Federal Assistance;
    (ii) FEMA Form (FF) 20-20 Budget Information--Non Construction 
Programs;
    (iii) Copy of approved indirect cost rate from a Federal cognizant 
agency if indirect costs will be charged to the grant. Indirect costs 
will be included in the administrative costs of the grant allowed under 
paragraph (a) of this section; and
    (iv) Disaster specific changes to the State Administrative Plan, if 
applicable.
    (f) Grants management oversight--(1) Period of assistance. All costs 
must be incurred within the period of assistance, which is 18 months 
from the date of the disaster declaration. This period of assistance may 
be extended if requested in writing by the State and approved in writing 
by the FEMA Associate Director. The State must include

[[Page 458]]

a justification for an extension of the assistance period.
    (2) Reporting requirements. (i) The State shall provide financial 
status reports, as required by 44 CFR 13.41.
    (ii) The State shall provide copies of PSC 272, Federal Cash 
Transactions Report to FEMA. The PSC 272 is required quarterly by the 
Department of Health and Human Services from users of its SMARTLINK 
service.
    (iii) The State shall provide weekly program status reports which 
include the number and dollar amount of applications approved, the 
amount of assistance disbursed and the number of appeals received.
    (3) Ineligible costs. Funds provided to the State for the 
administrative costs of administering Other Needs assistance shall not 
be used to pay regular time for State employees, but may be used to pay 
overtime for those employees.
    (4) Closeout. The State has primary responsibility to closeout the 
tasks approved under the Grant Award. In compliance with the period of 
assistance, as identified in the award, the State must reconcile costs 
and payments, resolve negative audit findings, and submit final reports 
within 90 days of the end of the period of assistance. The State must 
also provide an inventory of equipment purchased with grant funds and 
loaned to it by FEMA for purposes of administering IHP, which lists the 
items, dates, and costs of equipment purchased.
    (5) Recovery of funds. The State is responsible for recovering 
assistance awards from applicants obtained fraudulently, expended for 
unauthorized items or services, expended for items for which assistance 
is received from other means, and awards made in error.
    (i) Adjustments to expenditures will be made as funding is recovered 
and will be reported quarterly on the Financial Status Report.
    (ii) A list of applicants from whom recoveries are processed will be 
submitted on the quarterly progress report to allow FEMA to adjust its 
program and financial information systems.
    (iii) The State will reimburse FEMA for the Federal share of awards 
not recovered through quarterly financial adjustments within the 90 day 
close out liquidation period of the grant award.
    (iv) If the State does not reimburse FEMA within the 90 day close 
out liquidation period, a bill for collection will be issued. FEMA will 
charge interest, penalties, and administrative fees on delinquent bills 
for collection in accordance with the Debt Collection Improvement Act. 
Recovered funds, interest, penalties, and fees owed to FEMA through 
delinquent bills for collection may be offset from other FEMA disaster 
assistance programs from which the State is receiving funds or future 
grant awards from FEMA or other Federal agencies. Debt collection 
procedures will be followed as outlined in 44 CFR part 11.
    (6) Audit requirements. Pursuant to 44 CFR 13.26, uniform audit 
requirements apply to all grants provided under this subpart.
    (7) Document retention. Pursuant to 44 CFR 13.42, States are 
required to retain records, including source documentation, to support 
expenditures/costs incurred against the grant award, for 3 years from 
the date of submission to FEMA of the final Financial Status Report. The 
State is responsible for resolving questioned costs that may result from 
an audit conducted during the three-year record retention period and for 
returning disallowed costs from ineligible activities.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, 62897, Oct. 9, 2002]



Sec. Sec. 206.121-206.130  [Reserved]



             Subpart E_Individual and Family Grant Programs



Sec. 206.131  Individual and Family Grant Program for major disasters 
declared on or before October 14, 2002.

    (a) General. The Governor may request that a Federal grant be made 
to a State for the purpose of such State making grants to individuals or 
families who, as a result of a major disaster, are unable to meet 
disaster-related necessary expenses or serious needs for Presidentially-
declared major disasters declared on or before October 14, 2002 (Note 
that the reference to section 411 of the Stafford Act refers to

[[Page 459]]

prior legislation amended by the Disaster Mitigation Act 2000). The 
total Federal grant under this section will be equal to 75 percent of 
the actual cost of meeting necessary expenses or serious needs of 
individuals and families, plus State administrative expenses not to 
exceed 5 percent of the Federal grant (see paragraph (g) of this 
section). The total Federal grant is made only on condition that the 
remaining 25 percent of the actual cost of meeting individuals' or 
families' necessary expenses or serious needs is paid from funds made 
available by the State. With respect to any one major disaster, an 
individual or family may not receive a grant or grants under this 
section totaling more than $10,000 including both the Federal and State 
shares. The $10,000 limit will be adjusted annually, at the beginning of 
each fiscal year, to reflect changes in the Consumer Price Index for all 
Urban Consumers. IFG assistance for damages or losses to real or 
personal property, or both, will be provided to individuals or families 
with those IFG-eligible losses totaling $201 or more; those individuals 
with damages or losses of $200 or less to real or personal property, or 
both, are ineligible. The Governor or his/her designee is responsible 
for the administration of the grant program. The provisions of this 
regulation are in accordance with 44 CFR Part 13, Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments.
    (b) Purpose. The grant program is intended to provide funds to 
individuals or families to permit them to meet those disaster-related 
necessary expenses or serious needs for which assistance from other 
means is either unavailable or inadequate. Meeting those expenses and 
needs as expeditiously as possible will require States to make an early 
commitment of personnel and resources. States may make grants in 
instances where the applicant has not received other benefits to which 
he/she may be entitled by the time of application to the IFG program, 
and if the applicant agrees to repay all duplicated assistance to the 
State. The grant program is not intended to indemnify disaster losses or 
to permit purchase of items or services which may generally be 
characterized as nonessential, luxury, or decorative. Assistance under 
this program is not to be counted as income or a resource in the 
determination of eligibility for welfare or other income-tested programs 
supported by the Federal Government, in that IFG assistance is intended 
to address only disaster-related needs.
    (c) Definitions used in this section. (1) Necessary expense means 
the cost of a serious need.
    (2) Serious need means the requirement for an item or service 
essential to an individual or family to prevent, mitigate, or overcome a 
disaster-related hardship, injury, or adverse condition.
    (3) Family means a social unit living together and composed of:
    (i) Legally married individuals or those couples living together as 
if they were married and their dependents; or
    (ii) A single person and his/her dependents; or
    (iii) Persons who jointly own the residence and their dependents.
    (4) Individual means anyone who is not a member of a family as 
described above.
    (5) Dependent means someone who is normally claimed as such on the 
Federal tax return of another, according to the Internal Revenue Code. 
It may also mean the minor children of a couple not living together 
where the children live in the affected residence with the parent who 
does not actually claim them on the tax return.
    (6) Expendable items means consumables, as follows: linens, clothes, 
and basic kitchenware (pots, pans, utensils, dinnerware, flatware, small 
kitchen appliances).
    (7) Assistance from other means means assistance including monetary 
or in-kind contributions, from other governmental programs, insurance, 
voluntary or charitable organizations, or from any sources other than 
those of the individual or family. It does not include expendable items.
    (8) Owner-occupied means that the residence is occupied by: The 
legal owner; a person who does not hold formal title to the residence 
but is responsible for payment of taxes, maintenance of the residence, 
and pays no

[[Page 460]]

rent; or a person who has lifetime occupancy rights in the residence 
with formal title vested in another. In States where documentation 
proving ownership is not recorded or does not exist, the State is 
required to include in its administrative plan a State Attorney General 
approved set of conditions describing adequate proof of ownership.
    (9) Flowage easement means an area where the landowner has given the 
right to overflow, flood, or submerge the land to the government or 
other entity for a public purpose.
    (d) National eligibility criteria. In administering the IFG program, 
a State shall determine the eligibility of an individual or family in 
accordance with the following criteria;
    (1) General. (i) To qualify for a grant under this section, an 
individual or family representative must:
    (A) Make application to all applicable available governmental 
disaster assistance programs for assistance to meet a necessary expense 
or serious need, and be determined not qualified for such assistance, or 
demonstrate that the assistance received does not satisfy the total 
necessary expense or serious need;
    (B) Not have previously received or refused assistance from other 
means for the specific necessary expense or serious need, or portion 
thereof, for which application is made; and
    (C) Certify to refund to the State that part of the grant for which 
assistance from other means is received, or which is not spent as 
identified in the grant award document.
    (ii) Individuals and families who incur a necessary expense or 
serious need in the major disaster area may be eligible for assistance 
under this section without regard to their alienage, their residency in 
the major disaster area, or their residency within the State in which 
the major disaster has been declared except that for assistance in the 
``housing'' category, ownership and residency in the declared disaster 
area are required (see paragraph (d)(2)(i) of this section).
    (iii) The Flood Disaster Protection Act of 1973, Public Law 93-234, 
as amended, imposes certain restriction on approval of Federal financial 
assistance for acquisition and construction purposes. This paragraph 
states those requirements for the IFG program.
    (A) For the purpose of this paragraph, financial assistance for 
acquisition or construction purposes means a grant to an individual or 
family to repair, replace, or rebuild the insurable portions of a home, 
and/or to purchase or repair insurable contents. For a discussion of 
what elements of a home and contents are insurable, see 44 CFR part 61, 
Insurance Coverage and Rates.
    (B) A State may not make a grant for acquisition or construction 
purposes where the structure to which the grant assistance relates is 
located in a designated special flood hazard area which has been 
identified by the Director for at least 1 year as floodprone, unless the 
community in which the structure is located is participating in the 
National Flood Insurance Program (NFIP). However, if a community 
qualifies for and enters the NFIP during the 6-month period following 
the major disaster declaration, the Governor's Authorized Representative 
(GAR) may request a time extension (see paragraph (j)(1)(ii) of this 
section) from the Regional Director for the purpose of accepting and 
processing grant applications in that community. The Regional Director 
or Associate Director, as appropriate, may approve the State's request 
if those applicable governmental disaster assistance programs which were 
available during the original application period are available to the 
grant applicants during the extended application period.
    (C)(1) The State may not make a grant for acquisition or 
construction purposes in a designated special flood hazard area in which 
the sale of flood insurance is available under the NFIP unless the 
individual or family obtains adequate flood insurance and maintains such 
insurance for as long as they live at that property address. The 
coverage shall equal the maximum grant amount established under Sec. 
411(f) of the Stafford Act. If the grantee is a homeowner, flood 
insurance coverage must be maintained on the residence at the flood-
damaged property address for as long as the structure exists if the 
grantee, or any subsequent owner of that real estate, ever wishes to be 
assisted by the Federal government with

[[Page 461]]

any subsequent flood damages or losses to real or personal property, or 
both. If the grantee is a renter, flood insurance coverage must be 
maintained on the contents for as long as the renter resides at the 
flood-damaged property address. The restriction is lifted once the 
renter moves from the rental unit.
    (2) Individuals named by a State as eligible recipients under Sec. 
411 of the Stafford Act for an IFG program award for flood damage as a 
result of a Presidential major disaster declaration will be included in 
a Group Flood Insurance Policy (GFIP) established under the National 
Flood Insurance Program (NFIP) regulations, at 44 CFR 61.17.
    (i) The premium for the GFIP is a necessary expense within the 
meaning of this section. The State shall withhold this portion of the 
IFG award and provide it to the NFIP on behalf of individuals and 
families who are eligible for coverage. The coverage shall be equivalent 
to the maximum grant amount established under Sec. 411(f) of the 
Stafford Act.
    (ii) The State IFG program staff shall provide the NFIP with records 
of individuals who received an IFG award and are, therefore, to be 
insured. Records of IFG grantees to be insured shall be accompanied by 
payments to cover the premium amounts for each grantee for the 3-year 
policy term. The NFIP will then issue a Certificate of Flood Insurance 
to each grantee. Flood insurance coverage becomes effective on the 30th 
day following the receipt of records of GFIP insureds and their premium 
payments from the State, and terminates 36 months from the inception 
date of the GFIP, i.e., 60 days from the date of the disaster 
declaration.
    (iii) Insured grantees would not be covered if they are determined 
to be ineligible for coverage based on a number of exclusions 
established by the NFIP. Therefore, once grantees/policyholders receive 
the Certificate of Flood Insurance that contains a list of the policy 
exclusions, they should review that list to see if they are ineligible 
for coverage. Those grantees who fail to do this may find that their 
property is, in fact, not covered by the insurance policy when the next 
flooding incident occurs and they file for losses. Once the grantees 
find that their damaged buildings, contents, or both, are ineligible for 
coverage, they should notify the NFIP in writing in order to have their 
names removed from the GFIP, and to have the flood insurance maintenance 
requirement expunged from the NFIP data-tracking system. (If the grantee 
wishes to refer to or review a Standard Flood Insurance Policy, it will 
be made available by the NFIP upon request.)
    (D) A State may not make a grant to any individual or family who 
received Federal disaster assistance for flood damage occurring after 
September 23, 1994, if that property has already received Federal flood-
disaster assistance in a disaster declared after September 23, 1994, a 
flood insurance purchase and maintenance requirement was levied as a 
condition or result of receiving that Federal disaster assistance, and 
flood insurance was, in fact, not maintained in an amount at least equal 
to the maximum IFG grant amount. However, if that property was 
determined to be ineligible for NFIP flood insurance coverage and is in 
a special flood hazard area located in a community participating in the 
NFIP, then the State may continue to make grants to those individuals or 
families that receive additional damage in all subsequent Presidentially 
declared major disasters involving floods.
    (iv) In order to comply with the President's Executive Orders on 
Floodplain Management (E.O. 11988) and Protection of Wetlands (E.O. 
11990), the State must implement the IFG program in accordance with FEMA 
regulations 44 CFR part 9. That part specifies which IFG program actions 
require a floodplain management decisionmaking process before a grant 
may be made, and also specifies the steps to follow in the 
decisionmaking process. Should the State determine that an individual or 
family is otherwise eligible for grant assistance, the State shall 
accomplish the necessary steps in accordance with that section, and 
request the Regional Director to make a final floodplain management 
determination.
    (2) Eligible categories. Assistance under this section shall be made 
available to meet necessary expenses or serious needs by providing 
essential items or services in the following categories:

[[Page 462]]

    (i) Housing. With respect to primary residences (including mobile 
homes) which are owner-occupied at the time of the disaster, grants may 
be authorized to:
    (A) Repair, replace, or rebuild;
    (B) Provide access. When an access serves more than one individual 
or family, an owner-occupant whose primary residence is served by the 
access may be eligible for a proportionate share of the cost of jointly 
repairing or providing such access. The owner-occupant may combine his/
her grant funds with funds made available by the other individuals or 
families if a joint use agreement is executed (with no cost or charge 
involved) or if joint ownership of the access is agreed to;
    (C) Clean or make sanitary;
    (D) Remove debris from such residences. Debris removal is limited to 
the minimum required to remove health or safety hazards from, or protect 
against additional damage to the residence;
    (E) Provide or take minimum protective measures required to protect 
such residences against the immediate threat of damage, which means that 
the disaster damage is causing a potential safety hazard and, if not 
repaired, will cause actual safety hazards from common weather or 
environmental events (example: additional rain, flooding, erosion, 
wind); and
    (F) Minimization measures required by owner-occupants to comply with 
the provision of 44 CFR part 9 (Floodplain Management and Protection of 
Wetlands), to enable them to receive assistance from other means, and/or 
to enable them to comply with a community's floodplain management 
regulations.
    (ii) Personal property. Proof of ownership of personal property is 
not required. This category includes:
    (A) Clothing;
    (B) Household items, furnishings, or appliances. If a predisaster 
renter receives a grant for household items, furnishings, or appliances 
and these items are an integral part of mobile home or other furnished 
unit, the predisaster renter may apply the funds awarded for these 
specific items toward the purchase of the furnished unit, and toward 
mobile home site development, towing, set-up, connecting and/or 
reconnecting;
    (C) Tools, specialized or protective clothing, and equipment which 
are required by an employer as a condition of employment;
    (D) Repairing, cleaning or sanitizing any eligible personal property 
item; and
    (E) Moving and storing to prevent or reduce damage.
    (iii) Transportation. Grants may be authorized to repair, replace, 
or provide privately owned vehicles or to provide public transportation.
    (iv) Medical or dental expenses.
    (v) Funeral expenses. Grants may include funeral and burial (and/or 
cremation) and related expenses.
    (vi) Cost of the first year's flood insurance premium to meet the 
requirement of this section.
    (vii) Costs for estimates required for eligibility determinations 
under the IFG program. Housing and personal property estimates will be 
provided by the government. However, an applicant may appeal to the 
State if he/she feels the government estimate is inaccurate. The cost of 
an applicant-obtained estimate to support the appeal is not an eligible 
cost.
    (viii) Other. A State may determine that other necessary expenses 
and serious needs are eligible for grant assistance. If such a 
determination is made, the State must summarize the facts of the case 
and thoroughly document its findings of eligibility. Should the State 
require technical assistance in making a determination of eligibility, 
it may provide a factual summary to the Regional Director and request 
guidance. The Associate Director also may determine that other necessary 
expenses and serious needs are eligible for grant assistance. Following 
such a determination, the Associate Director shall advise the State, 
through the Regional Director, and provide the necessary program 
guidance.
    (3) Ineligible categories. Assistance under this section shall not 
be made available for any item or service in the following categories:
    (i) Business losses, including farm businesses and self-employment;
    (ii) Improvements or additions to real or personal property, except 
those

[[Page 463]]

required to comply with paragraph (d)(2)(i)(F) of this section;
    (iii) Landscaping;
    (iv) Real or personal property used exclusively for recreation; and
    (v) Financial obligations incurred prior to the disaster.
    (4) Verification. The State will be provided most verification data 
on IFG applicants who were not required to first apply to the SBA. The 
FEMA Regional Director shall be responsible for performing most of the 
required verifications in the categories of housing (to include 
documentation of home ownership and primary residency); personal 
property; and transportation (to include notation of the plate or title 
number of the vehicle; the State may wish to follow up on this). Certain 
verifications may still be required to be performed by the State, such 
as on late applicants or reverifications, when FEMA or its contractors 
are no longer available, and on medical/dental, funeral and ``other'' 
categories. Eligibility determination functions shall be performed by 
the State. The SBA will provide copies of verification performed by SBA 
staff on housing and personal property (including vehicles) for those 
applicants who were first required to apply to SBA. This will enable the 
State to make an eligibility determination on those applicants. When an 
applicant disagrees with the grant award, he/she may appeal to the 
State. The cost of any estimate provided by the applicant in support of 
his/her appeal is not eligible under the program.
    (e) State administrative plan. (1) The State shall develop a plan 
for the administration of the IFG program that includes, as a minimum, 
the items listed below.
    (i) Assignment of grant program responsibilities to State officials 
or agencies.
    (ii) Procedures for:
    (A) Notifying potential grant applicants of the availability of the 
program, to include the publication of application deadlines, pertinent 
program descriptions, and further program information on the 
requirements which must be met by the applicant in order to receive 
assistance;
    (B) Participating with FEMA in the registration and acceptance of 
applications, including late applications, up to the prescribed time 
limitations;
    (C) Reviewing verification data provided by FEMA and performing 
verifications for medical, dental, funeral, and ``other'' expenses, and 
also for all grant categories in the instance of late applications and 
appeals. FEMA will perform any necessary reverifications while its 
contract personnel are in the disaster area, and the State will perform 
any others;
    (D) Determining applicant eligibility and grant amounts, and 
notifying applicants of the State's decision;
    (E) Determining the requirement for flood insurance;
    (F) Preventing duplication of benefits between grant assistance and 
assistance from other means;
    (G) At the applicant's request, and at the State's option, 
reconsidering the State's determinations;
    (H) Processing applicant appeals, recognizing that the State has 
final authority. Such procedures must provide for:
    (1) The receipt of oral or written evidence from the appellate or 
representative;
    (2) A determination on the record; and
    (3) A decision by an impartial person or board;
    (I) Disbursing grants in a timely manner;
    (J) Verifying by random sample that grant funds are meeting 
applicants' needs, are not duplicating assistance from other means, and 
are meeting floodplain management and flood insurance requirements. 
Guidance on the sample size will be provided by the Regional Director;
    (K) Recovering grant funds obtained fraudulently, expended for 
unauthorized items or services, expended for items for which assistance 
is received from other means, or authorized for acquisition or 
construction purposes where proof of purchase of flood insurance is not 
provided to the State. Except for those mentioned in the previous 
sentence, grants made properly by the State on the basis of federally 
sponsored verification information are not subject to recovery by the 
State, i.e., FEMA will not hold the State responsible for repaying to 
FEMA the

[[Page 464]]

Federal share of those grants. The State is responsible for its 25 
percent share of those grants. As an attachment to its voucher, the 
State must identify each case where recovery actions have been taken or 
are to be taken, and the steps taken or to be taken to accomplish 
recovery;
    (L) Conducting any State audits that might be performed in 
compliance with the Single Audit Act of 1984; and ensuring that 
appropriate corrective action is taken within 6 months after receipt of 
the audit report in instances of noncompliance with Federal laws and 
regulations;
    (M) Reporting to the Regional Director, and to the Federal 
Coordinating Officer as required; and
    (N) Reviewing and updating the plan each January.
    (iii) National eligibility criteria as defined in paragraph (d) of 
this section.
    (iv) Provisions for compliance with 44 CFR part 13, Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments; 44 CFR part 11, Claims; the State's own 
debt collection procedures; and all applicable Federal laws and 
regulations.
    (v) Pertinent time limitations for accepting applications, grant 
award activities, and administrative activities, to comply with Federal 
time limitations.
    (vi) Provisions for specifically identifying, in the accounts of the 
State, all Federal and State funds committed to each grant program; for 
repaying the loaned State share as of the date agreed upon in the FEMA-
State Agreement; and for immediately returning, upon discovery, all 
Federal funds that are excess to program needs.
    (vii) Provisions for safeguarding the privacy of applicants and the 
confidentiality of information, except that the information may be 
provided to agencies or organizations who require it to make eligibility 
decisions for assistance programs, or to prevent duplication of 
benefits, to State agencies responsible for audit or program review, and 
to FEMA or the General Accounting Office for the purpose of making 
audits or conducting program reviews.
    (viii) A section identifying the management and staffing functions 
in the IFG program, the sources of staff to fill these functions, and 
the management and oversight responsibilities of:
    (A) The GAR;
    (B) The department head responsible for the IFG program;
    (C) The Grant Coordinating Officer, i.e., the State official 
assigned management responsibility for the IFG program; and
    (D) The IFG program manager, where management responsibilities are 
assigned to such a person on a day-to-day basis.
    (2) The Governor or his/her designee may request the Regional 
Director to provide technical assistance in the preparation of an 
administrative plan to implement this program.
    (3) The Governor shall submit a revised State administrative plan 
each January to the Regional Director. The Regional Director shall 
review and approve the plan annually. In each disaster for which 
assistance under this section is requested, the Regional Director shall 
request the State to prepare any amendments required to meet current 
policy guidance. The Regional Director must then work with the State 
until the plan and amendment(s) are approved.
    (4) The State shall make its approved administrative plan part of 
the State emergency plan, as described in subpart A of these 
regulations.
    (f) State initiation of the IFG program. To make assistance under 
this section available to disaster victims, the Governor must, either in 
the request of the President for a major disaster declaration or by 
separate letter to the Regional Director, express his/her intention to 
implement the program. This expression of intent must include an 
estimate of the size and cost of the program. In addition, this 
expression of intent represents the Governor's agreement to the 
following:
    (1) That the program is needed to satisfy necessary expenses and 
serious needs of disaster victims which cannot otherwise be met;
    (2) That the State will pay its 25 percent share of all grants to 
individuals and families;

[[Page 465]]

    (3) That the State will return immediately upon discovery advanced 
Federal funds that exceed actual requirements;
    (4) To implement an administrative plan as identified in paragraph 
(e) of this section;
    (5) To implement the grant program throughout the area designated as 
eligible for assistance by the Associate Director; and
    (6) To maintain close coordination with and provide reports to the 
Regional Director.
    (g) Funding. (1) The Regional Director may obligate the Federal 
share of the IFG program based upon the determination that:
    (i) The Governor has indicated the intention to implement the 
program, in accordance with paragraph (f) of this section;
    (ii) The State's administrative plan meets the requirements of this 
section and current policy guidance; and
    (iii) There is no excess advance of the Federal share due FEMA from 
a prior IFG program. The State may eliminate any such debt by paying it 
immediately, or by accepting an offset of the owed funds against other 
funds payable by FEMA to the State. When the excess Federal share has 
been repaid, the Regional Director may then obligate funds for the 
Federal share for the current disaster.
    (2) The Regional Director may increase the State's letter of credit 
to meet the Federal share of program needs if the above conditions are 
met. The State may withdraw funds for the Federal share in the amount 
made available to it by the Regional Director. Advances to the State are 
governed by 44 CFR 13.21, Payment.
    (3) The Regional Director may lend to the State its share in 
accordance with subpart A of these regulations.
    (4) Payable costs are governed by 44 CFR 13.22, Allowable Costs, and 
the associated OMB Circular A-87, Cost Principles for State and Local 
Governments. Also, the costs must be in accordance with the national 
eligibility criteria stated in paragraph (d) of this section, and the 
State's administrative plan, as stated in paragraph (e) of this section. 
The Federal contribution to this program shall be 75 percent of program 
costs and shall be made in accordance with 44 CFR 13.25, Matching or 
Cost-Sharing.
    (h) Final payment. Final payment to the State for the Federal share 
of the IFG program plus administrative costs, is governed by 44 CFR 
l3.21, Payment, and 44 CFR 13.50, Closeout. The voucher is Standard Form 
270, Request for Advance or Reimbursement). A separate voucher for the 
State share will be prepared, to include all disaster programs for which 
the State is requesting a loan of the nonFederal share. The FEMA 
Regional Director will analyze the voucher and approve, disapprove, or 
suspend approval until deficiencies are corrected.
    (i) Audits. The State should perform the audits required by the 
Single Audit Act of 1984. Refer to 44 CFR part 14, Administration of 
Grants; Audits of State and Local Governments, which implements OMB 
Circular A-128 regarding audits. All programs are subject to Federal 
audit.
    (j) Time limitations. (1) In the administration of the IFG program:
    (i) The Governor shall indicate his/her intention to implement the 
IFG program no later than 7 days following the day on which the major 
disaster was declared and in the manner set forth in paragraph (f) of 
this section;
    (ii) Applications shall be accepted from individuals or families for 
a period of 60 days following the declaration, and for no longer than 30 
days thereafter when the State determines that extenuating circumstances 
beyond the applicants' control (such as, but not limited to, 
hospitalization, illness, or inaccessibility to application centers) 
prevented them from applying in a timely manner. Exception: If 
applicants exercising their responsibility to first apply to the Small 
Business Administration do so after SBA's deadline, and SBA accepts 
their case for processing because of ``substantial causes essentially 
beyond the control of the applicant,'' and provides a formal decline or 
insufficient loan based on lack of repayment ability, unsatisfactory 
credit, or unsatisfactory experience with prior loans (i.e., the reasons 
a loan denial client would normally be eligible for IFG assistance), 
then such an application referred to the State by

[[Page 466]]

the SBA is considered as meeting the IFG filing deadline. The State may 
then apply its own criteria in determining whether to process the case 
for grant assistance. The State automatically has an extension of time 
to complete the processing, eligibility, and disbursement functions. 
However, the State must still complete all administrative activity 
within the 270-day period described in this section.
    (iii) The State shall complete all grant award activity, including 
eligibility determinations, disbursement, and disposition of State level 
appeals, within 180 days following the declaration date. The Regional 
Director shall suspend all grant awards disbursed after the specified 
completion date; and
    (iv) The State shall complete all administrative activities and 
submit final reports and vouchers to the Regional Director within 90 
days of the completion of all grant award activity.
    (2) The GAR may submit a request with appropriate justification for 
the extension of any time limitation. The Regional Director may approve 
the request for a period not to exceed 90 days. The Associate Director 
may approve any request for a further extension of the time limitations.
    (k) Appeals--(1) Bills for collection (BFC's). The State may appeal 
the issuance of a BFC by the Regional Director. Such an appeal shall be 
made in writing within 60 days of the issuance of the bill. The appeal 
must include information justifying why the bill is incorrect. The 
Regional Director shall review the material submitted and notify the 
State, in writing, within 15 days of receipt of the appeal, of his/her 
decision. Interest on BFC's starts accruing on the date of issuance of 
the BFC, but is not charged if the State pays within 30 days of 
issuance. If the State is successful in its appeal, interest will not be 
charged; if unsuccessful, interest is due and payable, as above.
    (2) Other appeals. The State may appeal any other decision of the 
regional Director. Such appeals shall be made in writing within 60 days 
of the Regional Director's decision. The appeal must include information 
justifying a reversal of the decision. The Regional Director shall 
review the material submitted and notify the State, in writing, within 
15 days of receipt of the appeal, of his/her decision.
    (3) Appeals to the Associate Director. The State may further appeal 
the Regional Director's decisions to the Associate Director. This appeal 
shall be made in writing within 60 days of the Regional Director's 
decision. The appeal must include information justifying a reversal of 
the decision. The Associate Director shall review the material submitted 
and notify the State, in writing, within 15 days of receipt of the 
appeal, of his/her decision.
    (l) Exemption from garnishment. All proceeds received or receivable 
under the IFG program shall be exempt from garnishment, seizure, 
encumbrance, levy, execution, pledge, attachment, release, or waiver. No 
rights under this provision are assignable or transferable. The above 
exemptions will not apply to the requirement imposed by paragraph 
(e)(1)(ii)(K) of this section.
    (m) Debt collection. If the State has been unable to recover funds 
as stated in paragraph (e)(1)(k) of this section, the Regional Director 
shall institute debt collection activities against the individual 
according to the procedures outlined in 44 CFR part 11, Claims, and 44 
CFR 13.52, Collection of Amounts Due.

[54 FR 11615, Mar. 21, 1989, as amended at 55 FR 28627, July 12, 1990; 
60 FR 7130, Feb. 7, 1995; 61 FR 19201, May 1, 1996; 67 FR 61460, Sept. 
30, 2002]



Sec. Sec. 206.132-206.140  [Reserved]



                  Subpart F_Other Individual Assistance



Sec. 206.141  Disaster unemployment assistance.

    The authority to implement the disaster unemployment assistance 
(DUA) program authorized by section 410 of the Stafford Act, and the 
authority to issue regulations, are currently delegated to the Secretary 
of Labor.



Sec. Sec. 206.142-206.150  [Reserved]



Sec. 206.151  Food commodities.

    (a) The Associate Director will assure that adequate stocks of food 
will be ready and conveniently available for

[[Page 467]]

emergency mass feeding or distribution in any area of the United States 
which suffers a major disaster or emergency.
    (b) In carrying out the responsibilities in paragraph (a) of this 
section, the Associate Director may direct the Secretary of Agriculture 
to purchase food commodities in accordance with authorities prescribed 
in section 413(b) of the Stafford Act.



Sec. Sec. 206.152-206.160  [Reserved]



Sec. 206.161  Relocation assistance.

    Notwithstanding any other provision of law, no person otherwise 
eligible for any kind of replacement housing payment under the Uniform 
Relocation Assistance and Real Property Acquisition Policies Act of 1970 
(Pub. L. 91-646) shall be denied such eligibility as a result of his 
being unable, because of a major disaster as determined by the 
President, to meet the occupancy requirements set by such Act.



Sec. Sec. 206.162-206.163  [Reserved]



Sec. 206.164  Disaster legal services.

    (a) Legal services, including legal advice, counseling, and 
representation in non fee-generating cases, except as provided in 
paragraph (b) of this section, may be provided to low-income individuals 
who require them as a result of a major disaster. For the purpose of 
this section, low-income individuals means those disaster victims who 
have insufficient resources to secure adequate legal services, whether 
the insufficiency existed prior to or results from the major disaster. 
In cases where questions arise about the eligibility of an individual 
for legal services, the Regional Director or his/her representative 
shall make a determination.
    (b) Disaster legal services shall be provided free to such 
individuals. Fee-generating cases shall not be accepted by lawyers 
operating under these regulations. For purposes of this section, a fee-
generating case is one which would not ordinarily be rejected by local 
lawyers as a result of its lack of potential remunerative value. Where 
any question arises as to whether a case is fee-generating as defined in 
this section, the Regional Director or his/her representative, after any 
necessary consultation with local or State bar associations, shall make 
the determination. Any fee-generating cases shall be referred by the 
Regional Director or his/her representative to private lawyers, through 
existing lawyer referral services, or, where that is impractical or 
impossible, the Regional Director may provide a list of lawyers from 
which the disaster victim may choose. Lawyers who have rendered 
voluntary legal assistance under these regulations are not precluded 
from taking fee-generating cases referred to them in this manner while 
in their capacity as private lawyers.
    (c) When the Regional Director determines after any necessary 
consultation with the State Coordinating Officer, that implementation of 
this section is necessary, provision of disaster legal services may be 
accomplished by:
    (1) Use of volunteer lawyers under the terms of appropriate 
agreements;
    (2) Use of Federal lawyers, provided that these lawyers do not 
represent an eligible disaster victim before a court or Federal agency 
in a matter directly involving the United States, and further provided 
that these lawyers do not act in a way which will violate the standards 
of conduct of their respective agencies or departments;
    (3) Use of private lawyers who may be paid by the Federal Emergency 
Management Agency when the Regional Director has determined that there 
is no other means of obtaining adequate legal assistance for qualified 
disaster victims; or
    (4) Any other arrangement the Regional Director deems appropriate.
    The Associate Director shall coordinate with appropriate Federal 
agencies and the appropriate national, state and local bar associations, 
as necessary, in the implementation of the disaster legal services 
programs.
    (d) In the event it is necessary for FEMA to pay lawyers for the 
provision of legal services under these regulations, the Regional 
Director, in consultation with State and local bar associations, shall 
determine the amount of reimbursement due to the lawyers who have 
provided disaster legal services at the request of the Regional 
Director. At the Regional Director's discretion,

[[Page 468]]

administrative costs of lawyers providing legal services requested by 
him or her may also be paid.
    (e) Provision of disaster legal services is confined to the securing 
of benefits under the Act and claims arising out of a major disaster.
    (f) Any disaster legal services shall be provided in accordance with 
subpart A of these regulations, Non-discrimination in disaster 
assistance.



Sec. Sec. 206.165-206.170  [Reserved]



Sec. 206.171  Crisis counseling assistance and training.

    (a) Purpose. This section establishes the policy, standards, and 
procedures for implementing section 416 of the Act, Crisis Counseling 
Assistance and Training. FEMA will look to the Director, National 
Institute of Mental Health (NIMH), as the delegate of the Secretary of 
the Department of Health and Human Services (DHHS).
    (b) Definitions. (1) Assistant Associate Director means the head of 
the Office of Disaster Assistance Programs, FEMA; the official who 
approves or disapproves a request for assistance under section 416 of 
the Act, and is the final appeal authority.
    (2) Crisis means any life situation resulting from a major disaster 
or its aftermath which so affects the emotional and mental equilibrium 
of a disaster victim that professional mental health counseling services 
should be provided to help preclude possible damaging physical or 
psychological effects.
    (3) Crisis counseling means the application of individual and group 
treatment procedures which are designed to ameliorate the mental and 
emotional crises and their subsequent psychological and behavioral 
conditions resulting from a major disaster or its aftermath.
    (4) Federal Coordinating Officer (FCO) means the person appointed by 
the Associate Director to coordinate Federal assistance in an emergency 
or a major disaster.
    (5) Grantee means the State mental health agency or other local or 
private mental health organization which is designated by the Governor 
to receive funds under section 416 of the Act.
    (6) Immediate services means those screening or diagnostic 
techniques which can be applied to meet mental health needs immediately 
after a major disaster. Funds for immediate services may be provided 
directly by the Regional Director to the State or local mental health 
agency designated by the Governor, prior to and separate from the 
regular program application process of crisis counseling assistance.
    (7) Major disaster means any natural catastrophe (including any 
hurricane, tornado, storm, high water, winddriven water, tidal wave, 
tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm 
or drought), or, regardless of cause, any fire, flood, or explosion, in 
any part of the United States, which in the determination of the 
President causes damage of sufficient severity and magnitude to warrant 
major disaster assistance under this Act to supplement the efforts and 
available resources of States, local governments, and disaster relief 
organizations in alleviating the damage, loss, hardship, or suffering 
caused thereby.
    (8) Project Officer means the person assigned by the Secretary, 
DHHS, to monitor a crisis counseling program, provide consultation, 
technical assistance, and guidance, and be the contact point within the 
DHHS for program matters.
    (9) Regional Director means the director of a regional office of 
FEMA, or the Disaster Recovery Manager, as the delegate of the Regional 
Director.
    (10) Secretary means the Secretary of DHHS or his/her delegate.
    (11) State Coordinating Officer (SCO) means the person appointed by 
the Governor to act in cooperation with the FCO.
    (c) Agency policy. (1) It is agency policy to provide crisis 
counseling services, when required, to victims of a major disaster for 
the purpose of relieving mental health problems caused or aggravated by 
a major disaster or its aftermath. Assistance provided under this 
section is short-term in nature and is provided at no cost to eligible 
disaster victims.
    (2) The Regional Director and Assistant Associate Director, in 
fulfilling

[[Page 469]]

their responsibilities under this section, shall coordinate with the 
Secretary.
    (3) In meeting the responsibilities under this section, the 
Secretary or his/her delegate will coordinate with the Assistant 
Associate Director.
    (d) State initiation of the crisis counseling program. To obtain 
assistance under this section, the Governor or his/her authorized 
representative must initiate an assessment of the need for crisis 
counseling services within 10 days of the date of the major disaster 
declaration. The purpose of the assessment is to provide an estimate of 
the size and cost of the program needed and to determine if supplemental 
Federal assistance is required. The factors of the assessment must 
include those described in paragraphs (f)(2) (ii) and (iii) and (g)(2) 
(iii) and (iv) of this section.
    (e) Public or private mental health agency programs. If the Governor 
determines during the assessment that because of unusual circumstances 
or serious conditions within the State or local mental health network, 
the State cannot carry out the crisis counseling program, he/she may 
identify a public or private mental health agency or organization to 
carry out the program or request the Regional Director to identify, with 
the assistance of the Secretary, such an agency or organization. 
Preference should be given to the extent feasible and practicable to 
those public and private agencies or organizations which are located in 
or do business primarily in the major disaster area.
    (f) Immediate services. If, during the course of the assessment, the 
State determines that immediate mental health services are required 
because of the severity and magnitude of the disaster, and if State or 
local resources are insufficient to provide these services, the State 
may request and the Regional Director, upon determining that State 
resources are insufficient, may provide funds to the State, separate 
from the application process for regular program funds (described at 
paragraph (g) of this section).
    (1) The application must be submitted to the Regional Director no 
later than 14 days following the declaration of the major disaster. This 
application represents the Governor's agreement and/or certification:
    (i) That the requirements are beyond the State and local 
governments' capabilities;
    (ii) That the program, if approved, will be implemented according to 
the plan contained in the application approved by the Regional Director;
    (iii) To maintain close coordination with and provide reports to the 
Regional Director; and
    (iv) To include mental health disaster planning in the State's 
emergency plan prepared under title II of the Stafford Act.
    (2) The application must include:
    (i) The geographical areas within the designated disaster area for 
which services will be provided;
    (ii) An estimate of the number of disaster victims requiring 
assistance;
    (iii) A description of the State and local resources and 
capabilities, and an explanation of why these resources cannot meet the 
need;
    (iv) A description of response activities from the date of the 
disaster incident to the date of application;
    (v) A plan of services to be provided to meet the identified needs; 
and
    (vi) A detailed budget, showing the cost of proposed services 
separately from the cost of reimbursement for any eligible services 
provided prior to application.
    (3) Reporting requirements. The State shall submit to the Regional 
Director:
    (i) A mid-program report only when a regular program grant 
application is being prepared and submitted. This report will be 
included as part of the regular program grant application;
    (ii) A final program report, a financial status report, and a final 
voucher 90 days after the last day of immediate services funding.
    (4) Immediate services program funding:
    (i) Shall not exceed 60 days following the declaration of the major 
disaster, except when a regular program grant application has been 
submitted;
    (ii) May continue for up to 30 additional days when a regular 
program grant application has been submitted;
    (iii) May be extended by the Regional Director, upon written request 
from

[[Page 470]]

the State, documenting extenuating circumstances; and
    (iv) May reimburse the State for documented, eligible expenses from 
the date of the occurrence of the event or incurred in anticipation of 
and immediately preceding the disaster event which results in a 
declaration.
    (v) Any funds granted pursuant to an immediate services program, 
paragraph (f) of this section, shall be expended solely for the purposes 
specified in the approved application and budget, these regulations, the 
terms and conditions of the award, and the applicable principles 
prescribed in 44 CFR part 13.
    (5) Appeals. There are two levels of appeals. If a State submits 
appeals at both levels, the first appeal must be submitted early enough 
to allow the latter appeal to be submitted within 60 days following the 
date of the funding determination on the immediate services program 
application.
    (i) The State may appeal the Regional Director's decision. This 
appeal must be submitted in writing within 60 days of the date of 
notification of the application decision, but early enough to allow for 
further appeal if desired. The appeal must include information 
justifying a reversal of the decision. The Regional Director shall 
review the material submitted, and after consultation with the 
Secretary, notify the State, in writing within 15 days of receipt of the 
appeal, of his/her decision;
    (ii) The State may further appeal the Regional Director's decision 
to the Assistant Associate Director. This appeal shall be made in 
writing within 60 days of the date of the Regional Director's 
notification of the decision on the immediate services application. The 
appeal must include information justifying a reversal of the decision. 
The Assistant Associate Director, or other impartial person, shall 
review the material submitted, and after consultation with the Secretary 
and Regional Director, notify the State, in writing, within 15 days of 
receipt of the appeal, of his/her decision.
    (g) Regular program. (1) The application must be submitted by the 
Governor or his/her authorized representative to the Assistant Associate 
Director through the Regional Director, and simultaneously to the 
Secretary no later than 60 days following the declaration of the major 
disaster. This application represents the Governor's agreement and/or 
certification:
    (i) That the requirements are beyond the State and local 
governments' capabilities;
    (ii) That the program, if approved, will be implemented according to 
the plan contained in the application approved by the Assistant 
Associate Director;
    (iii) To maintain close coordination with and provide reports to the 
Regional Director, the Assistant Associate Director, and the Secretary; 
and
    (iv) To include mental health disaster planning in the State's 
emergency plan prepared under title II of the Stafford Act.
    (2) The application must include:
    (i) Standard Form 424, Application for Federal Assistance;
    (ii) The geographical areas within the designated disaster area for 
which services will be supplied;
    (iii) An estimate of the number of disaster victims requiring 
assistance. This documentation of need should include the extent of 
physical, psychological, and social problems observed, the types of 
mental health problems encountered by victims, and a description of how 
the estimate was made;
    (iv) A description of the State and local resources and 
capabilities, and an explanation of why these resources cannot meet the 
need;
    (v) A plan of services which must include at a minimum:
    (A) The manner in which the program will address the needs of the 
affected population, including the types of services to be offered, an 
estimate of the length of time for which mental health services will be 
required, and the manner in which long-term cases will be handled;
    (B) A description of the organizational structure of the program, 
including designation by the Governor of an individual to serve as 
administrator of the program. If more than one agency will be delivering 
services, the plan to coordinate services must also be described;
    (C) A description of the training program for project staff, 
indicating the

[[Page 471]]

number of workers needing such training;
    (D) A description of the facilities to be utilized, including plans 
for securing office space if necessary to the project; and
    (E) A detailed budget, including identification of the resources the 
State and local governments will commit to the project, proposed funding 
levels for the different agencies if more than one is involved, and an 
estimate of the required Federal contribution.
    (3) Reporting requirements. The State shall submit the following 
reports to the Regional Director, the Secretary, and the State 
Coordinating Officer:
    (i) Quarterly progress reports, as required by the Regional Director 
or the Secretary, due 30 days after the end of the reporting period. 
This is consistent with 44 CFR 13.40, Monitoring and Reporting Program 
Performance;
    (ii) A final program report, to be submitted within 90 days after 
the end of the program period. This is also consistent with 44 CFR 
13.40, Monitoring and Reporting Program Performance;
    (iii) An accounting of funds, in accordance with 44 CFR 13.41, 
Financial Reporting, to be submitted with the final program report; and
    (iv) Such additional reports as the Regional Director, Secretary, or 
SCO may require.
    (4) Regular program funding:
    (i) Shall not exceed 9 months from the date of the DHHS notice of 
grant award, except that upon the request of the State to the Regional 
Director and the Secretary, the Assistant Associate Director may 
authorize up to 90 days of additional program period because of 
documented extraordinary circumstances. In limited circumstances, such 
as disasters of a catastrophic nature, the Assistant Associate Director 
may extend the program period for more than 90 days where he or she 
deems it to be in the public interest.
    (ii) The amount of the regular program grant award will take into 
consideration the Secretary's estimate of the sum necessary to carry out 
the grant purpose.
    (iii) Any funds granted pursuant to a regular program, paragraph (g) 
of this section, shall be expended solely for the purposes specified in 
the approved application and budget, these regulations, the terms and 
conditions of the award, and the applicable cost principles prescribed 
in subpart Q of 45 CFR part 92.
    (5) Appeals. The State may appeal the Assistant Associate Director's 
decision, in writing, within 60 days of the date of notification of the 
decision. The appeal must include information justifying a reversal of 
the decision. The Assistant Associate Director, or other impartial 
person, in consultation with the Secretary and Regional Director, shall 
review the material submitted and notify the State, in writing within 15 
days of receipt of the appeal, of his/her decision.
    (h) Eligibility guidelines. (1) For services. An individual may be 
eligible for crisis counseling services if he/she was a resident of the 
designated major disaster areas or was located in the area at the time 
of the disaster event and if:
    (i) He/she has a mental health problem which was caused or 
aggravated by the major disaster or its aftermath; or
    (ii) He/she may benefit from preventive care techniques.
    (2) For training. (i) The crisis counseling project staff or 
consultants to the project are eligible for the specific instruction 
that may be required to enable them to provide professional mental 
health crisis counseling to eligible individuals;
    (ii) All Federal, State, and local disaster workers responsible for 
assisting disaster victims are eligible for general instruction designed 
to enable them to deal effectively and humanely with disaster victims.
    (i) Assignment of responsibilities. (1) The Regional Director shall:
    (i) In the case of an immediate services program application, 
acknowledge receipt of the request, verify (with assistance from the 
Secretary) that State resources are insufficient, approve or disapprove 
the State's application, obligate and advance funds for this purpose, 
review appeals, make a determination (with assistance from the 
Secretary), and notify the State;
    (ii) In the case of a regular program grant application:
    (A) Acknowledge receipt of the request;

[[Page 472]]

    (B) Request the Secretary to conduct a review to determine the 
extent to which assistance requested by the Governor or his/her 
authorized representative is warranted;
    (C) Considering the Secretary's recommendation, recommend approval 
or disapproval of the application for assistance under this section; and 
forward the Regional Director's and Secretary's recommendations and 
documentation to the Assistant Associate Director;
    (D) Assist the State in preliminary surveys and provide guidance and 
technical assistance if requested to do so; and
    (E) Maintain liaison with the Secretary and look to the Secretary 
for program oversight and monitoring.
    (2) The Secretary shall:
    (i) Provide technical assistance, consultation, and guidance to the 
Regional Director in reviewing a State's application, to a State during 
program implementation and development, and to mental health agencies, 
as appropriate;
    (ii) At the request of the Regional Director, conduct a review to 
verify the extent to which the requested assistance is needed and 
provide a recommendation on the need for supplementary Federal 
assistance. The review must include:
    (A) A verification of the need for services with an indication of 
how the verification was conducted;
    (B) Identification of the Federal mental health programs in the 
area, and the extent to which such existing programs can help alleviate 
the need;
    (C) An identification of State, local, and private mental health 
resources, and the extent to which these resources can assume the 
workload without assistance under this section and the extent to which 
supplemental assistance is warranted;
    (D) A description of the needs; and
    (E) A determination of whether the plan adequately addresses the 
mental health needs;
    (iii) If the application is approved, provide grant assistance to 
States or the designated public or private entities;
    (iv) If the application is approved, monitor the progress of the 
program and perform program oversight;
    (v) Coordinate with, and provide program reports to, the Regional 
Director, and the Assistant Associate Director;
    (vi) Make the appeal determination, for regular program grants, 
involving allowable costs and termination for cause as described in 
paragraph (j)(2) of this section;
    (vii) As part of the project monitoring responsibilities, report to 
the Regional Director and Assistant Associate Director at least 
quarterly on the progress of crisis counseling programs, in a report 
format jointly agreed upon by the Secretary and FEMA; provide special 
reports, as requested by the Regional Director, FCO, or Assistant 
Associate Director;
    (viii) Require progress reports and other reports from the grantee 
to facilitate his/her project monitoring responsibilities;
    (ix) Properly account for all Federal funds made available to 
grantees under this section. Submit to the Assistant Associate Director, 
within 120 days of completion of a program, a final accounting of all 
expenditures for the program and return to FEMA all excess funds. 
Attention is called to the reimbursement requirements of this part.
    (3) The Assistant Associate Director shall:
    (i) Approve or disapprove a State's request for assistance based on 
recommendations of the Regional Director and the Secretary;
    (ii) Obligate funds and authorize advances of funds to the DHHS;
    (iii) Request that the Secretary designate a Project Officer;
    (iv) Maintain liaison with the Secretary and Regional Director; and
    (v) Review and make determinations on appeals, except for regular 
program appeals involving allowable costs and termination for cause as 
described in paragraph (j)(2) of this section, and notify the State of 
the decision.
    (j) Grant awards. (1) Neither the approval of any application nor 
the award of any grant commits or obligates the United States in any way 
to make any additional, supplemental, continuation, or other award with 
respect to any approved application or portion of any approved 
application.

[[Page 473]]

    (2) Several other regulations of the DHHS apply to grants under this 
section. These include, but are not limited to:

45 CFR part 16--DHHS grant appeals procedures
42 CFR part 50, subpart D--PHS grant appeals procedures
45 CFR part 74--Administration of grants
45 CFR part 75--Informal grant appeals procedures (indirect cost rates 
and other cost allocations)
45 CFR part 80--Nondiscrimination under programs receiving Federal 
assistance through the DHHS (effectuation of Title VI of the Civil 
Rights Act of 1964)
45 CFR part 81--Practice and procedure for hearings under part 80
45 CFR part 84--Nondiscrimination on the basis of handicap in federally 
assisted programs
45 CFR part 86--Nondiscrimination on the basis of sex in federally 
assisted programs
45 CFR part 91--Nondiscrimination on the basis of age in federally 
assisted programs
45 CFR part 92--Uniform administrative requirements for grants and 
cooperative agreements to State and local governments

    (k) Federal audits. The crisis counseling program is subject to 
Federal audit. The Associate Director, the Regional Director, the FEMA 
Inspector General, The Secretary, and the Comptroller General of the 
United States, or their duly authorized representatives, shall have 
access to any books, documents, papers, and records that pertain to 
Federal funds, equipment, and supplies received under this section for 
the purpose of audit and examination.

[54 FR 11615, Mar. 21, 1989, as amended at 68 FR 9900, Mar. 3, 2003]



Sec. Sec. 206.172-206.180  [Reserved]



Sec. 206.181  Use of gifts and bequests for disaster assistance purposes.

    (a) General. FEMA sets forth procedures for the use of funds made 
possible by a bequest of funds from the late Cora C. Brown of Kansas 
City, Missouri, who left a portion of her estate to the United States 
for helping victims of natural disasters and other disasters not caused 
by or attributable to war. FEMA intends to use the funds, and any others 
that may be bequeathed under this authority, in the manner and under the 
conditions described below.
    (b) Purposes for awarding funds. Money from the Cora Brown Fund may 
only be used to provided for disaster-related needs that have not been 
or will not be met by governmental agencies or any other organizations 
which have programs to address such needs; however, the fund is not 
intended to replace or supersede these programs. For example, if 
assistance is available from another source, including the Individual 
and Family Grant program and government-sponsored disaster loan 
assistance, then money from the Cora Brown Fund will not be available to 
the applicant for the same purpose. Listed below are the general 
categories of assistance which can be provided by the Cora Brown Fund:
    (1) Disaster-related home repair and rebuilding assistance to 
families for permanent housing purposes, including site acquisition and 
development, relocation of residences out of hazardous areas, assistance 
with costs associated with temporary housing or permanent rehousing 
(e.g., utility deposits, access, transportation, connection of 
utilities, etc.);
    (2) Disaster-related unmet needs of families who are unable to 
obtain adequate assistance under the Act or from other sources. Such 
assistance may include but is not limited to: health and safety 
measures; evacuation costs; assistance delineated in the Act or other 
Federal, State, local, or volunteer programs; hazard mitigation or 
floodplain management purposes; and assistance to self-employed persons 
(with no employees) to reestablish their businesses; and
    (3) Other services which alleviate human suffering and promote the 
well being of disaster victims. For example, services to the elderly, to 
children, or to handicapped persons, such as transportation, 
recreational programs, provision of special ramps, or hospital or home 
visiting services. The funds may be provided to individual disaster 
victims, or to benefit a group of disaster victims.
    (c) Conditions for use of the Cora Brown Fund. (1) The Cora Brown 
Fund is available only when the President declares that a major disaster 
or emergency exists under the Act, only in areas designated as eligible 
for Federal

[[Page 474]]

disaster assistance through notice in the Federal Register, and only at 
the discretion of the Assistant Associate Director, Office of Disaster 
Assistance Programs, FEMA. The fund is limited to the initial endowment 
plus accrued interest, and this assistance program will cease when the 
fund is used up.
    (2) A disaster victim normally will receive no more than $2,000 from 
this fund in any one declared disaster unless the Assistant Associate 
Director determines that a larger amount is in the best interest of the 
disaster victim and the Federal Government. Funds to provide service 
which benefit a group may be awarded in an amount determined by the 
Assistant Associate Director, based on the Regional Director's 
recommendation.
    (3) The fund may not be used in a way that is inconsistent with 
other federally mandated disaster assistance or insurance programs, or 
to modify other generally applicable requirements.
    (4) Funds awarded to a disaster victim may be provided by FEMA 
jointly to the disaster victim and to a State or local agency, or 
volunteer organization, to enable such an agent to assist in providing 
the approved assistance to an applicant. Example: Repair funds may be 
provided jointly to an applicant and the Mennonite Disaster Service, who 
will coordinate the purchase of supplies and provide the labor.
    (5) Money from this fund will not duplicate assistance for which a 
person is eligible from other sources.
    (6) In order to comply with the Flood Disaster Protection Act of 
1973 (Pub. L. 93-234), as amended, any award for acquisition or 
construction purposes shall carry a requirement that any adequate flood 
insurance policy be purchased and maintained. The Assistant Associate 
Director shall determine what is adequate based on the purpose of the 
award.
    (7) The fund shall be administered in an equitable and impartial 
manner without discrimination on the grounds of race, color, religion, 
national origin, sex, age, or economic status.
    (8) Funds awarded to a disaster victim from this fund may be 
combined with funds from other sources.
    (d) Administrative procedures. (1) The Assistant Associate Director, 
Office of Disaster Assistance Programs, shall be responsible for 
awarding funds and authorizing disbursement.
    (2) The Comptroller of FEMA shall be responsible for fund 
accountability and, in coordination with the Assistant Associate 
Director, for liaison with the Department of the Treasury concerning the 
investment of excess money in the fund pursuant to the provisions 
contained in section 601 of the Act.
    (3) Each FEMA Regional Director may submit requests to the Assistant 
Associate Director on a disaster victim's behalf by providing 
documentation describing the needs of the disaster victim, a 
verification of the disaster victim's claim, a record of other 
assistance which has been or will be available for the same purpose, and 
his/her recommendation as to the items and the amount. The Assistant 
Associate Director shall review the facts and make a determination. If 
the award amount is below $2,000, the Assistant Associate Director may 
appoint a designee to have approval authority; approval authority of 
$2,000 or above shall be retained by the Assistant Associate Director. 
The Assistant Associate Director shall notify the Comptroller of a 
decision for approval, and the Comptroller shall order a check to be 
sent to the disaster victim (or jointly to the disaster victim and an 
assistance organization), through the Regional Director. The Assistant 
Associate Director shall also notify the Regional Director of the 
decision, whether for approval or disapproval. The Regional Director 
shall notify the disaster victim in writing, identify any award as 
assistance from the Cora Brown Fund, and advise the recipient of appeal 
procedures.
    (4) If the award is to be for a service to a group of disaster 
victims, the Regional Director shall submit his/her recommendation and 
supporting documentation to the Assistant Associate Director (or his/her 
designee if the award is below $2,000), who shall review the information 
and make a determination. In cases of approval, the Assistant Associate 
Director shall request the Comptroller to send a check to the intended 
recipient or provider,

[[Page 475]]

as appropriate. The Assistant Associate Director shall notify the 
Regional Director of the decision. The Regional Director shall notify a 
representative of the group in writing.
    (5) The Comptroller shall process requests for checks, shall keep 
records of disbursements and balances in the account, and shall provide 
the Assistant Associate Director with quarterly reports.
    (e) Audits. The Inspector General of FEMA shall audit the use of 
money in this account to determine whether the funds are being 
administered according to these regulations and whether the financial 
management of the account is adequate. The Inspector General shall 
provide his/her findings to the Associate Director, State and Local 
Programs and Support, for information, comments and appropriate action. 
A copy shall be provided to the Comptroller for the same purpose.



Sec. Sec. 206.182-206.190  [Reserved]



Sec. 206.191  Duplication of benefits.

    (a) Purpose. This section establishes the policies for implementing 
section 312 of the Stafford Act, entitled Duplication of Benefits. This 
section relates to assistance for individuals and families.
    (b) Government policy. (1) Federal agencies providing disaster 
assistance under the Act or under their own authorities triggered by the 
Act, shall cooperate to prevent and rectify duplication of benefits, 
according to the general policy guidance of the Federal Emergency 
Management Agency. The agencies shall establish appropriate agency 
policies and procedures to prevent duplication of benefits.
    (2) Major disaster and emergency assistance provided to individuals 
and families under the Act, and comparable disaster assistance provided 
by States, local governments, and disaster assistance organizations, is 
not considered as income or a resource when determining eligibility for 
or benefit levels under federally funded income assistance or resource-
tested programs. Examples of federally funded income assistance or 
resource-tested programs are the food stamp program and welfare 
assistance programs.
    (c) FEMA policy. It is FEMA policy:
    (1) To prevent duplication of benefits between its own programs and 
insurance benefits, and between its own programs and other disaster 
assistance. Assistance under the Act may be provided in instances where 
the applicant has not received other benefits to which he/she may be 
entitled by the time of application and if the applicant agrees to repay 
all duplicated assistance to the agency providing the Federal 
assistance;
    (2) To examine a debt resulting from duplication to determine that 
the likelihood of collecting the debt and the best interests of the 
Federal Government justify taking the necessary recovery actions to 
remedy duplication which has occurred when other assistance has become 
available;
    (3) To assure uniformity in preventing duplication of benefits, by 
consulting with other Federal agencies and by performing selected 
quality control reviews, that the other disaster relief agencies 
establish and follow policies and procedures to prevent and remedy 
duplication among their programs, other programs, and insurance 
benefits; and
    (4) To coordinate the effort of agencies providing assistance so 
that each agency understands the prevention and remedial policies of the 
others and is able to fulfill its own responsibilities regarding 
duplication of benefits.
    (d) Guidance to prevent duplication of benefits. (1) Delivery 
sequence. FEMA provides the following policy and procedural guidance to 
ensure uniformity in preventing duplication of benefits.
    (i) Duplication occurs when an agency has provided assistance which 
was the primary responsibility of another agency, and the agency with 
primary responsibility later provides assistance. A delivery sequence 
establishes the order in which disaster relief agencies and 
organizations provide assistance. The specific sequence, in accordance 
with the mandates of the assistance programs, is to be generally 
followed in the delivery of assistance.
    (ii) When the delivery sequence has been disrupted, the disrupting 
agency is responsible for rectifying the duplication. The delivery 
sequence pertains to that period of time in the recovery

[[Page 476]]

phase when most of the traditional disaster assistance programs are 
available.
    (2) The delivery sequence is, in order of delivery:
    (i) Volunteer agencies' emergency assistance (except expendable 
items such as clothes, linens, and basic kitchenware); insurance 
(including flood insurance);
    (ii) Housing assistance pursuant to section 408 of the Stafford Act.
    (iii) Small Business Administration and Farmers Home Administration 
disaster loans;
    (iv) Other Needs assistance, pursuant to section 408 of the Stafford 
Act or its predecessor program, the Individual and Family Grant Program.
    (v) Volunteer agencies' ``additional assistance'' programs; and
    (vi) The ``Cora Brown Fund.''
    (3) Two significant points about the delivery sequence are that:
    (i) Each assistance agency should, in turn, offer and be responsible 
for delivering assistance without regard to duplication with a program 
later in the sequence; and
    (ii) The sequence itself determines what types of assistance can 
duplicate other assistance (i.e., a Federal program can duplicate 
insurance benefits, however, insurance benefits cannot duplicate the 
Federal assistance). An agency's position in the sequence determines the 
order in which it should provide assistance and what other resources it 
must consider before it does so.
    (4) If following the delivery sequence concept would adversely 
affect the timely receipt of essential assistance by a disaster victim, 
an agency may offer assistance which is the primary responsibility of 
another agency. There also may be cases when an agency (Agency B) 
delivers assistance which is normally the primary responsibility of 
another agency (Agency A) because Agency A has, for good cause, denied 
assistance. After the assistance is delivered, Agency A reopens the 
case. If the primary response Agency A then provides assistance, that 
Agency A is responsible for coordinating with Agency B to either:
    (i) Assist Agency B in preventing the duplication of benefits, or
    (ii) In the case where the disaster victim has refused assistance 
from Agency A, notify Agency B that it must recover assistance 
previously provided.
    (e) Program guidance--(1) Programs under the Act vs. other agency 
assistance. (i) In making an eligibility determination, the FEMA 
Regional Director, in the case of federally operated programs, or the 
State, in the case of State operated programs, shall determine whether 
assistance is the primary responsibility of another agency to provide, 
according to the delivery sequence; and determine whether that primary 
response agency can provide assistance in a timely way.
    (ii) If it is determined that timely assistance can be provided by 
the agency with primary responsibility, refrain from providing 
assistance under the Act. If it is determined that assistance from the 
agency with primary responsibility will be delayed, assistance under the 
Act may be provided, but then must be recovered from the applicant when 
the other assistance becomes available.
    (2) Programs under the Act vs. insurance. In making an eligibility 
determination, the FEMA Regional Director or State shall:
    (i) Remind the applicant about his/her responsibility to pursue an 
adequate settlement. The applicant must provide information concerning 
insurance recoveries.
    (ii) Determine whether the applicant's insurance settlement will be 
sufficient to cover the loss or need without disaster assistance; and
    (iii) Determine whether insurance benefits (including flood 
insurance) will be provided in a timely way. Where flood insurance is 
involved, the Regional Director shall coordinate with the Federal 
Insurance Administration. The purpose of this coordination is to obtain 
information about flood insurance coverage and settlements.
    (3) Random sample. Each disaster assistance agency is responsible 
for preventing and rectifying duplication of benefits under the 
coordination of the Federal Coordinating Officer (FCO) and the general 
authority of section 312. To determine whether duplication has occurred 
and established procedures have been followed, the Regional Director

[[Page 477]]

shall, within 90 days after the close of the disaster assistance 
programs application period, for selected disaster declarations, examine 
on a random sample basis, FEMA's and other government and voluntary 
agencies' case files and document the findings in writing.
    (4) Duplication when assistance under the Act is involved. If 
duplication is discovered, the Regional Director shall determine whether 
the duplicating agency followed its own remedial procedures.
    (i) If the duplicating agency followed its procedures and was 
successful in correcting the duplication, the Regional Director will 
take no further action. If the agency was not successful in correcting 
the duplication, and the Regional Director is satisfied that the 
duplicating agency followed its remedial procedures, no further action 
will be taken.
    (ii) If the duplicating agency did not follow its duplication of 
benefits procedures, or the Regional Director is not satisfied that the 
procedures were followed in an acceptable manner, then the Regional 
Director shall provide an opportunity for the agency to take the 
required corrective action. If the agency cannot fulfill its 
responsibilities for remedial action, the Regional Director shall notify 
the recipient of the excess assistance, and after examining the debt, if 
it is determined that the likelihood of collecting the debt and the best 
interests of the Federal Government justify taking the necessary 
recovery actions, then take those recovery actions in conjunction with 
agency representatives for each identified case in the random sample (or 
larger universe, at the Regional Director's discretion).
    (5) Duplication when assistance under other authorities is involved. 
When the random sample shows evidence that duplication has occurred and 
corrective action is required, the Regional Director and the FCO shall 
urge the duplicating agency to follow its own procedures to take 
corrective action, and shall work with the agency toward that end. Under 
his/her authority in section 312, the Regional Director shall require 
the duplicating agency to report to him/her on its attempt to correct 
the duplications identified in the sample.
    (f) Recovering FEMA funds: debt collection. Funds due to FEMA are 
recovered in accordance with FEMA's Debt Collection Regulations (44 CFR 
part 11, subpart C).

[54 FR 11615, Mar. 21, 1989, as amended at 67 FR 61460, Sept. 30, 2002]



Sec. Sec. 206.192-206.199  [Reserved]



           Subpart G_Public Assistance Project Administration

    Source: 55 FR 2304, Jan. 23, 1990, unless otherwise noted.



Sec. 206.200  General.

    (a) Purpose. This subpart establishes procedures for the 
administration of Public Assistance grants approved under the provisions 
of the Stafford Act.
    (b) What policies apply to FEMA public assistance grants? (1) The 
Stafford Act requires that we deliver eligible assistance as quickly and 
efficiently as possible consistent with Federal laws and regulations. We 
expect the Grantee and the subgrantee to adhere to Stafford Act 
requirements and to these regulations when administering our public 
assistance grants.
    (2) The regulations entitled ``Uniform Requirements for Grants and 
Cooperative Agreements to State and Local Governments,'' published at 44 
CFR part 13, place requirements on the State in its role as Grantee and 
gives the Grantee discretion to administer federal programs under their 
own procedures. We expect the Grantee to:
    (i) Inform subgrantees about the status of their applications, 
including notifications of our approvals of Project Worksheets and our 
estimates of when we will make payments;
    (ii) Pay the full amounts due to subgrantees as soon as practicable 
after we approve payment, including the State contribution required in 
the FEMA-State Agreement; and
    (iii) Pay the State contribution consistent with State laws.

[55 FR 2304, Jan. 23, 1990, as amended at 63 FR 64425, Nov. 20, 1998; 64 
FR 55160, Oct. 12, 1999]

[[Page 478]]



Sec. 206.201  Definitions used in this subpart.

    (a) Applicant means a State agency, local government, or eligible 
private nonprofit organization, as identified in Subpart H of this 
regulation, submitting an application to the Grantee for assistance 
under the State's grant.
    (b) Emergency work means that work which must be done immediately to 
save lives and to protect improved property and public health and 
safety, or to avert or lessen the threat of a major disaster.
    (c) Facility means any publicly or privately owned building, works, 
system, or equipment, built or manufactured, or an improved and 
maintained natural feature. Land used for agricultural purposes is not a 
facility.
    (d) Grant means an award of financial assistance. The grant award 
shall be based on the total eligible Federal share of all approved 
projects.
    (e) Grantee means the government to which a grant is awarded 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. For purposes of this regulation, 
except as noted in Sec. 206.202, the State is the grantee.
    (f) Hazard mitigation means any cost effective measure which will 
reduce the potential for damage to a facility from a disaster event.
    (g) Permanent work means that restorative work that must be 
performed through repairs or replacement, to restore an eligible 
facility on the basis of its predisaster design and current applicable 
standards.
    (h) Predisaster design means the size or capacity of a facility as 
originally designed and constructed or subsequently modified by changes 
or additions to the original design. It does not mean the capacity at 
which the facility was being used at the time the major disaster 
occurred if different from the most recent designed capacity.
    (i) A project is a logical grouping of work required as a result of 
the declared major disaster or emergency. The scope of work and cost 
estimate for a project are documented on a Project Worksheet (FEMA Form 
90-91).
    (1) We must approve a scope of eligible work and an itemized cost 
estimate before funding a project.
    (2) A project may include eligible work at several sites.
    (j) Project approval means the process in which the Regional 
Director, or designee, reviews and signs an approval of work and costs 
on a Project Worksheet or on a batch of Project Worksheets. Such 
approval is also an obligation of funds to the Grantee.
    (k) Subgrant means an award of financial assistance under a grant by 
a grantee to an eligible subgrantee.
    (l) Subgrantee means the 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.

[55 FR 2304, Jan. 23, 1990, as amended at 63 FR 64425, Nov. 20, 1998; 64 
FR 55160, Oct. 12, 1999]



Sec. 206.202  Application procedures.

    (a) General. This section describes the policies and procedures that 
we use to process public assistance grants to States. Under this section 
the State is the Grantee. As Grantee you are responsible for processing 
subgrants to applicants under 44 CFR parts 13, 14, and 206, and your own 
policies and procedures.
    (b) Grantee. You are the grant administrator for all funds provided 
under the Public Assistance grant program. Your responsibilities under 
this section include:
    (1) Providing technical advice and assistance to eligible 
subgrantees;
    (2) Providing State support for project identification activities to 
include small and large project formulation and the validation of small 
projects;
    (3) Ensuring that all potential applicants are aware of available 
public assistance; and
    (4) Submitting documents necessary for the award of grants.
    (c) Request for Public Assistance (Request). The Grantee must send a 
completed Request (FEMA Form 90-49) to the Regional Director for each 
applicant who requests public assistance. You must send Requests to the 
Regional

[[Page 479]]

Director within 30 days after designation of the area where the damage 
occurred.
    (d) Project Worksheets. (1) An applicant's authorized local 
representative is responsible for representing the applicant and for 
ensuring that the applicant has identified all eligible work and 
submitted all costs for disaster-related damages for funding.
    (i) We or the applicant, assisted by the State as appropriate, will 
prepare a Project Worksheet (FEMA Form 90-91) for each project. The 
Project Worksheet must identify the eligible scope of work and must 
include a quantitative estimate for the eligible work.
    (ii) The applicant will have 60 days following its first substantive 
meeting with us to identify and to report damage to us.
    (2) When the estimated cost of work on a project is less than 
$1,000, that work is not eligible and we will not approve a Project 
Worksheet for the project. Periodically we will review this minimum 
approval amount for a Project Worksheet and, if needed, will adjust the 
amount by regulation.
    (e) Grant approval. (1) Before we obligate any funds to the State, 
the Grantee must complete and send to the Regional Director a Standard 
Form (SF) 424, Application for Federal Assistance, and a SF 424D, 
Assurances for Construction Programs. After we receive the SF 424 and SF 
424D, the Regional Director will obligate funds to the Grantee based on 
the approved Project Worksheets. The Grantee will then approve subgrants 
based on the Project Worksheets approved for each applicant.
    (2) When the applicant submits the Project Worksheets, we will have 
45 days to obligate Federal funds. If we have a delay beyond 45 days we 
will explain the delay to the Grantee.
    (f) Exceptions. The following are exceptions to the procedures and 
time limitations outlined in paragraphs (c), (d), and (e) of this 
section.
    (1) Grant applications. An Indian tribe or authorized tribal 
organization may submit a SF 424 directly to the RD when the Act 
authorizes assistance and a State is legally unable to assume the 
responsibilities that these regulations prescribe.
    (2) Time limitations. The RD may extend the time limitations shown 
in paragraphs (c) and (d) of this section when the Grantees justifies 
and makes a request in writing. The justification must be based on 
extenuating circustances beyond the grantee's or subgrantee's control.

[64 FR 55160, Oct. 12, 1999]



Sec. 206.203  Federal grant assistance.

    (a) General. This section describes the types and extent of Federal 
funding available under State disaster assistance grants, as well as 
limitations and special procedures applicable to each.
    (b) Cost sharing. All projects approved under State disaster 
assistance grants will be subject to the cost sharing provisions 
established in the FEMA-State Agreement and the Stafford Act.
    (c) Project funding--(1) Large projects. When the approved estimate 
of eligible costs for an individual project is $35,000 or greater, 
Federal funding shall equal the Federal share of the actual eligible 
costs documented by a grantee. Such $35,000 amount shall be adjusted 
annually to reflect changes in the Consumer Price Index for All Urban 
Consumers published by the Department of Labor.
    (2) Small projects. When the approved estimate of costs for an 
individual project is less than $35,000, Federal funding shall equal the 
Federal share of the approved estimate of eligible costs. Such $35,000 
amount shall be adjusted annually as indicated in paragraph (c)(1) of 
this section.
    (d) Funding options--(1) Improved projects. If a subgrantee desires 
to make improvements, but still restore the predisaster function of a 
damaged facility, the Grantee's approval must be obtained. Federal 
funding for such improved projects shall be limited to the Federal share 
of the approved estimate of eligible costs.
    (2) Alternate projects. In any case where a subgrantee determines 
that the public welfare would not be best served by restoring a damaged 
public facility or the function of that facility, the Grantee may 
request that the RD approve an alternate project.
    (i) The alternate project option may be taken only on permanent 
restorative work.

[[Page 480]]

    (ii) Federal funding for such alternate projects will be 75 percent 
of the Federal share of the approved Federal estimate of eligible costs.
    (iii) If soil instability at the alternate project site makes the 
repair, restoration or replacement of a State or local government-owned 
or -controlled facility infeasible, the Federal funding for such an 
alternate project will be 90 percent of the Federal share of the 
approved Federal estimate of eligible costs.
    (iv) Funds contributed for alternate projects may be used to repair 
or expand other selected public facilities, to construct new facilities, 
or to fund hazard mitigation measures. These funds may not be used to 
pay the nonFederal share of any project, nor for any operating expense.
    (v) Prior to the start of construction of any alternate project the 
Grantee shall submit for approval by the RD the following: a description 
of the proposed alternate project(s); a schedule of work; and the 
projected cost of the project(s). The Grantee shall also provide the 
necessary assurances to document compliance with special requirements, 
including, but not limited to floodplain management, environmental 
assessment, hazard mitigation, protection of wetlands, and insurance.

[55 FR 2304, Jan. 23, 1990, as amended at 66 FR 22444, May 4, 2001]



Sec. 206.204  Project performance.

    (a) General. This section describes the policies and procedures 
applicable during the performance of eligible work.
    (b) Advances of funds. Advances of funds will be made in accordance 
with 44 CFR 13.21, Payment.
    (c) Time limitations for completion of work--(1) Deadlines. The 
project completion deadlines shown below are set from the date that a 
major disaster or emergency is declared and apply to all projects 
approved under State disaster assistance grants.

                          Completion Deadlines
------------------------------------------------------------------------
                         Type of work                            Months
------------------------------------------------------------------------
Debris clearance..............................................         6
Emergency work................................................         6
Permanent work................................................        18
------------------------------------------------------------------------

    (2) Exceptions. (i) The Grantee may impose lesser deadlines for the 
completion of work under paragraph (c)(1) of this section if considered 
appropriate.
    (ii) Based on extenuating circumstances or unusual project 
requirements beyond the control of the subgrantee, the Grantee may 
extend the deadlines under paragraph (c)(1) of this section for an 
additional 6 months for debris clearance and emergency work and an 
additional 30 months, on a project by project basis for permanent work.
    (d) Requests for time extensions. Requests for time extensions 
beyond the Grantee's authority shall be submitted by the Grantee to the 
RD and shall include the following:
    (1) The dates and provisions of all previous time extensions on the 
project; and
    (2) A detailed justification for the delay and a projected 
completion date. The RD shall review the request and make a 
determination. The Grantee shall be notified of the RD's determination 
in writing. If the RD approves the request, the letter shall reflect the 
approved completion date and any other requirements the RD may determine 
necessary to ensure that the new completion date is met. If the RD 
denies the time extension request, the grantee may, upon completion of 
the project, be reimbursed for eligible project costs incurred only up 
to the latest approved completion date. If the project is not completed, 
no Federal funding will be provided for that project.
    (e) Cost Overruns. (1) During the execution of approved work a 
subgrantee may find that the actual project costs exceed the approved 
Project Worksheet estimates. Such cost overruns normally fall into the 
following three categories:
    (i) Variations in unit prices;
    (ii) Change in the scope of eligible work; or
    (iii) Delays in timely starts or completion of eligible work.
    (2) The subgrantee must evaluate each cost overrun and, when 
justified, submit a request for additional funding through the Grantee 
to the RD for a final determination. All requests for

[[Page 481]]

the RD's approval will contain sufficient documentation to support the 
eligibility of all claimed work and costs. The Grantee must include a 
written recommendation when forwarding the request. The RD will notify 
the Grantee in writing of the final determination. FEMA will not 
normally review an overrun for an individual small project. The normal 
procedure for small projects will be that when a subgrantee discovers a 
significant overrun related to the total final cost for all small 
projects, the subgrantee may submit an appeal for additional funding in 
accordance with Sec. 206.206, within 60 days following the completion 
of all its small projects.
    (f) Progress reports. Progress reports will be submitted by the 
Grantee to the RD quarterly. The RD and Grantee shall negotiate the date 
for submission of the first report. Such reports will describe the 
status of those projects on which a final payment of the Federal share 
has not been made to the grantee and outline any problems or 
circumstances expected to result in noncompliance with the approved 
grant conditions.

[55 FR 2304, Jan. 23, 1990; 55 FR 5458, Feb. 15, 1990, as amended at 64 
FR 55161, Oct. 12, 1999]



Sec. 206.205  Payment of claims.

    (a) Small Projects. Final payment of the Federal share of these 
projects will be made to the Grantee upon approval of the Project 
Worksheet. The Grantee will make payment of the Federal share to the 
subgrantee as soon as practicable after Federal approval of funding. 
Before the closeout of the disaster contract, the Grantee must certify 
that all such projects were completed in accordance with FEMA approvals 
and that the State contribution to the non-Federal share, as specified 
in the FEMA-State Agreement, has been paid to each subgrantee. Such 
certification is not required to specify the amount spent by a 
subgrantee on small projects. The Federal payment for small projects 
shall not be reduced if all of the approved funds are not spent to 
complete a project. However, failure to complete a project may require 
that the Federal payment be refunded.
    (b) Large projects. (1) The Grantee shall make an accounting to the 
RD of eligible costs for each approved large project. In submitting the 
accounting the Grantee shall certify that reported costs were incurred 
in the performance of eligible work, that the approved work was 
completed, that the project is in compliance with the provisions of the 
FEMA-State Agreement, and that payments for that project have been made 
in accordance with 44 CFR 13.21, Payments. Each large project shall be 
submitted as soon as practicable after the subgrantee has completed the 
approved work and requested payment.
    (2) The RD shall review the accounting to determine the eligible 
amount of reimbursement for each large project and approve eligible 
costs. If a discrepancy between reported costs and approved funding 
exists, the RD may conduct field reviews to gather additional 
information. If discrepancies in the claim cannot be resolved through a 
field review, a Federal audit may be conducted. If the RD determines 
that eligible costs exceed the initial approval, he/she will obligate 
additional funds as necessary.

[55 FR 2304, Jan. 23, 1990, as amended at 64 FR 55161, Oct. 12, 1999]



Sec. 206.206  Appeals.

    An eligible applicant, subgrantee, or grantee may appeal any 
determination previously made related to an application for or the 
provision of Federal assistance according to the procedures below.
    (a) Format and Content. The applicant or subgrantee will make the 
appeal in writing through the grantee to the Regional Director. The 
grantee shall review and evaluate all subgrantee appeals before 
submission to the Regional Director. The grantee may make grantee-
related appeals to the Regional Director. The appeal shall contain 
documented justification supporting the appellant's position, specifying 
the monetary figure in dispute and the provisions in Federal law, 
regulation, or policy with which the appellant believes the initial 
action was inconsistent.
    (b) Levels of Appeal. (1) The Regional Director will consider first 
appeals for public assistance-related decisions

[[Page 482]]

under subparts A through L of this part.
    (2) The Associate Director/Executive Associate Director for Response 
and Recovery will consider appeals of the Regional Director's decision 
on any first appeal under paragraph (b)(1) of this section.
    (c) Time Limits. (1) Appellants must file appeals within 60 days 
after receipt of a notice of the action that is being appealed.
    (2) The grantee will review and forward appeals from an applicant or 
subgrantee, with a written recommendation, to the Regional Director 
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional 
Director (for first appeals) or Associate Director/Executive Associate 
Director (for second appeals) will notify the grantee in writing of the 
disposition of the appeal or of the need for additional information. A 
request by the Regional Director or Associate Director/Executive 
Associate Director for additional information will include a date by 
which the information must be provided. Within 90 days following the 
receipt of the requested additional information or following expiration 
of the period for providing the information, the Regional Director or 
Associate Director/Executive Associate Director will notify the grantee 
in writing of the disposition of the appeal. If the decision is to grant 
the appeal, the Regional Director will take appropriate implementing 
action.
    (d) Technical Advice. In appeals involving highly technical issues, 
the Regional Director or Associate Director/Executive Associate Director 
may, at his or her discretion, submit the appeal to an independent 
scientific or technical person or group having expertise in the subject 
matter of the appeal for advice or recommendation. The period for this 
technical review may be in addition to other allotted time periods. 
Within 90 days of receipt of the report, the Regional Director or 
Associate Director/Executive Associate Director will notify the grantee 
in writing of the disposition of the appeal.
    (e) Transition. (1) This rule is effective for all appeals pending 
on and appeals from decisions issued on or after May 8, 1998, except as 
provided in paragraph (e)(2) of this section.
    (2) Appeals pending from a decision of an Associate Director/
Executive Associate Director before May 8, 1998 may be appealed to the 
Director in accordance with 44 CFR 206.440 as it existed before May 8, 
1998 (44 CFR, revised as of October 1, 1997).
    (3) The decision of the FEMA official at the next higher appeal 
level shall be the final administrative decision of FEMA.

[63 FR 17110, Apr. 8, 1998; 63 FR 24970, May 6, 1998]



Sec. 206.207  Administrative and audit requirements.

    (a) General. Uniform administrative requirements which are set forth 
in 44 CFR part 13 apply to all disaster assistance grants and subgrants.
    (b) State administrative plan. (1) The State shall develop a plan 
for the administration of the Public Assistance program that includes at 
a minimum, the items listed below:
    (i) The designation of the State agency or agencies which will have 
the responsibility for program administration.
    (ii) The identification of staffing functions in the Public 
Assistance program, the sources of staff to fill these functions, and 
the management and oversight responsibilities of each.
    (iii) Procedures for:
    (A) Notifying potential applicants of the availability of the 
program;
    (B) Conducting briefings for potential applicants and application 
procedures, program eligibility guidance and program deadlines;
    (C) Assisting FEMA in determining applicant eligibility;
    (D) Participating with FEMA in conducting damage surveys to serve as 
a basis for obligations of funds to subgrantees;
    (E) Participating with FEMA in the establishment of hazard 
mitigation and insurance requirements;
    (F) Processing appeal requests, requests for time extensions and 
requests for approval of overruns, and for processing appeals of grantee 
decisions;
    (G) Compliance with the administrative requirements of 44 CFR parts 
13 and 206;

[[Page 483]]

    (H) Compliance with the audit requirements of 44 CFR part 14;
    (I) Processing requests for advances of funds and reimbursement; and
    (J) Determining staffing and budgeting requirements necessary for 
proper program management.
    (2) The Grantee may request the RD to provide technical assistance 
in the preparation of such administrative plan.
    (3) In accordance with the Interim Rule published March 21, 1989, 
the Grantee was to have submitted an administrative plan to the RD for 
approval by September 18, 1989. An approved plan must be on file with 
FEMA before grants will be approved in a future major disaster. 
Thereafter, the Grantee shall submit a revised plan to the RD annually. 
In each disaster for which Public Assistance is included, the RD shall 
request the Grantee to prepare any amendments required to meet current 
policy guidance.
    (4) The Grantee shall ensure that the approved administrative plan 
is incorporated into the State emergency plan.
    (c) Audit--(1) Nonfederal audit. For grantees or subgrantees, 
requirements for nonfederal audit are contained in FEMA regulations at 
44 CFR part 14 or OMB Circular A-110 as appropriate.
    (2) Federal audit. In accordance with 44 CFR part 14, appendix A, 
para. 10, FEMA may elect to conduct a Federal audit of the disaster 
assistance grant or any of the subgrants.

[55 FR 2304, Jan. 23, 1990; 55 FR 5458, Feb. 15, 1990]



Sec. 206.208  Direct Federal assistance.

    (a) General. When the State and local government lack the capability 
to perform or to contract for eligible emergency work and/or debris 
removal, under sections 402(4), 403 or 407 of the Act, the Grantee may 
request that the work be accomplished by a Federal agency. Such 
assistance is subject to the cost sharing provisions outlined in Sec. 
206.203(b) of this subpart. Direct Federal assistance is also subject to 
the eligibility criteria contained in Subpart H of these regulations. 
FEMA will reimburse other Federal agencies in accordance with Subpart A 
of these regulations.
    (b) Requests for assistance. All requests for direct Federal 
assistance shall be submitted by the Grantee to the RD and shall 
include:
    (1) A written agreement that the State will:
    (i) Provide without cost to the United States all lands, easements 
and rights-of-ways necessary to accomplish the approved work;
    (ii) Hold and save the United States free from damages due to the 
requested work, and shall indemnify the Federal Government against any 
claims arising from such work;
    (iii) Provide reimbursement to FEMA for the nonFederal share of the 
cost of such work in accordance with the provisions of the FEMA-State 
Agreement; and
    (iv) Assist the performing Federal agency in all support and local 
jurisdictional matters.
    (2) A statement as to the reasons the State and the local government 
cannot perform or contract for performance of the requested work.
    (3) A written agreement from an eligible applicant that such 
applicant will be responsible for the items in subparagraph (b)(1) (i) 
and (ii) of this section, in the event that a State is legally unable to 
provide the written agreement.
    (c) Implementation. (1) If the RD approves the request, a mission 
assignment will be issued to the appropriate Federal agency. The mission 
assignment letter to the agency will define the scope of eligible work, 
the estimated cost of the eligible work and the billing period 
frequency. The Federal agency must not exceed the approved funding limit 
without the authorization of the RD.
    (2) If all or any part of the requested work falls within the 
statutory authority of another Federal agency, the RD shall not approve 
that portion of the work. In such case, the unapproved portion of the 
request will be referred to the appropriate agency for action.
    (d) Time limitation. The time limitation for completion of work by a 
Federal agency under a mission assignment is 60 days after the 
President's declaration. Based on extenuating circumstances or unusual 
project requirements, the RD may extend this time limitation.

[[Page 484]]

    (e) Project management. (1) The performing Federal agency shall 
ensure that the work is completed in accordance with the RD's approved 
scope of work, costs and time limitations. The performing Federal agency 
shall also keep the RD and Grantee advised of work progress and other 
project developments. It is the responsibility of the performing Federal 
agency to ensure compliance with applicable Federal, State and local 
legal requirements. A final inspection report will be completed upon 
termination of all direct Federal assistance work. Final inspection 
reports shall be signed by a representative of the performing Federal 
agency and the State. Once the final eligible cost is determined 
(including Federal agency overhead), the State will be billed for the 
nonFederal share of the mission assignment in accordance with the cost 
sharing provisions of the FEMA-State Agreement.
    (2) Pursuant to the agreements provided in the request for 
assistance the Grantee shall assist the performing Federal agency in all 
State and local jurisdictional matters. These matters include securing 
local building permits and rights of entry, control of traffic and 
pedestrians, and compliance with local building ordinances.

[55 FR 2304, Jan. 23, 1990, as amended at 64 FR 55161, Oct. 12, 1999]



Sec. Sec. 206.209-206.219  [Reserved]



                 Subpart H_Public Assistance Eligibility

    Source: 55 FR 2307, Jan. 23, 1990, unless otherwise noted.



Sec. 206.220  General.

    This subpart provides policies and procedures for determinations of 
eligibility of applicants for public assistance, eligibility of work, 
and eligibility of costs for assistance under sections 402, 403, 406, 
407, 418, 419, 421(d), 502, and 503 of the Stafford Act. Assistance 
under this subpart must also conform to requirements of 44 CFR part 201, 
Mitigation Planning, and 44 CFR part 206, subparts G--Public Assistance 
Project Administration, I--Public Assistance Insurance Requirements, J--
Coastal Barrier Resources Act, and M--Minimum Standards. Regulations 
under 44 CFR part 9--Floodplain Management and 44 CFR part 10--
Environmental Considerations, also apply to this assistance.

[67 FR 8854, Feb. 26, 2002]



Sec. 206.221  Definitions.

    (a) Educational institution means:
    (1) Any elementary school as defined by section 801(c) of the 
Elementary and Secondary Education Act of 1965; or
    (2) Any secondary school as defined by section 801(h) of the 
Elementary and Secondary Education Act of 1965; or
    (3) Any institution of higher education as defined by section 1201 
of the Higher Education Act of 1965.
    (b) Force account means an applicant's own labor forces and 
equipment.
    (c) Immediate threat means the threat of additional damage or 
destruction from an event which can reasonably be expected to occur 
within five years.
    (d) Improved property means a structure, facility or item of 
equipment which was built, constructed or manufactured. Land used for 
agricultural purposes is not improved property.
    (e) Private nonprofit facility means any private nonprofit 
educational, utility, emergency, medical, or custodial care facility, 
including a facility for the aged or disabled, and other facility 
providing essential governmental type services to the general public, 
and such facilities on Indian reservations. Further definition is as 
follows:
    (1) Educational facilities means classrooms plus related supplies, 
equipment, machinery, and utilities of an educational institution 
necessary or appropriate for instructional, administrative, and support 
purposes, but does not include buildings, structures and related items 
used primarily for religious purposes or instruction.
    (2) Utility means buildings, structures, or systems of energy, 
communication, water supply, sewage collection and treatment, or other 
similar public service facilities.
    (3) Irrigation facility means those facilities that provide water 
for essential services of a governmental nature to the general public. 
Irrigation facilities include water for fire suppression, generating and 
supplying electricity, and

[[Page 485]]

drinking water supply; they do not include water for agricultural 
purposes.
    (4) Emergency facility means those buildings, structures, equipment, 
or systems used to provide emergency services, such as fire protection, 
ambulance, or rescue, to the general public, including the 
administrative and support facilities essential to the operation of such 
emergency facilities even if not contiguous.
    (5) Medical facility means any hospital, outpatient facility, 
rehabilitation facility, or facility for long term care as such terms 
are defined in section 645 of the Public Health Service Act (42 U.S.C. 
2910) and any similar facility offering diagnosis or treatment of mental 
or physical injury or disease, includng the administrative and support 
facilities essential to the operation of such medical facilities even if 
not contiguous.
    (6) Custodial care facility means those buildings, structures, or 
systems including those for essential administration and support, which 
are used to provide institutional care for persons who require close 
supervision and some physical constraints on their daily activities for 
their self-protection, but do not require day-to-day medical care.
    (7) Other essential governmental service facility means museums, 
zoos, community centers, libraries, homeless shelters, senior citizen 
centers, rehabilitation facilities, shelter workshops and facilities 
which provide health and safety services of a governmental nature. All 
such facilities must be open to the general public.
    (f) Private nonprofit organization means any nongovernmental agency 
or entity that currently has:
    (1) An effective ruling letter from the U.S. Internal Revenue 
Service, granting tax exemption under sections 501(c), (d), or (e) of 
the Internal Revenue Code of 1954, or
    (2) Satisfactory evidence from the State that the nonrevenue 
producing organization or entity is a nonprofit one organized or doing 
business under State law.
    (g) Public entity means an organization formed for a public purpose 
whose direction and funding are provided by one or more political 
subdivisions of the State.
    (h) Public facility means the following facilities owned by a State 
or local government: any flood control, navigation, irrigation, 
reclamation, public power, sewage treatment and collection, water supply 
and distribution, watershed development, or airport facility; any non-
Federal aid, street, road, or highway; and any other public building, 
structure, or system, including those used for educational, 
recreational, or cultural purposes; or any park.
    (i) Standards means codes, specifications or standards required for 
the construction of facilities.

[55 FR 2307, Jan. 23, 1990, as amended at 58 FR 47994, Sept. 14, 1993; 
66 FR 22445, May 4, 2001]



Sec. 206.222  Applicant eligibility.

    The following entities are eligible to apply for assistance under 
the State public assistance grant:
    (a) State and local governments.
    (b) Private non-profit organizations or institutions which own or 
operate a private nonprofit facility as defined in Sec. 205.221(e).
    (c) Indian tribes or authorized tribal organizations and Alaska 
Native villages or organizations, but not Alaska Native Corporations, 
the ownership of which is vested in private individuals.



Sec. 206.223  General work eligibility.

    (a) General. To be eligible for financial assistance, an item of 
work must:
    (1) Be required as the result of the major disaster event,
    (2) Be located within a designated disaster area, and
    (3) Be the legal responsibility of an eligible applicant.
    (b) Private nonprofit facilities. To be eligible, all private 
nonprofit facilities must be owned and operated by an organization 
meeting the definition of a private nonprofit organization [see Sec. 
206.221(f)].
    (c) Public entities. Facilities belonging to a public entity may be 
eligible for assistance when the application is submitted through the 
State or a political subdivision of the State.
    (d) Facilities serving a rural community or unincorporated town or 
village. To be eligible for assistance, a facility not

[[Page 486]]

owned by an eligible applicant, as defined in Sec. 206.222, must be 
owned by a private nonprofit organization; and provide an essential 
governmental service to the general public. Applications for these 
facilities must be submitted through a State or political subdivision of 
the State.
    (e) Negligence. No assistance will be provided to an applicant for 
damages caused by its own negligence. If negligence by another party 
results in damages, assistance may be provided, but will be conditioned 
on agreement by the applicant to cooperate with FEMA in all efforts 
necessary to recover the cost of such assistance from the negligent 
party.



Sec. 206.224  Debris removal.

    (a) Public interest. Upon determination that debris removal is in 
the public interest, the Regional Director may provide assistance for 
the removal of debris and wreckage from publicly and privately owned 
lands and waters. Such removal is in the public interest when it is 
necessary to:
    (1) Eliminate immediate threats to life, public health, and safety; 
or
    (2) Eliminate immediate threats of significant damage to improved 
public or private property; or
    (3) Ensure economic recovery of the affected community to the 
benefit of the community-at-large; or
    (4) Mitigate the risk to life and property by removing substantially 
damaged structures and associated appurtenances as needed to convert 
property acquired through a FEMA hazard mitigation program to uses 
compatible with open space, recreation, or wetlands management 
practices. Such removal must be completed within two years of the 
declaration date, unless the Associate Director for Readiness, Response 
and Recovery extends this period.
    (b) Debris removal from private property. When it is in the public 
interest for an eligible applicant to remove debris from private 
property in urban, suburban and rural areas, including large lots, 
clearance of the living, recreational and working area is eligible 
except those areas used for crops and livestock or unused areas.
    (c) Assistance to individuals and private organizations. No 
assistance will be provided directly to an individual or private 
organization, or to an eligible applicant for reimbursement of an 
individual or private organization, for the cost of removing debris from 
their own property. Exceptions to this are those private nonprofit 
organizations operating eligible facilities.

[55 FR 2307, Jan. 23, 1990, as amended at 66 FR 33901, June 26, 2001]



Sec. 206.225  Emergency work.

    (a) General. (1) Emergency protective measures to save lives, to 
protect public health and safety, and to protect improved property are 
eligible.
    (2) In determining whether emergency work is required, the Regional 
Director may require certification by local State, and/or Federal 
officials that a threat exists, including identification and evaluation 
of the threat and recommendations of the emergency work necessary to 
cope with the threat.
    (3) In order to be eligible, emergency protective measures must:
    (i) Eliminate or lessen immediate threats to live, public health or 
safety; or
    (ii) Eliminate or lessen immediate threats of significant additional 
damage to improved public or private property through measures which are 
cost effective.
    (b) Emergency access. An access facility that is not publicly owned 
or is not the direct responsibility of an eligible applicant for repair 
or maintenance may be eligible for emergency repairs or replacement 
provided that emergency repair or replacement of the facility 
economically eliminates the need for temporary housing. The work will be 
limited to that necessary for the access to remain passable through 
events which can be considered an immediate threat. The work must be 
performed by an eligible applicant and will be subject to cost sharing 
requirements.
    (c) Emergency communications. Emergency communications necessary for 
the purpose of carrying out disaster relief functions may be established 
and may be made available to State and local government officials as 
deemed

[[Page 487]]

appropriate. Such communications are intended to supplement but not 
replace normal communications that remain operable after a major 
disaster. FEMA funding for such communications will be discontinued as 
soon as the needs have been met.
    (d) Emergency public transportation. Emergency public transportation 
to meet emergency needs and to provide transportation to public places 
and such other places as necessary for the community to resume its 
normal pattern of life as soon as possible is eligible. Such 
transportation is intended to supplement but not replace predisaster 
transportation facilities that remain operable after a major disaster. 
FEMA funding for such transportation will be discontinued as soon as the 
needs have been met.



Sec. 206.226  Restoration of damaged facilities.

    Work to restore eligible facilities on the basis of the design of 
such facilities as they existed immediately prior to the disaster and in 
conformity with the following is eligible:
    (a) Assistance under other Federal agency (OFA) programs. (1) 
Generally, disaster assistance will not be made available under the 
Stafford Act when another Federal agency has specific authority to 
restore facilities damaged or destroyed by an event which is declared a 
major disaster.
    (2) An exception to the policy described in paragraph (a)(1) of this 
section exists for public elementary and secondary school facilities 
which are otherwise eligible for assistance from the Department of 
Education (ED) under 20 U.S.C. 241-1 and 20 U.S.C. 646. Such facilities 
are also eligible for assistance from FEMA under the Stafford Act, and 
grantees shall accept applications from local educational agencies for 
assistance under the Stafford Act.
    (3) The exception does not cover payment of increased current 
operating expenses or replacement of lost revenues as provided in 20 
U.S.C. 241-1(a) and implemented by 34 CFR 219.14. Such assistance shall 
continue to be granted and administered by the Department of Education.
    (b) Mitigation planning. In order to receive assistance under this 
section, as of November 1, 2004 (subject to 44 CFR 201.4(a)(2)), the 
State must have in place a FEMA approved State Mitigation Plan in 
accordance with 44 CFR part 201.
    (c) Private nonprofit facilities. Eligible private nonprofit 
facilities may receive funding under the following conditions:
    (1) The facility provides critical services, which include power, 
water (including water provided by an irrigation organization or 
facility in accordance with Sec. 206.221(e)(3)), sewer services, 
wastewater treatment, communications, emergency medical care, fire 
department services, emergency rescue, and nursing homes; or
    (2) The private nonprofit organization not falling within the 
criteria of Sec. 206.226(b)(1) has applied for a disaster loan under 
section 7(b) of the Small Business Act (15 U.S.C.636(b)) and
    (i) The Small Business Administration has declined the 
organization's application; or
    (ii) Has eligible damages greater than the maximum amount of the 
loan for which it is eligible, in which case the excess damages are 
eligible for FEMA assistance.
    (d) Standards. For the costs of Federal, State, and local repair or 
replacement standards which change the predisaster construction of 
facility to be eligible, the standards must:
    (1) Apply to the type of repair or restoration required;

(Standards may be different for new construction and repair work)
    (2) Be appropriate to the predisaster use of the facility;
    (3)(i) Be found reasonable, in writing, and formally adopted and 
implemented by the State or local government on or before the disaster 
declaration date or be a legal Federal requirement applicable to the 
type of restoration.
    (ii) This paragraph (b) applies to local governments on January 1, 
1999 and to States on January 1, 2000. Until the respective 
applicability dates, the standards must be in writing and formally 
adopted by the applicant prior to project approval or be a legal Federal 
or State requirement applicable to the type of restoration.
    (4) Apply uniformly to all similar types of facilities within the 
jurisdiction of owner of the facility; and

[[Page 488]]

    (5) For any standard in effect at the time of a disaster, it must 
have been enforced during the time it was in effect.
    (e) Hazard mitigation. In approving grant assistance for restoration 
of facilities, the Regional Director may require cost effective hazard 
mitigation measures not required by applicable standards. The cost of 
any requirements for hazard mitigation placed on restoration projects by 
FEMA will be an eligible cost for FEMA assistance.
    (f) Repair vs. replacement. (1) A facility is considered repairable 
when disaster damages do not exceed 50 percent of the cost of replacing 
a facility to its predisaster condition, and it is feasible to repair 
the facility so that it can perform the function for which it was being 
used as well as it did immediately prior to the disaster.
    (2) If a damaged facility is not repairable in accordance with 
paragraph (d)(1) of this section, approved restorative work may include 
replacement of the facility. The applicant may elect to perform repairs 
to the facility, in lieu of replacement, if such work is in conformity 
with applicable standards. However, eligible costs shall be limited to 
the less expensive of repairs or replacement.
    (3) An exception to the limitation in paragraph (d)(2) of this 
section may be allowed for facilities eligible for or on the National 
Register of Historic Properties. If an applicable standard requires 
repair in a certain manner, costs associated with that standard will be 
eligible.
    (g) Relocation. (1) The Regional Director may approve funding for 
and require restoration of a destroyed facility at a new location when:
    (i) The facility is and will be subject to repetitive heavy damage;
    (ii) The approval is not barred by other provisions of title 44 CFR; 
and
    (iii) The overall project, including all costs, is cost effective.
    (2) When relocation is required by the Regional Director, eligible 
work includes land acquisition and ancillary facilities such as roads 
and utilities, in addition to work normally eligible as part of a 
facility reconstruction. Demolition and removal of the old facility is 
also an eligible cost.
    (3) When relocation is required by the Regional Director, no future 
funding for repair or replacement of a facility at the original site 
will be approved, except those facilities which facilitate an open space 
use in accordance with 44 CFR part 9.
    (4) When relocation is required by the Regional Director, and, 
instead of relocation, the applicant requests approval of an alternate 
project [see Sec. 206.203(d)(2)], eligible costs will be limited to 90 
percent of the estimate of restoration at the original location 
excluding hazard mitigation measures.
    (5) If relocation of a facility is not feasible or cost effective, 
the Regional Director shall disapprove Federal funding for the original 
location when he/she determines in accordance with 44 CFR parts 9, 10, 
201, or subpart M of this part 206, that restoration in the original 
location is not allowed. In such cases, an alternative project may be 
applied for.
    (h) Equipment and furnishings. If equipment and furnishings are 
damaged beyond repair, comparable items are eligible as replacement 
items.
    (i) Library books and publications. Replacement of library books and 
publications is based on an inventory of the quantities of various 
categories of books or publications damaged or destroyed. Cataloging and 
other work incidental to replacement are eligible.
    (j) Beaches. (1) Replacement of sand on an unimproved natural beach 
is not eligible.
    (2) Improved beaches. Work on an improved beach may be eligible 
under the following conditions:
    (i) The beach was constructed by the placement of sand (of proper 
grain size) to a designed elevation, width, and slope; and
    (ii) A maintenance program involving periodic renourishment of sand 
must have been established and adhered to by the applicant.
    (k) Restrictions--(1) Alternative use facilities. If a facility was 
being used for purposes other than those for which it was designed, 
restoration will only be eligible to the extent necessary to restore the 
immediate predisaster alternate purpose.
    (2) Inactive facilities. Facilities that were not in active use at 
the time of

[[Page 489]]

the disaster are not eligible except in those instances where the 
facilities were only temporarily inoperative for repairs or remodeling, 
or where active use by the applicant was firmly established in an 
approved budget or the owner can demonstrate to FEMA's satisfaction an 
intent to begin use within a reasonable time.

[55 FR 2307, Jan. 23, 1990, as amended at 58 FR 55022, Oct. 25, 1993; 63 
FR 5897, Feb. 5, 1998; 66 FR 22445, May 4, 2001; 67 FR 8854, Feb. 26, 
2002; 68 FR 61371, Oct. 28, 2003; 69 FR 55097, Sept. 13, 2004]



Sec. 206.227  Snow assistance.

    Emergency or major disaster declarations based on snow or blizzard 
conditions will be made only for cases of record or near record 
snowstorms, as established by official government records. Federal 
assistance will be provided for all costs eligible under 44 CFR 206.225 
for a specified period of time which will be determined by the 
circumstances of the event.

[62 FR 45330, Aug. 27, 1997]



Sec. 206.228  Allowable costs.

    General policies for determining allowable costs are established in 
44 CFR 13.22. Exceptions to those policies as allowed in 44 CFR 13.4 and 
13.6 are explained below.
    (a) Eligible direct costs--(1) Applicant-owned equipment. 
Reimbursement for ownership and operation costs of applicant-owned 
equipment used to perform eligible work shall be provided in accordance 
with the following guidelines:
    (i) Rates established under State guidelines. In those cases where 
an applicant uses reasonable rates which have been established or 
approved under State guidelines, in its normal daily operations, 
reimbursement for applicant-owned equipment which has an hourly rate of 
$75 or less shall be based on such rates. Reimbursement for equipment 
which has an hourly rate in excess of $75 shall be determined on a case 
by case basis by FEMA.
    (ii) Rates established under local guidelines. Where local 
guidelines are used to establish equipment rates, reimbursement will be 
based on those rates or rates in a Schedule of Equipment Rates published 
by FEMA, whichever is lower. If an applicant certifies that its locally 
established rates do not reflect actual costs, reimbursement may be 
based on the FEMA Schedule of Equipment Rates, but the applicant will be 
expected to provide documentation if requested. If an applicant wishes 
to claim an equipment rate which exceeds the FEMA Schedule, it must 
document the basis for that rate and obtain FEMA approval of an 
alternate rate.
    (iii) No established rates. The FEMA Schedule of Equipment Rates 
will be the basis for reimbursement in all cases where an applicant does 
not have established equipment rates.
    (2) Statutory Administrative Costs--(i) Grantee. Under section 
406(f)(2) of the Stafford Act, we will pay you, the State, an allowance 
to cover the extraordinary costs that you incur to formulate Project 
Worksheets for small and large projects, to validate small projects, to 
prepare final inspection reports, project applications, final audits, 
and to make related field inspections by State employees. Eligible costs 
include overtime pay and per diem and travel expenses, but do not 
include regular time for your State employees. The allowance to the 
State will be based on the following percentages of the total amount of 
Federal assistance that we provide for all subgrantees in the State 
under sections 403, 406, 407, 502, and 503 of the Act:
    (A) For the first $100,000 of total assistance provided (Federal 
share), three percent of such assistance.
    (B) For the next $900,000, two percent of such assistance.
    (C) For the next $4,000,000, one percent of such assistance.
    (D) For assistance over $5,000,000, one-half percent of such 
assistance.
    (ii) Subgrantee. Pursuant to section 406(f)(1) of the Stafford Act, 
necessary costs of requesting, obtaining, and administering Federal 
disaster assistance subgrants will be covered by an allowance which is 
based on the following percentages of net eligible costs under sections 
403, 406, 407, 502, and 503 of the Act, for an individual applicant 
(applicants in this context include State agencies):
    (A) For the first $100,000 of net eligible costs, three percent of 
such costs;
    (B) For the next $900,000, two percent of such costs;

[[Page 490]]

    (C) For the next $4,000,000, one percent of such costs;
    (D) For those costs over $5,000,000, one-half percent of such costs.
    (3) State Management Administrative Costs.
    (i) Grantee. Except for the items listed in paragraph (a)(2)(i) of 
this section, other administrative costs shall be paid in accordance 
with 44 CFR 13.22.
    (ii) Subgrantee. No other administrative costs of a subgrantee are 
eligible because the percentage allowance in paragraph (a)(2)(ii) of 
this section covers necessary costs of requesting, obtaining and 
administering Federal assistance.
    (4) Force Account Labor Costs. The straight- or regular-time 
salaries and benefits of a subgrantee's permanently employed personnel 
are not eligible in calculating the cost of eligible work under sections 
403 and 407 of the Stafford Act, 42 U.S.C. 5170b and 5173. For the 
performance of eligible permanent restoration under section 406 of the 
Act, 42 U.S.C. 5172, straight-time salaries and benefits of a 
subgrantee's permanently employed personnel are eligible.
    (b) Eligible indirect costs--(1) Grantee. Indirect costs of 
administering the disaster program are eligible in accordance with the 
provisions of 44 CFR part 13 and OMB Circular A-87.
    (2) Subgrantee. No indirect costs of a subgrantee are separately 
eligible because the percentage allowance in paragraph (a)(2)(ii) of 
this section covers necessary costs of requesting, obtaining and 
administering Federal assistance.

[55 FR 2307, Jan. 23, 1990, as amended at 58 FR 47996, Sept. 14, 1993; 
63 FR 64426, Nov. 20, 1998; 64 FR 55161, Oct. 12, 1999]



Sec. Sec. 206.229-206.249  [Reserved]



           Subpart I_Public Assistance Insurance Requirements

    Source: 56 FR 64560, Dec. 11, 1991, unless otherwise noted.



Sec. 206.250  General.

    (a) Sections 311 and 406(d) of the Stafford Act, and the Flood 
Disaster Protection Act of 1973, Public Law 93-234, set forth certain 
insurance requirements which apply to disaster assistance provided by 
FEMA. The requirements of this subpart apply to all assistance provided 
pursuant to section 406 of the Stafford Act with respect to any major 
disaster declared by the President after November 23, 1988.
    (b) Insurance requirements prescribed in this subpart shall apply 
equally to private nonprofit (PNP) facilities which receive assistance 
under section 406 of the Act. PNP organizations shall submit the 
necessary documentation and assurances required by this subpart to the 
Grantee.
    (c) Actual and anticipated insurance recoveries shall be deducted 
from otherwise eligible costs, in accordance with this subpart.
    (d) The full coverage available under the standard flood insurance 
policy from the National Flood Insurance Program (NFIP) will be 
subtracted from otherwise eligible costs for a building and its contents 
within the special flood hazard area in accordance with Sec. 206.252.
    (e) The insurance requirements of this subpart should not be 
interpreted as a substitute for various hazard mitigation techniques 
which may be available to reduce the incidence and severity of future 
damage.



Sec. 206.251  Definitions.

    (a) Assistance means any form of a Federal grant under section 406 
of the Stafford Act to replace, restore, repair, reconstruct, or 
construct any facility and/or its contents as a result of a major 
disaster.
    (b) Building means a walled and roofed structure, other than a gas, 
or liquid storage tank, that is principally above ground and affixed to 
a permanent site, as well as a manufactured home on a permanent 
foundation.
    (c) Community means any State or political subdivision thereof, or 
any Indian tribe or authorized tribal organization, or Alaskan Native 
Village or authorized native organization which has authority to adopt 
and enforce floodplain management regulations for the areas within its 
jurisdiction.
    (d) National Flood Insurance Program (NFIP) means the program 
authorized by the National Flood Insurance Act of 1968, as amended, 42 
U.S.C. 4001 et seq.

[[Page 491]]

    (e) Special flood hazard area means an area having special flood, 
mudslide, and/or flood-related erosion hazards, and shown on a Flood 
Hazard Boundary map (FHBM) or the Flood Insurance Rate Map (FIRM) issued 
by FEMA as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30 VE, V, M, or E. 
``Special flood hazard area'' is synonymous with ``special hazard 
area'', as defined in 44 CFR part 59.
    (f) Standard Flood Insurance Policy means the flood insurance policy 
issued by the Federal Insurance Administrator, or by a Write-Your-Own 
Company pursuant to 44 CFR 62.23.



Sec. 206.252  Insurance requirements for facilities damaged by flood.

    (a) Where an insurable building damaged by flooding is located in a 
special flood hazard area identified for more than one year by the 
Director, assistance pursuant to section 406 of the Stafford Act shall 
be reduced. The amount of the reduction shall be the maximum amount of 
the insurance proceeds which would have been received had the building 
and its contents been fully covered by a standard flood insurance 
policy.
    (b) The reduction stated above shall not apply to a PNP facility 
which could not be insured because it was located in a community not 
participating in the NFIP. However, the provisions of the Flood Disaster 
Protection Act of 1973 prohibit approval of assistance for the PNP 
unless the community agrees to participate in the NFIP within six months 
after the major disaster declaration date, and the required flood 
insurance is purchased.
    (c) Prior to approval of a Federal grant for the restoration of a 
facility and its contents which were damaged by a flood, the Grantee 
shall notify the Regional Director of any entitlement to an insurance 
settlement or recovery. The Regional Director shall reduce the eligible 
costs by the amount of insurance proceeds which the grantee receives.
    (d) The grantee or subgrantee is required to obtain and maintain 
flood insurance in the amount of eligible disaster assistance, as a 
condition of receiving Federal assistance that may be available. This 
requirement also applies to insurable flood damaged facilities located 
outside a special flood hazard area when it is reasonably available, 
adequate, and necessary. However, the Regional Director shall not 
require greater types and amounts of insurance than are certified as 
reasonable by the State Insurance Commissioner. The requirement to 
purchase flood insurance is waived when eligible costs for an insurable 
facility do not exceed $5,000.



Sec. 206.253  Insurance requirements for facilities damaged by disasters 
other than flood.

    (a) Prior to approval of a Federal grant for the restoration of a 
facility and its contents which were damaged by a disaster other than 
flood, the Grantee shall notify the Regional Director of any entitlement 
to insurance settlement or recovery for such facility and its contents. 
The Regional Director shall reduce the eligible costs by the actual 
amount of insurance proceeds relating to the eligible costs.
    (b)(1) Assistance under section 406 of the Stafford Act will be 
approved only on the condition that the grantee obtain and maintain such 
types and amounts of insurance as are reasonable and necessary to 
protect against future loss to such property from the types of hazard 
which caused the major disaster. The extent of insurance to be required 
will be based on the eligible damage that was incurred to the damaged 
facility as a result of the major disaster. The Regional Director shall 
not require greater types and extent of insurance than are certified as 
reasonable by the State Insurance Commissioner.
    (2) Due to the high cost of insurance, some applicants may request 
to insure the damaged facilities under a blanket insurance policy 
covering all their facilities, an insurance pool arrangement, or some 
combination of these options. Such an arrangement may be accepted for 
other than flood damages. However, if the same facility is damaged in a 
similar future disaster, eligible costs will be reduced by the amount of 
eligible damage sustained on the previous disaster.

[[Page 492]]

    (c) The Regional Director shall notify the Grantee of the type and 
amount of insurance required. The grantee may request that the State 
Insurance Commissioner review the type and extent of insurance required 
to protect against future loss to a disaster-damaged facility, the 
Regional Director shall not require greater types and extent of 
insurance than are certified as reasonable by the State Insurance 
Commissioner.
    (d) The requirements of section 311 of the Stafford Act are waived 
when eligible costs for an insurable facility do not exceed $5,000. The 
Regional Director may establish a higher waiver amount based on hazard 
mitigation initiatives which reduce the risk of future damages by a 
disaster similar to the one which resulted in the major disaster 
declaration which is the basis for the application for disaster 
assistance.
    (e) The Grantee shall provide assurances that the required insurance 
coverage will be maintained for the anticipated life of the restorative 
work or the insured facility, whichever is the lesser.
    (f) No assistance shall be provided under section 406 of the 
Stafford Act for any facility for which assistance was provided as a 
result of a previous major disaster unless all insurance required by 
FEMA as a condition of the previous assistance has been obtained and 
maintained.



Sec. Sec. 206.254-206.339  [Reserved]



                 Subpart J_Coastal Barrier Resources Act

    Source: 55 FR 2311, Jan. 23, 1990, unless otherwise noted.



Sec. 206.340  Purpose of subpart.

    This subpart implements the Coastal Barrier Resources Act (CBRA) 
(Pub. L. 97-348) as that statute applies to disaster relief granted to 
individuals and State and local governments under the Stafford Act. CBRA 
prohibits new expenditures and new financial assistance within the 
Coastal Barrier Resources System (CBRS) for all but a few types of 
activities identified in CBRA. This subpart specifies what actions may 
and may not be carried out within the CBRS. It establishes procedures 
for compliance with CBRA in the administration of disaster assistance by 
FEMA.



Sec. 206.341  Policy.

    It shall be the policy of FEMA to achieve the goals of CBRA in 
carrying out disaster relief on units of the Coastal Barrier Resources 
System. It is FEMA's intent that such actions be consistent with the 
purpose of CBRA to minimize the loss of human life, the wasteful 
expenditure of Federal revenues, and the damage to fish, wildlife and 
other natural resources associated with coastal barriers along the 
Atlantic and Gulf coasts and to consider the means and measures by which 
the long-term conservation of these fish, wildlife, and other natural 
resources may be achieved under the Stafford Act.



Sec. 206.342  Definitions.

    Except as otherwise provided in this subpart, the definitions set 
forth in part 206 of subchapter D are applicable to this subject.
    (a) Consultation means that process by which FEMA informs the 
Secretary of the Interior through his/her designated agent of FEMA 
proposed disaster assistance actions on a designated unit of the Coastal 
Barrier Resources System and by which the Secretary makes comments to 
FEMA about the appropriateness of that action. Approval by the Secretary 
is not required in order that an action be carried out.
    (b) Essential link means that portion of a road, utility, or other 
facility originating outside of the system unit but providing access or 
service through the unit and for which no alternative route is 
reasonably available.
    (c) Existing facility on a unit of CBRS established by Public Law 
97-348 means a publicly owned or operated facility on which the start of 
a construction took place prior to October 18, 1982, and for which this 
fact can be adequately documented. In addition, a legally valid building 
permit or equivalent documentation, if required, must have been obtained 
for the construction prior to October 18, 1982. If a facility has been 
substantially improved or expanded since October 18, 1982, it is not an 
existing facility. For any other unit

[[Page 493]]

added to the CBRS by amendment to Public Law 97-348, the enactment date 
of such amendment is substituted for October 18, 1982, in this 
definition.
    (d) Expansion means changing a facility to increase its capacity or 
size.
    (e) Facility means ``public facility'' as defined in Sec. 206.201. 
This includes any publicly owned flood control, navigation, irrigation, 
reclamation, public power, sewage treatment and collection, water supply 
and distribution, watershed development, or airport facility; and 
nonfederal-aid street, road, or highway; and any other public building, 
structure, or system, including those used for educational, 
recreational, or cultural purposes, or any park.
    (f) Financial assistance means any form of Federal loan, grant 
guaranty, insurance, payment rebate, subsidy or any other form of direct 
or indirect Federal assistance.
    (g) New financial assistance on a unit of the CBRS established by 
Public Law 97-348 means an approval by FEMA of a project application or 
other disaster assistance after October 18, 1982. For any other unit 
added to the CBRS by amendment to Public Law 97-348, the enactment date 
such amendment is substituted for October 18, 1982, in this definition.
    (h) Start of construction for a structure means the first placement 
of permanent construction, such as the placement of footings or slabs or 
any work beyond the stage of excavation. Permanent construction for a 
structure does not include land preparation such as clearing, grading, 
and placement of fill, nor does it include excavation for a basement, 
footings, or piers. For a facility which is not a structure, start of 
construction means the first activity for permanent construction of a 
substantial part of the facility. Permanent construction for a facility 
does not include land preparation such as clearing and grubbing but 
would include excavation and placement of fill such as for a road.
    (i) Structure means a walled and roofed building, including a gas or 
liquid storage tank, that is principally above ground, as well as a 
mobile home.
    (j) Substantial improvement means any repair, reconstruction or 
other improvement of a structure or facility, that has been damaged in 
excess of, or the cost of which equals or exceeds, 50 percent of the 
market value of the structure or placement cost of the facility 
(including all ``public facilities'') as defined in the Stafford Act) 
either:
    (1) Before the repair or improvement is started; or
    (2) If the structure or facility has been damaged and is proposed to 
be restored, before the damage occurred. If a facility is a link in a 
larger system, the percentage of damage will be based on the relative 
cost of repairing the damaged facility to the replacement cost of that 
portion of the system which is operationally dependent on the facility. 
The term substantial improvement does not include any alternation of a 
structure or facility listed on the National Register of Historic Places 
or a State Inventory of Historic Places.
    (k) System unit means any undeveloped coastal barrier, or 
combination of closely related undeveloped coastal barriers included 
within the Coastal Barrier Resources System as established by the 
section 4 of the CBRA, or as modified by the Secretary in accordance 
with that statute.



Sec. 206.343  Scope.

    (a) The limitations on disaster assistance as set forth in this 
subpart apply only to FEMA actions taken on a unit of the Coastal 
Barrier Resources System or any conduit to such unit, including, but not 
limited to a bridge, causeway, utility, or similar facility.
    (b) FEMA assistance having a social program orientation which is 
unrelated to development is not subject to the requirements of these 
regulations. This assistance includes:
    (1) Individual and Family Grants that are not for acquisition or 
construction purposes;
    (2) Crisis counseling;
    (3) Disaster Legal services; and
    (4) Disaster unemployment assistance.

[[Page 494]]



Sec. 206.344  Limitations on Federal expenditures.

    Except as provided in Sec. Sec. 206.345 and 206.346, no new 
expenditures or financial assistance may be made available under 
authority of the Stafford Act for any purpose within the Coastal Barrier 
Resources System, including but not limited to:
    (a) Construction, reconstruction, replacement, repair or purchase of 
any structure, appurtenance, facility or related infrastructure;
    (b) Construction, reconstruction, replacement, repair or purchase of 
any road, airport, boat landing facility, or other facility on, or 
bridge or causeway to, any System unit; and
    (c) Carrying out of any project to prevent the erosion of, or to 
otherwise stabilize, any inlet, shoreline, or inshore area, except that 
such assistance and expenditures may be made available on units 
designated pursuant to Section 4 on maps numbered S01 through S08 for 
purposes other than encouraging development and, in all units, in cases 
where an emergency threatens life, land, and property immediately 
adjacent to that unit.



Sec. 206.345  Exceptions.

    The following types of disaster assistance actions are exceptions to 
the prohibitions of Sec. 206.344.
    (a) After consultation with the Secretary of the Interior, the FEMA 
Regional Director may make disaster assistance available within the CBRS 
for:
    (1) Replacement, reconstruction, or repair, but not the expansion, 
of publicly owned or publicly operated roads, structures, or facilities 
that are essential links in a larger network or system;
    (2) Repair of any facility necessary for the exploration, 
extraction, or transportation of energy resources which activity can be 
carried out only on, in, or adjacent to coastal water areas because the 
use or facility requires access to the coastal water body; and
    (3) Restoration of existing channel improvements and related 
structures, such as jetties, and including the disposal of dredge 
materials related to such improvements.
    (b) After consultation with the Secretary of the Interior, the FEMA 
Regional Director may make disaster assistance available within the CBRS 
for the following types of actions, provided such assistance is 
consistent with the purposes of CBRA;
    (1) Emergency actions essential to the saving of lives and the 
protection of property and the public health and safety, if such actions 
are performed pursuant to sections 402, 403, and 502 of the Stafford Act 
and are limited to actions that are necessary to alleviate the impacts 
of the event;
    (2) Replacement, reconstruction, or repair, but not the expansion, 
of publicly owned or publicly operated roads, structures, or facilities, 
except as provided in Sec. 206.347(c)(5);
    (3) Repair of air and water navigation aids and devices, and of the 
access thereto;
    (4) Repair of facilities for scientific research, including but not 
limited to aeronautical, atmospheric, space, geologic, marine, fish and 
wildlife and other research, development, and applications;
    (5) Repair of facilities for the study, management, protection and 
enhancement of fish and wildlife resources and habitats, including but 
not limited to, acquisition of fish and wildlife habitats and related 
lands, stabilization projects for fish and wildlife habitats, and 
recreational projects; and
    (6) Repair of nonstructural proejcts for shoreline stabilization 
that are designed to mimic, enhance, or restore natural stabilization 
systems.



Sec. 206.346  Applicability to disaster assistance.

    (a) Emergency assistance. The Regional Director may approve 
assistance pursuant to sections 402, 403, or 502 of the Stafford Act, 
for emergency actions which are essential to the saving of lives and the 
protection of property and the public health and safety, are necessary 
to alleviate the emergency, and are in the public interest. Such actions 
include but are not limited to:
    (1) Removal of debris from public property;
    (2) Emergency protection measures to prevent loss of life, prevent 
damage

[[Page 495]]

to improved property and protect public health and safety;
    (3) Emergency restoration of essential community services such as 
electricity, water or sewer;
    (4) Provision of access to a private residence;
    (5) Provision of emergency shelter by means of providing emergency 
repair of utilities, provision of heat in the season requiring heat, or 
provision of minimal cooking facilities;
    (6) Relocation of individuals or property out of danger, such as 
moving a mobile home to an area outside of the CBRS (but disaster 
assistance funds may not be used to relocate facilities back into the 
CBRS);
    (7) Home repairs to private owner-occupied primary residences to 
make them habitable;
    (8) Housing eligible families in existing resources in the CBRS; and
    (9) Mortgage and rental payment assistance.
    (b) Permanent restoration assistance. Subject to the limitations set 
out below, the Regional Director may approve assistance for the repair, 
reconstruction, or replacement but not the expansion of the following 
publicly owned or operated facilities and certain private nonprofit 
facilities.
    (1) Roads and bridges;
    (2) Drainage structures, dams, levees;
    (3) Buildings and equipment;
    (4) Utilities (gas, electricity, water, etc.); and
    (5) Park and recreational facilities.



Sec. 206.347  Requirements.

    (a) Location determination. For each disaster assistance action 
which is proposed on the Atlantic or Gulf Coasts, the Regional Director 
shall:
    (1) Review a proposed action's location to determine if the action 
is on or connected to the CBRS unit and thereby subject to these 
regulations. The appropriate Department of Interior map identifying 
units of the CBRS will be the basis of such determination. The CBRS 
units are also identified on FEMA Flood Insurance Maps (FIRM's) for the 
convenience of field personnel.
    (2) If an action is determined not to be on or connected to a unit 
of the CBRS, no further requirements of these regulations needs to be 
met, and the action may be processed under other applicable disaster 
assistance regulations.
    (3) If an action is determined to be on or connected to a unit of 
the CBRS, it is subject to the consultation and consistency requirements 
of CBRA as prescribed in Sec. Sec. 206.348 and 206.349.
    (b) Emergency disaster assistance. For each emergency disaster 
assistance action listed in Sec. 206.346(a), the Regional Director 
shall perform the required consultation. CBRA requires that FEMA consult 
with the Secretary of the Interior before taking any action on a System 
unit. The purpose of such consultation is to solicit advice on whether 
the action is or is not one which is permitted by section 6 of CBRA and 
whether the action is or is not consistent with the purposes of CBRA as 
defined in section 1 of that statute.
    (1) FEMA has conducted advance consultation with the Department of 
the Interior concerning such emergency actions. The result of the 
consultation is that the Secretary of the Interior through the 
Assistance Secretary for Fish and Wildlife and Parks has concurred that 
the emergency work listed in Sec. 206.346(a) is consistent with the 
purposes of CBRA and may be approved by FEMA without additional 
consultation.
    (2) Notification. As soon as practicable, the Regional Director will 
notify the designated Department of the Interior representative at the 
regional level of emergency projects that have been approved. Upon 
request from the Secretary of the Interior, the Associate Director, 
SLPS, or his or her designee will supply reports of all current 
emergency actions approved on CBRS units. Notification will contain the 
following information:
    (i) Identification of the unit in the CBRS;
    (ii) Description of work approved;
    (iii) Amount of Federal funding; and
    (iv) Additional measures required.
    (c) Permanent restoration assistance. For each permanent restoration 
assistance action including but not limited to those listed in Sec. 
206.346(b), the Regional Director shall meet the requirements set out 
below.

[[Page 496]]

    (1) Essential links. For the repair or replacement of publicly owned 
or operated roads, structures or facilities which are essential links in 
a larger network or system:
    (i) No facility may be expanded beyond its predisaster design.
    (ii) Consultation in accordance with Sec. 206.348 shall be 
accomplished.
    (2) Channel improvements. For the repair of existing channels, 
related structures and the disposal of dredged materials:
    (i) No channel or related structure may be repaired, reconstructed, 
or replaced unless funds were appropriated for the construction of such 
channel or structure before October 18, 1982;
    (ii) Expansion of the facility beyond its predisaster design is not 
permitted;
    (iii) Consultation in accordance with Sec. 206.348 shall be 
accomplished.
    (3) Energy facilities. For the repair of facilities necessary for 
the exploration, extraction or transportation of energy resources:
    (i) No such facility may be repaired, reconstructed or replaced 
unless such function can be carried out only in, on, or adjacent to a 
coastal water area because the use or facility requires access to the 
coastal water body;
    (ii) Consultation in accordance with Sec. 206.348 shall be 
accomplished.
    (4) Special-purpose facilities. For the repair of facilities used 
for the study, management, protection or enhancement of fish and 
wildlife resources and habitats and related recreational projects; air 
and water navigation aids and devices and access thereto; and facilities 
used for scientific research, including but not limited to aeronautical, 
atmospheric, space, geologic, marine, fish and wildlife and other 
research, development, and applications; and, nonstructural facilities 
that are designed to mimic, enhance or restore natural shoreline 
stabilization systems:
    (i) Consultation in accordance with Sec. 206.348 shall be 
accomplished;
    (ii) No such facility may be repaired, reconstructed, or replaced 
unless it is otherwise consistent with the purposes of CBRA in 
accordance with Sec. 206.349.
    (5) Other public facilities. For the repair, reconstruction, or 
replacement of publicly owned or operated roads, structures, or 
facilities that do not fall within the categories identified in 
paragraphs (c)(1), (2), (3), and (4) of this section:
    (i) No such facility may be repaired, reconstructed, or replaced 
unless it is an ``existing facility;''
    (ii) Expansion of the facility beyond its predisaster design is not 
permitted;
    (iii) Consultation in accordance with Sec. 206.348 shall be 
accomplished;
    (iv) No such facility may be repaired, reconstructed, or replaced 
unless it is otherwise consistent with the purposes of CBRA in 
accordance with Sec. 206.349.
    (6) Private nonprofit facilities. For eligible private nonprofit 
facilities as defined in these regulations and of the type described in 
paragraphs (c)(1), (2), (3), and (4) of this section:
    (i) Consultation in accordance with Sec. 206.348 shall be 
accomplished.
    (ii) No such facility may be repaired, reconstructed, or replaced 
unless it is otherwise consistent with the purposes of CBRA in 
accordance with Sec. 206.349.
    (7) Improved project. An improved project may not be approved for a 
facility in the CBRS if such grant is to be combined with other funding, 
resulting in an expansion of the facility beyond the predisaster design. 
If a facility is exempt from the expansion prohibitions of CBRA by 
virtue of falling into one of the categories identified in paragraph 
(c)(1), (2), (3), or (4) of this section, then an improved project for 
such facilities is not precluded.
    (8) Alternate project. A new or enlarged facility may not be 
constructed on a unit of the CBRS under the provisions of the Stafford 
Act unless the facility is exempt from the expansion prohibition of CBRA 
by virtue of falling into one of the categories identified in paragraph 
(c)(1), (2), (3), or (4) of this section.



Sec. 206.348  Consultation.

    As required by section 6 of the CBRA, the FEMA Regional Director 
will consult with the designated representative of the Department of the 
Interior (DOI) at the regional level before approving any action 
involving permanent restoration of a facility or structure on or 
attached to a unit of the CBRS.

[[Page 497]]

    (a) The consultation shall be by written memorandum to the DOI 
representative and shall contain the following:
    (1) Identification of the unit within the CBRS;
    (2) Description of the facility and the proposed repair or 
replacement work; including identification of the facility as an 
exception under section 6 of CBRA; and full justification of its status 
as an exception;
    (3) Amount of proposal Federal funding;
    (4) Additional mitigation measures required; and
    (5) A determination of the action's consistency with the purposes of 
CBRA, if required by these regulations, in accordance with Sec. 
206.349.
    (b) Pursuant to FEMA understanding with DOI, the DOI representative 
will provide technical information and an opinion whether or not the 
proposed action meets the criteria for a CBRA exception, and on the 
consistency of the action with the purposes of CBRA (when such 
consistency is required). DOI is expected to respond within 12 working 
days from the date of the FEMA request for consultation. If a response 
is not received within the time limit, the FEMA Regional Director shall 
contact the DOI representative to determine if the request for 
consultation was received in a timely manner. If it was not, an 
appropriate extension for response will be given. Otherwise, he or she 
may assume DOI concurrence and proceed with approval of the proposed 
action.
    (c) For those cases in which the regional DOI representative 
believes that the proposed action should not be taken and the matter 
cannot be resolved at the regional level, the FEMA Regional Director 
will submit the issue to the FEMA Assistant Associate Director for 
Disaster Assistance Programs (DAP). In coordination with the Office of 
General Counsel (OGC), consultation will be accomplished at the FEMA 
National Office with the DOI consultation officer. After this 
consultation, the Assistant Associate Director, DAP, determines whether 
or not to approve the proposed action.



Sec. 206.349  Consistency determinations.

    Section 6(a)(6) of CBRA requires that certain actions be consistent 
with the purposes of that statute if the actions are to be carried out 
on a unit of the CBRA. The purpose of CBRA, as stated in section 2(b) of 
that statute, is to minimize the loss of human life, wasteful 
expenditure of Federal revenues, and the damage to fish, wildlife, and 
other natural resources associated with the coastal barriers along with 
Atlantic and Gulf coasts. For those actions where a consistency 
determination is required, the FEMA Regional Director shall evaluate the 
action according to the following procedures, and the evaluation shall 
be included in the written request for consultation with DOI.
    (a) Impact identification. FEMA shall identify impacts of the 
following types that would result from the proposed action:
    (1) Risks to human life;
    (2) Risks of damage to the facility being repaired or replaced;
    (3) Risks of damage to other facilities;
    (4) Risks of damage to fish, wildlife, and other natural resources;
    (5) Condition of existing development served by the facility and the 
degree to which its redevelopment would be encouraged; and
    (6) Encouragement of new development.
    (b) Mitigation. FEMA shall modify actions by means of practicable 
mitigation measures to minimize adverse effects of the types listed in 
paragraph (a) of this section.
    (c) Conservation. FEMA shall identify practicable measures that can 
be incorporated into the proposed action and will conserve natural and 
wildlife resources.
    (d) Finding. For those actions required to be consistent with the 
purposes of CBRA, the above evaluation must result in a finding of 
consistency with CBRA by the Regional Director before funding may be 
approved for that action.

[[Page 498]]



Sec. Sec. 206.350-206.359  [Reserved]



                   Subpart K_Community Disaster Loans

    Source: 55 FR 2314, Jan. 23, 1990, unless otherwise noted.



Sec. 206.360  Purpose.

    This subpart provides policies and procedures for local governments 
and State and Federal officials concerning the Community Disaster Loan 
program under section 417 of the Act.



Sec. 206.361  Loan program.

    (a) General. The Associate Director, State and Local Programs and 
Support (the Associate Director) may make a Community Disaster Loan to 
any local government which has suffered a substantial loss of tax and 
other revenues as a result of a major disaster and which demonstrates a 
need for Federal financial assistance in order to perform its 
governmental functions.
    (b) Amount of loan. The amount of the loan is based upon need, not 
to exceed 25 percent of the operating budget of the local government for 
the fiscal year in which the disaster occurs, but shall not exceed $5 
million. The term fiscal year as used in this subpart means the local 
government's fiscal year.
    (c) Interest rate. The interest rate is the rate for five year 
maturities as determined by the Secretary of the Treasury in effect on 
the date that the Promissory Note is executed. This rate is from the 
monthly Treasury schedule of certified interest rates which takes into 
consideration the current average yields on outstanding marketable 
obligations of the United States, adjusted to the nearest \1/8\ percent.
    (d) Time limitation. The Associate Director may approve a loan in 
either the fiscal year in which the disaster occurred or the fiscal year 
immediately following that year. Only one loan may be approved under 
section 417(a) for any local government as the result of a single 
disaster.
    (e) Term of loan. The term of the loan is 5 years, unless otherwise 
extended by the Associate Director. The Associate Director may consider 
requests for an extensions of loans based on the local government's 
financial condition. The total term of any loan under section 417(a) 
normally may not exceed 10 years from the date the Promissory Note was 
executed. However, when extenuating circumstances exist and the 
Community Disaster Loan recipient demonstrates an inability to repay the 
loan within the initial 10 years, but agrees to repay such loan over an 
extended period of time, additional time may be provided for loan 
repayment. (See Sec. 206.367(c).)
    (f) Use of loan funds. The local government shall use the loaned 
funds to carry on existing local government functions of a municipal 
operation character or to expand such functions to meet disaster-related 
needs. The funds shall not be used to finance capital improvements nor 
the repair or restoration of damaged public facilities. Neither the loan 
nor any cancelled portion of the loans may be used as the nonFederal 
share of any Federal program, including those under the Act.
    (g) Cancellation. The Associate Director shall cancel repayment of 
all or part of a Community Disaster Loan to the extent that he/she 
determines that revenues of the local government during the 3 fiscal 
years following the disaster are insufficient to meet the operating 
budget of that local government because of disaster-related revenue 
losses and additional unreimbursed disaster-related municipal operating 
expenses.
    (h) Relation to other assistance. Any community disaster loans 
including cancellations made under this subpart shall not reduce or 
otherwise affect any commitments, grants, or other assistance under the 
Act or these regulations.

[55 FR 2314, Jan. 23, 1990, as amended at 66 FR 22445, May 4, 2001]



Sec. 206.362  Responsibilities.

    (a) The local government shall submit the financial information 
required by FEMA in the application for a Community Disaster Loan and in 
the application for loan cancellation, if submitted, and comply with the 
assurances on the application, the terms and conditions of the 
Promissory Note, and

[[Page 499]]

these regulations. The local government shall send all loan application, 
loan administration, loan cancellation, and loan settlement 
correspondence through the GAR and the FEMA Regional Office to the FEMA 
Associate Director.
    (b) The GAR shall certify on the loan application that the local 
government can legally assume the proposed indebtedness and that any 
proceeds will be used and accounted for in compliance with the FEMA-
State Agreement for the major disaster. States are encouraged to take 
appropriate pre-disaster action to resolve any existing State 
impediments which would preclude a local government from incurring the 
increased indebtedness associated with a loan in order to avoid 
protracted delays in processing loan application requests in major 
disasters or emergencies.
    (c) The Regional Director or designee shall review each loan 
application or loan cancellation request received from a local 
government to ensure that it contains the required documents and 
transmit the application to the Associate Director. He/she may submit 
appropriate recommendations to the Associate Director.
    (d) The Associate Director, or a designee, shall execute a 
Promissory Note with the local government, and the Office of Disaster 
Assistance Programs in Headquarters, FEMA, shall administer the loan 
until repayment or cancellation is completed and the Promissory Note is 
discharged.
    (e) The Associate Director or designee shall approve or disapprove 
each loan request, taking into consideration the information provided in 
the local government's request and the recommendations of the GAR and 
the Regional Director. The Associate Director or designee shall approve 
or disapprove a request for loan cancellation in accordance with the 
criteria for cancellation in these regulations.
    (f) The Comptroller shall establish and maintain a financial account 
for each outstanding loan and disburse funds against the Promissory 
Note.



Sec. 206.363  Eligibility criteria.

    (a) Local government. (1) The local government must be located 
within the area designated by the Associate Director as eligible for 
assistance under a major disaster declaration. In addition, State law 
must not prohibit the local government from incurring the indebtedness 
resulting from a Federal loan.
    (2) Criteria considered by FEMA in determining the eligibility of a 
local government for a Community Disaster Loan include the loss of tax 
and other revenues as result of a major disaster, a demonstrated need 
for financial assistance in order to perform its governmental functions, 
the maintenance of an annual operating budget, and the responsibility to 
provide essential municipal operating services to the community. 
Eligibility for other assistance under the Act does not, by itself, 
establish entitlement to such a loan.
    (b) Loan eligibility--(1) General. To be eligible, the local 
government must show that it may suffer or has suffered a substantial 
loss of tax and other revenues as a result of a major disaster or 
emergency, must demonstrate a need for financial assistance in order to 
perform its governmental functions, and must not be in arrears with 
respect to any payments due on previous loans. Loan eligibility is based 
on the financial condition of the local government and a review of 
financial information and supporting documentation accompanying the 
application.
    (2) Substantial loss of tax and other revenues. The fiscal year of 
the disaster or the succeeding fiscal year is the base period for 
determining whether a local government may suffer or has suffered a 
substantial loss of revenue. Criteria used in determining whether a 
local government has or may suffer a substantial loss of tax and other 
revenue include the following disaster-related factors:
    (i) Whether the disaster caused a large enough reduction in cash 
receipts from normal revenue sources, excluding borrowing, which affects 
significantly and adversely the level and/or categories of essential 
municipal services provided prior to the disaster;
    (ii) Whether the disaster caused a revenue loss of over 5 percent of 
total revenue estimated for the fiscal year in which the disaster 
occurred or for the succeeding fiscal year;

[[Page 500]]

    (3) Demonstrated need for financial assistance. The local government 
must demonstrate a need for financial assistance in order to perform its 
governmental functions. The criteria used in making this determination 
include the following:
    (i) Whether there are sufficient funds to meet current fiscal year 
operating requirements;
    (ii) Whether there is availability of cash or other liquid assets 
from the prior fiscal year;
    (iii) Current financial condition considering projected expenditures 
for governmental services and availability of other financial resources;
    (iv) Ability to obtain financial assistance or needed revenue from 
State and other Federal agencies for direct program expenditures;
    (v) Debt ratio (relationship of annual receipts to debt service);
    (vi) Ability to obtain financial assistance or needed revenue from 
State and other Federal agencies for direct program expenditures;
    (vii) Displacement of revenue-producing business due to property 
destruction;
    (viii) Necessity to reduce or eliminate essential municipal 
services; and
    (ix) Danger of municipal insolvency.

[55 FR 2314, Jan. 23, 1990, as amended at 66 FR 22445, May 4, 2001]



Sec. 206.364  Loan application.

    (a) Application. (1) The local government shall submit an 
application for a Community Disaster Loan through the GAR. The loan must 
be justified on the basis of need and shall be based on the actual and 
projected expenses, as a result of the disaster, for the fiscal year in 
which the disaster occurred and for the 3 succeeding fiscal years. The 
loan application shall be prepared by the affected local government and 
be approved by the GAR. FEMA has determined that a local government, in 
applying for a loan as a result of having suffered a substantial loss of 
tax and other revenue as a result of a major disaster, is not required 
to first seek credit elsewhere (see Sec. 206.367(c)).
    (2) The State exercises administrative authority over the local 
government's application. The State's review should include a 
determination that the applicant is legally qualified, under State law, 
to assume the proposed debt, and may include an overall review for 
accuracy for the submission. The Governor's Authorized Representative 
may request the Regional Director to waive the requirement for a State 
review if an otherwise eligible applicant is not subject to State 
administration authority and the State cannot legally participate in the 
loan application process.
    (b) Financial requirements. (1) The loan application shall be 
developed from financial information contained in the local government's 
annual operating budget (see Sec. 206.364(b)(2)) and shall include a 
Summary of Revenue Loss and Unreimbursed Disaster-Related Expenses, a 
Statement of the Applicant's Operating Results--Cash Position, a Debt 
History, Tax Assessment Data, Financial Projections, Other Information, 
a Certification, and the Assurances listed on the application.
    (i) Copies of the local government's financial reports (Revenue and 
Expense and Balance Sheet) for the 3 fiscal years immediately prior to 
the fiscal year of the disaster and the applicant's most recent 
financial statement must accompany the application. The local 
government's financial reports to be submitted are those annual (or 
interim) consolidated and/or individual official annual financial 
presentations for the General Fund and all other funds maintained by the 
local government.
    (ii) Each application for a Community Disaster Loan must also 
include:
    (A) A statement by the local government identifying each fund (i.e. 
General Fund, etc.) which is included as its annual Operating budget, 
and
    (B) A copy of the pertinent State statutes, ordinance, or 
regulations which prescribe the local government's system of budgeting, 
accounting and financial reporting, including a description of each fund 
account.
    (2) Operating budget. For loan application purposes, the operating 
budget is that document or documents approved by an appropriating body, 
which contains an estimate of proposed expenditures, other than capital 
outlays for fixed assets for a stated period of time, and the proposed 
means of financing

[[Page 501]]

the expenditures. For loan cancellation purposes, FEMA interprets the 
term ``operating budget'' to mean actual revenues and expenditures of 
the local government as published in the official financial statements 
of the local government.
    (3) Operating budget increases. Budget increases due to increases in 
the level of, or additions to, municipal services not rendered at the 
time of the disaster or not directly related to the disaster shall be 
identified.
    (4) Revenue and assessment information. The applicant shall provide 
information concerning its method of tax assessment including assessment 
dates and the dates payments are due. Tax revenues assessed but not 
collected, or other revenues which the local government chooses to 
forgive, stay, or otherwise not exercise the right to collect, are not a 
legitimate revenue loss for purposes of evaluating the loan application.
    (5) Estimated disaster-related expense. Unreimbursed disaster-
related expenses of a municipal operating character should be estimated. 
These are discussed in Sec. 206.366(b).
    (c) Federal review. (1) The Associate Director or designee shall 
approve a community disaster loan to the extent it is determined that 
the local government has suffered a substantial loss of tax and other 
revenues and demonstrates a need for financial assistance to perform its 
governmental function as the result of the disaster.
    (2) Resubmission of application. If a loan application is 
disapproved, in whole or in part, by the Associate Director because of 
inadequacy of information, a revised application may be resubmitted by 
the local government within sixty days of the date of the disapproval. 
Decision by the Associate Director on the resubmission is final.
    (d) Community disaster loan. (1) The loan shall not exceed the 
lesser of:
    (i) The amount of projected revenue loss plus the projected 
unreimbursed disaster-related expenses of a municipal operating 
character for the fiscal year of the major disaster and the subsequent 3 
fiscal years, or
    (ii) 25 percent of the local government's annual operating budget 
for the fiscal year in which the disaster occurred.
    (2) Promissory note. (i) Upon approval of the loan by the Associate 
Director or designee, he or she, or a designated Loan Officer will 
execute a Promissory Note with the applicant. The Note must be co-signed 
by the State (see Sec. 206.364(d)(2)(ii)). The applicant should 
indicate its funding requirements on the Schedule of Loan Increments on 
the Note.
    (ii) If the State cannot legally cosign the Promissory Note, the 
local government must pledge collateral security, acceptable to the 
Associate Director, to cover the principal amount of the Note. The 
pledge should be in the form of a resolution by the local governing body 
identifying the collateral security.

(Approved by Office of Management and Budget under Control Number 3067-
0034)



Sec. 206.365  Loan administration.

    (a) Funding. (1) FEMA will disburse funds to the local government 
when requested, generally in accordance with the Schedule of Loan 
Increments in the Promissory Note. As funds are disbursed, interest will 
accrue against each disbursement.
    (2) When each incremental disbursement is requested, the local 
government shall submit a copy of its most recent financial report (if 
not submitted previously) for consideration by FEMA in determining 
whether the level and frequency of periodic payments continue to be 
justified. The local government shall also provide the latest available 
data on anticipated and actual tax and other revenue collections. 
Desired adjustments in the disbursement schedule shall be submitted in 
writing at least 10 days prior to the proposed disbursement date in 
order to ensure timely receipt of the funds. A sinking fund should be 
established to amortize the debt.
    (b) Financial management. (1) Each local government with an approved 
Community Disaster Loan shall establish necessary accounting records, 
consistent with local government's financial management system, to 
account for loan funds received and disbursed and to provide an audit 
trail.

[[Page 502]]

    (2) FEMA auditors, State auditors, the GAR, the Regional Director, 
the Associate Director, and the Comptroller General of the United States 
or their duly authorized representatives shall, for the purpose of 
audits and examination, have access to any books, documents, papers, and 
records that pertain to Federal funds, equipments, and supplies received 
under these regulations.
    (c) Loan servicing. (1) The applicant annually shall submit to FEMA 
copies of its annual financial reports (operating statements, balance 
sheets, etc.) for the fiscal year of the major disaster, and for each of 
the 3 subsequent fiscal years.
    (2) The Headquarters, FEMA Office of Disaster Assistance Programs, 
will review the loan periodically. The purpose of the reevaluation is to 
determine whether projected revenue losses, disaster-related expenses, 
operating budgets, and other factors have changed sufficiently to 
warrant adjustment of the scheduled disbursement of the loan proceeds.
    (3) The Headquarters, FEMA Office of Disaster Assistance Programs, 
shall provide each loan recipient with a loan status report on a 
quarterly basis. The recipient will notify FEMA of any changes of the 
responsible municipal official who executed the Promissory Note.
    (d) Inactive loans. If no funds have been disbursed from the 
Treasury, and if the local government does not anticipate a need for 
such funds, the note may be cancelled at any time upon a written request 
through the State and Regional Office to FEMA. However, since only one 
loan may be approved, cancellation precludes submission of a second loan 
application request by the same local government for the same disaster.



Sec. 206.366  Loan cancellation.

    (a) Policies. (1) FEMA shall cancel repayment of all or part of a 
Community Disaster Loan to the extent that the Associate Director 
determines that revenues of the local government during the full three 
fiscal year period following the disaster are insufficient, as a result 
of the disaster, to meet the operating budget for the local government, 
including additional unreimbursed disaster-related expenses for a 
municipal operating character. For loan cancellation purposes, FEMA 
interprets that term operating budget to mean actual revenues and 
expenditures of the local government as published in the official 
financial statements of the local government.
    (2) If the tax and other revenues rates or the tax assessment 
valuation of property which was not damaged or destroyed by the disaster 
are reduced during the 3 fiscal years subsequent to the major disaster, 
the tax and other revenue rates and tax assessment valuation factors 
applicable to such property in effect at the time of the major disaster 
shall be used without reduction for purposes of computing revenues 
received. This may result in decreasing the potential for loan 
cancellations.
    (3) If the local government's fiscal year is changed during the 
``full 3 year period following the disaster'' the actual period will be 
modified so that the required financial data submitted covers an 
inclusive 36-month period.
    (4) If the local government transfers funds from its operating funds 
accounts to its capital funds account, utilizes operating funds for 
other than routine maintenance purposes, or significantly increases 
expenditures which are not disaster related, except increases due to 
inflation, the annual operating budget or operating statement 
expenditures will be reduced accordingly for purposes of evaluating any 
request for loan cancellation.
    (5) It is not the purpose of this loan program to underwrite 
predisaster budget or actual deficits of the local government. 
Consequently, such deficits carried forward will reduce any amounts 
otherwise eligible for loan cancellation.
    (b) Disaster-related expenses of a municipal operation character. 
(1) For purpose of this loan, unreimbursed expenses of a municipal 
operating character are those incurred for general government purposes, 
such as police and fire protection, trash collection, collection of 
revenues, maintenance of public facilities, flood and other hazard 
insurance, and other expenses normally

[[Page 503]]

budgeted for the general fund, as defined by the Municipal Finance 
Officers Association.
    (2) Disaster-related expenses do not include expenditures associated 
with debt service, any major repairs, rebuilding, replacement or 
reconstruction of public facilities or other capital projects, 
intragovernmental services, special assessments, and trust and agency 
fund operations. Disaster expenses which are eligible for reimbursement 
under project applications or other Federal programs are not eligible 
for loan cancellation.
    (3) Each applicant shall maintain records including documentation 
necessary to identify expenditures for unreimbursed disaster-related 
expenses. Examples of such expenses include but are not limited to:
    (i) Interest paid on money borrowed to pay amounts FEMA does not 
advance toward completion of approved Project Applications.
    (ii) Unreimbursed costs to local governments for providing usable 
sites with utilities for mobile homes used to meet disaster temporary 
housing requirements.
    (iii) Unreimbursed costs required for police and fire protection and 
other community services for mobile home parks established as the result 
of or for use following a disaster.
    (iv) The cost to the applicant of flood insurance required under 
Public Law 93-234, as amended, and other hazard insurance required under 
section 311, Public Law 93-288, as amended, as a condition of Federal 
disaster assistance for the disaster under which the loan is authorized.
    (4) The following expenses are not considered to be disaster-related 
for Community Disaster Loan purposes:
    (i) The local government's share for assistance provided under the 
Act including flexible funding under section 406(c)(1) of the Act.
    (ii) Improvements related to the repair or restoration of disaster 
public facilities approved on Project Applications.
    (iii) Otherwise eligible costs for which no Federal reimbursement is 
requested as a part of the applicant's disaster response commitment, or 
cost sharing as specified in the FEMA-State Agreement for the disaster.
    (iv) Expenses incurred by the local government which are reimbursed 
on the applicant's project application.
    (c) Cancellation application. A local government which has drawn 
loan funds from the Treasury may request cancellation of the principal 
and related interest by submitting an Application for Loan Cancellation 
through the Governor's Authorized Representative to the Regional 
Director prior to the expiration date of the loan.
    (1) Financial information submitted with the application shall 
include the following:
    (i) Annual Operating Budgets for the fiscal year of the disaster and 
the 3 subsequent fiscal years;
    (ii) Annual Financial Reports (Revenue and Expense and Balance 
Sheet) for each of the above fiscal years. Such financial records must 
include copies of the local government's annual financial reports, 
including operating statements balance sheets and related consolidated 
and individual presentations for each fund account. In addition, the 
local government must include an explanatory statement when figures in 
the Application for Loan Cancellation form differ from those in the 
supporting financial reports.
    (iii) The following additional information concerning annual real 
estate property taxes pertaining to the community for each of the above 
fiscal years:
    (A) The market value of the tax base (dollars);
    (B) The assessment ratio (percent);
    (C) The assessed valuation (dollars);
    (D) The tax levy rate (mils);
    (E) Taxes levied and collected (dollars).
    (iv) Audit reports for each of the above fiscal years certifying to 
the validity of the Operating Statements. The financial statements of 
the local government shall be examined in accordance with generally 
accepted auditing standards by independent certified public accountants. 
The report should not include recommendations concerning loan 
cancellation or repayment.

[[Page 504]]

    (v) Other financial information specified in the Application for 
Loan Cancellation.
    (2) Narrative justification. The application may include a narrative 
presentation to amplify the financial material accompanying the 
application and to present any extenuating circumstances which the local 
government wants the Associate Director to consider in rendering a 
decision on the cancellation request.
    (d) Determination. (1) If, based on a review of the Application for 
Loan Cancellation and FEMA audit, when determined necessary, the 
Associate Director determines that all or part of the Community Disaster 
Loan funds should be canceled, the principal amount which is canceled 
will become a grant, and the related interest will be forgiven. The 
Associate Director's determination concerning loan cancellation will 
specify that any uncancelled principal and related interest must be 
repaid immediately and that, if immediate repayment will constitute a 
financial hardship, the local government must submit for FEMA review and 
approval, a repayment schedule for settling the indebtedness on timely 
basis. Such repayments must be made to the Treasurer of the United 
States and be sent to FEMA, Attention: Office of the Comptroller.
    (2) A loan or cancellation of a loan does not reduce or affect other 
disaster-related grants or other disaster assistance. However, no 
cancellation may be made that would result in a duplication of benefits 
to the applicant.
    (3) The uncancelled portion of the loan must be repaid in accordance 
with Sec. 206.367.
    (4) Appeals. If an Application for Loan Cancellation is disapproved, 
in whole or in part, by the Associate Director or designee, the local 
government may submit any additional information in support of the 
application within 60 days of the date of disapproval. The decision by 
the Associate Director or designee on the submission is final.

(Approved by the Office of Management and Budget under Control Number 
3067-0026)



Sec. 206.367  Loan repayment.

    (a) Prepayments. The local government may make prepayments against 
loan at any time without any prepayment penalty.
    (b) Repayment. To the extent not otherwise cancelled, Community 
Disaster Loan funds become du and payable in accordance with the terms 
and conditions of the Promissory Note. The note shall include the 
following provisions:
    (1) The term of a loan made under this program is 5 years, unless 
extended by the Associate Director. Interest will accrue on outstanding 
cash from the actual date of its disbursement by the Treasury.
    (2) The interest amount due will be computed separately for each 
Treasury disbursement as follows: I=PxRxT, where I=the amount of simple 
interest, P=the principal amount disbursed; R=the interest rate of the 
loan; and, T=the outstanding term in years from the date of disbursement 
to date of repayment, with periods less than 1 year computed on the 
basis of 365 days/year. If any portion of the loan is cancelled, the 
interest amount due will be computed on the remaining principal with the 
shortest outstanding term.
    (3) Each payment made against the loan will be applied first to the 
interest computed to the date of the payment, and then to the principal. 
Prepayments of scheduled installments, or any portion thereof, may be 
made at any time and shall be applied to the installments last to become 
due under the loan and shall not affect the obligation of the borrower 
to pay the remaining installments.
    (4) The Associate Director may defer payments of principal and 
interest until FEMA makes its final determination with respect to any 
Application for Loan Cancellation which the borrower may submit. 
However, interest will continue to accrue.
    (5) Any costs incurred by the Federal Government in collecting the 
note shall be added to the unpaid balance of the loan, bear interest at 
the same rate as the loan, and be immediately due without demand.
    (6) In the event of default on this note by the borrower, the FEMA

[[Page 505]]

claims collection officer will take action to recover the outstanding 
principal plus related interest under Federal debt collection 
authorities, including administrative offset against other Federal funds 
due the borrower and/or referral to the Department of Justice for 
judicial enforcement and collection.
    (c) Additional time. In unusual circumstances involving financial 
hardship, the local government may request an additional period of time 
beyond the original 10 year term to repay the indebtedness. Such request 
may be approved by the Associate Director subject to the following 
conditions:
    (1) The local government must submit documented evidence that it has 
applied for the same credit elsewhere and that such credit is not 
available at a rate equivalent to the current Treasury rate.
    (2) The principal amount shall be the original uncancelled principal 
plus related interest.
    (3) The interest rate shall be the Treasury rate in effect at the 
time the new Promissory Note is executed but in no case less than the 
original interest rate.
    (4) The term of the new Promissory Note shall be for the settlement 
period requested by the local government but not greater than 10 years 
from the date the new note is executed.



Sec. Sec. 206.368-206.389  [Reserved]



                  Subpart L_Fire Suppression Assistance

    Source: 55 FR 2318, Jan. 23, 1990, unless otherwise noted.



Sec. 206.390  General.

    When the Associate Director determines that a fire or fires threaten 
such destruction as would constitute a major disaster, assistance may be 
authorized, including grants, equipment, supplies, and personnel, to any 
State for the suppression of any fire on publicly or privately owned 
forest or grassland.



Sec. 206.391  FEMA-State Agreement.

    Federal assistance under section 420 of the Act is provided in 
accordance with a continuing FEMA-State Agreement for Fire Suppression 
Assistance (the Agreement) signed by the Governor and the Regional 
Director. The Agreement contains the necessary terms and conditions, 
consistent with the provisions of applicable laws, Executive Orders, and 
regulations, as the Associate Director may require and specifies the 
type and extent of Federal assistance. The Governor may designate 
authorized representatives to execute requests and certifications and 
otherwise act for the State during fire emergencies. Supplemental 
agreements shall be executed as required to update the continuing 
Agreement.



Sec. 206.392  Request for assistance.

    When a Governor determines that fire suppression assistance is 
warranted, a request for assistance may be initiated. Such request shall 
specify in detail the factors supporting the request for assistance. In 
order that all actions in processing a State request are executed as 
rapidly as possible, the State may submit a telephone request to the 
Regional Director, promptly followed by a confirming telegram or letter.

(Approved by the Office of Management and Budget under the control 
number 3067-0066)



Sec. 206.393  Providing assistance.

    Following the Associate Director's decision on the State request, 
the Regional Director will notify the Governor and the Federal 
firefighting agency involved. The Regional Director may request 
assistance from Federal agencies if requested by the State. For each 
fire or fire situation, the State shall prepare a separate Fire Project 
Application based on Federal Damage Survey Reports and submit it to the 
Regional Director for approval.



Sec. 206.394  Cost eligibility.

    (a) Cost principles. See 44 CFR 13.22, Allowable Costs, and the 
associated OMB Circular A-87, Cost Principles for State and Local 
Governments.
    (b) Program specific eligible costs. (1) Expenses to provide field 
camps and meals when made available to the eligible employees in lieu of 
per diem costs.

[[Page 506]]

    (2) Costs for use of publicly owned equipment used on eligible fire 
suppression work based on reasonable State equipment rates.
    (3) Costs to the State for use of U.S. Government-owned equipment 
based on reasonable costs as billed by the Federal agency and paid by 
the State. Only direct costs for use of Federal Excess Personal Property 
(FEPP) vehicles and equipment on loan to State Forestry and local 
cooperators, can be paid.
    (4) Cost of firefighting tools, materials, and supplies expended or 
lost, to the extent not covered by reasonable insurance.
    (5) Replacement value of equipment lost in fire suppression, to the 
extent not covered by reasonable insurance.
    (6) Costs for personal comfort and safety items normally provided by 
the State under field conditions for firefighter health and safety.
    (7) Mobilization and demobilization costs directly relating to the 
Federal fire suppression assistance approved by the Associate Director.
    (8) Eligible costs of local governmental firefighting organizations 
which are reimbursed by the State pursuant to an existing cooperative 
mutual aid agreement, in suppressing an approved incident fire.
    (9) State costs for suppressing fires on Federal land in cases in 
which the State has a responsibility under a cooperative agreement to 
perform such action on a nonreimbursable basis. This provision is an 
exception to normal FEMA policy under the Act and is intended to 
accommodate only those rare instances that involve State fire 
suppression of section 420 incident fires involving co-mingled Federal/
State and privately owned forest or grassland.
    (10) In those instances in which assistance under section 420 of the 
Act is provided in conjunction with existing Interstate Forest Fire 
Protection Compacts, eligible costs are reimbursed in accordance with 
eligibility criteria established in this section.
    (c) Program specific ineligible costs. (1) Any costs for 
presuppression, salvaging timber, restoring facilities, seeding and 
planting operations.
    (2) Any costs not incurred during the incident period as determined 
by the Regional Director other than reasonable and directly related 
mobilization and demobilization costs.
    (3) State costs for suppressing a fire on co-mingled Federal land 
where such costs are reimbursable to the State by a Federal agency under 
another statute (see 44 CFR part 151).



Sec. 206.395  Grant administration.

    (a) Project administration shall be in accordance with 44 CFR part 
13, and applicable portions of subpart G, 44 CFR part 206.
    (b) In those instances in which reimbursement includes State fire 
suppression assistance on co-mingled State and Federal lands (Sec. 
206.394(b)(9)), the Regional Director shall coordinate with other 
Federal programs to preclude any duplication of payments. (See 44 CFR 
part 151.)
    (c) Audits shall be in accordance with the Single Audit Act of 1984, 
Pub. L. 98-502. (See subpart G of this part.)
    (d) A State may appeal a determination by the Regional Director on 
any action related to Federal assistance for fire suppression. Appeal 
procedures are contained in 44 CFR 206.206.



Sec. Sec. 206.396-206.399  [Reserved]



                       Subpart M_Minimum Standards

    Source: 67 FR 8852, Feb. 26, 2002, unless otherwise noted.



Sec. 206.400  General.

    (a) As a condition of the receipt of any disaster assistance under 
the Stafford Act, the applicant shall carry out any repair or 
construction to be financed with the disaster assistance in accordance 
with applicable standards of safety, decency, and sanitation and in 
conformity with applicable codes, specifications and standards.
    (b) Applicable codes, specifications, and standards shall include 
any disaster resistant building code that meets the minimum requirements 
of the National Flood Insurance Program (NFIP) as well as being 
substantially equivalent to the recommended provisions of the National 
Earthquake Hazards Reduction Program (NEHRP). In addition, the applicant 
shall comply

[[Page 507]]

with any requirements necessary in regards to Executive Order 11988, 
Floodplain Management, Executive Order 12699, Seismic Safety of Federal 
and Federally Assisted or Regulated New Building Construction, and any 
other applicable Executive orders.
    (c) In situations where there are no locally applicable standards of 
safety, decency and sanitation, or where there are no applicable local 
codes, specifications and standards governing repair or construction 
activities, or where the Regional Director determines that otherwise 
applicable codes, specifications, and standards are inadequate, then the 
Regional Director may, after consultation with appropriate State and 
local officials, require the use of nationally applicable codes, 
specifications, and standards, as well as safe land use and construction 
practices in the course of repair or construction activities.
    (d) The mitigation planning process that is mandated by section 322 
of the Stafford Act and 44 CFR part 201 can assist State and local 
governments in determining where codes, specifications, and standards 
are inadequate, and may need to be upgraded.



Sec. 206.401  Local standards.

    The cost of repairing or constructing a facility in conformity with 
minimum codes, specifications and standards may be eligible for 
reimbursement under section 406 of the Stafford Act, as long as such 
codes, specifications and standards meet the criteria that are listed at 
44 CFR 206.226(b).



Sec. 206.402  Compliance.

    A recipient of disaster assistance under the Stafford Act must 
document for the Regional Director its compliance with this subpart 
following the completion of any repair or construction activities.



                Subpart N_Hazard Mitigation Grant Program

    Source: 55 FR 35537, Aug. 30, 1990, unless otherwise noted.



Sec. 206.430  General.

    This subpart provides guidance on the administration of hazard 
mitigation grants made under the provisions of section 404 of the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 
5170c, hereafter Stafford Act, or the Act.

[59 FR 24356, May 11, 1994]



Sec. 206.431  Definitions.

    Activity means any mitigation measure, project, or action proposed 
to reduce risk of future damage, hardship, loss or suffering from 
disasters.
    Applicant means a State agency, local government, Indian tribal 
government, or eligible private nonprofit organization, submitting an 
application to the grantee for assistance under the HMGP.
    Enhanced State Mitigation Plan is the hazard mitigation plan 
approved under 44 CFR part 201 as a condition of receiving increased 
funding under the HMGP.
    Grant application means the request to FEMA for HMGP funding, as 
outlined in Sec. 206.436, by a State or tribal government that will act 
as grantee.
    Grant award means total of Federal and non-Federal contributions to 
complete the approved scope of work.
    Grantee means the government to which a grant is awarded 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. Generally, the State is the 
grantee. However, an Indian tribal government may choose to be a 
grantee, or it may act as a subgrantee under the State. An Indian tribal 
government acting as a grantee will assume the responsibilities of a 
``state'', under this subpart, for the purposes of administering the 
grant.
    Indian tribal government means any Federally recognized governing 
body of an Indian or Alaska Native tribe, band, nation, pueblo, village, 
or community that the Secretary of Interior acknowledges to exist as an 
Indian tribe under the Federally Recognized Tribe List Act of 1994, 25 
U.S.C. 479a. This does not include Alaska Native corporations, the 
ownership of which is vested in private individuals.
    Local Mitigation Plan is the hazard mitigation plan required of a 
local or

[[Page 508]]

Indian tribal government acting as a subgrantee as a condition of 
receiving a project subgrant under the HMGP as outlined in 44 CFR 201.6.
    Standard State Mitigation Plan is the hazard mitigation plan 
approved under 44 CFR part 201, as a condition of receiving Stafford Act 
assistance as outlined in Sec. 201.4.
    State Administrative Plan for the Hazard Mitigation Grant Program 
means the plan developed by the State to describe the procedures for 
administration of the HMGP.
    Subgrant means an award of financial assistance under a grant by a 
grantee to an eligible subgrantee.
    Subgrant application means the request to the grantee for HMGP 
funding by the eligible subgrantee, as outlined in Sec. 206.436.
    Subgrantee means the 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. Subgrantees can be a State agency, local 
government, private non-profit organizations, or Indian tribal 
government as outlined in Sec. 206.433. Indian tribal governments 
acting as a subgrantee are accountable to the State grantee.

[67 FR 8852, Feb. 26, 2002]



Sec. 206.432  Federal grant assistance.

    (a) General. This section describes the extent of Federal funding 
available under the State's grant, as well as limitations and special 
procedures applicable to each.
    (b) Amounts of assistance. The total of Federal assistance under 
this subpart shall not exceed either 7\1/2\ or 20 percent of the total 
estimated Federal assistance (excluding administrative costs) provided 
for a major disaster under 42 U.S.C. 5170b, 5172, 5173, 5174, 5177, 
5178, 5183, and 5201 as follows:
    (1) Seven and one-half (7\1/2\) percent. Effective November 1, 2004, 
a State with an approved Standard State Mitigation Plan, which meets the 
requirements outlined in 44 CFR 201.4, shall be eligible for assistance 
under the HMGP not to exceed 7\1/2\ percent of the total estimated 
Federal assistance described in this paragraph. Until that date, 
existing FEMA approved State Mitigation Plans will be accepted. States 
may request an extension to the deadline of up to six months to the 
Director of FEMA by providing written justification in accordance with 
44 CFR 201.4(a)(2).
    (2) Twenty (20) percent. A State with an approved Enhanced State 
Mitigation Plan, in effect prior to the disaster declaration, which 
meets the requirements outlined in 44 CFR 201.5 shall be eligible for 
assistance under the HMGP not to exceed 20 percent of the total 
estimated Federal assistance described in this paragraph.
    (3) The estimates of Federal assistance under this paragraph (b) 
shall be based on the Regional Director's estimate of all eligible 
costs, actual grants, and appropriate mission assignments.
    (c) Cost sharing. All mitigation measures approved under the State's 
grant will be subject to the cost sharing provisions established in the 
FEMA-State Agreement. FEMA may contribute up to 75 percent of the cost 
of measures approved for funding under the Hazard Mitigation Grant 
Program for major disasters declared on or after June 10, 1993. FEMA may 
contribute up to 50 percent of the cost of measures approved for funding 
under the Hazard Mitigation Grant Program for major disasters declared 
before June 10, 1993. The nonFederal share may exceed the Federal share. 
FEMA will not contribute to costs above the Federally approved estimate.

[55 FR 35537, Aug. 30, 1990, as amended at 59 FR 24356, May 11, 1994; 67 
FR 8853, Feb. 26, 2002; 67 FR 61515, Oct. 1, 2002; 69 FR 55097, Sept. 
13, 2004]



Sec. 206.433  State responsibilities.

    (a) Grantee. The State will be the Grantee to which funds are 
awarded and will be accountable for the use of those funds. There may be 
subgrantees within the State government.
    (b) Priorities. The State will determine priorities for funding. 
This determination must be made in conformance with Sec. 206.435.
    (c) Hazard Mitigation Officer. The State must appoint a Hazard 
Mitigation Officer, as required under 44 CFR part 206 subpart M, who 
serves as the responsible individual for all matters

[[Page 509]]

related to the Hazard Mitigation Grant Program.
    (d) Administrative plan. The State must have an approved 
administrative plan for the Hazard Mitigation Grant Program in 
conformance with Sec. 206.437.



Sec. 206.434  Eligibility.

    (a) Applicants. The following are eligible to apply for the Hazard 
Mitigation Program Grant:
    (1) State and local governments;
    (2) Private non-profit organizations or institutions that own or 
operate a private non-profit facility as defined in Sec. 206.221(e);
    (3) Indian tribes or authorized tribal organizations and Alaska 
Native villages or organizations, but not Alaska native corporations 
with ownership vested in private individuals.
    (b) Plan requirement.
    (1) For all disasters declared on or after November 1, 2004, local 
and Indian tribal government applicants for project subgrants must have 
an approved local mitigation plan in accordance with 44 CFR 201.6 prior 
to receipt of HMGP subgrant funding for projects. Until November 1, 
2004, local mitigation plans may be developed concurrent with the 
implementation of subgrants.
    (2) Regional Directors may grant an exception to this requirement in 
extraordinary circumstances, such as in a small and impoverished 
community when justification is provided. In these cases, a plan will be 
completed within 12 months of the award of the project grant. If a plan 
is not provided within this timeframe, the project grant will be 
terminated, and any costs incurred after notice of grant's termination 
will not be reimbursed by FEMA.
    (c) Minimum project criteria. To be eligible for the Hazard 
Mitigation Grant Program, a project must:
    (1) Be in conformance with the State Mitigation Plan and Local 
Mitigation Plan approved under 44 CFR part 201;
    (2) Have a beneficial impact upon the designated disaster area, 
whether or not located in the designated area;
    (3) Be in conformance with 44 CFR part 9, Floodplain Management and 
Protection of Wetlands, and 44 CFR part 10, Environmental 
Considerations;
    (4) Solve a problem independently or constitute a functional portion 
of a solution where there is assurance that the project as a whole will 
be completed. Projects that merely identify or analyze hazards or 
problems are not eligible;
    (5) Be cost-effective and substantially reduce the risk of future 
damage, hardship, loss, or suffering resulting from a major disaster. 
The grantee must demonstrate this by documenting that the project;
    (i) Addresses a problem that has been repetitive, or a problem that 
poses a significant risk to public health and safety if left unsolved,
    (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. Both costs and benefits will be computed 
on a net present value basis,
    (iii) Has been determined to be the most practical, effective, and 
environmentally sound alternative after consideration of a range of 
options,
    (iv) Contributes, to the extent practicable, to a long-term solution 
to the problem it is intended to address,
    (v) Considers long-term changes to the areas and entities it 
protects, and has manageable future maintenance and modification 
requirements.
    (d) Eligible activities--(1) Planning. Up to 7% of the State's HMGP 
grant may be used to develop State, tribal and/or local mitigation plans 
to meet the planning criteria outlined in 44 CFR part 201.
    (2) Types of projects. Projects may be of any nature that will 
result in protection to public or private property. Eligible projects 
include, but are not limited to:
    (i) Structural hazard control or protection projects;
    (ii) Construction activities that will result in protection from 
hazards;
    (iii) Retrofitting of facilities;
    (iv) Property acquisition or relocation, as defined in paragraph (e) 
of this section;
    (v) Development of State or local mitigation standards;
    (vi) Development of comprehensive mitigation programs with 
implementation as an essential component;

[[Page 510]]

    (vii) Development or improvement of warning systems.
    (e) Property acquisition and relocation requirements. A project 
involving property acquisition or the relocation of structures and 
individuals is eligible for assistance only if the applicant enters an 
agreement with the FEMA Regional Director that provides assurances that:
    (1) The following restrictive covenants shall be conveyed in the 
deed to any property acquired, accepted, or from which structures are 
removed (hereafter called in section (d) the property):
    (i) The property shall be dedicated and maintained in perpetuity for 
uses compatible with open space, recreational, or wetlands management 
practices; and
    (ii) No new structure(s) will be built on the property except as 
indicated below:
    (A) A public facility that is open on all sides and functionally 
related to a designated open space or recreational use;
    (B) A rest room; or
    (C) A structure that is compatible with open space, recreational, or 
wetlands management usage and proper floodplain management policies and 
practices, which the Director approves in writing before the 
construction of the structure begins.
    (iii) After completion of the project, no application for additional 
disaster assistance will be made for any purpose with respect to the 
property to any Federal entity or source, and no Federal entity or 
source will provide such assistance.
    (2) In general, allowable open space, recreational, and wetland 
management uses include parks for outdoor recreational activities, 
nature reserves, cultivation, grazing, camping (except where adequate 
warning time is not available to allow evacuation), temporary storage in 
the open of wheeled vehicles which are easily movable (except mobile 
homes), unimproved, previous parking lots, and buffer zones.
    (3) Any structures built on the property according to paragraph 
(d)(1) of this section, shall be floodproofed or elevated to the Base 
Flood Elevation plus one foot of freeboard.
    (f) Inapplicability of the Uniform Relocation Act. The Uniform 
Relocation Assistance and Real Property Acquisition Policies Act of 1970 
does not apply to real property acquisition projects which meet the 
criteria identified below:
    (1) The project provides for the purchase of property damaged by the 
major, widespread flooding in the States of Illinois, Iowa, Kansas, 
Minnesota, Missouri, Nebraska, North Dakota, South Dakota, and Wisconsin 
during 1993;
    (2) It provides for such purchase solely as a result of such 
flooding;
    (3) It is carried out by or through a State or unit of general local 
government;
    (4) The purchasing agency (grantee or subgrantee) notifies all 
potential property owners in writing that it will not use its power of 
eminent domain to acquire the properties if a voluntary agreement is not 
reached;
    (5) The project is being assisted with amounts made available for:
    (i) Disaster relief by the Federal Emergency Management Agency; or
    (ii) By other Federal financial assistance programs.
    (g) Duplication of programs. Section 404 funds cannot be used as a 
substitute or replacement to fund projects or programs that are 
available under other Federal authorities, except under limited 
circumstances in which there are extraordinary threats to lives, public 
health or safety or improved property.
    (h) Packaging of programs. Section 404 funds may be packaged or used 
in combination with other Federal, State, local, or private funding 
sources when appropriate to develop a comprehensive mitigation solution, 
though section 404 funds cannot be used as a match for other Federal 
funds.

[55 FR 35537, Aug. 30, 1990, as amended at 59 FR 24356, May 11, 1994; 67 
FR 8853, Feb. 26, 2002; 67 FR 61515, Oct. 1, 2002; 69 FR 55097, Sept. 
13, 2004]



Sec. 206.435  Project identification and selection criteria.

    (a) Identification. It is the State's responsibility to identify and 
select eligible hazard mitigation projects. All funded projects must be 
consistent with the State Mitigation Plan. Hazard

[[Page 511]]

Mitigation projects shall be identified and prioritized through the 
State, Indian tribal, and local planning process.
    (b) Selection. The State will establish procedures and priorities 
for the selection of mitigation measures. At a minimum, the criteria 
must be consistent with the criteria stated in Sec. 206.434(c) and 
include:
    (1) Measures that best fit within an overall plan for development 
and/or hazard mitigation in the community, disaster area, or State;
    (2) Measures that, if not taken, will have a severe detrimental 
impact on the applicant, such as potential loss of life, loss of 
essential services, damage to critical facilities, or economic hardship 
on the community;
    (3) Measures that have the greatest potential impact on reducing 
future disaster losses;
    (c) Other considerations. In addition to the selection criteria 
noted above, consideration should be given to measures that are designed 
to accomplish multiple objectives including damage reduction, 
environmental enhancement, and economic recovery, when appropriate.

[55 FR 35537, Aug. 30, 1990, as amended at 66 FR 8853, Feb. 26, 2002; 68 
FR 63738, Nov. 10, 2003]



Sec. 206.436  Application procedures.

    (a) General. This section describes the procedures to be used by the 
grantee in submitting an application for HMGP funding. Under the HMGP, 
the State or Indian tribal government is the grantee and is responsible 
for processing subgrants to applicants in accordance with 44 CFR part 13 
and this part 206. Subgrantees are accountable to the grantee.
    (b) Governor's Authorized Representative. The Governor's Authorized 
Representative serves as the grant administrator for all funds provided 
under the Hazard Mitigation Grant Program. The Governor's Authorized 
Representative's responsibilities as they pertain to procedures outlined 
in this section include providing technical advice and assistance to 
eligible subgrantees, and ensuring that all potential applicants are 
aware of assistance available and submission of those documents 
necessary for grant award.
    (c) Hazard mitigation application. Upon identification of mitigation 
measures, the State (Governor's Authorized Representative) will submit 
its Hazard Mitigation Grant Program application to the FEMA Regional 
Director. The application will identify one or more mitigation measures 
for which funding is requested. The application must include a Standard 
Form (SF) 424, Application for Federal Assistance, SF 424D, Assurances 
for Construction Programs, if appropriate, and an narrative statement. 
The narrative statement will contain any pertinent project management 
information not included in the State's administrative plan for Hazard 
Mitigation. The narrative statement will also serve to identify the 
specific mitigation measures for which funding is requested. Information 
required for each mitigation measure shall include the following:
    (1) Name of the subgrantee, if any;
    (2) State or local contact for the measure;
    (3) Location of the project;
    (4) Description of the measure;
    (5) Cost estimate for the measure;
    (6) Analysis of the measure's cost-effectiveness and substantial 
risk reduction, consistent with Sec. 206.434(c);
    (7) Work schedule;
    (8) Justification for selection;
    (9) Alternatives considered;
    (10) Environmental information consistent with 44 CFR part 9, 
Floodplain Management and Protection of Wetlands, and 44 CFR part 10, 
Environmental Considerations.
    (d) Application submission time limit. The State's application may 
be amended as the State identifies and selects local project 
applications to be funded. The State must submit all local HMGP 
applications and funding requests for the purpose of identifying new 
projects to the Regional Director within 12 months of the date of 
disaster declaration.
    (e) Extensions. The State may request the Regional Director to 
extend the application time limit by 30 to 90 day increments, not to 
exceed a total of 180 days. The grantee must include a justification in 
its request.
    (f) FEMA approval. The application and supplement(s) will be 
submitted to

[[Page 512]]

the FEMA Regional Director for approval. FEMA has final approval 
authority for funding of all projects.
    (g) Indian tribal grantees. Indian tribal governments may submit a 
SF 424 directly to the Regional Director.

[67 FR 8853, Feb. 26, 2002]



Sec. 206.437  State administrative plan.

    (a) General. The State shall develop a plan for the administration 
of the Hazard Mitigation Grant Program.
    (b) Minimum criteria. At a minimum, the State administrative plan 
must include the items listed below:
    (1) Designation of the State agency will have responsibility for 
program administration;
    (2) Identification of the State Hazard Mitigation Officer 
responsible for all matters related to the Hazard Mitigation Grant 
Program.
    (3) Determination of staffing requirements and sources of staff 
necessary for administration of the program;
    (4) Establishment of procedures to:
    (i) Identify and notify potential applicants (subgrantees) of the 
availability of the program;
    (ii) Ensure that potential applicants are provided information on 
the application process, program eligibility and key deadlines;
    (iii) Determine applicant eligibility;
    (iv) Conduct environmental and floodplain management reviews;
    (v) Establish priorities for selection of mitigation projects;
    (vi) Process requests for advances of funds and reimbursement;
    (vii) Monitor and evaluate the progress and completion of the 
selected projects;
    (viii) Review and approve cost overruns;
    (ix) Process appeals;
    (x) Provide technical assistance as required to subgrantee(s);
    (xi) Comply with the administrative requirements of 44 CFR parts 13 
and 206;
    (xii) Comply with audit requirements of 44 CFR part 14;
    (xiii) Provide quarterly progress reports to the Regional Director 
on approved projects.
    (c) Format. The administrative plan is intended to be a brief but 
substantive plan documenting the State's process for the administration 
of the Hazard Mitigation Grant Program and management of the section 404 
funds. This administrative plan should become a part of the State's 
overall emergency response or operations plan as a separate annex or 
chapter.
    (d) Approval. The State must submit the administrative plan to the 
Regional Director for approval. Following each major disaster 
declaration, the State shall prepare any updates, amendments, or plan 
revisions required to meet current policy guidance or changes in the 
administration of the Hazard Mitigation Grant Program. Funds shall not 
be awarded until the State administrative plan is approved by the FEMA 
Regional Director.

(Approved by the Office of Management and Budget under OMB control 
number 3067-0208)

[55 FR 35537, Aug. 30, 1990, as amended at 55 FR 52172, Dec. 20, 1990]



Sec. 206.438  Project management.

    (a) General. The State serving as grantee has primary responsibility 
for project management and accountability of funds as indicated in 44 
CFR part 13. The State is responsible for ensuring that subgrantees meet 
all program and administrative requirements.
    (b) Cost overruns. During the execution of work on an approved 
mitigation measure the Governor's Authorized Representative may find 
that actual project costs are exceeding the approved estimates. Cost 
overruns which can be met without additional Federal funds, or which can 
be met by offsetting cost underruns on other projects, need not be 
submitted to the Regional Director for approval, so long as the full 
scope of work on all affected projects can still be met. For cost 
overruns which exceed Federal obligated funds and which require 
additional Federal funds, the Governor's Authorized Representative shall 
evaluate each cost overrun and shall submit a request with a 
recommendation to the Regional Director for a determination. The 
applicant's justification for additional costs and other pertinent 
material shall accompany the request. The Regional Director shall notify 
the Governor's Authorized Representative in

[[Page 513]]

writing of the determination and process a supplement, if necessary. All 
requests that are not justified shall be denied by the Governor's 
Authorized Representative. In no case will the total amount obligated to 
the State exceed the funding limits set forth in Sec. 206.432(b). Any 
such problems or circumstances affecting project costs shall be 
identified through the quarterly progress reports required in paragraph 
(c) of this section.
    (c) Progress reports. The grantee shall submit a quarterly progress 
report to FEMA indicating the status and completion date for each 
measure funded. Any problems or circumstances affecting completion 
dates, scope of work, or project costs which are expected to result in 
noncompliance with the approved grant conditions shall be described in 
the report.
    (d) Payment of claims. The Governor's Authorized Representative 
shall make a claim to the Regional Director for reimbursement of 
allowable costs for each approved measure. In submitting such claims the 
Governor's Authorized Representative shall certify that reported costs 
were incurred in the performance of eligible work, that the approved 
work was completed and that the mitigation measure is in compliance with 
the provisions of the FEMA-State Agreement. The Regional Director shall 
determine the eligible amount of reimbursement for each claim and 
approve payment. If a mitigation measure is not completed, and there is 
not adequate justification for noncompletion, no Federal funding will be 
provided for that measure.
    (e) Audit requirements. Uniform audit requirements as set forth in 
44 CFR part 14 apply to all grant assistance provided under this 
subpart. FEMA may elect to conduct a Federal audit on the disaster 
assistance grant or on any of the subgrants.



Sec. 206.439  Allowable costs.

    (a) General. General policies for determining allowable costs are 
established in 44 CFR 13.22. Exceptions to those policies as allowed in 
44 CFR 13.4 and 13.6 are explained below.
    (b) Eligible direct costs. The eligible direct costs for 
administration and management of the program are divided into the 
following two categories.
    (1) Statutory administrative costs--(i) Grantee. Pursuant to 
406(f)(2) of the Stafford Act, an allowance will be provided to the 
State to cover the extraordinary costs incurred by the State for 
preparation of applications, quarterly reports, final audits, and 
related field inspections by State employees, including overtime pay and 
per diem and travel expenses, but not including regular time for such 
employees. The allowance will be based on the following percentages of 
the total amount of assistance provided (Federal share) for all 
subgrantees in the State under section 404 of the Stafford Act:
    (A) For the first $100,000 of total assistance provided (Federal 
share), three percent of such assistance.
    (B) For the next $900,000, two percent of such assistance.
    (C) For the next $4,000,000, one percent of such assistance.
    (D) For assistance over $5,000,000, one-half percent of such 
assistance.
    (ii) Subgrantee. Pursuant to section 406(f)(1) of the Stafford Act, 
necessary costs of requesting, obtaining, and administering Federal 
disaster assistance subgrants will be covered by an allowance which is 
based on the following percentages of total net eligible costs under 
section 404 of the Stafford Act, for an individual applicant (applicants 
in this context include State agencies):
    (A) For the first $100,000 of net eligible costs, three percent of 
such costs.
    (B) For the next $900,000, two percent of such costs.
    (C) For the next $4,000,000, one percent of such costs.
    (D) For those costs over $5,000,000, one-half percent of such costs.
    (2) State management costs--(i) Grantee. Except for the items listed 
in paragraph (b)(1)(i) of this section, other administration costs shall 
be paid in accordance with 44 CFR 13.22. Costs of State personnel 
(regular time salaries only) assigned to administer the Hazard 
Mitigation Grant Program may be eligible when approved by the Regional 
Director. Such costs shall be shared in accordance with the cost share 
provisions of section 404 of the Act. For grantee administrative costs 
in the Disaster Field Office, the State shall

[[Page 514]]

submit a plan for the staffing of the Disaster Field Office within 5 
days of the opening of the office. This staffing plan shall be in 
accordance with the administrative plan requirements of Sec. 206.437. 
After the close of the Disaster Field Office, costs of State personnel 
(regular time salaries only) for continuing management of the hazard 
mitigation grants may be eligible when approved in advance by the 
Regional Director. The State shall submit a plan for such staffing in 
advance of the requirement.
    (c) Eligible indirect costs--(1) Grantee. Indirect costs of 
administering the disaster program are eligible in accordance with the 
provisions of 44 CFR part 13 and OMB Circular A-87.
    (2) Subgrantee. No indirect costs of a subgrantee are separately 
eligible because the percentage allowance in paragraph (b)(1)(ii) of 
this section necessary costs of requesting, obtaining and administering 
Federal assistance.



Sec. 206.440  Appeals.

    An eligible applicant, subgrantee, or grantee may appeal any 
determination previously made related to an application for or the 
provision of Federal assistance according to the procedures below.
    (a) Format and Content. The applicant or subgrantee will make the 
appeal in writing through the grantee to the Regional Director. The 
grantee shall review and evaluate all subgrantee appeals before 
submission to the Regional Director. The grantee may make grantee-
related appeals to the Regional Director. The appeal shall contain 
documented justification supporting the appellant's position, specifying 
the monetary figure in dispute and the provisions in Federal law, 
regulation, or policy with which the appellant believes the initial 
action was inconsistent..
    (b) Levels of Appeal. (1) The Regional Director will consider first 
appeals for hazard mitigation grant program-related decisions under 
subparts M and N of this part.
    (2) The Associate Director/Executive Associate Director for 
Mitigation will consider appeals of the Regional Director's decision on 
any first appeal under paragraph (b)(1) of this section.
    (c) Time Limits. (1) Appellants must make appeals within 60 days 
after receipt of a notice of the action that is being appealed.
    (2) The grantee will review and forward appeals from an applicant or 
subgrantee, with a written recommendation, to the Regional Director 
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional 
Director (for first appeals) or Associate Director/Executive Associate 
Director (for second appeals) will notify the grantee in writing of the 
disposition of the appeal or of the need for additional information. A 
request by the Regional Director or Associate Director/Executive 
Associate Director for additional information will include a date by 
which the information must be provided. Within 90 days following the 
receipt of the requested additional information or following expiration 
of the period for providing the information, the Regional Director or 
Associate Director/Executive Associate Director will notify the grantee 
in writing of the disposition of the appeal. If the decision is to grant 
the appeal, the Regional Director will take appropriate implementing 
action.
    (d) Technical Advice. In appeals involving highly technical issues, 
the Regional Director or Associate Director/Executive Associate Director 
may, at his or her discretion, submit the appeal to an independent 
scientific or technical person or group having expertise in the subject 
matter of the appeal for advice or recommendation. The period for this 
technical review may be in addition to other allotted time periods. 
Within 90 days of receipt of the report, the Regional Director or 
Associate Director/Executive Associate Director will notify the grantee 
in writing of the disposition of the appeal.
    (e) Transition. (1) This rule is effective for all appeals pending 
on and appeals from decisions issued on or after May 8, 1998, except as 
provided in paragraph (e)(2) of this section.
    (2) Appeals pending from a decision of an Associate Director/
Executive Associate Director before May 8, 1998 may be appealed to the 
Director in accordance with 44 CFR 206.440 as it existed before May 8, 
1998.

[[Page 515]]

    (3) The decision of the FEMA official at the next higher appeal 
level shall be the final administrative decision of FEMA.

[63 FR 17111, Apr. 8, 1998]

                        PARTS 207-208 [RESERVED]



PART 209_SUPPLEMENTAL PROPERTY ACQUISITION AND ELEVATION ASSISTANCE
--Table of Contents




Sec.
209.1 Purpose.
209.2 Definitions.
209.3 Roles and responsibilities.
209.4 Allocation and availability of funds.
209.5 Applicant eligibility.
209.6 Project eligibility.
209.7 Priorities for project selection.
209.8 Application and review process.
209.9 Appeals.
209.10 Project implementation requirements.
209.11 Grant administration.
209.12 Oversight and results.

    Authority: Pub. L. 106-113, Div. B, sec. 1000(a)(5) (enacting H.R. 
3425 by cross-reference), 113 Stat. 1501, 1536; Pub. L. 106-246, 114 
Stat. 511, 568; Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121, 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.

    Source: 66 FR 32669, June 15, 2001, unless otherwise noted.



Sec. 209.1  Purpose.

    This part provides guidance on the administration of a program to 
provide supplemental property acquisition and elevation assistance made 
available by Congress to provide funds for the acquisition or elevation, 
for hazard mitigation purposes, of properties that have been made 
uninhabitable by floods in areas that were declared major disasters in 
federal fiscal years 1999 and 2000.



Sec. 209.2  Definitions.

    Except as noted in this part, the definitions listed at Sec. Sec. 
206.2 and 206.431 apply to the implementation of this part.
    Allowable open space uses means recreational and wetland management 
uses including: Parks for outdoor recreational activities; nature 
reserves; cultivation; grazing; camping (except where adequate warning 
time is not available to allow evacuation); temporary storage in the 
open of wheeled vehicles which are easily movable (except mobile homes); 
unimproved, permeable parking lots; and buffer zones. Allowable uses 
generally do not include walled buildings, flood reduction levees, 
highways or other uses that obstruct the natural and beneficial 
functions of the floodplain.
    Applicant means a State agency, local government, or qualified 
private nonprofit organization that submits an application for 
acquisition or elevation assistance to the State or to FEMA.
    Cost-effective means that the mitigation activity 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. Both costs and benefits will be computed on a net present value 
basis. The State will complete an analysis of the cost effectiveness of 
the project, in accordance with FEMA guidance and using a FEMA-approved 
methodology. FEMA will review the State's analysis.
    Pre-event fair market value means the value a willing buyer would 
have paid and a willing seller would have sold a property for had the 
disaster not occurred.
    Principal residence means a residence that is occupied by the legal 
owner and is the dwelling where the legal owner normally lives during 
the major portion of the calendar year.
    Qualified alien means an alien who meets one of the following 
criteria:
    (1) An alien lawfully admitted for permanent residence under the 
Immigration and Nationality Act (INA);
    (2) An alien granted asylum under section 208 of the INA;
    (3) A refugee admitted to the United States under section 207 of the 
INA;
    (4) An alien paroled into the United States under section 212(d)(5) 
of the INA for at least one year;
    (5) An alien whose deportation is being withheld under section 
243(h) of the INA as in effect prior to April 1, 1997, or section 
241(b)(3) of the INA;
    (6) An alien granted conditional entry pursuant to section 203(a)(7) 
of

[[Page 516]]

the INA as in effect prior to April 1, 1980;
    (7) An alien who is a Cuban and Haitian entrant (as defined in 
section 501(e) of the Refugee Education Assistance Act of 1980); or
    (8) An alien who (or whose child or parent) has been battered and 
meets the requirements of 8 U.S.C. 1641(c).
    Qualified private nonprofit organization means an organization with 
a conservation mission as qualified under section 170(h) of the Internal 
Revenue Code of 1954, as amended, and the regulations applicable under 
that section.
    Repetitive Loss Structure means a structure covered by a contract 
for flood insurance under the National Flood Insurance Program (NFIP) 
that has incurred flood-related damage on two occasions during a 10-year 
period, each resulting in at least a $1000 claim payment;
    State Hazard Mitigation Plan means the hazard mitigation plan that 
reflects the State's systematic evaluation of the nature and extent of 
vulnerability to the effects of natural hazards typically present in the 
State and includes a description of actions needed to minimize future 
vulnerability to hazards.
    Subgrantee means the 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. Subgrantees can be a State agency, local 
government, qualified private nonprofit organizations, or Indian tribes 
as outlined in 44 CFR 206.434;
    Substantial Damage means damage of any origin sustained by a 
structure whereby the cost of restoring the structure to its before-
damage condition would equal or exceed 50 percent of the market value of 
the structure before the damage occurred;
    Uninhabitable means that properties are certified by the appropriate 
State or local official normally empowered to make such certifications 
as meeting one or more of the following criteria:
    (1) Determined by an authorized local government official to be 
substantially damaged, according to National Flood Insurance Program 
criteria contained in 44 CFR 59.1;
    (2) Have been red- or yellow-tagged and declared uninhabitable due 
to environmental contamination by floodwaters, or otherwise determined 
to be uninhabitable by a State or local official in accordance with 
current codes or ordinances; or
    (3) Have been demolished due to damage or environmental 
contamination by floodwaters.
    We, our, or us means FEMA.

[66 FR 32669, June 15, 2001; 66 FR 49554, Sept. 28, 2001]



Sec. 209.3  Roles and responsibilities.

    The following describes the general roles of FEMA, the State, local 
communities or other organizations that receive grant assistance, and 
participating homeowners.
    (a) Federal. We will notify States about the availability of funds, 
and will allocate available funding to States that received major 
disaster declarations during the period covered by the supplemental 
authority. Our Regional Directors will verify project eligibility, 
provide technical assistance to States upon request, make grant awards, 
and oversee program implementation.
    (b) State. The State will be the Grantee to which we award funds and 
will be accountable for the use of those funds. The State will determine 
priorities for funding within the State. This determination must be made 
in conformance with the HMGP project identification and selection 
criteria (44 CFR 206.435). The State also will provide technical 
assistance and oversight to applicants for project development and to 
subgrantees for project implementation. The State will report program 
progress and results to us. The States also will recover and return to 
us any funds made available from other sources for the same purposes. 
When Native American tribes apply directly to us, they will be the 
grantee and carry out ``state'' roles.
    (c) Applicant (pre-award) and subgrantee (post-award). The applicant 
(a State agency, local government, or qualified private nonprofit 
organization) will coordinate with interested

[[Page 517]]

homeowners to complete an application to the State. The subgrantee 
implements all approved projects, generally takes title to all property, 
and agrees to dedicate and maintain the property in perpetuity for uses 
compatible with open-space, recreational, or wetlands management 
practices. The subgrantee will receive, review and make final decisions 
about any appraisal disputes that are brought by participating 
homeowners. The subgrantee is accountable to the State, as well as to 
us, for the use of funds.
    (d) Participating homeowners. The participating homeowners will 
notify the community of their interest to participate; provide necessary 
information to the community coordinator about property ownership, 
disaster damage, and other disaster benefits received or available; 
review the offer made from the community; and accept it or request a 
review appraisal.



Sec. 209.4  Allocation and availability of funds.

    (a) We will allocate available funds based on the number and value 
of properties that meet the eligibility criteria and whose owners want 
to participate in an acquisition or elevation project.
    (b) We may reallocate funds for which we do not receive and approve 
adequate applications. We will obligate most available funds within 12 
months following the deadline for submitting applications, unless 
extenuating circumstances exist.



Sec. 209.5  Applicant eligibility.

    The following are eligible to apply to the State for a grant:
    (a) State and local governments;
    (b) Indian tribes or authorized tribal organizations. A tribe may 
apply either to the State or directly to us; and
    (c) Qualified private nonprofit organizations.



Sec. 209.6  Project eligibility.

    (a) Eligible types of project activities. This grant authority is 
for projects to acquire floodprone properties and demolish or relocate 
structures per Sec. 209.10(i), or to elevate floodprone structures. 
Approved projects must meet the following criteria and comply with all 
other program requirements described in this rule;
    (b) Eligibility criteria. To be eligible, projects must:
    (1) Be cost effective. The State will complete an analysis of the 
cost-effectiveness of the project, in accordance with our guidance and 
using a methodology that we approve. We will review the State's 
analysis;
    (2) Include only properties that:
    (i) For acquisition, the owner agrees to sell voluntarily;
    (ii) Are within the 100-year floodplain based on best available data 
or as identified by a FIRM or FEMA-approved Disaster Recovery Map;
    (iii) Were made uninhabitable (as certified by an appropriate State 
or local official) by the effects of a declared major disaster during 
federal fiscal years 1999 or 2000;
    (iv) For acquisition, had a pre-event fair market value of less than 
$300,000 just before the disaster event. Properties submitted for buyout 
under Pub. L. 106-113 (the original Hurricane Floyd supplemental buyout 
program) are exempt from this policy, with the limitation that in no 
case does the Federal share or offer for any such property exceed 
$225,000; and
    (v) Served as the principal residence for the owner. For multifamily 
units such as condominium buildings, all units within the structure 
should be principal residences of the owners and not sublet.
    (3) Conform with 44 CFR part 9, Floodplain Management and Protection 
of Wetlands; 44 CFR part 10, Environmental Considerations; and any 
applicable environmental and historic preservation laws and regulations.
    (c) For acquisition projects, an owner who is not a United States 
citizen or qualified alien may receive current fair market value for his 
or her property. He or she may not receive additional amounts for pre-
event fair market value.
    (d) Funds available under Pub. L. 106-113 (the original Floyd 
supplemental appropriation) are limited to use for acquisition purposes 
only.



Sec. 209.7  Priorities for project selection.

    (a) It is the State's responsibility to identify and select eligible 
buyout

[[Page 518]]

projects for funding under the supplemental grant program. All funded 
projects must be consistent with the State Hazard Mitigation Plan. The 
mitigation planning process or any other appropriate means may identify 
buyout and elevation projects.
    (b) States will set priorities in their State mitigation plan to use 
as the basis for selecting projects for funding. The State's priorities 
will address, at a minimum, substantially damaged properties, repetitive 
loss target properties, and such other criteria that the State deems 
necessary to comply with the law. States and subgrantees are to give 
priority consideration to projects for acquisition or elevations of 
repetitive loss properties, and must include all eligible repetitive 
loss properties in the projects submitted to us for funding.

(Approved under OMB control number 3067-0212).

[66 FR 32669, June 15, 2001; 66 FR 49554, Sept. 28, 2001]



Sec. 209.8  Application and review process.

    (a) General. This section describes the procedures to be used by the 
State in submitting an application for funding under the Supplemental 
Property Acquisition and Elevation Assistance program. Under this 
program, the State is the grantee and is responsible for processing 
subgrants to applicants in accordance with 44 CFR part 13 and this part.
    (b) Timeframes. We will establish deadlines for States to submit 
applications, and States will set local application deadlines. States 
may begin forwarding applications to us immediately upon Notice of 
Availability of Funds and must forward all applications not later than 
the date set by the Regional Director. States must provide to us the 
information described below in paragraph (c) of this section for each 
property proposed for acquisition or elevation in support of the 
supplemental allocation requested and within the timeframe that we 
establish. We will verify project eligibility estimates provided by 
States in order to assure that all projects meet the criteria for the 
supplemental grant awards. We will perform an independent verification 
of this information for not less than 50 percent of the properties 
submitted.
    (c) Format. The State will forward its application to the Regional 
Director. The Application will include: a Standard Form (SF) 424, 
Application for Federal Assistance; FEMA form 20-15, Budget 
Information--Construction Programs; Project Narrative (section 
209.8(c)--community project applications (buyout plans) selected by the 
State); FEMA form 20-16, 20-16b and 20-16c Assurances and 
Certifications; Standard Form LLL, Disclosure of Lobbying Activities; 
FEMA form 20-10, Financial Status Report; the Performance/Progress 
Report format; and the State's certification that the State has reviewed 
all applications and that they meet program eligibility criteria. The 
Project Narrative (community project applications) will include:
    (1) Community applicant information, including contact names and 
numbers;
    (2) Description of the problem addressed by the proposed project;
    (3) Description of the applicant's decision-making process, 
including alternatives considered;
    (4) Project description, including property locations/addresses and 
scope of activities;
    (5) Project cost estimate and match source;
    (6) For acquisition projects, open space use description and 
maintenance assurance;
    (7) Risk and cost-effectiveness information, or State's benefit-cost 
analysis;
    (8) Environmental and historic preservation information including
    (i) Whether the property is now or ever has been used for commercial 
or industrial purposes, and
    (ii) Any information regarding historic preservation that is readily 
available;
    (9) Attachments for each property as follows:
    (i) A photograph of the structure from the street;
    (ii) Owner's name;
    (iii) Complete address, including zip code;
    (iv) Latitude and longitude;
    (v) The date of construction;

[[Page 519]]

    (vi) Proximity to the 100-year floodplain;
    (vii) Panel and date of the applicable Flood Insurance Rate Map, if 
any;
    (viii) The elevation of the first habitable floor and an estimate of 
the depth of flooding in the structure;
    (ix) The estimated pre-event fair market value of the home. 
Applicants will estimate the value of properties using the best 
available information, such as inspections, public records and market 
values of similar properties in similar neighborhoods to arrive at a 
pre-event fair market value that reflects what a willing buyer would 
have paid a willing seller had the disaster not occurred. If tax 
assessment data are used as the basis, the applicant should add the 
relevant adjustment percentage for that jurisdiction to adjust the tax 
assessment to the current fair market value. These adjustment data 
should be obtained from the jurisdiction's tax assessor's office. For 
any jurisdictions where the adjustment factor is over 25 percent, 
applicants should include a justification for the high adjustment 
factor. Applicants should not include any other project costs in the 
property values. These costs will be reflected elsewhere;
    (x) Indication whether flood insurance was in force at the time of 
the loss, and policy number, if available.
    (xi) Indications that the property will meet the definition of 
uninhabitable:
    (A) Substantial damage determination, and name and title of 
determining official, or if not yet determined then:
    (1) For manufactured homes (mobile homes), inundation of 1 foot or 
more of water above the first habitable floor or other evidence of 
substantial damage; or
    (2) For permanent structures other than manufactured homes, 
inundation of 5 feet or more of water above the first above-ground 
habitable floor or other evidence of substantial damage. Habitable 
floors do not include basements.
    (B) Were red- or yellow-tagged and declared uninhabitable due to 
environmental contamination by floodwaters, or otherwise determined to 
be uninhabitable by a State or local official under current codes or 
ordinances; or
    (C) Were demolished due to damage or environmental contamination by 
floodwaters.
    (xii) Information regarding whether the structure is on the NFIP 
repetitive loss list (provide NFIP Repetitive Loss Property Locator 
Number, if available); and
    (xiii) Observations on whether acquisition or elevation of the 
structure may result in a mixture of vacant lots and lots with 
structures remaining on them; and
    (10) FEMA review and approval. We will review and verify the State's 
eligibility determination and either approve, deny, or request 
additional information within 60 days. The Regional Director may extend 
this timeframe if complicated issues arise. We have final approval 
authority for funding of all projects.

(Approved under OMB control number 3067-0279).

[66 FR 32669, June 15, 2001; 66 FR 49554, Sept. 28, 2001]



Sec. 209.9  Appeals.

    The State may appeal any decision that we make regarding projects 
submitted for funding in the Supplemental Property Acquisition and 
Elevation Assistance program. The State must submit the appeal in 
writing to the Regional Director and must include documentation that 
justifies the request for reconsideration. The appeal must specify the 
monetary figure in dispute and the provisions in Federal law, 
regulation, or policy with which the appellant believes the initial 
action was inconsistent. The applicant must appeal within 60 days of the 
applicant's receipt of our funding decision. The State must forward any 
appeal from an applicant or subgrantee with a written recommendation to 
the Regional Director within 60 days of receipt. Within 90 days 
following the receipt of an appeal, the Regional Director will notify 
the State in writing as to the new decision or the need for more 
information.



Sec. 209.10  Project implementation requirements.

    Subgrantees must enter into an agreement with the State, with the 
written concurrence of the Regional

[[Page 520]]

Director, that provides the following assurances:
    (a) The subgrantee will administer the grant and implement the 
project in accordance with program requirements, 44 CFR parts 13 and 14, 
the grant agreement, and with applicable Federal, State, and local laws 
and regulations.
    (b) The State and subgrantee will administer the grant in an 
equitable and impartial manner, without discrimination on the grounds or 
race, color, religion nationality, sex, age, or economic status in 
compliance with section 308 of the Stafford Act (42 U.S.C. 5151) and 
Title VI of the Civil Rights Act. In implementing the grant, the State 
and the subgrantee will ensure that no discrimination is practiced.
    (c) The State and subgrantee will ensure that projects involving 
alterations to existing structures comply with all applicable State and 
local codes.
    (d) The State and subgrantee will ensure that projects comply with 
applicable State and local floodplain management requirements. 
Structures will be elevated to the Base Flood Elevation.
    (e) Property owners participating in acquisition projects may 
receive assistance up to the pre-event fair market value of their real 
property, except as limited by the eligibility criteria.
    (f) The subgrantee will establish a process, which we must approve, 
whereby property owners participating in acquisition projects may 
request a review of the appraisal for their property, or request a 
second appraisal.
    (g) The State will reduce buyout assistance by any duplication of 
benefits from other sources. Such benefits include, but are not limited 
to, payments made to the homeowner for repair assistance; insurance 
settlements; legal settlements; Small Business Administration loans; and 
any other payments made by any source to address the property loss 
unless the property owner can provide receipts showing that the benefits 
were used for their intended purpose to make repairs to the property.
    (h) Increased Cost of Compliance coverage benefits under the 
National Flood Insurance Program (NFIP) may be used to match elevation 
or acquisition and relocation projects. Increased Cost of Compliance 
claims can only be used for NFIP-approved costs; these can then be 
applied to the project grant match. This coverage does not pay for 
property acquisition, but can pay demolition or structure relocation.
    (i) The following restrictive covenants must be conveyed in the deed 
to any property acquired, accepted, or from which structures are removed 
(``the property''):
    (1) The property must be dedicated and maintained in perpetuity for 
uses compatible with open space, recreational, or wetlands management 
practices; and
    (2) No new structure(s) will be built on the property except as 
indicated in this paragraph:
    (A) A public facility that is open on all sides and functionally 
related to a designated open space or recreational use;
    (B) A public rest room; or
    (C) A structure that is compatible with open space, recreational, or 
wetlands management usage and proper floodplain management policies and 
practices, which the Director approves in writing before the 
construction of the structure begins.
    (D) In general, allowable open space, recreational, and wetland 
management uses include parks for outdoor recreational activities, 
nature reserves, cultivation, grazing, camping (except where adequate 
warning time is not available to allow evacuation), temporary storage in 
the open of wheeled vehicles that are easily movable (except mobile 
homes), unimproved, permeable parking lots and buffer zones. Allowable 
uses generally do not include walled buildings, flood reduction levees, 
highways or other uses that obstruct the natural and beneficial 
functions of the floodplain.
    (3) After completing the acquisition project, no application for 
future disaster assistance will be made for any purpose with respect to 
the property to any Federal entity or source, and no Federal entity or 
source will provide such assistance, even for the allowable uses of the 
property described above.
    (4) Any structures built on the property according to paragraph 
(i)(2) of this section, must be: Located to minimize the potential for 
flood damage;

[[Page 521]]

floodproofed; or elevated to the Base Flood Elevation plus one foot of 
freeboard.
    (5) The subgrantee or other public property owner will seek the 
approval of the State grantee agency and our Regional Director before 
conveying any interest in the property to any other party. The 
subgrantee or other public entity or qualified private nonprofit 
organization must retain all development rights to the property. Our 
Regional Director will only approve the transfer of properties that meet 
the criteria identified in this paragraph.
    (6) In order to carry out tasks associated with monitoring, we, the 
subgrantee, or the State have the right to enter the parcel, with notice 
to the parcel owner, to ensure compliance with land use restrictions. 
Subgrantees may identify the open space nature of the property on local 
tax maps to assist with monitoring. Whether the subgrantee obtains full 
title or a conservation easement on the parcel, the State must work with 
subgrantees to ensure that the parcel owner maintains the property in 
accordance with land use restrictions. Specifically, the State may:
    (i) Monitor and inspect the parcel every two years and certify that 
the owner continues to use the inspected parcel for open space or 
agricultural purposes; and
    (ii) Take measures to bring a non-compliant parcel back into 
compliance within 60 days of notice.
    (7) Only as a last resort, we reserve the right to require the 
subgrantee to bring the property back into compliance and transfer the 
title and easement to a qualified third party for future maintenance.
    (8) Every 2 years on October 1st, the subgrantee will report to the 
State, certifying that the property continues to be maintained 
consistent with the provisions of the agreement. The State will report 
the certification to us.



Sec. 209.11  Grant administration.

    (a) Cost share. We may contribute up to 75 percent of the total 
eligible costs. The State must ensure that non-Federal sources 
contribute not less than 25 percent of the total eligible costs for the 
grant. The State or any subgrantee cannot use funds that we provide 
under this Act as the non-Federal match for other Federal funds nor can 
the State or any subgrantee use other Federal funds as the required non-
Federal match for these funds, except as provided by statute.
    (b) Allowable costs. A State may find guidance on allowable costs 
for States and subgrantees in Office of Management and Budget (OMB) 
Circulars A-87 and A-122 on Cost Principles. States may use up to 7 
percent of the grant funds for management costs of the grant. The State 
should include management costs in its application. Subgrantees must 
include reasonable costs to administer the grant as a direct project 
cost in their budget.
    (c) Progress reports. The State must provide a quarterly progress 
report to us under 44 CFR 13.40, indicating the status and completion 
date for each project funded. The report will include any problems or 
circumstances affecting completion dates, scope of work, or project 
costs that may result in noncompliance with the approved grant 
conditions.
    (d) Financial reports. The State must provide a quarterly financial 
report to us under 44 CFR 13.41.
    (e) SMARTLINK Drawdowns. The State will make SMARTLINK drawdowns to 
reimburse or advance allowable costs to subgrantees for approved 
projects.
    (f) Audit requirements. Uniform audit requirements as set forth in 
44 CFR part 14 apply to all grant assistance provided under this 
subpart. We may elect to conduct a Federal audit on the disaster 
assistance grant or on any of the subgrants.
    (g) If a mitigation measure is not completed, and there is not 
adequate justification for non-completion, no Federal funding will be 
provided for that project.



Sec. 209.12  Oversight and results.

    (a) FEMA oversight. Our Regional Directors are responsible for 
overseeing this grant authority and for ensuring that States and 
subgrantees meet all program requirements. Regional Directors will 
review program progress quarterly.

[[Page 522]]

    (b) Monitoring and enforcement. We, subgrantees, and States will 
monitor the properties purchased under this authority and ensure that 
the properties are maintained in open space use. We and the State may 
enforce the agreement by taking any measures that we or they deem 
appropriate.
    (c) Program results. The State will review the effectiveness of 
approved projects after each future flood event in the affected area to 
monitor whether projects are resulting in expected savings. The State 
will report to us on program effectiveness after project completion and 
after each subsequent flood event.

                        PARTS 210-294 [RESERVED]

[[Page 523]]



                SUBCHAPTER E_CERRO GRANDE FIRE ASSISTANCE





PART 295_CERRO GRANDE FIRE ASSISTANCE--Table of Contents




                            Subpart A_General

Sec.
295.1 Purpose.
295.2 Policy.
295.3 Information and assistance.
295.4 Organization of this part 295.
295.5 Overview of the claims process.
295.6 Partial payments.
295.7 Authority to settle or compromise claims.

               Subpart B_Bringing a Claim Under the CGFAA

295.10 Bringing a claim under the CGFAA.
295.11 Deadline for notifying FEMA of losses.
295.12 Election of remedies.
295.13 Subrogation.
295.14 Assignments.

            Subpart C_Compensation Available Under the CGFAA

295.20 Prerequisite to compensation.
295.21 Allowable compensation.

                       Subpart D_Claims Evaluation

295.30 Establishing losses and damages.
295.31 Reimbursement of claim expenses.
295.32 Determination of compensation due to claimant.
295.33 Supplementing claims.
295.34 Reopening a claim.
295.35 Access to records.
295.36 Confidentiality of information.

                      Subpart E_Dispute Resolution

295.40 Scope.
295.41 Administrative appeal.
295.42 Arbitration.
295.43 Judicial review.

                           Subpart F_Glossary

295.50 Definitions.

    Authority: Pub. L. 106-246, 114 Stat. 511, 584; Reorganization Plan 
No. 3 of 1978, 43 FR 41493, 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.

    Source: 66 FR 15959, Mar. 21, 2001, unless otherwise noted.



                            Subpart A_General



Sec. 295.1  Purpose.

    This part implements the Cerro Grande Fire Assistance Act (CGFAA), 
Public Law 106-246, 114 Stat. 584, which requires that the Federal 
Emergency Management Agency (FEMA) establish a process to evaluate, 
process and pay claims injuries and property damage resulting from the 
Cerro Grande Fire.



Sec. 295.2  Policy.

    It is our policy to provide for the expeditious resolution of 
meritorious claims through a process that is administered with 
sensitivity to the burdens placed upon Claimants by the Cerro Grande 
Fire.



Sec. 295.3  Information and assistance.

    Information and assistance concerning the CGFAA is available from 
the Office of Cerro Grande Fire Claims (OCGFC), Federal Emergency 
Management Agency, P.O. Box 1480, Los Alamos, New Mexico, 87544-1480, or 
telephone 1-888-748-1853 (toll free). The Cerro Grande Fire Assistance 
site on the World Wide Web can be accessed at http://www.fema.gov/
cerrogrande. In the interest of brevity, we do not restate the 
provisions of the CGFAA in most instances. Our website has a copy of the 
CGFAA and we will provide a copy upon request.



Sec. 295.4  Organization of this part 295.

    This part contains six subparts. Subpart A provides an overview of 
the CGFAA process. Subpart B describes the procedures for bringing a 
claim. Subpart C explains what compensation is available. Subpart D 
discusses the claims evaluation process. Subpart E explains the dispute 
resolution process. Subpart F contains a glossary in which various terms 
used in the rule are defined.



Sec. 295.5  Overview of the claims process.

    (a) The CGFAA is intended to provide persons who suffered losses 
from the Cerro Grande Fire with a simple, expedited process to seek 
redress from the

[[Page 524]]

United States. This section provides a brief explanation of the claims 
process for claims other than subrogation claims. It is not intended to 
supersede the more specific regulations that follow and explain the 
claims process in greater detail. In order to obtain benefits under this 
legislation, a person must submit all Cerro Grande Fire related claims 
against the United States to FEMA. A person who elects to proceed under 
the CGFAA is barred from bringing a claim under the Federal Tort Claims 
Act or filing a civil action against the United States for damages 
resulting from the Cerro Grande Fire. Judicial review of our decisions 
under the CGFAA is available.
    (b) The first step in the process is to file a Notice of Loss with 
OCGFC. OCGFC will provide the Claimant with a written acknowledgement 
that the claim has been filed and the claim number.
    (c) Shortly thereafter, a Claims Reviewer will contact the Claimant 
to review the claim. The Claims Reviewer will help the Claimant 
formulate a strategy for obtaining any necessary documentation or other 
support. This assistance does not relieve the Claimant of his or her 
responsibility for establishing all elements of the Loss and the 
compensatory damages that are sought, including that the Cerro Grande 
Fire caused the Loss. After the Claimant has had an opportunity to 
discuss the claim with the Claims Reviewer, a Proof of Loss will be 
presented to the Claimant for signature. After any necessary 
documentation has been obtained and the claim has been fully evaluated, 
the Claims Reviewer will submit a report to the Authorized Official. The 
Claims Reviewer is responsible for providing an objective evaluation of 
the claim to the Authorized Official.
    (d) The Authorized Official will review the report and determine 
whether compensation is due to the Claimant. The Claimant will be 
notified in writing of the Authorized Official's Determination. If the 
Claimant is satisfied with the decision payment will be made after the 
Claimant returns a completed Release and Certification Form. If the 
Claimant is dissatisfied with the Authorized Official's Determination an 
Administrative Appeal may be filed with the Director of OCGFC. If the 
Claimant remains dissatisfied after the appeal is decided, the dispute 
may be resolved through binding arbitration or heard in the United 
States District Court for the District of New Mexico.



Sec. 295.6  Partial payments.

    OCGFC, on its own initiative, or in response to a request by a 
Claimant, may make one or more partial payments on the claim. A partial 
payment can be made if OCGFC has a reasonable basis to estimate the 
Claimant's damages. Acceptance of a partial payment in no way affects a 
Claimant's ability to pursue an Administrative Appeal of the Authorized 
Official's Determination or to pursue other rights afforded by the 
CGFAA. Partial payment decisions cannot be appealed.



Sec. 295.7  Authority to settle or compromise claims.

    Notwithstanding any other provision of these regulations, the 
Director of OCGFC may extend an offer to settle or compromise a claim or 
any portion of a claim, which if accepted by the Claimant will be 
binding on the Claimant and on the United States, except that the United 
States may recover funds improperly paid to a Claimant due to fraud or 
misrepresentation on the part of the Claimant or the Claimant's 
representative, a material mistake on our part or the Claimant's failure 
to cooperate in an audit as required by Sec. 295.35.



               Subpart B_Bringing a Claim Under the CGFAA



Sec. 295.10  Bringing a claim under the CGFAA.

    (a) Any Injured Person may bring a claim under the CGFAA by filing a 
Notice of Loss. A claim submitted on any form other than a Notice of 
Loss will not be accepted. The Claimant must provide a brief description 
of each Loss on the Notice of Loss.
    (b) A single Notice of Loss may be submitted on behalf of a 
Household containing Injured Persons provided

[[Page 525]]

that all Injured Persons on whose behalf the claim is presented are 
identified.
    (c) The Notice of Loss must be signed by each Claimant, if the 
Claimant is an individual or by a duly authorized legal representative 
of each Claimant, if the Claimant is an entity or an individual who 
lacks the legal capacity to sign the Notice of Loss. If one is signing a 
Notice of Loss as the legal representative of a Claimant, the signer 
must disclose his or her relationship to the Claimant. FEMA may require 
a legal representative to submit evidence of authority.
    (d) Notice of Loss forms are available from OCGFC by request. They 
may be obtained through the mail, in person at the OCGFC office or by 
telephone request. The Notice of Loss form can also be downloaded from 
the Internet at http://www.fema.gov/ cerrogrande.
    (e) Notices of Loss may be filed with OCGFC by mail to P.O. Box 
1480, Los Alamos, NM 87544-1480. OCGFC is unable to accept Notices of 
Loss submitted by facsimile or e-mail.
    (f) A Notice of Loss that is completely filled out and properly 
signed is deemed to be filed on the date it is received by OCGFC.



Sec. 295.11  Deadline for notifying FEMA of losses.

    The deadline for filing a Notice of Loss is August 28, 2002. Except 
as provided in Sec. 295.21(d) with respect to mitigation and in Sec. 
295.31(b) with respect to the lump sum payment described therein, a Loss 
that has not been described: on a Notice of Loss, on a supplement to a 
Notice of Loss or a request to supplement a Notice of Loss under Sec. 
295.33, or a request to reopen a claim under Sec. 295.34, received by 
OCGFC on or before August 28, 2002 cannot be compensated under the 
CGFAA. The CGFAA establishes this deadline and does not provide any 
extensions of the filing deadline.



Sec. 295.12  Election of remedies.

    (a) By filing a Notice of Loss, an Injured Person waives the right 
to seek redress for Cerro Grande Fire related claims against the United 
States through the Federal Tort Claims Act or by filing a civil action 
authorized by any other provision of law.
    (b) An Injured Person who files a Federal Tort Claims Act claim or 
who initiates a civil action against the United States or any officer, 
employee or agent of the United States relating to the Cerro Grande Fire 
on or after August 28, 2000 is not eligible under the CGFAA to file a 
Notice of Loss.
    (c) An Injured Person who filed before August 28, 2000 a Federal 
Tort Claims Act claim or a civil action against the United States for 
injuries, losses or damages relating to the Cerro Grande Fire may file a 
Notice of Loss provided that the Federal Tort Claims Act claim is 
withdrawn or the Injured Person is dismissed as a party to the civil 
action with prejudice not later than October 27, 2000. The withdrawal of 
a Federal Tort Claims Act claim must be in the form of a signed, written 
statement on a form provided by OCGFC that is filed with OCGFC not later 
than October 27, 2000. OCGFC will promptly forward the original notice 
of withdrawal to the applicable federal agency and retain a copy in the 
Claimant's file.



Sec. 295.13  Subrogation.

    An insurer or other third party with the rights of a subrogee, who 
has compensated an Injured Person for Cerro Grande Fire related losses, 
may file a Subrogation Notice of Loss under the CGFAA for the subrogated 
claim. An insurer or other third party with the rights of a subrogee may 
file a Subrogation Notice of Loss without regard to whether the Injured 
Party who received payment from the insurer or third party filed a 
Notice of Loss. A Subrogation Notice of Loss may not be filed until the 
insurer or other party with the rights of a subrogee has made all 
payments that it believes the Injured Person is entitled to receive for 
Cerro Grande Fire related losses under the terms of the insurance policy 
or other agreement between the insurer or other party with the rights of 
a subrogee and the Injured Person. By filing a Subrogation Notice of 
Loss for any subrogated claim, the insurer or third party elects the 
CGFAA as its exclusive remedy against the United States for all 
subrogated claims arising

[[Page 526]]

out of the Cerro Grande Fire. Subrogation claims must be made on a 
Subrogation Notice of Loss form furnished by OCGFC. FEMA will evaluate 
subrogation claims on their merits. FEMA may reimburse insurers and 
other third parties with the rights of a subrogee for reasonable 
payments made to an Injured Party on or before October 25, 2000, which 
exceeded or were not required by the terms of the insurance policy or 
other agreement creating a right of subrogation. FEMA will not reimburse 
insurers and other third parties with the rights of a subrogee for 
payments made to an Injured Party after October 25, 2000 that exceeded 
or are not required by the terms of the insurance policy or other 
agreement creating a right of subrogation.



Sec. 295.14  Assignments.

    Assignment of claims and the right to receive compensation for 
claims under the CGFAA is prohibited and will not be recognized by FEMA.



            Subpart C_Compensation Available Under the CGFAA



Sec. 295.20  Prerequisite to compensation.

    In order to receive compensation under the CGFAA a Claimant must be 
an Injured Person who suffered a Loss as a result of the Cerro Grande 
Fire and sustained damages.



Sec. 295.21  Allowable compensation.

    (a) Allowable compensation. The CGFAA provides for the payment of 
compensatory damages. Compensatory damages are ``real, substantial and 
just money damages established by the Claimant in compensation for 
actual or real injury or loss.'' In general, an Injured Person will be 
compensated for Losses to the same extent that the plaintiff in a 
successful tort action brought against a private party under the laws of 
the State of New Mexico would be compensated. In addition the CGFAA 
permits FEMA to compensate Injured Parties for certain categories of 
``loss of property,'' ``business loss,'' and ``financial loss,'' which 
are enumerated in the CGFAA. Damages must be reasonable in amount. 
Claimants must take reasonable steps to mitigate (reduce) their damages, 
if possible, as required by New Mexico tort law.
    (b) Exclusions. Except as otherwise provided in the CGFAA, a 
Claimant will not receive compensation for any injury or damage that is 
not compensable under the Federal Tort Claims Act and New Mexico law. 
Punitive damages, statutory damages under Sec. 30-32-4 of the New 
Mexico Statutes Annotated (1978), interest on claims, attorney's fees 
and agents' fees incurred in prosecuting a claim under the CGFAA or an 
insurance policy, adjusting costs incurred by an insurer or other third 
party with the rights of a subrogee, and taxes that may be owed by a 
Claimant as a consequence of receiving an award are not recoverable from 
FEMA. The cost to a Claimant of prosecuting a claim under the CGFAA does 
not constitute compensatory damages and is not recoverable from FEMA, 
except as provided in Sec. 295.31(b).
    (c) Damages arising in the future. In the event that a lump sum 
payment is awarded to a Claimant for future damages the amount of the 
payment will be Discounted to Present Value.
    (d) Destruction of home--(1) Home and contents. Compensatory damages 
for the Destruction of a Home may include the reasonable cost of 
reconstructing a home comparable in design, construction materials, size 
and improvements to the home that was lost taking into account post-fire 
construction costs in the community in which the home existed before the 
fire and current building codes and standards. Compensatory damages may 
also include the cost of removing debris and burned trees, stabilizing 
the land, replacing household contents, and compensation for any 
decrease in the value of land on which the structure sat pursuant to 
paragraph (e) of this section. (2) Trees and landscaping. Compensation 
for the Replacement Cost of destroyed trees and landscaping will be 
limited to 25% of the pre-fire value of the structure and lot.
    (3) Mitigation. If requested by a Claimant, FEMA may compensate a 
Claimant for the reasonable cost of mitigation measures that will reduce 
the property's vulnerability to the future risk of wildfire, flood or 
other natural hazards related to the Cerro

[[Page 527]]

Grande Fire. Mitigation compensation made available under this section 
may not exceed fifteen percent of payments from all sources (i.e., 
CGFAA, insurance proceeds, FEMA assistance under the Stafford Act) for 
damage to the structure and lot. The Claimant must obtain all government 
permits, approvals and clearances required by applicable law, ordinance 
or regulation before constructing the mitigation measures. The 
mitigation measures must be reviewed by FEMA under applicable 
environmental and historic preservation laws. Claimants must construct 
the mitigation measures for which they have received compensation.
    (e) Reduction in the value of real property. Compensatory damages 
may be awarded for reduction in the value of real property that a 
Claimant owned before the fire if:
    (1) The Claimant sells the real property in a good faith arm's 
length transaction that is closed no later than August 28, 2002 and 
realizes a loss in the pre-fire value; or
    (2) The Claimant can establish that the value of the real property 
was permanently diminished as a result of the Cerro Grande Fire.
    (f) Destruction of unique items of personal property. Compensatory 
damages may be awarded for unique items of personal property that were 
destroyed as a result of the Cerro Grande Fire. If the item can be 
replaced in the current market, the cost to replace the item will be 
awarded. If the item cannot be replaced in the current market, its fair 
market value on the date it was destroyed will be awarded.
    (g) Disaster recovery loans. FEMA will reimburse Claimants awarded 
compensation under the CGFAA for interest paid on Small Business 
Administration disaster loans and similar loans obtained after May 4, 
2000. Interest will be reimbursed for the period beginning on the date 
that the loan was taken out and ending on the date when the Claimant 
receives a compensation award (other than a partial payment). Claimants 
are required to use the proceeds of their compensation awards to repay 
Small Business Administration disaster loans. FEMA will cooperate with 
the Small Business Administration to formulate procedures for assuring 
that Claimants repay Small Business Administration disaster loans 
contemporaneously with the receipt of CGFAA compensation awards.
    (h) Mitigation. FEMA may compensate Claimants for the cost of 
reasonable and cost-effective efforts incurred on or before August 28, 
2003 to mitigate the heightened risks of wildfire, flood or other 
natural disaster resulting from the Cerro Grande Fire that are 
consistent with a OCGFC-approved Mitigation Compensation Plan. No more 
than 15% of the total amount appropriated by Congress for the payment of 
Cerro Grande fire related claims may be allocated for mitigation 
compensation under this subsection. Claimants seeking compensation under 
this provision must file a Notice of Loss under Sec. 295.10 or amend a 
Notice of Loss previously filed under Sec. 295.33 or Sec. 295.34. The 
Notice of Loss or amendment must specify that compensation for 
mitigation is sought. The Notice of Loss must be filed or a proposed 
amendment under Sec. 295.33 or Sec. 295.34 submitted no later than 
August 28, 2002. A separate request for mitigation assistance must be 
filed with OCGFC no later than August 28, 2003. Claimants must construct 
the mitigation measures for which they have received compensation.
    (i) Subsistence--(1) Allowable damages. FEMA may reimburse an Indian 
tribe, a Tribal Member or a Household Including Tribal Members for the 
reasonable cost of replacing Subsistence Resources customarily and 
traditionally used by the Claimant on or before May 4, 2000, but no 
longer available to the Claimant as a result of the Cerro Grande Fire. 
For each category of Subsistence Resources, the Claimant must elect to 
receive compensatory damages either for the increased cost of obtaining 
Subsistence Resources from lands not damaged by the Cerro Grande Fire or 
for the cost of procuring substitute resources in the cash economy. 
Long-term damage awards will be made in the form of lump sum cash 
payments to eligible Claimants.
    (2) Proof of subsistence use. FEMA may consider evidence submitted 
by Claimants, Indian Tribes and other knowledgeable sources in 
determining

[[Page 528]]

the nature and extent of a Claimant's subsistence uses.
    (3) Duration of damages. Compensatory damages for subsistence losses 
will be paid for the period between May 4, 2000 and the date when 
Subsistence Resources can reasonably be expected to return to the level 
of availability that existed before the Cerro Grande Fire. FEMA may rely 
upon the advice of experts in making this determination.
    (j) Flood insurance. A Claimant that owned or leased real property 
in the counties of Los Alamos, Rio Arriba, Sandoval or Santa Fe at the 
time of the Cerro Grande Fire who was not required by law to maintain 
flood insurance before the fire and who did not maintain flood insurance 
before the fire may be reimbursed by FEMA for reasonable flood insurance 
premiums incurred during the period beginning May 12, 2000 and ending 
May 12, 2002 on the owned or leased real property. Alternatively, FEMA 
may provide flood insurance to such Claimants directly through a group 
or blanket policy.
    (k) Out of pocket expenses for treatment of mental health 
conditions. FEMA may reimburse an individual Claimant for reasonable out 
of pocket expenses incurred for treatment of a mental health condition 
rendered by a licensed mental health professional, which condition 
resulted from the Cerro Grande Fire and which could not be effectively 
addressed through no-cost crisis counseling services available in the 
community. FEMA will not reimburse for treatment rendered after December 
31, 2001.
    (l) Donations. FEMA will compensate individual or business Claimants 
in the counties of Los Alamos, Rio Arriba, Sandoval and Santa Fe 
(including those located on pueblos and Indian reservations) for the 
cost of merchandise, use of equipment or other non-personal services, 
directly or indirectly donated to survivors of the Cerro Grande Fire not 
later than June 19, 2000. Donations will be valued at cost. FEMA will 
also compensate businesses located in the counties of Los Alamos, Rio 
Arriba, Sandoval and Santa Fe (including those located on pueblos and 
Indian reservations) for discounts offered to fire survivors on goods 
and services not later than June 19, 2000 provided that actual revenues 
earned by the business during the period May 1-June 30, 2000 did not 
exceed reasonable projections for the period and the shortfall between 
actual revenues and reasonable projections resulted from the Cerro 
Grande Fire. Compensation will be the difference between the Claimant's 
established post-fire price for the good or service actually charged to 
the general public and the post-fire discounted price charged to fire 
survivors.
    (m) Duplication of benefits. The CGFAA allows FEMA to compensate 
Injured Parties only if their damages have not been paid or will not be 
paid by insurance or a third party.
    (1) Insurance. Claimants who carry insurance will be required to 
disclose the name of the insurer(s) and the nature of the insurance and 
provide OCGFC with such insurance documentation as OCGFC reasonably 
requests.
    (2) Coordination with our Public Assistance Program. Injured Parties 
eligible for disaster assistance under our Public Assistance Program are 
expected to apply for all available assistance. Compensation will not be 
awarded under the CGFAA for:
    (i) Emergency costs that are eligible for reimbursement under the 
Public Assistance Program; or
    (ii) Losses that are eligible for repair, restoration or replacement 
under the Public Assistance Program; or
    (iii) Costs or charges determined excessive under the Public 
Assistance Program.
    (3) Benefits provided by non-governmental organizations and 
individuals. Unless otherwise provided by these regulations, disaster 
relief payments made to a Claimant by a non-governmental organization or 
an individual, other than wages paid by the Claimant's employer or 
insurance payments, will be disregarded in evaluating claims and need 
not be disclosed to OCGFC by Claimants.
    (4) Benefits provided by our Individual Assistance program. 
Compensation under the CGFAA will not be awarded

[[Page 529]]

for losses or costs that have been reimbursed under the Individual and 
Family Grant Program or any other FEMA Individual Assistance Program.
    (5) Worker's compensation claims. Individuals who have suffered 
injuries that are compensable under State or Federal worker's 
compensation laws must apply for all benefits available under such laws.



                       Subpart D_Claims Evaluation



Sec. 295.30  Establishing losses and damages.

    (a) Burden of proof. The burden of proving Losses and damages rests 
with the Claimant. A Claimant may submit for the Administrative Record a 
statement explaining why the Claimant believes that the Losses and 
damages are compensable and any documentary evidence supporting the 
claim. Claimants will provide documentation, which is reasonably 
available, to corroborate the nature, extent and value of their losses 
and/or to execute affidavits in a form established by OCGFC. FEMA may 
compensate a Claimant for a Loss in the absence of supporting 
documentation, in its discretion, on the strength of an affidavit or 
Proof of Loss executed by the Claimant, if documentary evidence 
substantiating the loss is not reasonably available. FEMA may request 
that a business Claimant execute an affidavit, which states that the 
Claimant will provide documentary evidence, including but not limited to 
income tax returns, if requested by our Office of the Inspector General 
or the General Accounting Office during an audit of the claim.
    (b) Proof of Loss. All Claimants are required to attest to the 
nature and extent of each Loss for which compensation is sought in the 
Proof of Loss. The Proof of Loss, which will be in a form specified by 
OCGFC, must be signed by the Claimant or the Claimant's legal 
representative if the Claimant is a not an individual or is an 
individual who lacks the legal capacity to execute the Proof of Loss. 
The Proof of Loss must be signed under penalty of perjury and subject to 
the provisions of 18 U.S.C.1001, which establishes penalties for false 
statements. Non-subrogation Claimants who filed a Notice of Loss before 
January 1, 2001 should submit a signed Proof of Loss to OCGFC not later 
than June 19, 2001. Non-subrogation Claimants who file a Notice of Loss 
on or after January 1, 2001 should submit a signed Proof of Loss to 
OCGFC not later than 150 days after the date when the Notice of Loss was 
submitted. These deadlines may be extended at the discretion of the 
Director of OCGFC for good cause. If a non-subrogation Claimant fails to 
submit a signed Proof of Loss within the timeframes set forth in this 
section and does not obtain an extension from the Director of OCGFC, 
OCGFC may administratively close the claim and require the Claimant to 
repay any partial payments made on the claim. Subrogation Claimants will 
submit the Proof of Loss contemporaneously with filing the Notice of 
Loss.
    (c) Release and Certification Form. All Claimants who receive 
compensation under the CGFAA are required to sign a Release and 
Certification Form. The Release and Certification Form must be executed 
by the Claimant or the Claimant's legal representative if the Claimant 
is an entity or lacks the legal capacity to execute the Release and 
Certification Form. The Release and Certification Form must be received 
by OCGFC within 120 days of the date when the Authorized Official's 
Determination is rendered under Sec. 295.32, or if subsequent 
proceedings occur under Subpart E of these regulations, not later than 
60 days after the date when further review of the decision (if 
available) is precluded. The United States will not attempt to recover 
compensatory damages paid to a Claimant who has executed and returned a 
Release and Certification Form within the periods provided above, except 
in the case of fraud or misrepresentation by the Claimant or the 
Claimant's representative, failure of the Claimant to cooperate with an 
audit as required by Sec. 295.35 or a material mistake by FEMA.



Sec. 295.31  Reimbursement of claim expenses.

    (a) FEMA will reimburse Claimants for the reasonable costs they 
incur in copying documentation requested by OCGFC. FEMA will also 
reimburse Claimants for the reasonable costs

[[Page 530]]

they incur in providing appraisals, or other third-party opinions, 
requested by OCGFC. FEMA will not reimburse Claimant for the cost of 
appraisals, or other third party opinions, not requested by OCGFC.
    (b) FEMA will provide a lump sum payment for incidental expenses 
incurred in claims preparation to individual and business Claimants that 
are awarded compensatory damages under the CGFAA after a properly 
executed Release and Certification Form has been returned to OCGFC. The 
amount of the lump sum payment will be the greater of $100 or 5% of 
CGFAA compensatory damages and insurance proceeds recovered by the 
Claimant for Cerro Grande Fire related losses (not including the lump 
sum payment or monies reimbursed under the CGFAA for the purchase of 
flood insurance), but will not exceed $15,000. No more than one lump sum 
payment will be made to all Claimants in a Household, regardless of 
whether the Household filed separate or combined Notices of Loss. The 
following Claimants will not be eligible to receive the lump sum 
payment: subrogation Claimants and Claimants whose only Cerro Grande 
Fire related loss is for flood insurance premiums.



Sec. 295.32  Determination of compensation due to claimant.

    (a) Authorized Official's report. After OCGFC has evaluated all 
elements of a claim as stated in the Proof of Loss, the Authorized 
Official will issue, and provide the Claimant with a copy of, the 
Authorized Official's Determination.
    (b) Claimant's options upon issuance of the Authorized Official's 
determination. Not later than 120 days after the date that appears on 
the Authorized Official's Determination, the Claimant must either accept 
the findings by submitting a Release and Certification Form to FEMA or 
initiate an Administrative Appeal in accordance with Sec. 295.41. The 
CGFAA requires that Claimants sign the Release and Certification Form to 
receive payment on their claims (except for partial payments). The 
Claimant will receive payment of compensation awarded by the Authorized 
Official after FEMA receives the completed Release and Certification 
Form. If the Claimant does not either submit a Release and Certification 
Form to FEMA or initiate an Administrative Appeal no later than 120 Days 
after the date that appears on the Authorized Official's Determination, 
he or she will be conclusively presumed to have accepted the Authorized 
Official's Determination. The Director of OCGFC may modify the deadlines 
set forth in this subsection at the request of a Claimant for good cause 
shown.



Sec. 295.33  Supplementing claims.

    A Claimant may amend the Notice of Loss to include additional claims 
at any time before signing a Proof of Loss. After the Claimant has 
submitted a Proof of Loss and before submission of the Release and 
Certification Form, a Claimant may request that the Director of OCGFC 
consider one or more Losses not addressed in the Proof of Loss. The 
request must be submitted in writing to the Director of OCGFC and 
received not later than the deadline for filing an Administrative Appeal 
under Sec. 295.32 or August 28, 2002, whichever is earlier. It must be 
supported by the Claimant's explanation of why the Loss was not 
previously reported. If good cause is found to consider the additional 
loss, the Director will determine whether compensation is due to the 
Claimant for the Loss under the Administrative Appeal procedures 
described in Sec. 295.41.



Sec. 295.34  Reopening a claim.

    (a) The Director of OCGFC may reopen a claim if requested to do so 
by the Claimant, notwithstanding the submission of the Release and 
Certification Form, for the limited purpose of considering issues raised 
by the request to reopen if:
    (1) The Claimant desires mitigation compensation and the request to 
reopen is filed not later than August 28, 2003 in accordance with Sec. 
295.21(d) or (h); or
    (2) The Claimant closed the sale of real property not later than 
August 28, 2002 and wishes to present a claim for reduction in the value 
of the real property under Sec. 295.21(e) and the request to

[[Page 531]]

reopen is filed not later than August 28, 2002; or
    (3) The Claimant has incurred Replacement Costs under Sec. 
295.21(d) in excess of those previously awarded and is not prohibited by 
the terms of an agreement pertaining to home replacement with OCGFC from 
requesting that the case be reopened; or
    (4) The Director of OCGFC otherwise determines that Claimant has 
demonstrated good cause.
    (b) The Director of OCGFC may establish a deadline by which requests 
to reopen under paragraphs (a)(3) or (4) of this section must be 
submitted. The deadline will be published as a notice in the Federal 
Register and broadly disseminated throughout the communities, pueblos 
and Indian reservations in Los Alamos, Rio Arriba, Sandoval, and Santa 
Fe Counties.



Sec. 295.35  Access to records.

    For purpose of audit and investigation, a Claimant will grant the 
FEMA Office of the Inspector General and the Comptroller General of the 
United States access to any property that is the subject of a claim and 
to any and all books, documents, papers, and records maintained by a 
Claimant or under the Claimant's control pertaining or relevant to the 
claim.



Sec. 295.36  Confidentiality of information.

    Confidential information submitted by individual Claimants is 
protected from disclosure to the extent permitted by the Privacy Act. 
These protections are described in the Privacy Act Notice provided with 
the Notice of Loss. Other Claimants should consult with FEMA concerning 
the availability of confidentiality protection under exemptions to the 
Freedom of Information Act and other applicable laws before submitting 
confidential, proprietary or trade secret information.



                      Subpart E_Dispute Resolution



Sec. 295.40  Scope.

    This subpart describes a Claimant's right to bring an Administrative 
Appeal in response to the Authorized Official's Determination. It also 
describes the Claimant's right to pursue arbitration or seek judicial 
review following an Administrative Appeal.



Sec. 295.41  Administrative appeal.

    (a) Notice of appeal. A Claimant may request that the Director of 
OCGFC review the Authorized Official's Determination by written request 
to the Appeals Docket, Office of Cerro Grande Claims, P.O. Box 1480, Los 
Alamos, NM 87544-1480, postmarked or delivered within 120 Days after the 
date that appears on the Authorized Official's Determination. The 
Claimant will submit along with the notice of appeal a statement 
explaining why the Authorized Official's Determination was incorrect.
    (b) Acknowledgement of appeal. OCGFC will acknowledge the receipt of 
appeals that are timely filed. Following the receipt of a timely filed 
appeal, the Director of OCGFC will obtain the Administrative Record from 
the Authorized Official and transmit a copy to the Claimant.
    (c) Supplemental filings. The Claimant may supplement the statement 
of reasons and provide any additional documentary evidence supporting 
the appeal within 60 Days after the date when the appeal is filed. The 
Director of OCGFC may extend these timeframes or authorize additional 
filings either on his or her own initiative or in response to a request 
by the Claimant for good cause shown.
    (d) Admissible evidence. The Claimant may rely upon any relevant 
evidence to support the appeal, regardless of whether the evidence was 
previously submitted to the Claims Reviewer for consideration by the 
Authorized Official.
    (e) Obtaining evidence. The Director of OCGFC may request from the 
Claimant or from the Authorized Official any additional information that 
is relevant to the issues posed by the appeal in his or her discretion.
    (f) Conferences. The Director of OCGFC may schedule a conference to 
gain a better understanding of the issues or to explore settlement 
possibilities.
    (g) Hearings. The Director of OCGFC may exercise the discretion to 
convene an informal hearing to receive oral testimony from witnesses or 
experts. The

[[Page 532]]

rules under which hearings will be conducted will be established by the 
Director of OCGFC. Formal rules of evidence applicable to court 
proceedings will not be used in hearings under this subsection. Hearings 
will be transcribed and the transcript will be entered in the 
Administrative Record.
    (h) Decision on appeal. After the allotted time for submission of 
evidence has passed, the Director of OCGFC will close the Administrative 
Record and render a written decision on the Administrative Appeal. The 
Director of OCGFC's decision on the Administrative Appeal will 
constitute the final decision of the Director of FEMA under Sec. Sec. 
104(d)(2)(B) and 104(i)(1) of the CGFAA.
    (i) Claimant's options following appeal. The Claimant's concurrence 
with the decision in the Administrative Appeal will be conclusively 
presumed unless the Claimant initiates arbitration in accordance with 
Sec. 295.42 or seeks judicial review in accordance with Sec. 295.43. 
If the Claimant concurs with the Director's determination, payment of 
any additional damages awarded by the Director will be made to the 
Claimant upon receipt of a properly executed Release and Certification 
Form.



Sec. 295.42  Arbitration.

    (a) Initiating arbitration. A Claimant who is dissatisfied with the 
outcome of the Administrative Appeal may initiate binding arbitration by 
submitting a written request for arbitration to the Arbitration 
Administrator for Cerro Grande Claims, Alternate Dispute Resolution 
Office, Federal Emergency Management Agency, 500 C Street, SW., room 
214, Washington, DC 20472 on a form provided by OCGFC. The written 
request for arbitration must be received not later than 60 days after 
the date that appears on the Administrative Appeal decision.
    (b) Permissible claims. A Claimant may not arbitrate an issue unless 
it was raised and decided in the Administrative Appeal. Arbitration will 
be conducted on the evidence in the Administrative Record. Evidence not 
previously entered into the Administrative Record will not be 
considered.
    (c) Settlement and mediation alternatives. At any time after a 
request for arbitration is filed and before the time a decision is 
rendered, either party may request in writing that the Alternate Dispute 
Resolution Office stay further proceedings in the arbitration to 
facilitate settlement discussions. A mediator may be appointed (if 
requested by the parties) to facilitate settlement discussions. If both 
parties concur in the request, the Alternate Dispute Resolution Office 
will stay the arbitration and appoint a mediator at our expense. The 
stay may be terminated and the arbitration resumed upon written request 
of either party to the Alternate Dispute Resolution Office. If the 
dispute is settled, the Alternate Dispute Resolution Office will issue 
an order terminating the arbitration and provide the Claimant with a 
Release and Certification Form.
    (d) Selection of arbitrator. Arbitrators will be selected from a 
list of qualified arbitrators who have agreed to serve provided by the 
Alternate Dispute Resolution Office. If the amount in dispute is 
$300,000 or less, the arbitration will be decided by one arbitrator 
selected by the Claimant from the list. If the amount in dispute exceeds 
$300,000, a panel of three arbitrators selected at random by the 
Alternate Dispute Resolution Office will decide the arbitration.
    (e) Conduct of arbitration. The arbitration will be conducted in a 
manner determined by the arbitrator consistent with guidelines 
established by the Alternate Dispute Resolution Office. The Alternate 
Dispute Resolution Office will provide these guidelines upon request.
    (f) Hearings. The arbitrator may convene a hearing at a location 
designated by the Alternate Dispute Resolution Office. Whenever possible 
hearings will be held in Los Alamos, New Mexico unless the parties 
jointly agree to a different location.
    (g) Decision. After reviewing the evidence, the arbitrator(s) will 
render a decision in writing to the Alternate Dispute Resolution Office. 
The Alternate Dispute Resolution Office will transmit the decision to 
the Claimant and the Director of OCGFC. If a panel

[[Page 533]]

of three arbitrators conducts the arbitration, at least two of the three 
arbitrators must sign the decision. The decision will be rendered no 
later than 10 Days after a hearing is concluded or 60 Days after the 
arbitration is initiated, whichever is earlier. The Alternate Dispute 
Resolution Office may extend the time for a decision. The decision will 
establish the compensation due to the Claimant, if any, and the reasons 
therefore.
    (h) Action on arbitration decision. The Alternate Dispute Resolution 
Office will forward the arbitration decision and a Release and 
Certification Form to the Claimant. A Claimant who has received or who 
has been awarded any compensation under the CGFAA must sign and return 
the Release and Certification Form, regardless of whether any additional 
compensation is awarded by the arbitration. Additional compensation 
awarded in the arbitration will be paid to the Claimant after the signed 
Release and Certification Form is received.
    (i) Final decision. The decision of the arbitrator will be final and 
binding on all parties and will not be subject to any administrative or 
judicial review. The arbitrator may correct clerical, typographical or 
computational errors as requested by the Alternate Dispute Resolution 
Office.
    (j) Administration of arbitration. The Alternate Dispute Resolution 
Office will serve as arbitration administrator and will conclusively 
resolve any procedural disputes arising in the course of the 
arbitration. The Alternate Dispute Resolution Office will pay the fees 
of the arbitrator and reimburse the arbitrator for arbitration related 
expenses unless the parties jointly agree otherwise.



Sec. 295.43  Judicial review.

    As an alternative to arbitration, a Claimant dissatisfied with the 
outcome of an Administrative Appeal may seek judicial review of the 
decision by bringing a civil lawsuit against FEMA in the United States 
District Court for the District of New Mexico. This lawsuit must be 
brought within 60 Days of the date that appears on the Administrative 
Appeal decision. The court may only consider evidence in the 
Administrative Record. The court will uphold our decision if it is 
supported by substantial evidence on the record considered as a whole. 
If the judge has awarded damages over and above those previously paid, 
FEMA will cause the damages to be paid to the Claimant upon receipt of 
the Release and Certification Form or as otherwise specified by order of 
the court. Claimants who have received any compensation under the CGFAA 
must return a Release and Certification Form as provided in Sec. 
295.30(c), regardless of whether the court awards additional 
compensation.



                           Subpart F_Glossary



Sec. 295.50  Definitions

    Administrative Appeal means an appeal of the Authorized Official's 
Determination to the Director of OCGFC in accordance with the provisions 
of Subpart E of these regulations.
    Administrative Record means all information submitted by the 
Claimant and all information collected by FEMA concerning the claim, 
which is used to evaluate the claim and to formulate the Authorized 
Official's Determination. It also means all information that is 
submitted by the Claimant or FEMA in an Administrative Appeal and the 
decision of the Administrative Appeal. It excludes the opinions, 
memoranda and work papers of our attorneys and drafts of documents 
prepared by OCGFC personnel and contractors.
    Alternate Dispute Resolution Office means the Office established by 
FEMA to promote use of Alternative Dispute Resolution as a means of 
resolving disputes. The address of the Alternate Dispute Resolution 
Office is Federal Emergency Management Agency, 500 C Street, SW., 
Washington, DC 20472.
    Authorized Official means an employee of the United States who is 
delegated with authority by the Director of OCGFC to render binding 
determinations on claims and to determine compensation due to Claimants 
under the CGFAA.
    Authorized Official's Determination means a report signed by an 
Authorized Official and mailed to the Claimant evaluating each element 
of the claim as stated in the Proof of Loss

[[Page 534]]

and determining the compensation, if any, due to the Claimant.
    Claimant means a person who has filed a Notice of Loss under the 
CGFAA.
    Claims Reviewer means an employee of the United States or an OCGFC 
contractor or subcontractor who is authorized by the Director of OCGFC 
to review and evaluate claims submitted under the CGFAA.
    Days means calendar days, including weekends and holidays.
    Destruction of a Home means destruction or physical damage to a 
residence or the land upon which it sat, resulting from the Cerro Grande 
Fire.
    Discount to Net Present Value means a reduction of an award for 
damages arising in the future by making allowance for the fact that such 
award, if properly invested would earn interest.
    Household means a group of people, related or unrelated, who live 
together on a continuous basis and does not include members of an 
extended family who do not regularly and continuously cohabit.
    Household Including Tribal Members means a Household that existed on 
May 4, 2000, which included one or more Tribal Members as continuous 
residents.
    Indian tribe means an entity listed on the most recent list of 
federally recognized tribes published in the Federal Register by the 
Secretary of the Interior pursuant to the Federally Recognized Indian 
Tribe List Act, 25 U.S.C. 479a, or successor legislation.
    Injured Person means an individual, regardless of citizenship or 
alien status, an Indian tribe, corporation, tribal corporation, 
partnership, company, association, cooperative, joint venture, limited 
liability company, estate, trust, county, city, State, school district, 
special district or other non-Federal entity that suffered Loss 
resulting from the Cerro Grande Fire and any entity that provided 
insurance to an Injured Person. The term Injured Person includes an 
Indian tribe with respect to any claim relating to property or natural 
resources held in trust for the Indian tribe by the United States. 
Lenders holding mortgages or security interests on property affected by 
the Cerro Grande fire and lien holders are not ``Injured Persons'' for 
purposes of the CGFAA.
    Loss means ``injury or loss of property, or personal injury or 
death,'' as that phrase appears in the Federal Tort Claims Act, 28 
U.S.C. 1346(b)(1), and the several categories of ``property loss,'' 
``business loss'' or ``financial loss'' set out in the Sec. 104(d) of 
the CGFAA.
    Mitigation Compensation Plan means a written mitigation plan 
submitted by a local government with land use regulatory authority or by 
an Indian tribe that recommends specific mitigation measures to reduce 
the heightened risks of wildfire, flood or other natural hazards 
resulting from the Cerro Grande Fire or seeks compensation for the cost 
of such measures expended before August 28, 2000, or both. The 
Mitigation Compensation Plan may address property specific mitigation 
measures and community level mitigation measures.
    Notice of Loss means a form supplied by OCGFC through which an 
Injured Person makes a binding, conclusive and irrevocable election to 
have all Losses resulting from the Cerro Grande Fire reviewed by FEMA 
for possible compensation under the CGFAA.
    Proof of Loss means a statement, signed by a Claimant under penalty 
of perjury and subject to the provisions of 18 U.S.C.1001 that the claim 
is true and correct, attesting to the nature and extent of the 
Claimant's injuries.
    Public Assistance Program means the FEMA program establish under 
Subchapter IV of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, as amended, 42 U.S.C. 5121, et seq., which provides 
grants to States, local governments, Indian tribes and private nonprofit 
organizations for emergency measures and repair, restoration and 
replacement of damaged facilities.
    Replacement Cost means the cost of replacing an item that is damaged 
or destroyed with an item that is comparable in quality and utility.
    Release and Certification Form means a document in the manner 
prescribed by Sec. 104(e) of the CGFAA that all Claimants who have 
received or are awarded compensatory damages under the CGFAA must 
execute and return to OCGFC as required by Sec. 295.30(c).

[[Page 535]]

    Subsistence Resources means food and other items obtained through 
hunting, fishing, firewood and other resource gathering, timbering, 
grazing or agricultural activities undertaken by the Claimant without 
financial remuneration.
    Tribal Member means an enrolled member of an Indian Tribe.

                        PARTS 296-299 [RESERVED]

[[Page 536]]



                        SUBCHAPTER F_PREPAREDNESS





PART 300_DISASTER PREPAREDNESS ASSISTANCE--Table of Contents




Sec.
300.1 Definitions.
300.2 Technical assistance.
300.3 Financial assistance.

    Authority: 42 U.S.C. 5121 et seq.; Reorganization Plan No. 3 of 
1978; E.O. 12148.

    Source: 45 FR 13464, Feb. 29, 1980, unless otherwise noted.



Sec. 300.1  Definitions.

    As used in this part:
    (a) The Act means the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, 42 U.S.C. 5121 et seq.
    (b) Disaster assistance plans means those plans which identify tasks 
needed to deliver disaster assistance and to avoid, reduce, or mitigate 
natural hazards; make assignments to execute those tasks; reflect State 
authorities for executing disaster assignments; and provide for adequate 
training of personnel in their disaster or mitigation assignments.
    (c) Mitigation means the process of systematically evaluating the 
nature and extent of vulnerability to the effects of natural hazards 
present in society and planning and carrying out actions to minimize 
future vulnerability to those hazards to the greatest extent 
practicable.
    (d) State means any State of the United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, 
Commonwealth of the Northern Mariana Islands, the Trust Territory of the 
Pacific Islands, the Federated States of Micronesia, or the Republic of 
the Marshall Islands.

[54 FR 2128, Jan. 19, 1989]



Sec. 300.2  Technical assistance.

    Requests for technical assistance under section 201(b) of the Act 
shall be made by the Governor or his/her designated representative to 
the Regional Director.
    (a) The request for technical assistance shall indicate as 
specifically as possible the objectives, nature, and duration of the 
requested assistance; the recipient agency or organization within the 
State; the State official responsible for utilizing such assistance; the 
manner in which such assistance is to be utilized; and any other 
information needed for a full understanding of the need for such 
requested assistance.
    (b) The request for assistance requires participation by the State 
in the technical assistance process. As part of its request for such 
assistance, the State shall agree to facilitate coordination among FEMA, 
local governments, State agencies and the businesses and industries in 
need of assistance in the areas of disaster preparedness and mitigation.

[54 FR 2129, Jan. 19, 1989]



Sec. 300.3  Financial assistance.

    (a) The Regional Director may provide to States upon written request 
by the State Governor or an authorized representative, an annual 
improvement grant up to $50,000, but not to exceed 50 percent of 
eligible costs, except where separate legislation requires or permits a 
waiver of the State's matching share, e.g., with respect to ``insular 
areas'', as that term is defined at 48 U.S.C. 1469a(d). The nonFederal 
share in all cases may exceed the Federal share.
    (b) The improvement grant shall be product-oriented; that is, it 
must produce something measurable in a way that determines specific 
results, to substantiate compliance with the grant workplan objectives 
and to evidence contribution to the State's disaster capability. The 
following list, which is neither exhaustive nor ranked in priority 
order, offers examples of eligible products under the Disaster 
Preparedness Improvement Grant Program:
    (1) Evaluations of natural hazards and development of the programs 
and actions required to mitigate such hazards;
    (2) Hazard mitigation activities, including development of 
predisaster natural hazard mitigation plans, policies, programs and 
strategies for State-level multi-hazard mitigation;

[[Page 537]]

    (3) Updates to State disaster assistance plans, including plans for 
the Individual and Family Grant (IFG) Program, Public Assistance 
Program, Hazard Mitigation Grant Program, Disaster Application Center 
operations, damage assessment, etc.;
    (4) Handbooks to implement State disaster assistance program 
activities;
    (5) Exercise materials (EXPLAN, scenario, injects, etc.) to test and 
exercise procedures for State efforts in disaster response, including 
provision of individual and public assistance;
    (6) Standard operating procedures for individual State agencies to 
execute disaster responsibilities for IFG, crisis counseling, mass care 
or other functional responsibilities;
    (7) Training for State employees in their responsibilities under the 
State's disaster assistance plan;
    (8) Report of formal analysis of State enabling legislation and 
other authorities to ensure efficient processing by the State of 
applications by governmental entities and individuals for Federal 
disaster relief;
    (9) An inventory of updated inventory of State/local critical 
facilities (including State/local emergency operations centers) and 
their proximity to identified hazard areas;
    (10) A tracking system of critical actions (identified in 
postdisaster critiques) to be executed by State or local governments to 
improve disaster assistance capabilities or reduce vulnerability to 
natural hazards.
    (11) Plans or procedures for dealing with disasters not receiving 
supplementary Federal assistance;
    (12) Damage assessment plans or procedures;
    (13) Procedures for search and rescue operations; and,
    (14) Disaster accounting procedures.
    (c) The State shall provide quarterly financial and performance 
reports to the Regional Director. Reporting shall be by program quarter 
unless otherwise agreed to by the Regional Director.

[54 FR 2129, Jan. 19, 1989]

                           PART 301 [RESERVED]



PART 302_CIVIL DEFENSE-STATE AND LOCAL EMERGENCY MANAGEMENT ASSISTANCE 
PROGRAM (EMA)--Table of Contents




Sec.
302.1 Purpose.
302.2 Definitions.
302.3 Documentation of eligibility.
302.4 Merit personnel systems.
302.5 Allocations and reallocations.
302.6 Fiscal year limitation.
302.7 Use of funds, materials, supplies, equipment, and personnel.
302.8 Waiver of ``single'' State agency requirements.

    Authority: 50 U.S.C. app. 2251 et seq. Reorganization Plan No. 3 of 
1978; E.O. 12148.

    Source: 48 FR 44211, Sept. 28, 1983, unless otherwise noted.



Sec. 302.1  Purpose.

    (a) The regulations in this part prescribe the requirements 
applicable to the Emergency Management Assistance (EMA) program for 
Federal financial contributions to the States, and through the States to 
their political subdivisions, for up to one half of the necessary and 
essential State and local civil defense personnel and administrative 
expenses, under section 205 of the Federal Civil Defense Act of 1950, as 
amended, and set forth the conditions under which such contributions 
will be made.
    (b) The intent of this program is to increase civil defense 
operational capability at the State and local levels of government by 
providing Federal financial assistance so that personnel and other 
resources can be made available for essential planning and other 
administrative functions and activities required in order to accomplish 
this objective.



Sec. 302.2  Definitions.

    Except as otherwise stated or clearly apparent by context, the 
definitions ascribed in this section to each of the listed terms shall 
constitute their meaning when used in the regulations in this part. 
Terms not defined in this part shall have the meaning set forth in their 
definition, if any, in the Federal Civil Defense Act of 1950, as 
amended.

[[Page 538]]

    (a) Act. The Federal Civil Defense Act of 1950, as amended (50 
U.S.C. App. 2251 et seq.).
    (b) Administrative expenses. Necessary and essential expenses, other 
than personnel expenses as defined in this section, of a grantee and its 
subgrantees incurred in the administration of their civil defense 
programs, as detailed in CPG 1-3, Federal Assistance Handbook, and in 
CPG 1-32, FEMA Financial Assistance Guidelines.
    (c) Annual submission. The State's annual request for participation 
in the contributions program authorized by section 205 of the Act. As 
specified in CPG 1-3, it includes staffing patterns (including job 
description changes), budget requirements, and any amendments to the 
State administrative plan, a request for funds covering the State and 
its subgrantees and program statements of work for the grantee and 
subgrantees under the Comprehensive Cooperative Agreement.
    (d) Approval. All approvals by the Federal Emergency Management 
Agency (FEMA) as grantor agency required under the regulations in this 
part mean prior approval in writing signed by an authorized FEMA 
official. When failure to obtain prior approval of an action has not 
resulted and is not expected to result in any failure of compliance with 
a substantive requirement, and approval after the fact is not contrary 
to law (or regulation having the effect of law), written approval after 
the fact may be granted at the discretion of the authorized official.
    (e) CPG 1-3. Civil Preparedness Guide entitled ``Federal Assistance 
Handbook,'' which sets forth detailed guidance on procedures that a 
State and, where applicable, its political subdivisions must follow in 
order to request financial assistance from the grantor agency. It also 
sets forth detailed requirements, terms, and conditions upon which 
financial assistance is granted under these regulations. Included are 
amendments by numbered changes. References to CPG 1-3 include provisions 
of any other volumes of the CPG series specifically referenced in CPG 1-
3. Copies of the Civil Preparedness Guides and the Civil Preparedness 
Circulars may be ordered by FEMA Regional Offices using FEMA Form 60-8 
transmitted to FEMA, P.O. Box 8181, Washington, DC, 20024. One or more 
copies of CPG 1-3 have been distributed to each State and to each local 
government participating in the program under the regulations in this 
part. Copies of revisions and amendments are distributed to 
participating governments (addressed to the Emergency Management 
Coordinator) upon issuance.
    (f) Comprehensive Cooperative Agreement (CCA). Provides for each 
State a single vehicle for applying for and receiving financial 
assistance for several discrete FEMA programs and for organizing and 
reporting on emergency management objectives and accomplishments, 
particularly under the funded programs.
    (g) Emergency management. Refers to the activities and measures 
undertaken by a State, or one of its political subdivisions, to manage a 
``civil defense program'' as defined and provided for by the Federal 
Civil Defense Act of 1950, as amended, including without limitation 
Title V, added by Public Law 96-342, and section 207, added by Public 
Law 97-86. Title V calls for an improved civil defense program that 
includes:
    (1) A program structure for the resources to be used for attack-
related civil defense; (2) a program structure for the resources to be 
used for disaster-related civil defense; and (3) criteria and procedures 
under which those resources planned for attack-related civil defense and 
those planned for disaster-related civil defense can be used 
interchangeably. Thus, emergency management includes ``civil defense'' 
for and operations in either attack-related or disaster-related 
emergencies. Section 207 allows Federal Civil Defense Act funds to be 
used for disaster preparedness and response if such use ``is consistent 
with, contributes to, and does not detract from attack-related civil 
defense preparedness.'' Also 44 CFR part 312, Use of Civil Defense 
Personnel, Materials, and Facilities for Natural Disaster Purposes, 
provides terms and conditions for such use.

[[Page 539]]

    (h) Director. The head of the grantor agency or another official of 
the Agency authorized in writing by the Director to act officially on 
behalf of the Director.
    (i) Forms prescribed by the grantor agency. Forms prescribed by the 
grantor agency are identified in CPG 1-3 and may be ordered by FEMA 
Regional Offices using FEMA Form 60-8 transmitted to FEMA, P.O. Box 
8181, Washington, DC, 20024.
    (j) Grantee. A State that has received EMA funds as a result of 
having a State administrative plan, a statement of work, and an annual 
submission, all approved by the grantor agency as meeting the 
requirements prescribed in this part and in CPG 1-3 for necessary and 
essential State and local civil defense personnel and administrative 
expenses for a current Federal fiscal year.
    (k) Grantor agency. The Federal Emergency Management Agency (FEMA).
    (l) Interstate civil defense authority. Any civil defense authority 
established by interstate compact pursuant to section 201(g) of the Act.
    (m) Necessary and essential civil defense expenses. Necessary and 
essential civil defense expenses are those required for the proper and 
efficient administration of the civil defense program of a grantee or a 
subgrantee as described in a State administrative plan and statement of 
work approved by the Regional Director as being consistent with the 
national plan (i.e., program) for civil defense and as meeting other 
requirements for civil defense prescribed by or under provisions of the 
Act.
    (n) OMB Circular A-87. ``Cost Principles Applicable to Grants and 
Contracts with State and Local Governments,'' promulgated by the Office 
of Management and Budget, Executive Office of the President, as 
published in the Federal Register (46 FR 9548) and subsequent amendments 
or revisions. (See CPG 1-32, Financial Assistance Guidelines).
    (o) OMB Circular A-102. ``Uniform Administrative Requirements for 
Grants-in-aid to State and Local Governments,'' promulgated by the 
Office of Management and Budget, Executive Office of the President (42 
FR 45828) including amendments or revisions as published in the Federal 
Register. (See CPG 1-32, Financial Assistance Guidelines).
    (p) Emergency Operations Plan (EOP). State or local government 
Emergency Operations Plans identify the available personnel, equipment, 
facilities, supplies, and other resources in the jurisdiction and states 
the method or scheme for coordinated actions to be taken by individuals 
and government services in the event of natural, manmade and attack-
related disasters.
    (q) Personnel expenses. Necessary and essential civil defense 
expenses for personnel on the approved staffing pattern of a grantee or 
subgrantee (including but not necessarily limited to salaries, wages, 
and supplementary compensation and fringe benefits) for such employees 
appointed in accordance with State and local government laws and 
regulations under a system which meets Federal merit system and other 
applicable Federal requirements. Such expenses must be supported by job 
descriptions, payrolls, time distribution records, and other 
documentation as detailed in CPG 1-3. Personnel compensation and other 
costs incurred with regard to employees who are not on the civil defense 
staff but whose work serves the civil defense agency (e.g., State's 
budget and accounting office) may be charged as civil defense expense to 
the extent covered therefore in a federally approved indirect cost 
allocation plan.
    (r) Political subdivisions. Local governments, including but not 
limited to cities, towns, incorporated communities, counties or 
parishes, and townships.
    (s) Regional Director. A FEMA official delegated authority to 
exercise specified functions as they apply to grantees and subgrantees, 
within the geographical area of a particular region as identified 
(including address) in 44 CFR part 2.
    (t) State. Any of the actual States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, and the territories of American Samoa, Guam, and the Virgin 
Islands.
    (u) State administrative plan (OMB 3067-0138). A one-time submission 
with

[[Page 540]]

amendments as necessary to keep it current, the plan is a formal 
description of each participating State's total civil defense program 
and of related State and local laws, executive directives, rules, and 
plans and procedures, including personnel standards administered on a 
merit basis, updated emergency operations plans, travel regulations, 
indirect cost allocation plans and other information necessary to 
reflect the total civil defense program throughout the State. The plan 
also includes without limitation documentation as to administrative and 
financial systems to assure compliance with uniform grant-in-aid 
administrative requirements for States and subgrantees as required under 
OMB Circular A-102 and with other requirements relevant to the 
eligibility of the State and its political subdivisions for 
participation in financial assistance programs for civil defense 
purposes. Detailed requirements are prescribed in CPG 1-3. (Also see 
Sec. 302.3.)
    (v) Statement of work. Formal identification of specific actions to 
be accomplished by a State and its political subdivisions during the 
fiscal year for which Federal funds are being requested by the State. 
Submission is made to the FEMA Regional Director as part of the CCA 
Program Narrative.
    (w) Subgrantee. A political subdivision of a State listed in the 
State's annual submission (or amendments thereto) as approved by the 
grantor agency (including any grantor agency-approved amendments 
thereto) as eligible to receive a portion of the Federal financial 
contribution provided for use within the State. The term includes Indian 
tribes when the State has assumed jurisdiction pursuant to State law and 
tribal regulations.

[48 FR 44211 Sept. 28, 1983, as amended at 51 FR 12520, Apr. 11, 1986]



Sec. 302.3  Documentation of eligibility.

    In order to remain eligible for Federal financial contributions 
under the regulations in this part, each State must have on file with 
FEMA a current State administrative plan, an emergency operations plan 
for civil defense, and an annual submission (including a statement of 
work) which have been approved by the Regional Director as being 
consistent with the national plan (i.e., program) for civil defense and 
as meeting the requirements of the regulations in this part and CPG 1-3. 
A State may allocate a portion of its EMA funds to an Indian tribe as a 
subgrantee where the State has assumed jurisdiction pursuant to State 
law and tribal regulations.
    (a) State administrative plans. Every State has a State 
administrative plan file with FEMA and is required to keep the plan 
current through amendments as necessary. Such plans and amendments shall 
be reviewed by the Regional Director, who will advise the State in 
writing as to the effect, if any, changes will have on the continued 
eligibility of the State and its subgrantees. The Regional Director 
shall not, however, approve any amendments that would result in failure 
of the plan to meet these criteria:
    (1) Provides for and is, pursuant to State law, in effect in all 
political subdivision of the State, mandatory on them, and, unless 
waived by the Director under section 204 of the Intergovernmental 
Cooperation Act of 1968 (42 U.S.C. 4214), administered or supervised by 
a single State administrative agency. In demonstrating that the State 
administrative plan for civil defense is in effect in all political 
subdivisions of the State and mandatory on them, the plan shall contain 
references to the applicable State statutes and local ordinances, 
executive orders and directives, and rules and regulations at the State 
and local level that establish the civil defense authority, structure, 
plans, and procedures, including those relating to emergency operations, 
throughout the State.
    (2) Provides assurance of nonFederal contributions at least equal to 
Federal funding for necessary and essential costs eligible under this 
program from any source consistent with State law, but not from another 
Federal source unless Federal law specifically authorizes the use of 
funds from such Federal source as part of the State's share.
    (3) Provides for the development of State and local government civil 
defense emergency operations plans pursuant to the standards approved by 
the Director.

[[Page 541]]

    (4) Provides for the employment by the State of full-time civil 
defense director or deputy director.
    (5) Provides for the establishment and maintenance of methods of 
personnel administration in public agencies administering or supervising 
the civil defense program, at both the State and local government 
levels, in conformity with the Standards for a Merit System of Personnel 
Administration (5 CFR part 900), which incorporate the Intergovernmental 
Personnel Act Merit Principles (Pub. L. 91-648, section 2, 84 Stat. 
1908) prescribed by the Office of Personnel Management pursuant to 
section 208 of the Intergovernmental Personnel Act of 1970, as amended.
    (6) Provides for the establishment of safeguards to prohibit State 
and local government employees from using their positions for a purpose 
that is or gives the appearance of being motivated by desire for private 
gain for themselves or others, particularly those with whom they have 
family, business, or other ties.
    (7) Provides that the State shall make such reports (including 
without limitation financial reports) in such form and content as the 
Director may require.
    (8) Provides that the State and all subgrantees shall retain, in 
accordance with OMB Circular A-102, and make available to duly 
authorized representatives of the Director and the U.S. Comptroller 
General all books, records, and papers pertinent to the grant program 
for the purpose of making audits, examinations, excerpts, and 
transcripts necessary to conduct audits.
    (9) Provides for establishment and maintenance of a financial 
management system of grant-supported activities of the State and all 
subgrantees which meets the federally prescribed standards promulgated 
in ``Standards for Grantee Financial Management Systems,'' Attachment G 
of OMB Circular A-102.
    (10) Provides for establishment and maintenance of procedures for 
monitoring and reporting grant program and projet performance of the 
State and its subgrantees which meet the federally prescribed standards 
promulgated in Attachment I of OMB Circular A-102.
    (11) Provides for the establishment and maintenance at the State 
level and by subgrantees of property management systems in accordance 
with the federally prescribed standards set forth in Attachment N of OMB 
Circular A-102.
    (12) Provides for the establishment and maintenance at the State 
level and by subgrantees of systems for the procurement of supplies, 
equipment, construction, and other services, with the assistance of 
grant funds, in accordance with federally prescribed standards set forth 
in Attachment O of OMB Circular A-102.
    (13) Provides for disbursement of the appropriate share of the 
Federal grant to the State's subgrantees in accordance with requirements 
detailed in CPG 1-3.
    (14) Provides for the State's supervision and review of the civil 
defense plans, programs, and operations of its subgrantees to obtain 
conformity and compliance with Federal requirements and goals set forth 
or referenced in the regulations in this part and as detailed in CPG 1-
3.
    (15) Contains a Statement of Compliance with grantor agency 
regulations relating to nondiscrimination in FEMA programs (see 44 CFR 
part 7).
    (16) Provides for timely submission to the appropriate Regional 
Director of amendments to the administrative plan as necessary to 
reflect the current laws, regulation, criteria, plans, methods, 
practices, and procedures for administration of the State's civil 
defense program and those of its subgrantees.
    (17) Conforms to other Federal standards and requirements set forth 
or referenced in the regulations in this part and as detailed in CPG 1-
3.
    (18) Provides for performance of independent organizationwide audits 
by State and local governments that receive EMA funds of their financial 
operations, including compliance with certain provisions of Federal law 
and regulation.
    (b) Emergency Operations Plans (EOP's). (1) Each participating State 
shall have an EOP approved by the Regional Director and conforming with

[[Page 542]]

the requirements for plan content set forth in this part and in CPG 1-3, 
and in CPG 1-8 ``Guide for the Development of State and Local Emergency 
Operations Plans'' and in CPG 1-8A, ``Guide for the Review of State and 
Local Emergency Operations Plans,'' which plan must provide for 
coordinated actions to be undertaken throughout the State in the event 
of attack and in the event of other disasters.
    (2) Each subgrantee jurisdiction shall have a local EOP which 
conforms with the requirements for plan content as set forth in CPG 1-3 
and CPG 1-8 and CPG 1-8A, and which has been approved by the local chief 
executive or other authorized official and accepted by the Governor or 
other authorized State official as being consistent with the State's 
EOP.
    (c) Annual submission. Each State should include in its annual CCA 
application the amount of EMA funding requested (see Sec. 302.5(c)). In 
order to participate for a particular Federal fiscal year, however, each 
State must also, within 60 days of receipt or notice of a formal 
allocation made pursuant to the criteria set forth in Sec. 302.5 and in 
accordance with procedures and criteria specified in CPG 1-3, aubmit to 
the Regional Director an approvable annual submission which includes:
    (1) A request or amended request for a financial contribution from 
FEMA in a specified amount for civil defense personnel and 
administrative expenses; (see Sec. 302.5 (d) through (h)).
    (2) Unless previously submitted for the particular Federal fiscal 
year, a statement of work for the State and proposed subgrantees or 
amendments to a statement of work previously submitted under the CCA.
    (3) Staffing patterns (including new or revised job descriptions not 
previously submitted) on forms prescribed by FEMA for the civil defense 
organizations of the State and proposed subgrantees; and
    (4) Any amendments to the State administrative plan required to 
reflect current status.
    (d) Approval of State administrative plan and annual submission. If 
the State administrative plan and the annual submission are determined 
to be approvable, the Regional Director will so notify the State in 
writing. The State administrative plan is a one-time submission. Unless 
amendments are necessary to meet Federal standards prescribed in the 
regulations in this part or in CPG 1-3 or to reflect changes in the 
State's administrative structure, procedures, criteria, or activities, 
or unless a portion were conditionally approved by the Regional Director 
as provided for in paragraph (e) of this section, no approval regarding 
the State administrative plan will be required for a State which 
participated for the preceding Federal fiscal year.
    (e) Agreement for contribution. Approval pursuant to procedures and 
criteria described in this part and in CPG 1-3 of an annual submission 
of a State whose administrative plan is approved and current shall 
constitute agreement between FEMA and the State as grantee for its 
participation and that of its subgrantees in this program during the 
Federal fiscal year covered by the approved annual submission on the 
basis of the requirements and conditions prescribed in this part, in CPG 
1-3, and in other federally promulgated criteria referenced in this 
part. Refusal or failure to comply with such requirements and conditions 
may result in the grantor agency cancelling, terminating, or suspending 
the grant, in whole or in part, and refraining from extending any 
further assistance to the grantee or subgrantee until satisfactory 
assurance of future compliance has been received.
    (f) Disapproval or conditional approval. If a State's administrative 
plan or annual submission is disapproved, the Regional Director will 
advise the State in writing, including the reasons for such disapproval 
and the revisions required for approval. The State shall have 30 days 
from date of such notification in which to submit its revisions. In the 
event more time is required in which to place the revisions into effect, 
the Regional Director may conditionally approve the State administrative 
plan or annual submission subject to the specified conditions to be met 
within a specified time, as agreed by the State and FEMA.
    (g) Appeals. (1) Appeal from a Regional Director's disapproval of a 
State

[[Page 543]]

administrative plan or an annual submission or other final action as 
unjustified under the criteria in CPG 1-3 may be made by letter to the 
Associate Director, State and Local Programs and Support (FEMA), signed 
by an authorized State official and submitted through the Regional 
Director. Such appeal letter shall be mailed or otherwise transmitted so 
as to reach the Regional Director within 30 days after receipt of the 
notification of disapproval. Failure to file its appeal on time may 
result in withdrawal of the State's allocation and the proposed funding 
being reallocated by the Director.
    (2) A local jurisdiction that regards the final action on its 
subgrant made by a State as unjustified under the criteria in CPG 1-3 
may submit an appeal through the State to the Regional Director. Upon 
receipt of such an appeal, the Regional Director shall forward the 
letter, together with all available pertinent documentation from the 
Regional Director's files and any additional documentation submitted by 
the local jurisdiction in support of its appeal, to the Associate 
Director, State and Local Programs and Support, for review and 
determination. The appeal shall contain all of the exceptions being 
taken by the State or local jurisdiction, and no exceptions will be 
determined piecemeal.
    (3) No portion of the appellant State's allocation shall be 
reallocated by FEMA, and no portion of a local jurisdiction's allocation 
shall be reallocated by the State, pending determination of its appeal 
by the Director. The State and local jurisdiction (if applicable) will 
be notified in writing of the Director's decision, including a statement 
of the reasons therefor.

(Approved by Office of Management and Budget under control number 3067-
0138)

[48 FR 44211 Sept. 28, 1983, as amended at 51 FR 12520, Apr. 11, 1986]



Sec. 302.4  Merit personnel systems.

    (a) Background. Section 208 of the Intergovernmental Personnel Act, 
as amended (42 U.S.C. 4728) authorizes Federal agencies to require, as a 
condition of participation in Federal assistance programs, systems of a 
personnel administration consistent with personnel standards prescribed 
by the Office of Personnel Management (OPM). OPM has promulgated 
Standards for a System of Personnel Administration (5 CFR part 900) 
which prescribe intergovernmental personnel standards on a merit basis 
as a condition of eligibility in the administration of grant programs. 
OPM has approved FEMA adoption of these standards by the regulations in 
this part.
    (b) Standard. Participation by each grantee and each subgrantee 
under the program covered in this part is subject to compliance with the 
following conditions regarding merit personnel systems:

    Methods of personnel administration will be established and 
maintained in public agencies administering or supervising the 
administration of the civil defense program in conformity with the 
Standards for a Merit System of Personnel Administration 5 CFR part 900, 
which incorporate the Intergovernmental Personnel Act Merit Principles 
(Pub. L. 91-648, section 2, 84 Stat. 1909) prescribed by the Office of 
Personnel Management pursuant to section 208 of the Intergovernmental 
Personnel Act of 1970 as amended.


Section 302.3(a)(5) of this part provides, in part, that State 
administrative plans that fail to provide for fulfilling this condition 
are not approvable.



Sec. 302.5  Allocations and reallocations.

    (a) The Director shall allocate the entire amount of funds available 
for the purposes of this program from the appropriation for each fiscal 
year. The allocation made to each State represents the total amount of 
funds available to pay the Federal share of necessary and essential 
civil defense personnel and administrative expenses of the State and its 
participating subdivisions during the fiscal year.
    (b) The first calculation for developing the allocation for each 
State will be a formula distribution in accordance with section 205(d) 
of the Act, made by applying the following percentages to the total sum 
of Emergency Management Assistance in the President's budget request to 
Congress:
    (1) Fifty (50) percent will be allocated on the basis of the prior-
year State allocations, in fulfilment of the statutory requirement to 
give due regard to ``the relative state of development of

[[Page 544]]

civil defense readiness of the State'' (State and local levels).
    (2) Thirty-three (33) percent will be allocated on the basis of the 
ratio of the State's population to the national population (50 States, 
District of Columbia, and Puerto Rico), in fulfilment of the statutory 
requirements to give due regard to ``population'' and to ``the 
criticality of target and support areas and the areas which may be 
affected by natural disasters with respect to the development of the 
total civil defense readiness of the Nation.''
    (3) Fifteen (15) percent will be divided equally among the 50 
States, the District of Columbia, and Puerto Rico.
    (4) In consonance with the statutory provision allowing the Director 
to prescribe other factors concerning the State allocations, the 
remaining two (2) percent will be held temporarily in reserve, to be 
used first to fund the four territories of the Virgin Islands, American 
Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. 
Conditions peculiar to those areas make strict application of the 
mathematical formula in Sec. 302.5(b) inequitable. Therefore, the 
Director will consider prior-year allocations, percentage of total 
United States population, and the factors set out in Sec. 302.5(e) (1), 
(2), (4), and (5) in determining their allocations. The remaining 
balance of the reserve fund will then be used to restore any State which 
would receive less by formula share than its formula share for the 
previous fiscal year, provided that the reserve balance is sufficient to 
do this for all such States. Any remaining balance after this has been 
done will constitute a supplemental fund from which the Director will 
consider State requests for additional funding and the needs of any 
interstate civil defense authorities.
    (c) For initial planning purposes only, each State will then be 
informed of the figure by the Regional Director. The State will base its 
initial EMA application upon that figure but may request a smaller 
amount or with appropriate justification a larger amount.
    (d) The amount requested by the State shall not exceed 50 percent of 
its estimate of necessary and essential State and local personnel and 
administrative expenses for the fiscal year.
    (e) The formula distribution shall be reviewed and evaluated, and 
adjusted as appropriate, by the Director, based on the current situation 
in each State, the requests of all States, and recommendations by the 
Regional Directors. The Director will consider the following five 
factors:
    (1) The ability of the State and its subgrantees to effectively 
expend such an amount for necessary and essential civil defense 
personnel and administrative purposes. Past performance is a factor in 
this determination.
    (2) Special circumstances existing in the State at the time of 
allocating which require unusual expenditures for civil defense.
    (3) Conditions peculiar to the State which make strict application 
of mathematical formula inequitable either to that State or other 
States.
    (4) The relative cost of civil defense personnel and administrative 
services in that State; that is, whether such costs are considerably 
above or below the national average for similar services and expenses.
    (5) Substantial changes in the civil defense readiness of the State 
not reflected by its recent civil defense expenditures.
    (f) In September of each year, based on applications received and 
recommendations by the Regional Directors, the Director will make a 
tentative allocation to the States. This will include adjustments for 
States that have indicated they will not be using the total of the 
formula distribution amount. States can then revise their earlier plans 
and applications to more nearly reflect the level of funding expected to 
become available.
    (g) A State may provide to the Regional Director a preliminary 
annual submission in an amount not to exceed its tentative allocation.
    (h) By September 30 (or as soon thereafter as feasible), the 
Director will make a formal allocation based on, or subject to, 
appropriation by Congress and allotment of the funds. This allocation 
for each State may include any additional amounts from the reserve 
portion of the EMA funds, and

[[Page 545]]

shall be in accordance with the regulations in this part and CPG 1-3.
    (i) Upon the appropriation becoming available, and if requested by a 
State, the Regional Director may approve such State's preliminary annual 
submission (if found to meet all requirements in this part and CPG 1-3) 
in an appropriate amount which does not exceed the amount of the State's 
share of the Director's formal allocation of the Federal appropriation. 
An award document obligating Federal funds on the basis of the approved 
preliminary annual submission may be executed in accordance with the 
provisions of CPG 1-3.
    (j) Based on and within 60 days after notification of its formal 
allocation, each State must provide to the Regional Director a final 
annual submission which meets all requirements in this part and CPG 1-3. 
If no changes are necessary, a State and the Regional Director may adopt 
in writing the State's preliminary annual submission as its final annual 
submission. If no award document was executed based on a State's 
preliminary annual submission, such document will be executed on the 
basis of that State's approved final annual submission.
    (k) With regard to any State whose award document was executed 
pursuant to a preliminary annual submission covering only part of its 
formal allocation, upon approval (by the Regional Director) of the final 
annual submission (including a revised statement of work supporting the 
additional funding request) the Regional Director shall execute an 
amended award document obligating the balance of such State's formal 
allocation.
    (l) After being advised of its annual formal allocation, if a State 
fails to submit, within 60 days, an approvable annual submission in the 
amount of its allocation, the Regional Director may reallocate the 
unused portion to other States in the region in such amounts as in his/
her judgment will best assure adequate development of the civil defense 
capability of the Nation. The exception to this authority is in the 
event a State, or local jurisdiction, refuses to participate in attack 
preparedness activities. EMA funds withheld or returned for that reason 
are to be released to headquarters for reallocation on a national basis. 
In addition, the Regional Director may from time to time reallocate the 
amounts released by a State from its allocation as no longer being 
required for utilization in accordance with an approved annual 
submission and award document.
    (m) Immediate notice to the headquarters EMA Program Manager of 
State reallocations is required in the form of copies of EMA-approved 
Annual Submission amendment documents, accompanied by copies of 
assistance award/amendment documents signed by regional and State 
authorized officials of both the releasing and recipient States.
    (n) There is no dollar ceiling on the amount of funds that may be 
reallocated among States in a region. However, at any time that there 
are funds surplus to the eligible needs of the States within a region, 
those funds should be promptly released to headquarters for reallocation 
to other States with unfunded additional requirements.
    (o) On July 1 of each fiscal year, the authority to reallocate EMA 
funds shall revert to the Director. In addition, any excess EMA funds 
available on that date, or that become available during the remainder of 
the fiscal year, are to be promptly released to headquarters for 
reallocation by the Director.

[48 FR 44211 Sept. 28, 1983, as amended at 51 FR 12521, Apr. 11, 1986; 
51 FR 43924, Dec. 5, 1986; 56 FR 29905, July 1, 1991]



Sec. 302.6  Fiscal year limitation.

    Federal appropriations for the program covered by the regulations in 
this part are limited for obligation on a Federal fiscal year basis. 
Each annual submission (or amendment thereto) which results in a change 
in scope (e.g., an increase in the amount of funds other than a cost 
overrun) must be approved during the Federal Fiscal year for which the 
funds to be charged were appropriated. Valid expenses incurred by a 
State or its subgrantee during the fiscal year but before obligation by 
FEMA of funds under this program may qualify for payment of a Federal 
financial contribution out of the funds

[[Page 546]]

subsequently appropriated for that fiscal year.



Sec. 302.7  Use of funds, materials, supplies, equipment, and personnel.

    Financial contributions provided under the authority of section 205 
of the Act are provided for necessary and essential State and local 
civil defense personnel and administrative expenses as prescribed by the 
regulations in this part and the provisions of CPG 1-3, and are 
obligated only on the basis of documentation justifying such need.
    (a) Emergencies. In addition to such civil defense use, Federal 
funds obligated under a grantee's approved annual submission may be 
used, to the extent and under such terms and conditions as prescribed by 
the Director in CPG 1-3, for providing emergency assistance, including 
the use of civil defense personnel, organizational equipment, materials, 
and facilities, in preparation for and response to actual attack-related 
events or natural disasters (including manmade catastrophies).
    (b) Limitations. Section 207 of the Act allows use of funds under 
the Act, including those for this program, for natural (including 
manmade) disaster preparedness and response purposes only to the extent 
that such use is consistent with, contributes to, and does not detract 
from attack-related preparedness (reference 44 CFR part 312).



Sec. 302.8  Waiver of ``single'' State agency requirements.

    Section 205 of the Act requires that plans for civil defense of the 
United States be administered or supervised by a single State agency (50 
U.S.C. App. 2286). Notwithstanding such law, section 204 of the 
Intergovernmental Cooperation Act of 1968 (42 U.S.C. 4214) provides 
authority for the Director as head of the grantor agency, upon the 
State's request, to waive the single State agency requirement and to 
approve other State administrative structure or arrangements, upon 
adequate showing that the requirement prevents the establishment of the 
most effective and efficient organizational arrangements within the 
State government. First, however, the Director must have found that the 
objectives of the Act (50 U.S.C. app. 2251 et seq.) will not be 
endangered by the use of such other State structure or arrangements. 
Attachment D of OMB Circular A-102 requires that such requests be given 
expeditious handling by the grantor agency and that, whenever possible, 
an affirmative response be made.

[48 FR 44211 Sept. 28, 1983, as amended at 51 FR 12521, Apr. 11, 1986]

                           PART 303 [RESERVED]



PART 304_CONSOLIDATED GRANTS TO INSULAR AREAS--Table of Contents




Sec.
304.1 Purpose.
304.2 Definitions.
304.3 Conditions for a consolidated grant.
304.4 Allocations.
304.5 Audits and records.

    Authority: 50 U.S.C. app. 2251 et seq.; Reorganization Plan No. 3 of 
1978; E.O. 12148.

    Source: 43 FR 39776, Sept. 7, 1978, unless otherwise noted. 
Redesignated at 44 FR 56173, Sept. 28, 1979.



Sec. 304.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
basis under which the Federal Emergency Management Agency (FEMA) 
contributes Federal funds to an insular area through a consolidated 
grant.



Sec. 304.2  Definitions.

    Except as otherwise stated when used in the regulations of this 
part, the meaning of the listed terms are as follows:
    (a) Insular areas. The Virgin Islands, Guam, American Samoa, and the 
Government of the Northern Mariana Islands.
    (b) Consolidated grant. A grant by FEMA to any insular area through 
an allocation which combines funds for the State and local management 
program and the State and local maintenance and services program for a 
single Federal fiscal year.
    (c) FEMA guidance material. FEMA regulations (44 CFR chapter I), 
Civil Preparedness Guide (CPG) 1-3, and Civil Preparedness Circulars 
(CPC) as

[[Page 547]]

presently providing or hereafter amended or revised.

[43 FR 39776, Sept. 7, 1978. Redesignated at 44 FR 56173, Sept. 28, 
1979, as amended at 48 FR 44554, Sept. 29, 1983]



Sec. 304.3  Conditions for a consolidated grant.

    (a) In order to participate, an insular area must submit a (one-
time) administrative plan as provided for in FEMA guidance material (to 
be maintained in current status) and must sign a (one-time) civil rights 
assurance and a (one-time) grant agreement agreeing to comply with 
Federal requirements.
    (b) An insular area need not submit an application for a 
consolidated grant, but must submit an annual program paper which meets 
the requirements prescribed in FEMA guidance material.
    (c) Funds made available under a consolidated grant must be expended 
for State and local management program expenses and/or State and local 
maintenance and services program expenses as defined and described in 
FEMA guidance material. Each participating insular area will determine 
the proportion in which funds granted to it will be allocated between 
the two programs.
    (d) Participating insular areas need not provide matching funds for 
consolidated grants.

[43 FR 39776, Sept. 7, 1978. Redesignated at 44 FR 56173, Sept. 28, 
1979, as amended at 50 FR 40007, Oct. 1, 1985]



Sec. 304.4  Allocations.

    For each Federal fiscal year concerned, the Director, FEMA, shall 
allocate to each participating insular area an amount not less than the 
sum of grants for the two programs which the Director, FEMA, has 
determined such insular area would otherwise be entitled to receive for 
such fiscal year.



Sec. 304.5  Audits and records.

    (a) Audits. FEMA will maintain adequate auditing, accounting and 
review procedures as outlined in FEMA guidance material and OMB 
Circulars No. A-73 and A-102.
    (b) Records. Financial records, supporting documents, statistical 
records, and all other records pertinent to a consolidated grant shall 
be retained for a period of three years from submission of final billing 
and shall be available to the Director, FEMA, and the Comptroller 
General of the United States, all as prescribed in FEMA guidance 
material and in accordance with OMB Circular A-102 (42 FR 45828-45891).

                        PARTS 305-311 [RESERVED]



PART 312_USE OF CIVIL DEFENSE PERSONNEL, MATERIALS, AND FACILITIES FOR 
NATURAL DISASTER PURPOSES--Table of Contents




Sec.
312.1 Purpose.
312.2 Definitions.
312.3 Policy.
312.4 General.
312.5 Personnel.
312.6 Materials and facilities.

    Authority: Sec. 803(a)(3) Pub. L. 97-86; sec. 401, Federal Civil 
Defense Act of 1950, as amended, 50 U.S.C. app. 2253; Reorganization 
Plan No. 3 of 1978; 3 CFR, 1978 Comp., p. 329; and E.O. 12148 of July 
20, 1979, 44 FR 43239.

    Source: 47 FR 43381, Oct. 1, 1982, unless otherwise noted.



Sec. 312.1  Purpose.

    The purpose of the regulations in this part is to prescribe the 
terms and conditions under which civil defense personnel, materials, and 
facilities, supported in whole or in part through contributions under 
the Federal Civil Defense Act of 1950, as amended, 50 U.S.C. App. 2251, 
et seq., hereinafter referred to as ``the Act'', may be used for natural 
disasters, to the extent that such usage is consistent with, contributes 
to, and does not detract from attack-related civil defense preparedness.



Sec. 312.2  Definitions.

    Except as otherwise stated, when used in the regulations in this 
part, the meaning of the listed terms are as follows:
    (a) The term attack means any attack or series of attacks by an 
enemy of the United States causing, or which may cause, substantial 
damage or injury to civilian property or persons in the United States in 
any manner by sabotage or by use of bombs, shellfire, or

[[Page 548]]

atomic-radiological, chemical, bacteriological, or biological means or 
other weapons or processes;
    (b) The term natural disaster means any hurricane, tornado, storm, 
flood, high water, wind-driven water, tidal wave, tsunami, earthquake, 
volcanic eruption, landslide, mudslide, snowstorm, drought, fire, or 
other catastrophe in any part of the United States which causes, or 
which may cause, substantial damage or injury to civilian property or 
persons and, for the purposes of the Act, any explosion, civil 
disturbance, or any other manmade catastrophe shall be deemed to be a 
natural disaster;
    (c) The term civil defense means all those activities and measures 
designed or undertaken (1) to minimize the effects upon the civilian 
population caused, or which would be caused, by an attack upon the 
United States, or by natural disaster, (2) to deal with the immediate 
emergency conditions which would be created by any such attack, or 
natural disaster, and (3) to effectuate emergency repairs to, or the 
emergency restoration of vital utilities and facilities destroyed or 
damaged by any such attack or natural disaster. Such term shall include, 
but shall not be limited to, (i) measures to be taken in preparation for 
anticipated attack or natural disaster (including the establishment of 
appropriate organizations, operational plans, and supporting agreements; 
the recruitment and training of personnel; the conduct of research; the 
procurement and stockpiling of necessary materials and supplies; the 
provision of suitable warning systems; the construction or preparation 
of shelter areas, and control centers; and, when appropriate, the non-
military evacuation of civil population); (ii) measures to be taken 
during attack or natural disaster (including the enforcement of passive 
defense regulations prescribed by duly established military or civil 
authorities; the evacuation of personnel to shelter areas; the control 
of traffic and panic; and the control and use of lighting and civil 
communications); and (iii) measures to be taken following attack or 
natural disaster (including activities for firefighting; rescue, 
emergency medical, health and sanitation services; monitoring for 
specific hazards of special weapons; unexploded bomb reconnaissance; 
essential debris clearance; emergency welfare measures; and immediately 
essential emergency repair or restoration of damaged vital facilities);
    (d) The word materials shall include raw materials, supplies, 
medicines, equipment, component parts and technical information and 
processes necessary for civil defense;
    (e) The word facilities, except as otherwise provided herein, shall 
include buildings, shelters, utilities, and land;
    (f) The term United States or States shall include the several 
States, the District of Columbia, the Territories, and the possessions 
of the United States;
    (g) The term political subdivisions shall include local governments, 
including but not limited to cities, towns, incorporated communities, 
counties, parishes, and townships; and
    (h) The term CPG 1-3 refers to FEMA's ``Federal Assistance 
Handbook'' promulgated as Civil Preparedness Guide (CPG) 1-3, as 
amended, by numbered changes thereto and by Civil Preparedness Circulars 
(CPC). CPG 1-3 sets forth detailed guidance on procedures which a State 
and, where applicable, its political subdivisions must follow in order 
to request financial assistance from FEMA. It also sets forth detailed 
requirements, terms, and conditions upon which financial assistance is 
granted.

(Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)

[47 FR 43381, Oct. 1, 1982, as amended at 48 FR 44545, Sept. 29, 1983]



Sec. 312.3  Policy.

    (a) It is the policy of FEMA to provide a means of assistance to 
States and their political subdivisions in their carrying out 
responsibilities to alleviate the suffering and damage from attack-
related or natural disasters by:
    (1) Providing contributions for personnel, equipment, materials and 
facilities that may be used in preparing for or responding to disasters, 
provided that the use of such funds for natural disasters is consistent 
with, contributes to, and does not detract from attack-related civil 
defense preparedness.

[[Page 549]]

    (2) Encouraging the development of comprehensive disaster 
preparedness and assistance plans, programs, capabilities, and 
organizations by the State and its political subdivisions.
    (3) Assisting in achieving greater coordination of disaster 
preparation and response programs.
    (4) Providing technical advice and guidance to States and their 
political subdivisions for organizing and preparing to meet the effects 
of disasters.
    (b) These regulations are not to be interpreted as authorizing 
States and their political subdivisions to request or receive additional 
assistance relating to particular disaster incidents.



Sec. 312.4  General.

    (a) The Director, FEMA, will provide statements to States and their 
political subdivisions concerning Agency mission and goals, Annual 
Program Emphasis, and other directions, instructions, and technical 
guidance which together specify preparedness and response activities for 
both attack-related and natural disasters.
    (b) States and their political subdivisions may apply to FEMA for 
financial assistance under the Act in a manner prescribed by Federal 
Regulations governing grants and cooperative agreements. Such 
applications must be compatible with FEMA's goals and requirements 
described in paragraph (a) of this section.
    (c) Financial contributions to States and their political 
subdivisions are made by FEMA based on approval of the activities and 
projects described in the Annual Program Paper, and/or Comprehensive 
Cooperative Agreement, and which are in conformance with provisions of 
CPG 1-3, and applicable FEMA regulations set forth in chapter 1 of this 
title 44, chapter 1, subchapter E, of the Code of Federal Regulations. 
Financial contributions will not be made unless substantive activities 
and projects in preparation for and response to attack-related disasters 
are identified, and progress is indicated in the submissions, and 
recorded in program reporting systems. The presence of unavoidable 
circumstances, and the good faith effort of the applicant, will be 
considered if certain objectives are not met.
    (d) State and local officials may use personnel, equipment, and 
facilities for natural disasters outside the physical boundaries of the 
jurisdiction and under the conditions stated within this regulation.
    (e) Specific criteria relating to the preparedness and response 
activities are given in Sec. Sec. 312.5 and 312.6 of this part.



Sec. 312.5  Personnel.

    FEMA contributes to the development and support of emergency 
management organizations in the States and their political subdivisions, 
and to the development, operation, and maintenance of specific programs, 
through payment of salaries and benefits of State and local civil 
defense staff, and the payment of administrative expenses and travel, 
not to exceed 50 percent. FEMA also provides contributions for training 
and education expenses. The following use of such personnel for natural 
disaster purposes is allowable provided that such usage is consistent 
with, contributes to, and does not detract from attack-related civil 
defense preparedness:
    (a) In developing, maintaining, testing and exercising plans, 
systems, and procedures for the protection of people and property from 
the effects of attack-related disasters, States and their political 
subdivisions may include and provide for natural disasters.
    (b) Personnel supported in part through contributions under the Act 
may be assigned responsibilities for preparation for and response to 
natural disasters in any specific emergency occurring in a State or its 
political subdivisions as determined by the responsible State or local 
officials, respectively.
    (c) Personnel supported in whole under the Act, may be assigned to 
emergency response operations for 15 days at the discretion of State 
officials; approval of the FEMA Regional Director is required for the 
use of these personnel in excess of 15 days. An assignment to emergency 
response operations does not preclude the accomplishment of program work 
and objectives. Failure to accomplish such work may subject the State to 
the withholding of funds contributed under the

[[Page 550]]

Act, or to collection of funds already obligated, not to exceed the 
estimated cost of the work not performed, as determined by the Regional 
Director.
    (d) In the event of an emergency or major disaster declared under 
the Disaster Relief Act of 1974, as amended, personnel will not be 
provided overtime compensation and expenses under the Act.



Sec. 312.6  Materials and facilities.

    FEMA also contributes to the development and support of emergency 
management in the States and their political subdivisions, and to the 
development, operation, and maintenance of specific programs, through 
providing certain materials and facilities. The following may be used 
for natural disaster purposes provided that such usage is consistent 
with, contributes to, and does not detract from attack-related civil 
defense preparedness:
    (a) Materials provided and maintained through contributions under 
the Act.
    (b) Technical information, guidance through which technical 
assistance is provided, and training courses, may contain examples, 
illustrations, discussion, suggested applications and uses of material.
    (c) Equipment loaned under provisions of the Contributions Project 
Loan Program.
    (d) Facilities, such as Emergency Operating Centers, provided and 
maintained through contributions under the Act.
    (e) Equipment loaned or granted to the States for civil defense 
purposes (e.g., radiological instruments, shelter supplies).

                        PARTS 313-320 [RESERVED]



PART 321_MAINTENANCE OF THE MOBILIZATION BASE (DEPARTMENT OF DEFENSE, 
DEPARTMENT OF ENERGY, MARITIME ADMINISTRATION)--Table of Contents




Sec.
321.1 General.
321.2 Selection of the mobilization base.
321.3 Maintaining the mobilization base.
321.4 Achieving production readiness.
321.5 Retention of industrial facilities.
321.6 Participation of small business.
321.7 [Reserved]
321.8 Reports.

    Authority: National Security Act of 1947, as amended 50 U.S.C. 404; 
Defense Production Act of 1950, as amended; 50 U.S.C. app. 2061 et seq.; 
Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12148 
(44 FR 43239).

    Source: 45 FR 44576, July 1, 1980, unless otherwise noted.



Sec. 321.1  General.

    A sustained state of mobilization production readiness is necessary 
to place the United States in a defense posture which will enable the 
nation to defend itself against aggression in peripheral conflicts or 
general war involving nuclear attacks on this country. Therefore, the 
facilities, machine tools, production equipment, and skilled workers 
necessary to produce the wartime requirements of the Department of 
Defense, Department of Energy, and the Maritime Administration shall be 
maintained in a state of readiness which will facilitate their immediate 
use or conversion in time of emergency, with especial emphasis on 
measures to maximize the probability of continued post-attack production 
of those items judged to be vital to survival and victory.



Sec. 321.2  Selection of the mobilization base.

    (a) The Department of Defense shall select, for its mobilization 
base, facilities which produce or are capable of producing critically 
important military items or components (military class A components used 
entirely in the production, maintenance, or repair of military items) 
which meet one of the following:
    (1) Those items which would be so urgent to the defense of this 
country that utmost effort must be exerted to produce them even in case 
of general war involving severe damage to the facilities necessary to 
produce these items and the components thereof.
    (2) Those items essential to survival and retaliation, maintenance 
of health, or combat efficiency required to support peripheral war and 
which meet one or more of the following criteria:

[[Page 551]]

    (i) Items requiring a long lead-time or long manufacturing cycle.
    (ii) Items currently not in production or which are required in 
quantities far in excess of peacetime production.
    (iii) Items requiring the conversion of an industry or a number of 
plants within an industry.
    (iv) Items requiring materials or manufacturing processes 
essentially different from those in current use.
    (v) Items for which industry does not have production experience.

Paragraph (a)(2) of this section is inclusive of the Department of 
Defense Preferential Planning List of End Items.
    (b) In selecting facilities for the Department of Defense 
mobilization base, consideration shall be given to their vulnerability 
to nuclear attack, with particular attention to the possibility of (1) 
minimizing vulnerability of facilities producing ``urgent'' items under 
paragraph (a)(1) of this section, including the need for dispersal, 
protective construction, and special security measures to safeguard 
against sabotage of clandestine attack, and (2) reducing concentration 
of uncommon critical production facilities so that a productive segment 
of each critical industry would be likely to survive a nuclear attack.
    (c) The Department of Energy and the Maritime Administration, in 
cooperation with the Federal Emergency Management Agency, shall 
determine the items and facilities which meet the above criteria for 
their respective programs for maintaining the mobilization base.



Sec. 321.3  Maintaining the mobilization base.

    (a) Facilities selected to produce ``urgent'' items shall be 
maintained within limits of existing procurement authority and funds 
available by the Department of Defense, the Department of Energy, and 
the Maritime Administration in the following manners to the maximum 
practical degree:
    (1) Current procurement shall be placed in these facilities to the 
extent which will maintain them in a state of readiness compatible with 
the plans of the procuring agency.
    (2) Machine tools and production equipment will be installed in 
these facilities to the extent found necessary by the procuring agency.
    (3) Develop and maintain plans for alternate production capacity in 
case disaster destroys current facilities, such capacity to be located 
to the maximum extent possible away from highly concentrated industrial 
areas and major military installations.
    (b) Other facilities selected as part of the mobilization base, 
shall be maintained to the fullest extent possible.
    (1) Procurement agencies shall integrate current procurement with 
their industrial mobilization plans to the greatest possible extent with 
the objective of supporting the mobilization base within authorities and 
funds available.
    (2) Data assembled on essential mobilization suppliers by the 
industrial mobilization planning of these agencies shall be used in 
planning current procurement. The policy of using contractors and 
facilities essential to the mobilization base is considered to be in the 
best interest of the Government.
    (3) Planned producers that are deemed to be a part of the 
mobilization base will be invited to participate in appropriate current 
procurement.
    (4) Upon expiration of current procurement contracts in a facility, 
the procuring agency shall take such of the following actions as are 
compatible with its plans for maintaining a state of readiness:
    (i) Government-owned facilities and tools. Within the limitations 
that may be imposed by Congressional appropriations, place government-
owned facilities and tools in standby status and establish provisions 
for their adequate maintenance. This does not preclude the use of 
government-owned production equipment, on a loan basis, to enable the 
military departments to meet current production schedules, as provided 
in DMO-VII-4, Amendment 1.
    (ii) Privately-owned facilities and government-owned tools. (A) 
Arrange with management of privately-owned facilities, wherever 
possible, to place government-owned tools and production equipment in 
the status provided by DMO-VII-4, as amended, taking into

[[Page 552]]

account the desirability of safe location.
    (B) Arrange with management, on a voluntary basis, to keep a group 
of key managers, engineers, and skilled workers familiar with the items 
planned for mobilization production.
    (C) Determine the gaps which exist in government-owned packages of 
tools and production equipment needed to produce mobilization 
requirements in privately-owned plants. Within the limit of fund 
availability, plan the procurement of such tools and equipment with 
priority being given to long lead-time tools and equipment or those not 
used in general manufacturing. These tools and equipment, when procured, 
should be placed in the status provided by DMO-VII-4, as amended, taking 
into account the desirability of safe locations.
    (D) Determine which government-owned tools and equipment have become 
obsolete, or which would not be used in event of mobilization, and plan 
for their disposal in accordance with the provisions of DMO-VII-4, as 
amended.



Sec. 321.4  Achieving production readiness.

    (a) In order to achieve a capability for maximum production of 
``urgent'' items during the initial phase of war, the following 
readiness measures shall be taken where advisable for facilities 
producing such items:
    (1) Establishment of emergency production schedules.
    (2) Development of a production capability which would function 
under widespread disruption and damage imposed by enemy attack, 
including, where necessary:
    (i) Maintenance of an increased inventory of finished components and 
related production supplies at assembly plants, or arrangements for 
alternative supply lines where increased inventories are not feasible.
    (ii) A capability to carry on urgent production without dependence 
on additional personnel, external sources of power, fuel, and water, or 
on long-distance communications; with spare replacements for highly 
vulnerable or unreliable parts of production equipment.
    (iii) Protection of production facilities from enemy sabotage 
through adequate physical security measures.
    (iv) Protection of personnel from widespread radiological fallout 
through provisions for decontamination and shelter.



Sec. 321.5  Retention of industrial facilities.

    (a) Industrial properties, owned by the Department of Defense, the 
Department of Energy, and the Maritime Administration, shall be retained 
in the Industrial reserves (National Industrial Reserve, Departmental 
Industrial Reserve for the Department of Defense) of the department and 
agencies to the extent the capacity of said reserves is necessary for 
the production of defense or defense-supporting end items, materials or 
components in a mobilization period.
    (b) Each idle plant in the reserves shall be reviewed annually by 
the heads of the respective agencies to determine if the capacity of the 
plant continues necessary for mobilization purposes.
    (c) Upon the determination by the head of the agency that the 
capacity of a plant is excess to the mobilization requirements of the 
agency immediate steps will be taken to dispose of the plant through 
existing government channels for surplus disposal. The Federal Emergency 
Management Agency shall be informed by General Services Administration 
of each proposed surplus action prior to final determination.



Sec. 321.6  Participation of small business.

    The agencies concerned with the order shall, in all of their 
programs for maintaining the mobilization base, be mindful of the 
national policy to protect the interests of small business, and to 
assure the maximum participation of small business in the mobilization 
base, including current procurement.



Sec. 321.7  [Reserved]



Sec. 321.8  Reports.

    The Department of Defense, Department of Energy, and Maritime 
Administration shall furnish the Director of

[[Page 553]]

the Federal Emergency Management Agency with reports on items and 
facilities for programs under Sec. 321.2 (a) and (b) of this part, and 
with such other periodic and special reports as he may require affecting 
the maintenance of the mobilization base.

                           PART 322 [RESERVED]



PART 323_GUIDANCE ON PRIORITY USE OF RESOURCES IN IMMEDIATE POST ATTACK 
PERIOD (DMO-4)--Table of Contents




Sec.
323.1 Purpose.
323.2 General policy.
323.3 Responsibilities.
323.4 Priority activities in immediate post-attack period.
323.5 Assignment of resources.

Appendix 1 to Part 323--List of Essential Survival Items

    Authority: National Security Act of 1947, as amended, 50 U.S.C. 404; 
Defense Production Act of 1950, as amended, 50 U.S.C. app. 2061 et seq.; 
Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12148 
of July 20, 1979, 44 FR 43239.

    Source: 45 FR 44579, July 1, 1980, unless otherwise noted.



Sec. 323.1  Purpose.

    This part:
    (a) States the policy of the Federal Government on use of resources 
in the period immediately following a nuclear attack on the United 
States;
    (b) Provides general guidance for Federal, State, and local 
government officials on activities to be accorded priority in the use of 
postattack resources; and
    (c) Lists those items essential to national survival in the 
immediate postattack period.



Sec. 323.2  General policy.

    (a) In an immediate postattack period all decisions regarding the 
use of resources will be directed to the objective of national survival 
and recovery. In order to achieve this objective, postattack resources 
will be assigned to activities concerned with the maintenance and saving 
of lives, immediate military defense and retaliatory operations, 
economic activities essential to continued survival and recovery.
    (b) This guidance is designed to achieve a degree of national equity 
in the use of resources and to assign and conserve resources effectively 
in the immediate postattack period. Until more specific instructions are 
available, these are the general guidelines within which managerial 
judgment and common sense must be used to achieve national objectives 
under widely differing emergency conditions.



Sec. 323.3  Responsibilities.

    (a) As stated in The National Plan for Emergency Preparedness, the 
direction of resources mobilization is a Federal responsibility. 
However, in the period immediately following an attack, certain 
geographical areas may be temporarily isolated, and State and local 
governments will assume responsibility for the use of resources 
remaining in such areas until effective Federal authority can be 
restored. State and local governments will not assume responsibility for 
resources under the jurisdiction of a Federal agency where the Federal 
agency is able to function.
    (b) As soon as possible after an attack and until specific national 
direction and guidance on the use of resources is provided, Federal, 
State, and local officials will determine what resources are available, 
to what needs they can be applied, how they are to be used, and the 
extent to which resources are deficient or in excess of survival needs. 
They will base determinations as to the relative urgency for use of 
resources primarily upon the importance of specific needs of defense, 
survival, and recovery.



Sec. 323.4  Priority activities in immediate postattack period.

    The following activities are to be accorded priority over all other 
claims for resources. There is no significance in the order of the 
listing--all are important. The order in which and the extent to which 
they are supported locally may vary with local conditions and 
circumstances. If local conditions necessitate the establishment of an 
order of priority among these activities, that order shall be based on 
determinations of relative urgency among

[[Page 554]]

the activities listed, the availability of resources for achieving the 
actions required, and the feasibility and timeliness of the activities 
in making the most rapid and effective contribution to national 
survival.
    (a) The immediate defense and retaliatory combat operations of the 
Armed Forces of the United States and its Allies: This includes support 
of military personnel and the production and distribution of military 
and atomic weapons, materials and equipment required to carry out these 
immediate defense and retaliatory combat operations.
    (b) Maintenance or reestablishment of Government authority and 
control to restore and preserve order and to assure direction of 
emergency operations essential for the safety and protection of the 
people. This includes:
    (1) Police protection and movement direction;
    (2) Fire defense, rescue and debris clearance;
    (3) Warnings;
    (4) Emergency information and instructions;
    (5) Radiological detection, monitoring and decontamination.
    (c) Production and distribution of survival items and provision of 
services essential to continued survival and rapid recovery. (For list 
of survival items, see appendix 1 to this part.) These include:
    (1) Expedient shelter;
    (2) Food, including necessary processing and storage;
    (3) Feeding, clothing, lodging, and other welfare services;
    (4) Emergency housing and community services;
    (5) Emergency health services, including medical care, public health 
and sanitation;
    (6) Water, fuel, and power supply;
    (7) Emergency repair and restoration of damaged vital facilities.
    (d) Essential communications and transportation services needed to 
carry out the above activities.
    (e) Provision of supplies, equipment, and repair parts to produce 
and distribute goods needed for the above activities.



Sec. 323.5  Assignment of resources.

    Resources required for essential uses, including manpower, will be 
assigned to meet the emergency requirements of the priority activities 
indicated above. The principal objectives are to use available resources 
to serve essential needs promptly and effectively, and to:
    (a) Protect and to prevent waste or dissipation of resources prior 
to their assignment to priority activities;
    (b) Support production of essential goods. Other production will be 
permitted to continue only from inventories on hand and when there is no 
emergency requirement for the resources vital to this production.
    (c) Support construction for emergency repair and restoration, 
construction of facilities needed for survival, or the conversion of 
facilities to survival use, where this can be accomplished quickly. 
Other construction already under way should be stopped, and no new 
construction started unless it can be used immediately for essential 
purposes upon completion.

        Appendix 1 to Part 323--List of Essential Survival Items

    This document contains a list of items considered essential to 
sustain life at a productive level to assure national survival in an 
emergency. The list identifies items to which major attention should be 
given in all phases of preattack planning to insure the availability of 
basic essentials for a productive economy in the event of a nuclear 
attack. Supply-requirements studies and assessments for these items will 
be made to disclose critical deficiencies or other problems that can be 
anticipated. Revisions will be made as necessary to keep the items as 
up-to-date as possible.
    The items are arranged by seven major groups:
    (1) Health Supplies and Equipment,
    (2) Food,
    (3) Body Protection and Household Operations,
    (4) Electric Power and Fuels,
    (5) Sanitation and Water Supply,
    (6) Emergency Housing and Construction Materials and Equipment, and
    (7) General Use Items.
    Survival items are defined as ``those items without which large 
segments of the population would die or have their health so seriously 
impaired as to render them both burdensome and non-productive.'' The 
items have been classified into Group A or Group B, with Group A 
representing end products

[[Page 555]]

consumed or used directly by the population, and Group B consisting of 
those items essential to the effective production and utilization of the 
Group A items, which are consumed or used directly by the people.
    There are no Group B items in the categories of Health Supplies and 
Equipment, Body Production and Household Operations, and Emergency 
Housing and Construction Materials and Equipment. All of these items are 
considered to be consumed directly and any attempt to separate them in 
to A and B groupings would be too arbitrary to be meaningful.
    It is important to keep in mind the fact that while the items listed 
are the basic essentials necessary for maintaining a viable economy 
during the first six months following an attack, not all of them would 
create problems that would require government action preattack to insure 
adequate supplies. The aforementioned supply-requirements studies will 
be undertaken to identify the problem areas. In developing supply data, 
all available production capacity, existing inventories, and possible 
substitutions will be considered. For example, in analyzing clothing 
items, all available supplies would be considered from sport to dress 
shirts, from overalls to dress suits. However, new production would be 
limited to the simplest form of the basic item which can be produced. 
The final determination as to which of the items are most critical and 
which may require preattack actions by the Government, as well as the 
type of actions which must be taken, can be made only after a 
comprehensive supply-requirements analysis is completed.

                    List of Essential Survival Items

                    i. health supplies and equipment

                                 Group A

    1. Pharmaceuticals:
Alcohol.
Analgesics, non-narcotic.
Antibiotics and antibacterials.
Antidiabetic agents, oral.
Antihistamines.
Antimalarials.
Atropine.
Blood derivatives.
Carbon dioxide absorbent.
Cardiovascular depressants.
Cardiovascular stimulants.
Corticosteriods.
Diuretics.
General anesthetics.
Hypnotics.
Insulin.
Intravenous solutions for replacement therapy.
Local anesthetics.
Lubricant, surgical.
Morphine and substitutes.
Oral electrolytes.
Oxygen.
Surgical antiseptics.
Sulfa drugs.
Synthetic plasma volume expanders.
Vitamin preparations, pediatric.
Water for injection.

    2. Blood Collecting and Dispensing Supplies:
Blood collecting and dispensing containers.
Blood donor sets.
Blood grouping and typing sera.
Blood recipient sets.
Blood shipping containers.

    3. Biologicals:
Diphtheria toxoid.
Diphtheria antitoxin.
Diphtheria and tetanus toxoids and pertussis vaccine.
Gas gangrene antitoxin.
Poliomyelitis vaccine, oral.
Rabies vaccine.
Smallpox vaccine.
Tetanus antitoxin.
Tetanus toxoid, absorbed.
Typhoid vaccine.
Typhus vaccine, epidemic.
Yellow fever vaccine.

    4. Surgical Textiles:
Adhesive plaster.
Bandage, gauze.
Bandage, muslin.
Bandage, plaster of paris.
Cotton, USP.
Surgical pads.
Stockinette, surgical.
Wadding, cotton sheet.

    5. Emergency Surgical Instruments and Supplies:
Airway, pharyngeal.
Anesthesia apparatus.
Basin, wash, solution.
Blade, surgical knife.
Brush, scrub, surgical.
Catheter, urethral.
Containers for sterilization.
Chisel, bone.
Drain, Penrose.
Dusting powder.
Forceps, dressing.
Forceps, hemostatic.
Forceps, obstetrical.
Forceps, tissue.
Gloves, surgeon's.
Handles, surgical knife.
Holder, suture needle.
Inhaler, anesthesia, Yankauer (ether mask).
Intravenous injection sets.
Knife, cast cutting.
Lamps, for diagnostic instruments.
Lamps, for surgical lights.
Laryngoscope.
Light, surgical, portable.
Litter.
Mallet, bone surgery.
Needles, hypodermic, reusable.
Needles, suture, eyed.

[[Page 556]]

Otoscope and ophthalmoscope set.
Probe, general operating.
Razor and blades (for surgical preparation).
Retractor, rib.
Retractor set, general operating.
Rongeur, bone.
Saw, amputating.
Saw, bone cutting, wire (Gigli).
Scissors, bandage.
Scissors, general surgical.
Sigmoidoscope.
Speculum, vaginal.
Sphygmomanometer.
Splint, leg, Thomas.
Splint, wire, ladder.
Sterilizer, pressure, portable.
Stethoscope.
Sutures, absorbable.
Sutures, absorbable, with attached needle.
Sutures, nonabsorbable.
Sutures, nonabsorbable, with attached needle.
Syringes, Luer, reusable (hypodermic syringes).
Thermometers, clinical.
Tracheotomy tube.
Tube, nasogastric.
Tubing, rubber or plastic, and connectors.
Vascular prostheses.
Webbing, textile, with buckle.

    6. Laboratory Equipment and Supplies:
Bacteriological culture media and apparatus.
Balance, laboratory with weights.
Blood and urine analysis instruments, equipment and supplies.
Chemical reagents, stains and apparatus.
Glassware cleaning equipment.
Laboratory glassware.
Microscope and slides.
Water purification apparatus.

                                 Group B

None.

                                ii. food

                                 Group A

    1. Milk group. Milk in all forms, milk products. Important for 
calcium, riboflavin, protein, and other nutrients.
    2. Meat and meat alternate group. Meat, poultry, fish, eggs; also 
dry beans, peas, nuts. Important for protein, iron, and B-vitamins.
    3. Vegetable-fruit group. Including 1. Dark Green and yellow 
vegetables. Important for Vitamin A. 2. Citrus fruit or other fruit or 
vegetables. Important for Vitamin C. 3. Other fruits and vegetables, 
including potatoes.
    4. Grain products. Especially enriched, restored, cereal and cereal 
products, and bread, flours, and meals. Important for energy, protein, 
iron, and B-vitamins.
    5. Fats and oils. Including butter, margarine, lard, and other 
shortening oils. Important for palatability and food energy; some for 
Vitamin A and essential fatty acids.
    6. Sugars and syrups. Important for palatability and food energy.
    7. Food adjuncts. Certain food adjuncts should be provided to make 
effective use of available foods. These include antioxidants and other 
food preservatives, yeast, baking powder, salt, soda, seasonings and 
other condiments. In addition, coffee, tea, and cocoa are important for 
morale support.

                                 Group B

Food containers.
Nitrogenous fertilizers.
Seed and livestock feed.
Salt for livestock.
    Veterinary Medical Items:
Anthrax vaccine.
Black leg vaccine.
Hog cholera vaccine.
Newcastle vaccine.

              iii. body protection and household operations

                                 Group A

    1. Clothing:
Gloves and mittens.
Headwear.
Hosiery.
Outerwear.
Shoes and other footwear.
Underwear.
Waterproof outer garments.

    2. Personal Hygiene Items:
Diapers, all types.
Disposable tissues.
First aid items (included on Health Supplies and Equipment List).
Nipples.
Nursing bottles, all types.
Pins.
Sanitary napkins.
Soaps, detergents, and disinfectants.
Toilet tissue.

    3. Household Equipment:
Bedding.
Canned heat.
Cots.
Hand sewing equipment.
Heating and cooking stoves.
Incandescent hand portable lighting equipment (including flashlights, 
lamps, batteries).
Kitchen, cooking, and eating utensils.
Lamps (incandescent medium base) and lamp holders.
Matches.
Nonelectric lighting equipment.
Sleeping bags.

                                 Group B

None.

[[Page 557]]

                      iv. electric power and fuels

    1. Electric Power.

                                 Group A

Electricity.

                                 Group B

Conductors (copper and/or aluminum), including bare cable for high 
voltage lines and insulated wire or cable for lower voltage distribution 
circuits.
Switches and circuit breakers.
Insulators.
Pole line hardware.
Poles and crossarms.
Transformers (distribution, transmission, and mobile).
Tools for live-circuit operations, including rubber protective 
equipment, and linemen's tools.
Utility repair trucks, fully equipped.
Prime mover generator sets up to 501 kilowatts and 2400 volts, including 
portable and mobile sets up to 150 kilowatts and 110/220/440 volts, 3-
phase, 60-cycle complete with fuel tank and switchgear in self-contained 
units.

    2. Petroleum Products.

                                 Group A

Gasoline.
Kerosene.
Distillate fuel oil.
Residual fuel oil.
Liquefied petroleum oil.
Lubricating oil.
Grease.

                                 Group B

Storage tanks.
Pumps for loading and unloading.
Pressure containers and fittings for liquefied petroleum gas.

    3. Gas.

                                 Group A

Natural gas.
Manufactured gas.

                                 Group B

Various sizes of pipe (mostly steel).
Various sizes of valves, fittings, and pressure regulators.
Specialized repair trucks and equipment.

    4. Solid Fuels.

                                 Group A

Coal and coke.

                                 Group B

Conveyor belting.
Insulated trail cables.
Trolley feeder wire.
Roof bolts.

                     v. sanitation and water supply

                                 Group A

    1. Water.

    2. Water Supply Materials:
    a. Coagulation:
Ferric chloride.
Ferrous sulfate.
Ferric sulfate.
Chlorinated copperas.
Filter alum.
Hydrated lime.
Pulverized limestone.
Soda ash.
    b. Disinfection Chemicals:
High-test hypochlorites (70 percent) in drums, cans, ampules.
Iodine tablets.
Liquid chlorine, including containers.
Chlorine compounds (not gas).
    c. Miscellaneous Materials:
Diatomaceous earth.
Activated carbon.

    3. Chemical Biological, and Radiological CBR Detection, Protection, 
and Decontamination Items:
Calibrators.
Chemical agent detection kits, air, food, and water.
Dosimeters and chargers.
Protective masks, clothing, helmets.
Survey meters (Alpha, Beta, Gamma).
Warning signs--biological, chemical, and radiological contamination.

    4. Insect and Rodent Control Items:
    a. Insecticides:
DDT, water dispersible powder (75 percent).
Lindane powder, dusting (1 percent).
Malathion, liquid, emulsifiable concentrate (57 percent).
Deet (diethyltoluamide) 75 percent in denatured alcohol.
Pyrethrum.
    b. Rodenticides:
Anticoagulant type, ready-mixed bait.
``1080'' (sodium monofluoroacetate) (for controlled use only).

    5. General Sanitation:
Lye.

                                 Group B

    1. General Supplies and Equipment:
Chemical feeders.
Mobile and portable pressure filters.
Chlorinators (gas and hypochlorites).
Pumps and appurtenances, Hand--Electric--Gasoline--Diesel.
Well-drilling equipment, including well casing, drive pipe and drive 
points.

    2. Storage and Transport Equipment:
Lyster bags.
Storage tanks, collapsible and portable.
Storage tanks, rigid, transportable.
Storage tanks, wood stave, knock-down.

    3. Laboratory Equipment and Supplies:

[[Page 558]]

Membrane filter kits with filters and media.
Chlorine and pH determination equipment.

    4. Sanitation Equipment:
Hand sprayer, continuous type.
Hand sprayer, compression type.
Hand duster, plunger type.
Spraying equipment for use with helicopter, fixed-wing light aircraft, 
high-speed fixed-wing attack aircraft, and cargo-type aircraft.

     vi. emergency housing and construction materials and equipment

                                 Group A

Asphalt and tar roofing and siding products.
Builders hardware--hinges, locks, handles, etc.
Building board, including insulating board, laminated fiberboard, 
hardpressed fiberboard, gypsum board, and asbestos cement (flat sheets 
and wallboard).
Building papers.
Plastic patching, couplings, clamps, etc. for emergency repairs.
Plumbing fixtures and fittings.
Prefabricated emergency housing.
Rough hardware--nails, bolts, screws, etc.
Sewer pipe and fittings.
Tents and tarpaulins; canvas, plastics, and other similar materials.
Lumber and allied products; Lumber, principally 1-inch and 2-inch, minor 
quantities of small and large timbers; siding and flooring; plywood; 
millwork, doors, and windows.
Masonry products--brick, cement, lime, concrete block, hollow tile, etc.
Translucent window coverings.
Water pipe and hose, plus fittings--all types including fire hose.

                                 Group B

None.

                         vii. general use items

                                 Group A

None.

                                 Group B

Batteries, wet and dry cell.
Bulldozers.
Fire fighting equipment.
Light equipment and hand tools (including electric powered) for 
carpentry, masonry, plumbing, and excavation.
Pipe installation materials and equipment.
Refrigerators, mechanical.
Rigging tools--cables, ropes, tackles, hoists, etc.
Tank railroad cars.
Tank Trucks and trailers.
Tires.
Trenching equipment.
Truck tractors and trailers, including low bed.
Trucks up to five tons (25 percent equipped with power takeoff).
Welding equipment and supplies (electric and acetylene).

                        PARTS 324-326 [RESERVED]



PART 327_POLICY ON USE OF GOVERNMENT-OWNED INDUSTRIAL PLANT EQUIPMENT BY 
PRIVATE INDUSTRY (DMO-10A)--Table of Contents




Sec.
327.1 Purpose.
327.2 Scope and applicability.
327.3 Policy.
327.4 Disputes.
327.5 Reports.

    Authority: National Security Act of 1947, as amended, 50 U.S.C. 404; 
Defense Production Act of 1950, as amended, 50 U.S.C. app. 2061 et seq.; 
Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12148 
of July 20, 1979, 44 FR 43239.

    Source: 45 FR 44583, July 1, 1980, unless otherwise noted.



Sec. 327.1  Purpose.

    This part establishes policy on the use by private industry of 
Government-owned industrial plant equipment. This policy is necessary to 
maintain a highly effective and immediately available reserve of such 
equipment for the emergency preparedness programs of the U.S. 
Government.



Sec. 327.2  Scope and applicability.

    (a) This part applies to all Federal departments and agencies 
having, for purposes of mobilization readiness, Government-owned 
industrial plant equipment under their jurisdiction or control and 
having emergency preparedness functions assigned by Executive orders 
concerning use of that equipment.
    (b) As used herein, industrial plant equipment means those items of 
equipment, each with an acquisition cost of $1,000 or more, that fall 
within specified classes of equipment listed in DOD regulations. Classes 
of equipment may from time to time be added to or deleted from this 
list.

[[Page 559]]



Sec. 327.3  Policy.

    (a) General. (1) Primary reliance for defense production shall be 
placed upon private industry.
    (2) When it is determined by an agency that, because of the lack of 
specific industrial plant equipment, private industry of the United 
States cannot be relied upon for needed Government production, that 
agency may provide to private industry such Government-owned industrial 
plant equipment as is deemed necessary to ensure required production 
capability. Requirements for such equipment should be reviewed at least 
annually to ascertain the continuing need, particularly with a view 
toward private industry furnishing the equipment for long term 
requirements.
    (3) When it is necessary for Federal agencies to supply Government-
owned industrial plant equipment to private industry, these agencies 
will maintain uniformity and fairness in the arrangements for the use of 
this equipment by following regulations for the use of such equipment as 
developed and published by the Secretary of Defense pursuant to section 
809 of Public Law 93-155. The regulations to be developed by the 
Secretary of Defense shall be in consonance with this order. These 
regulations will attempt to ensure that no Government contractor is 
afforded an advantage over his competitors and that Government-owned 
industrial plant equipment is maintained properly and kept immediately 
available for the emergency preparedness needs of the United States.
    (b) Interagency use of idle equipment. In any instances in which a 
Government contractor cannot meet Government production schedules 
because necessary industrial plant equipment is not available from 
private industry or from the contracting Federal department or agency, 
idle industrial plant equipment under the control of other Federal 
agencies may be made available for this purpose through existing 
authorities on a transfer, loan, or replacement basis by interagency 
agreement.
    (c) Availability of equipment for emergency use. Government-owned 
industrial plant equipment may be provided by controlling agencies for 
emergency use by essential Government contractors whose facilities have 
been damaged or destroyed.
    (d) Uniform rental rates. All new agreements entered into by any 
agency of the Federal Government under which private business 
establishments are provided with Government-owned industrial plant 
equipment shall be subject to rental rates established by the Secretary 
of Defense pursuant to section 809 of Public Law 93-155. The rental 
rates shall ensure a fair and equitable return to the U.S. Government 
and be generally competitive with commercial rates for like equipment.
    (e) Use of Government-owned industrial plant equipment for 
commercial (non-Government) purposes. Subject to adequate controls being 
established under DOD regulations pursuant to Public Law 93-155, and 
statutory authority for leasing, Government-owned industrial plant 
equipment may be authorized for commercial use by contractors performing 
contracts or subcontracts for the Government agency if it is necessary 
to keep the equipment in a high state of operational readiness through 
regular usage to support the emergency preparedness programs of the U.S. 
Government.



Sec. 327.4  Disputes.

    In the event of an interagency dispute about the regulations 
developed by the Department of Defense in accordance with this order, 
the Director, Federal Emergency Management Agency, shall adjudicate.



Sec. 327.5  Reports.

    Such reports of operations under this order as may be required by 
the Federal Emergency Management Agency, shall be submitted to the 
Director.

                           PART 328 [RESERVED]



PART 329_USE OF PRIORITIES AND ALLOCATION AUTHORITY FOR FEDERAL SUPPLY 
CLASSIFICATION (FSC) COMMON USE ITEMS (DMO-12)--Table of Contents




Sec.
329.1 Purpose.
329.2 Policies.
329.3 Procedures.
329.4 Implementation.


[[Page 560]]


    Authority: Defense Production Act of 1950, as amended, 50 U.S.C. 
app. 2061 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., 
p. 329; E.O. 12148 of July 20, 1979, 44 FR 43239; E.O. 10480 of Aug. 14, 
1953, (18 FR 4939) as amended.

    Source: 45 FR 44585, July 1, 1980, unless otherwise noted.



Sec. 329.1  Purpose.

    This part provides policy guidance concerning the use of priorities 
and allocation authority under title I of the Defense Production Act of 
1950, as amended, for the procurement of common use items in the Federal 
Supply Classification (FSC).



Sec. 329.2  Policies.

    The following guidance is provided pursuant to the Defense 
Production Act of 1950, as amended; section 201 of Executive Order 
10480, and Sec. 322.2 of this chapter (DMO-3).
    (a) Priority ratings under title I of the Defense Production Act of 
1950, as amended, are not authorized for certain FSC Groups, Classes, 
and Items:
    (1) Which are of the types commonly available in commercial markets 
for general consumption,
    (2) Which do not require major modification when purchased for 
military or other ratable government use, and
    (3) Which are in sufficient supply as to cause no hindrance to the 
accomplishment of military or other national defense objectives.

Such Groups, Classes, and Items will be as specified from time to time 
by the Department of Commerce with the approval of the Federal Emergency 
Management Agency. Procurement in these Groups, Classes, and Items is to 
be made without priority assistance, including single service 
procurement that may include defense and defense-supporting needs. In 
the event procurement difficulties are encountered which threaten timely 
delivery, application for special assistance may be made for those 
categories of supply authorized special assistance in existing lists, 
and must be accompanied by full justification to support the need for 
such assistance.
    (b) Priority ratings may be used for the procurement of other 
authorized FSC Groups, Classes, and Items only in quantities required to 
meet the needs of approved programs of ratable agencies. The quantities 
of current procurement of each Group, Class, and Item shall be based on 
and shall not exceed the ratio of rated purchases to total purchases for 
that Group, Class, and Item that was consummated in the 6-month period 
preceding the first day of January and July in each year. Any other 
periodic cycle considered suitable and agreed to by the Domestic and 
International Business Administration, Department of Commerce, and the 
procuring agency may be substituted.
    (c) In the interest of minimizing administrative costs, where rated 
procurement under paragraph (b)(2) of this section, constitutes 97 
percent or more of the total procurement of a Group, Class, or Item, all 
of the Group, Class, or Item may be bought on ratings.



Sec. 329.3  Procedures.

    Requests for additional authorizations of Classes, Groups, or Items 
should be presented to General Services Administration (AP), Washington, 
DC, 20405, accompanied by a statement of justification indicating why 
the Class, Group, or Item should be regarded as necessary or appropriate 
to promote the national defense and why defense-related requirements 
cannot be met without the use of priorities.



Sec. 329.4  Implementation.

    Departments and agencies involved with this program shall issue 
implementing instructions and directives no later than 30 work days from 
the effective date of this order. Copies of such instructions, 
directives, and related documents shall be furnished to the General 
Services Administration (AP) on a routine basis as issued.

[[Page 561]]



PART 330_POLICY GUIDANCE AND DELEGATION OF AUTHORITIES FOR USE OF 

PRIORITIES AND ALLOCATIONS TO MAXIMIZE DOMESTIC ENERGY SUPPLIES IN 
ACCORDANCE WITH SUBSECTION 101(c) OF THE DEFENSE PRODUCTION ACT OF 
1950, AS AMENDED (DMO-13)--Table of Contents




Sec.
330.1 Purpose.
330.2 Policies.
330.3 Delegation of authority.

    Authority: Defense Production Act of 1950, as amended, including 
amendment to sec. 101(c) by sec. 104 of the Energy Policy and 
Conservation Act (Pub. L. 94-163) 50 U.S.C. app. 2061 et seq.; 
Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12148 
of July 20, 1979, 44 FR 43239; E.O. 11912 of April 13, 1976.

    Source: 45 FR 44586, July 1, 1980, unless otherwise noted.



Sec. 330.1  Purpose.

    This part:
    (a) Establishes policy guidance on determination and use of 
priorities and allocations for materials and equipment to maximize 
domestic energy supplies pursuant to section 104 of the Energy Policy 
and Conservation Act (Pub. L. 94-163, 89 Stat. 878), which added 
subsection 101(c) to the Defense Production Act of 1950, as amended (the 
Act); and
    (b) Delegates authority and assigns responsibility related thereto 
pursuant to sections 7 and 8 of Executive Order 11912, dated April 13, 
1976.



Sec. 330.2  Policies.

    (a) The authority of subsection 101(c) of the Act to require the 
allocation of, or priority performance under contracts or orders 
relating to, supplies of materials and equipment to maximize domestic 
energy supplies shall be limited to those exceptional circumstances when 
it is found that:
    (1) Such supplies of material and equipment are scarce, critical, 
and essential; and
    (2) The maintenance or furtherance of exploration, production, 
refining, transportation, or conservation of energy supplies, or the 
construction and maintenance of energy facilities, cannot reasonably be 
accomplished without exercising this authority.
    (b) The authority contained in subsection 101(c) shall not be used 
to require priority performance under contracts or orders relating to, 
or the allocation of, any supplies of materials and equipment except for 
programs or projects to maximize domestic energy supplies as 
specifically determined by the Secretary of Energy, after coordination 
with the Director, Federal Emergency Management Agency.
    (c) The allocation of, or priority performance under contracts or 
orders relating to, supplies of materials and equipment in support of 
authorized programs or projects shall be so undertaken as to ensure 
that:
    (1) Supplies of the specified materials and equipment are available 
to the extent practicable on time and in proper quantity to authorized 
programs or projects.
    (2) The demands of these authorized programs or projects are 
distributed among suppliers on a fair and equitable basis.
    (3) Allotments of supplies of materials and equipment are not made 
in excess of actual current requirements of these authorized programs or 
projects.
    (4) Fulfillment of the needs of these authorized programs and 
projects are achieved in such manner and to such degree as to minimize 
hardship in the market place.
    (d) The authority of subsection 101(c) of the Act will not be used 
to control the general distribution of any supplies of material and 
equipment in the civilian market, as that phrase is used in subsection 
101(b) of the Act, except after Presidential approval as required by 
subsection 7(d) of Executive Order 11912.



Sec. 330.3  Delegation of authority.

    (a) The functions of the Director of the Federal Management Agency 
under subsection 101(c) of the Act are hereby delegated to the Secretary 
of Commerce with respect to the areas of responsibility designated and 
subject to the limitations prescribed and section 7 of Executive Order 
11912. Specifically:

[[Page 562]]

    (1) The Secretary of Commerce is delegated the function, provided in 
subsection 101(c)(1) of the Act, of requiring the allocation of, or 
priority performance under contracts or orders (other than contracts of 
employment) relating to, supplies of materials and equipment to maximize 
domestic energy supplies, if the findings specified in subsection 
101(c)(3) of the Act are made.
    (2) The Secretary of Commerce is delegated those functions provided 
in subsection 101(c)(3) of the Act, but shall redelegate to the 
Secretary of Energy the function of making the findings that supplies of 
materials and equipment are critical and essential to maximize domestic 
energy supplies. The Secretary of Commerce shall retain the functions of 
finding that supplies of materials and equipment are scarce, and that 
the purposes described in subsection 101(c)(3)(B) of the Act cannot 
reasonably be accomplished without exercising the authority specified in 
subsection 101(c)(1). This finding will include, to the extent 
practicable, an assessment of the effects of using the authority for the 
project in question on other significantly impacted projects.
    (b) The Director of the Federal Emergency Management Agency shall be 
responsible for the overall coordination and direction of the functions 
provided by subsection 101(c) of the Act in a manner similar to the 
exercise of functions under subsections 101(a) and 101(b) of the Act. In 
line with these functions, the Director is also responsible for 
resolving any conflicts between claimant agencies regarding particular 
supplies of materials and equipment. In addition, the Federal Emergency 
Management Agency will monitor the impact of the implementation of the 
authorities of subsection 101(c) and other authorities under section 101 
of the Defense Production Act on each other and on the national economy.
    (c) The functions assigned, delegated, or required to be redelegated 
by this order to the Secretary of Commerce and the Secretary of Energy 
may not be redelegated to other agencies without first being coordinated 
with the Director, Federal Emergency Management Agency.
    (d) Procedures to execute the above delegations will be carried out 
in accordance with guidance provided by the Director, Federal Emergency 
Management Agency, pursuant to this order and Executive Order 11912.



PART 331_PRESERVATION OF THE MOBILIZATION BASE THROUGH THE PLACEMENT OF 
PROCUREMENT AND FACILITIES IN LABOR SURPLUS AREAS--Table of Contents




Sec.
331.1 Purpose.
331.2 Policy.
331.3 Scope and applicability.
331.4 Special consideration.
331.5 Production facilities.

    Authority: Reorganization Plan No. 3 of 1978, E.O. 10480, as 
amended, E.O. 12148.

    Source: 45 FR 34885, May 23, 1980, unless otherwise noted. 
Redesignated at 45 FR 44575, July 1, 1980.



Sec. 331.1  Purpose.

    Success of the national defense program depends upon efficient use 
of all of our resources, including the labor force and production 
facilities, which are preserved through utilizing the skills of both 
management and labor. A primary aim of Federal manpower policy is to 
encourage full utilization of existing production facilities and workers 
in preference to creating new plants or moving workers, thus assisting 
in the maintenance of economic balance and employment stability. When 
large numbers of new workers move to labor surplus areas, heavy burdens 
are placed on community facilities, such as schools, hospitals, housing, 
transportation, and utilities. On the other hand, when unemployment 
develops in certain areas, unemployment costs increase the total cost to 
the Government, and plants, tools, and workers' skills remain idle and 
unable to contribute to our national defense program. Consequently, it 
is the purpose of Defense Manpower Policy No. 4B to direct attention to 
the potential of labor surplus areas when awarding appropriate 
procurement contracts and when locating new plants or facilities.

[[Page 563]]



Sec. 331.2  Policy.

    (a) It is the policy of the Federal Government to award appropriate 
contracts to eligible labor surplus area concerns, to place production 
facilities in labor surplus areas, and to make the best use of our 
natural, industrial and labor resources in order to achieve the 
following objectives:
    (1) To preserve management and employee skills necessary to the 
fulfillment of Government contracts and purchases;
    (2) To maintain productive facilities;
    (3) To improve utilization of the Nation's total economic potential 
by making use of the labor force resources of each area; and
    (4) To help ensure timely delivery of required goods and services 
and to promote readiness for mobilization by locating procurement where 
the needed labor force and facilities are fully available.
    (b) This policy is consonant with the intent of Public Law 95-89 and 
Public Law 95-507 as implemented by E.O. 12073. In carrying out this 
policy, Federal departments and agencies shall be guided by E.O. 12073, 
the policy direction of the Office of Federal Procurement Policy and 
implementing regulations.



Sec. 331.3  Scope and applicability.

    The provisions of this policy apply to all Federal departments and 
agencies, except as otherwise prohibited by law. In addition to these 
normal duties;
    (a) The Secretary of Commerce shall:
    (1) In cooperation with State economic development agencies, the 
Secretary of Defense, the Administrator of General Services, and the 
Administrator of Small Business Administration, assist concerns which 
have agreed to perform contracts in labor surplus areas in obtaining 
Government procurement business by providing such concerns with timely 
information on proposed Government procurements.
    (2) Urge concerns planning new production facilities to consider the 
advantages of locating in labor surplus areas.
    (3) Provide technical advice and counsel to groups and organizations 
in labor surplus areas on planning industrial parks, industrial 
development organizations, expanding tourist business, and available 
Federal aids.
    (b) The Administrator of the Small Business Administration shall 
make available to small business concerns in labor surplus areas all of 
its services, endeavor to ensure opportunity for maximum participation 
by such concerns in Government procurement, and give consideration to 
the needs of these concerns in the making of joint small business set-
asides with Government procurement agencies.
    (c) OFPP shall coordinate the maintenance by Federal agencies of 
current information on the manufacturing capabilities of labor surplus 
area concerns with respect to Government procurement and disseminate 
such information to Federal departments and agencies.



Sec. 331.4  Special consideration.

    When an entire industry that sells a significant proportion of its 
production to the Government is generally depressed or has a significant 
proportion of its production, manufacturing and service facilities 
located in a labor surplus area, the Director, Federal Emergency 
Management Agency, or successor in function, after notice to and hearing 
of interested parties, will give consideration to appropriate measures 
applicable to the entire industry.



Sec. 331.5  Production facilities.

    All Federal departments and agencies shall give consideration to 
labor surplus areas in the selection of sites for Government-financed 
production facilities, including expansion, to the extent that such 
selection is consistent with existing law and essential economic and 
strategic factors.



PART 332_VOLUNTARY AGREEMENTS UNDER SECTION 708 OF THE DEFENSE PRODUCTION 
ACT OF 1950, AS AMENDED--Table of Contents




Sec.
332.1 General provisions.
332.2 Developing voluntary agreements.
332.3 Carrying out voluntary agreements.
332.4 Termination or modifying voluntary agreements.
332.5 Public access to records and meetings.


[[Page 564]]


    Authority: Sec. 708, Defense Production Act of 1950, as amended (50 
U.S.C. app. 2158); E.O. 10480, 3 CFR, 1949-1953 Comp., p. 961, as 
amended; E.O. 12148, 44 FR 43239.

    Source: 46 FR 2350, Jan. 9, 1981, unless otherwise noted.



Sec. 332.1  General provisions.

    (a) Pursuant to section 708 of the Defense Production Act of 1950, 
as amended (50 U.S.C. App. 2158), the President may consult with 
representatives of industry, business, financing, agriculture, labor, or 
other interests, and may approve the making of voluntary agreements to 
help provide for the defense of the United States by developing 
preparedness programs and expanding productive capacity and supply 
beyond levels needed to meet essential civilian demand.
    (b) Sponsor. (1) As used in this part, ``sponsor'' of a voluntary 
agreement is an officer of the Government who, pursuant to a delegation 
or redelegation of the functions given to the President by section 708 
of the Defense Production Act (DPA) of 1950, as amended, proposes or 
otherwise provides for the development or carrying out of a voluntary 
agreement.
    (2) The use of voluntary agreements, as authorized by section 708 of 
the DPA to help provide for the defense of the United States through the 
development of preparedness programs, is an activity coordinated by the 
Director of the Federal Emergency Management Agency, as provided by 
sections 101 and 501(a) of Executive Order 10480, as amended.
    (3) The sponsor of a voluntary agreement shall carry out sponsorship 
functions subject to the direction and control of the Director of the 
Federal Emergency Management Agency.
    (c) This part applies to the development and carrying out under 
section 708 of the DPA, as amended, of all voluntary agreements, and the 
carrying out of any voluntary agreement which was entered into under 
former section 708 of the DPA and in effect immediately prior to April 
14, 1976, and which is in a period of extension as authorized by 
subsection 708(f)(2) of the DPA.
    (d) The rules in the part void any provision of a voluntary 
agreement to which they apply, if that provision is contrary to or 
inconsistent with them. Each voluntary agreement shall be construed as 
containing every substantive provision that these rules require, whether 
or not a particular provision is included in the agreement.
    (e) Pursuant to subsection 708(d) of the DPA, the sponsor may 
establish such advisory committees as he deems to be necessary for 
developing or carrying out voluntary agreements. Such advisory 
committees shall comply with this part as well as with the requirements 
and procedures of the Federal Advisory Committee Act (Pub. L. 92-463, as 
amended).



Sec. 332.2  Developing voluntary agreements.

    (a) Purpose and scope. This section establishes the standards and 
procedures by which voluntary agreements may be developed through 
consultation, pursuant to subsection 708(c) of the DPA.
    (b) Proposal to develop an agreement. (1) A sponsor who wishes to 
develop a voluntary agreement shall submit to the Attorney General and 
the Director of the Federal Emergency Management Agency a document 
proposing the agreement. The proposal will include statements as to: The 
purpose of the agreement; the factual basis for making the finding 
required in subsection 708(c)(1) of the DPA; the proposed participants 
in the agreement; and any coordination with other Federal agencies 
accomplished in connection with the proposal.
    (2) If the Attorney General, after consultation with the Chairman of 
the Federal Trade Commission, approves this proposal, the sponsor shall 
then initiate one or more meetings of interested persons to develop the 
agreement.
    (c) Conduct of meetings held to develop the agreement. (1) The 
sponsor shall give to the Attorney General, the Chairman of the Federal 
Trade Commission, and the Director of the Federal Emergency Management 
Agency adequate written notice of each meeting to develop a voluntary 
agreement. The sponsor shall also publish in the Federal Register notice 
of the time, place, and nature of each meeting at least seven days prior 
to the meeting.

[[Page 565]]

    (2) The sponsor shall chair each meeting held to develop a voluntary 
agreement. Both the Attorney General and the Chairman of the Federal 
Trade Commission, or their delegates, shall attend each of these 
meetings.
    (3) Any interested person may attend a meeting held to develop a 
voluntary agreement, unless the sponsor of the agreement limits 
attendance pursuant to Sec. 332.5 of this part.
    (4) Any interested person may, as set out in the Federal Register 
meeting notice, submit written data and views concerning the proposed 
voluntary agreement, and at the discretion of the Chairman of the 
meeting, may be given the opportunity for oral presentation.
    (d) Maintenance of records. (1) The sponsor is responsible for the 
making of a full and verbatim transcript of each meeting. The Chairman 
shall send this transcript, and any voluntary agreement resulting from 
the meeting, to the Attorney General, the Chairman of the Federal Trade 
Commission, the Director of the Federal Emergency Management Agency, and 
any other party or repository required by law.
    (2) The sponsor of a voluntary agreement shall maintain each meeting 
transcript and voluntary agreement, and make them available for public 
inspection and copying the extent required by Sec. 332.5 of this part.
    (e) Effectiveness of agreements. The following steps must occur 
before a new voluntary agreement or an extension of an existing 
agreement may become effective:
    (1) The sponsor must approve the agreement and certify in writing 
that it is necessary to carry out the purposes of subsection 708(c)(1) 
of the DPA;
    (2) The Director of the Federal Emergency Management Agency must 
approve this certification, and submit it to the Attorney General with a 
request for a written finding; and
    (3) The Attorney General, after consulting with the Chairman of the 
Federal Trade Commission, must issue a written finding that the purposes 
of subsection 708(c)(1) can not reasonably be achieved through a 
voluntary agreement having less anti-competitive effects or without any 
voluntary agreement.



Sec. 332.3  Carrying out voluntary agreements.

    (a) Purpose and scope. This section establishes the standards and 
procedures by which the participants in each approved voluntary 
agreement shall carry out the agreement.
    (b) Participants. The participants in each voluntary agreement shall 
be reasonably representative of the appropriate industry or segment of 
that industry.
    (c) Conduct of meetings held to carry out an agreement. (1) The 
sponsor of a voluntary agreement shall initiate, or approve in advance, 
each meeting of the participants in the agreement held to discuss 
problems, determine policies, recommend actions, and make decisions 
necessary to carry out the agreement.
    (2) The sponsor shall provide to the Attorney General, the Chairman 
of the Federal Trade Commission, and the Director of the Federal 
Emergency Management Agency adequate prior notice of the time, place, 
and nature of each meeting, and a proposed agenda of each meeting. The 
sponsor shall also publish in the Federal Register, reasonably in 
advance of each meeting, a notice of time, place, and nature of the 
meeting. If the sponsor has determined, pursuant to Sec. 332.5 of this 
part, to limit attendance at the meeting, the sponsor shall publish this 
Federal Register notice within ten days of the meeting.
    (3) Any interested person may attend a meeting held to carry out a 
voluntary agreement unless the sponsor has restricted attendance 
pursuant to Sec. 332.5 of this part. A person attending a meeting under 
this section may present oral or written data, views, and arguments to 
any limitations on the manner of presentation that the sponsor may 
impose.
    (4) No meeting shall be held to carry out any voluntary agreement 
unless a Federal employee, other than an individual employed pursuant to 
5 U.S.C. 3109, is in attendance. Any meeting to carry out a voluntary 
agreement may be attended by the sponsor of the agreement, the Attorney 
General, the Chairman of the Federal Trade Commission, the Director of 
the Federal Emergency Management Agency, or their delegates.

[[Page 566]]

    (5) Notwithstanding any other provision of this section, a meeting 
between a single participant and the sponsor solely to deliver or 
exchange information is not subject to the requirements and procedures 
of this section, provided that a copy of the information is promptly 
delivered to the Attorney General, the Chairman of the Federal Trade 
Commission, and the Director of the Federal Emergency Management Agency.
    (d) Maintenance of records. (1) The participants in any voluntary 
agreement shall maintain for five years all minutes of meetings, 
transcripts, rec ords, documents, and other data, including any 
communications among themselves or with any other member of their 
industry, related to the carrying out of the voluntary agreement. The 
participants shall agree, in writing, to make available to the sponsor, 
the Attorney General, the Chairman of the Federal Trade Commission and 
the Director of the Federal Emergency Management Agency for inspection 
and copying at reasonable times and upon reasonable notice any item that 
this section requires them to maintain.
    (2) Any person required by this paragraph to maintain records shall 
indicate specific portions, if any, that such person believes should not 
be disclosed to the public pursuant to Sec. 332.5 of this part, and the 
reasons therefor. Any item made available to a Government official named 
in this paragraph shall be available from that official for public 
inspection and copying to the extent set forth in Sec. 332.5 of this 
part.



Sec. 332.4  Termination or modifying voluntary agreements.

    The Attorney General may terminate or modify a voluntary agreement, 
in writing, after consultation with the Chairman of the Federal Trade 
Commission and the sponsor of the agreement. The sponsor of the 
agreement, with the concurrence of or at the direction of the Director 
of the Federal Emergency Management Agency, may terminate or modify a 
voluntary agreement, in writing, after consultation with the Attorney 
General and the Chairman of the Federal Trade Commission. Any person who 
is a party to a voluntary agreement may terminate his participation in 
the agreement upon written notice to the sponsor. Any antitrust immunity 
conferred upon the participants in that agreement by subsection 708(j) 
of the DPA shall not apply to any act or omission occurring after the 
termination of the voluntary agreement. Immediately upon modification of 
a voluntary agreement, no antitrust immunity shall apply to any 
subsequent act or omission that is beyond the scope of the modified 
agreement.



Sec. 332.5  Public access to records and meetings.

    (a) Interested persons may, pursuant to 5 U.S.C. 552, inspect or 
copy any voluntary agreement, minutes of meetings, transcripts, records, 
or other data maintained pursuant to these rules.
    (b) Except as provided by paragraph (c) of this section, interested 
persons may attend any part of a meeting held to develop or carry out a 
voluntary agreement pursuant to these rules.
    (c) The sponsor of a voluntary agreement may withhold material 
described in this section from disclosure and restrict attendance at 
meetings only on the grounds specified in:
    (1) Section 552(b)(1) of 5 U.S.C., which applies to matter 
specifically required by Executive Order to be kept secret in the 
interest of the national defense or foreign policy. This section shall 
be interpreted to included matter protected under Executive Order 12065, 
dated June 28, 1978 (3 CFR 1979-1975 Comp. p. 678), establishing 
categories and criteria for classification; and
    (2) Section 552(b)(3) of 5 U.S.C., which applies to matter 
specifically exempted from disclosure by statute; and
    (3) Section 552(b)(4) of 5 U.S.C., which applies to trade secrets 
and commercial or financial information obtained from a person as 
privileged and confidential.

                           PART 333 [RESERVED]



PART 334_GRADUATED MOBILIZATION RESPONSE--Table of Contents




Sec.
334.1 Purpose.
334.2 Policy.
334.3 Background.

[[Page 567]]

334.4 Definitions.
334.5 GMR system description.
334.6 Department and agency responsibilities.
334.7 Reporting.

    Authority: National Security Act of 1947, as amended, 50 U.S.C. 404; 
Defense Production Act of 1950, as amended, 50 U.S.C. app. 2061 et seq; 
E.O. 12148 of July 20, 1979, 3 CFR, 1979 Comp., p. 412; E.O. 10480 of 
Aug. 14, 1953, 3 CFR, 1949-53 Comp., p. 962; E.O. 12472 of Apr. 3, 1984; 
3 CFR, 1984 Comp., p. 193; E.O. 12656 of Nov. 18, 1988, 53 FR 47491.

    Source: 55 FR 1821, Jan. 19, 1990, unless otherwise noted.



Sec. 334.1  Purpose.

    (a) Provides policy guidance pursuant to the Defense Production Act 
of 1950, as amended; section 1-103 of Executive Order 12148, as amended, 
which includes functions continued from E.O. 11051; section 104(f) of 
Executive Order 12656; and part 2 of Executive Order 10480.
    (b) Establishes a Graduated Mobilization Response (GMR) system for 
developing and implementing mobilization actions that are responsive to 
a wide range of national security threats and ambiguous or specific 
warning indicators. GMR provides for a coherent decision making process 
with which to proceed with specific responses to an identified crisis or 
emergency.
    (c) Provides guidance to the Federal departments and agencies for 
developing plans that are responsive to a GMR system and for preparing 
costed option packages, as appropriate, to implement the plans.



Sec. 334.2  Policy.

    (a) As established in Executive Order 12656, the policy of the 
United States is to have sufficient emergency response capabilities at 
all levels of government to meet essential defense and civilian needs 
during any national security emergency. Accordingly, each Federal 
department and agency shall prepare its national security emergency 
preparedness plans and programs to respond adequately and in a timely 
manner to all national security emergencies.
    (b) As part of emergency response, the GMR system should be 
incorporated in each department's and agency's emergency preparedness 
plans and programs to provide appropriate and effective response options 
for consideration in reacting to ambiguous and specific warnings.
    (c) Departments and agencies will be provided early warning 
information developed by the intelligence community and policy 
statements of the President.
    (d) Emergency resource preparedness planning is essential to ensure 
that the nation is adequately prepared to respond to potential national 
emergencies. Such emergency resource preparedness planning requires an 
exchange of information and planning factors among the various 
departments and agencies responsible for different resource preparedness 
actitivies.
    (e) To carry out their emergency planning activities, civilian 
departments and agencies require the Department of Defense's (DOD) 
assessment of potential military demands that would be made on the 
economy in a full range of possible national security emergencies. 
Similarly, DOD planning should be conducted using planning regimes 
consistent with the policies and plans of the civilian resource 
departments and agencies.
    (f) Under section 104(c) of Executive Order 12656, FEMA is 
responsible for coordinating the implementation of national emergency 
preparedness policy with Federal departments and agencies and with state 
and local governments and, therefore, is responsible for developing a 
system of planning procedures for integrating the emergency preparedness 
actions of federal, state and local governments.
    (g) Federal departments and agencies shall design their preparedness 
measures to permit a rapid and effective transition from routine to 
emergency operations, and to make effective use of the period following 
initial indication of a probable national security emergency. This will 
include:
    (1) Development of a system of emergency actions that defines 
alternatives, processes, and issues to be considered during various 
stages of national security emergencies; and
    (2) Identification of actions that could be taken at the Federal and 
local levels of government in the early stages of a national security 
emergency or pending national security

[[Page 568]]

emergency to mitigate the impact of or reduce significantly the leadtime 
associated with full emergency action implementation.



Sec. 334.3  Background.

    (a) The GMR system is designed to take into account the need to 
mobilize the Nation's resources in response to a wide range of crisis or 
emergency situations. GMR is a flexible decision making process of 
preparedness and response actions which are appropriate to warning 
indicators or an event. Thus, GMR allows the government, as a whole, to 
take small or large, often reversible, steps to increase its national 
security emergency preparedness posture.
    (b) Crises, especially those resulting in major military activities, 
always have some political or economic context. As the risks of military 
action increase, nations undertake more extensive preparations over a 
longer perod of time to increase their military power. Such preparations 
by potential adversaries shape the nature and gravity of the threat as 
well as its likelihood and timing of occurrence. These measures permit 
the development of reliable indicators of threat at an early time in the 
evolution of a crisis. Depending on the nature of the situation or event 
and the nation involved, these early warning indicators may emanate from 
the political, socio-economic and/or industrial sectors.
    (c) The GMR system enables the nation to approach mobilization 
planning and actions as part of the deterrent response capability and to 
use it to reduce the probability of conflict. Alternatively, if 
deterrence should fail, the GMR system would enable the nation to 
undertake a series of phased actions intended to increase its ability to 
meet defense and essential civilian requirements. The GMR system 
integrates the potential strength of the national economy into U.S. 
national security strategy.



Sec. 334.4  Definitions.

    (a) Graduated Mobilization Response (GMR) is a system for 
integrating mobilization actions designed to respond to ambiguous and/or 
specific warnings. These actions are designed to mitigate the impact of 
an event or crisis and reduce significantly the lead time associated 
with a full national emergency action implementation.
    (b) National security emergency is any occurrence, including natural 
disaster, military attack, technological emergency, or other emergency, 
that seriously degrades or threatens the national security of the United 
States.
    (c) Mobilization is the process of marshalling resources, both civil 
and military, to respond to and manage a national security emergency.
    (d) GMR Plans are those agency documents that describe, in general, 
the actions that an agency could take in the early stages of a national 
security emergency, or upon receipt of warning information about a 
possible national security emergency. These actions would be designed to 
mitigate the impact of, or reduce significantly, the lead times 
associated with full emergency action implementation. Such plans are 
required by section 201(4)(b) of Executive Order 12656.
    (e) A Costed Option Package is a document that describes in detail a 
particular action that an agency could take in the early stages of a 
national security emergency. The general content of a GMR costed option 
package includes alternative response options; the resource implications 
of each option; shortfalls, costs, timeframes and political feasibility.



Sec. 334.5  GMR system description.

    The GMR system contains three stages of mobilization activity 
(additional intermediate GMR stages may be developed). For example, a 
Federal department or agency might divide ``Crisis Management'' into 
two, three, or more levels as suits its needs.
    (a) Stage 3, Planning and Preparation. During the planning and 
preparation stage, Federal departments and agencies develop their GMR 
plans and maintain capability to carry out their mobilization-related 
responsibilities in accordance with section 201 of Executive Order 
12656. General types of problems likely to arise in a crisis situation 
are identified along with possible methods for dealing with them. 
Investment programs can be undertaken to overcome identified problems.

[[Page 569]]

    (b) Stage 2, Crisis Management. During the crisis management stage, 
GMR plans are reviewed and capabilities will be re-examined in light of 
an actual event or crisis perceived to be emerging.
    (1) Federal departments and agencies may need to gather additional 
data on selected resources or increase their preparedness activities. 
Costed Option Packages may need to be updated or new ones prepared for 
the response option measures in each of the department's and agency's 
area of responsibility. For example, when it appears likely that 
increased national resources may be required, resource readiness could 
be improved through the procurement of essential long lead time items, 
especially those that can be used even if the situation does not 
escalate. In general, long lead time preparedness actions would be 
considered for implementation at this time.
    (2) Many preparedness actions at this stage would be handled through 
reprogramming, but the Costed Option Packages may also require new 
funding.
    (3) If the crisis worsens, and prior to the declaration of national 
emergency, it may be necessary to surge certain production and stockpile 
items for future use.
    (c) Stage 1, National Emergency/War. During a national emergency or 
declaration of war, mobilization of all national resources escalates and 
GMR will be subsumed into the overall mobilization effort. As military 
requirements increase, the national resources would increasingly be 
focused on the national security emergency. This would involve diverting 
non-essential demand for scarce resources from peacetime to defense 
uses, and converting industry from commercial to military production. 
Both surge production and expansion of the nation's productive capacity 
may also be necessary. Supplemental appropriations may be required for 
most Federal departments and agencies having national security emergency 
responsibilities.



Sec. 334.6  Department and agency responsibilities.

    (a) During Stage 3, each Federal department and agency with 
mobilization responsibilities will develop GMR plans as part of its 
emergency preparedness planning process in order to meet possible future 
crisis. Costed Option Packages will be developed for actions that may be 
necessary in the early warning period. Option packages will be reviewed, 
focused and refined during Stage 2 to meet the particular emergency.
    (b) Each department and agency should identify response actions 
appropriate for the early stage of any crisis or emergency situation, 
which then will be reviewed, focused and refined in Stage 2 for 
execution, as appropriate. GMR plans should contain a menu of costed 
option packages that provide details of alternative measures that may be 
used in an emergency situation.
    (c) FEMA will provide guidance pursuant to Executive Order 12656 and 
will coordinate GMR plans and option packages of DOD and the civilian 
departments and agencies to ensure consistency and to identify areas 
where additional planning or investment is needed.
    (d) During State 2, FEMA will coordinate department and agency 
recommendations for action and forward them to the National Security 
Advisor to make certain that consistency with the overall national 
strategy planning is achieved.
    (e) Departments and agencies will refine their GMR plans to focus on 
the specific crisis situation. Costed option packages should be refined 
to identify the resources necessary for the current crisis, action taken 
to obtain those resources, and GMR plans implemented consistent with the 
seriousness of the crisis.
    (f) At Stage 1, declaration of national emergency or war, the crisis 
is under the control of NSC or other central authority, with GMR being 
integrated into partial, full or total mobilization. At this point the 
more traditional mechanisms of resource mobilization are pursued, 
focusing on resource allocation and adjudication with cognizance of the 
essential civilian demand.

[[Page 570]]

    (g) Programs and plans developed by the departments and agencies 
under this guidance should be shared, as appropriate, with States, local 
governments and the private sector to provide a baseline for their 
development of supporting programs and plans.



Sec. 334.7  Reporting.

    The Director of FEMA shall provide the President with periodic 
assessments of the Federal departments and agencies capabilities to 
respond to national security emergencies and periodic reports to the 
National Security Council on the implementation of the national security 
emergency preparedness policy. Pursuant to section 201(15) of Executive 
Order 12656, departments and agencies, as appropriate, shall consult and 
coordinate with the Director of FEMA to ensure that their activities and 
plans are consistent with current National Security Council guidelines 
and policies. An evaluation of the Federal departments and agencies 
participation in the graduated mobilization response program may be 
included in these reports.

                        PARTS 335-349 [RESERVED]



PART 350_REVIEW AND APPROVAL OF STATE AND LOCAL RADIOLOGICAL EMERGENCY 
PLANS AND PREPAREDNESS--Table of Contents




Sec.
350.1 Purpose.
350.2 Definitions.
350.3 Background.
350.4 Exclusions.
350.5 Criteria for review and approval of State and local radiological 
          emergency plans and preparedness.
350.6 Assistance in development of State and local plans.
350.7 Application by State for review and approval.
350.8 Initial FEMA action on State plan.
350.9 Exercises.
350.10 Public meeting in advance of FEMA approval.
350.11 Action by FEMA Regional Director.
350.12 FEMA Headquarters review and approval.
350.13 Withdrawal of approval.
350.14 Amendments to State plans.
350.15 Appeal procedures.

    Authority: 42 U.S.C. 5131, 5201, 50 U.S.C. app. 2253(g); Sec. 109 
Pub. L. 96-295; Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 
12148.

    Source: 48 FR 44335, Sept. 28, 1983, unless otherwise noted.



Sec. 350.1  Purpose.

    The purpose of the regulation in this part is to establish policy 
and procedures for review and approval by the Federal Emergency 
Management Agency (FEMA) of State and local emergency plans and 
preparedness for the offsite effects of a radiological emergency which 
may occur at a commercial nuclear power facility. Review and approval of 
these plans and preparedness involves preparation of findings and 
determinations of the adequacy of the plans and capabilities of State 
and local governments to effectively implement the plans.



Sec. 350.2  Definitions.

    As used in this part, the following terms are defined:
    (a) Director means the Director, FEMA, or designee;
    (b) Regional Director means a Regional Director of FEMA, or 
designee;
    (c) Associate Director means the Associate Director, State and Local 
Programs and Support, FEMA, or designee;
    (d) FEMA means the Federal Emergency Management Agency;
    (e) NRC means the Nuclear Regulatory Commission;
    (f) EPZ means Emergency Planning Zone.
    (g) Emergency Planning Zone (EPZ) is a generic area around a 
commercial nuclear facility used to assist in offsite emergency planning 
and the development of a significant response base. For commercial 
nuclear power plants, EPZs of about 10 and 50 miles are delineated for 
the plume and ingestion exposure pathways respectively.
    (h) Plume Exposure Pathway refers to whole body external exposure to 
gamma radiation from the plume and from deposited materials and 
inhalation exposure from the passing radioactive plume. The duration of 
primary exposures could range in length from hours to days.
    (i) Ingestion Exposure Pathway refers to exposure primarily from 
ingestion of water or foods such as milk and fresh

[[Page 571]]

vegetables that have been contaminated with radiation. The duration of 
primary exposure could range from hours to months.
    (j) Full participation refers to an exercise in which: (1) State and 
local government emergency personnel are engaged in sufficient numbers 
to verify the capability to respond to the actions required by the 
accident scenario; (2) the integrated capability to adequately assess 
and respond to an accident at a commercial nuclear power plant is 
tested; and (3) the implementation of the observable portions of State 
and/or local plans is tested.
    (k) Partial participation refers to the engagement of State and 
local government emergency personnel in an exercise sufficient to 
adequately test direction and control functions for protective action 
decisionmaking related to emergency action levels and communication 
capabilities among affected State and local governments and the 
licensee.
    (l) Remedial exercise is one that tests deficiencies of previous 
joint exercise that are considered significant enough to impact on the 
public health and safety.
    (m) Local government refers to boroughs, cities, counties, 
municipalities, parishes, towns, townships and other local jurisdictions 
within the plume exposure pathway EPZ when any of these entities has 
specific roles in emergency planning and preparedness in the EPZ.
    (n) Site refers to the location at which there is one or more 
commercial nuclear power plants. A nuclear power plant is synonymous 
with a nuclear power facility.



Sec. 350.3  Background.

    (a) On December 7, 1979, the President directed the Director of FEMA 
to take the lead in State and local emergency planning and preparedness 
activities with respect to nuclear power facilities. This included a 
review of the existing emergency plans both in States with operating 
reactors and those with plants scheduled for operation in the near 
future.
    (b) This assignment was given to FEMA because of its 
responsibilities under Executive Order 12148 to establish Federal 
policies for and coordinate civil emergency planning, management and 
assistance functions and to represent the President in working with 
State and local governments and the private sector to stimulate vigorous 
participation in civil emergency preparedness programs. Under section 
201 of the Disaster Relief Act of 1974 (42 U.S.C. 5131), and other 
statutory functions, the Director of FEMA is charged with the 
responsibility to develop and implement plans and programs of disaster 
preparedness.
    (c) There are two sections in the NRC's fiscal year 1982/1983 
Appropriation Authorization (Pub. L. 97-415) that pertain to the scope 
of this rule.
    (1) Section 5 provides for the issuance of an operating license for 
a commercial nuclear power plant by the NRC if it is determined that 
there exists a State, local or utility plan which provides assurance 
that public health and safety is not endangered by the operation of the 
facility. This section would allow the NRC to issue an operating license 
for such plants without FEMA-approved State and local government plans.
    (2) Section 11 provides for the issuance of temporary licenses for 
operating a utilization facility at a specific power level to be 
determined by the Commission, pending final action by the Commission on 
the application. Also, this section authorizes the NRC to issue 
temporary operating licenses for these facilities without the completion 
of the required (NRC) Commission hearing process. A petition for such a 
temporary license may not be filed until certain actions are completed 
including the submission of a State, local or utility emergency response 
plan for the facility.
    (d) To carry out these responsibilities, FEMA is engaged in a 
cooperative effort with State and local governments and other Federal 
agencies in the development of State and local plans and preparedness to 
cope with the offsite effects resulting from radiological emergencies at 
commercial nuclear power facilities. FEMA developed and published the 
Federal Radiological Emergency Response Plan 50 FR 46542 Nov. 8, 1985, 
to provide the overall support to State and local governments, for all 
types of radiological incidents

[[Page 572]]

including those occurring at nuclear power plants.
    (e) FEMA has entered into a Memorandum of Understanding (MOU) with 
the NRC to which it will furnish assessments, findings and 
determinations as to whether State and local emergency plans and 
preparedness are adequate and continue to be capable of implementation 
(e.g., adequacy and maintenance of procedures, training, resources, 
staffing levels and qualification and equipment adequacy). These 
findings and determinations will be used by NRC under its own rules in 
connection with its licensing and regulatory requirements and FEMA will 
support its findings in the NRC licensing process and related court 
proceedings.
    (f) Notwithstanding the procedures set forth in these rules for 
requesting and reaching a FEMA administrative approval of State and 
local plans, findings and determinations on the current status of 
emergency preparedness around particular sites may be requested by the 
NRC and provided by FEMA for use as needed in the NRC licensing process. 
These findings and determinations may be based upon plans currently 
available to FEMA or furnished to FEMA by the NRC through the NRC/FEMA 
Steering Committee.
    (g) An environmental assessment has been prepared on which FEMA has 
determined that this rule will not have a significant impact on the 
quality of the human environment.

[48 FR 44335, Sept. 28, 1983, as amended at 51 FR 34606, Sept. 30, 1986]



Sec. 350.4  Exclusions.

    The regulation in this part does not apply to, nor will FEMA apply 
any criteria with respect to, any evaluation, assessment or 
determination regarding the NRC licensee's emergency plans or 
preparedness, nor shall FEMA make any similar determination with respect 
to the integration of offsite and NRC licensee emergency preparedness 
except as these assessments and determinations affect the emergency 
preparedness of State and local governments. The regulation in this part 
applies only to State and local planning and preparedness with respect 
to emergencies at commercial nuclear power facilities and does not apply 
to other facilities which may be licensed by NRC, nor to United States 
Government-owned, non-licensed facilities nor the jurisdictions 
surrounding them.



Sec. 350.5  Criteria for review and approval of State and local 
radiological emergency plans and preparedness.

    (a) Section 50.47 of NRC's Emergency Planning Rule (10 CFR parts 50 
(appendix E) and 70 as amended) and the joint FEMA-NRC Criteria for 
Preparation and Evaluation of Radiological Emergency Response Plans and 
Preparedness in Support of Nuclear Power Plants (NUREG-0654/FEMA-REP-1, 
Rev. 1, November 1980) which apply insofar as FEMA is concerned to State 
and local governments, are to be used in reviewing, evaluating and 
approving State and local radiological emergency plans and preparedness 
and in making any findings and determinations with respect to the 
adequacy of the plans and the capabilities of State and local 
governments to implement them. Both the planning and preparedness 
standards and related criteria contained in NUREG-0654/ FEMA-REP-1, Rev. 
1 are to be used by FEMA and the NRC in reviewing and evaluating State 
and local government radiological emergency plans and preparedness. For 
brevity, only the planning standards contained in NUREG-0654/ FEMA-REP-
1, Rev. 1 are presented below.
    (1) Primary responsibilities for emergency response by the nuclear 
facility licensee, and by State and local organizations within the 
Emergency Planning Zones have been assigned, the emergency 
responsibilities of the various supporting organizations have been 
specifically established and each principal response organization has 
staff to respond to and augment its initial response on a continuous 
basis.
    (2) On-shift facility licensee responsibilities for emergency 
response are unambiguously defined, adequate staffing to provide initial 
facility accident response in key functional areas is maintained at all 
times, timely augmentation of response capabilities is available and the 
interfaces among various onsite response activities and offsite support 
and response activities

[[Page 573]]

are specified. (This standard applies only to NRC licensees but is 
included here for completeness.)
    (3) Arrangements for requesting and effectively using assistance 
resources have been made, arrangements to accommodate State and local 
staff at the licensee's near-site Emergency Operations Facility have 
been made and other organizations capable of augmenting the planned 
response have been identified.
    (4) A standard emergency classification and action level scheme, the 
bases of which include facility system and effluent parameters, is in 
use by the nuclear facility licensee, and State and local response plans 
call for reliance on information provided by facility licensees for 
determinations of minimum initial offsite response measures.
    (5) Procedures have been established for notification, by the 
licensee, of State and local response organizations and for the 
notification of emergency personnel by all response organizations; the 
content of initial and followup messages to response organizations and 
the public has been established; and means to provide early notification 
and clear instruction to the populace within the plume exposure pathway 
Emergency Planning Zone have been established.
    (6) Provisions exist for prompt communications among principal 
response organizations to emergency personnel and to the public.
    (7) Information is made available to the public on a periodic basis 
on how they will be notified and what their initial actions should be in 
an emergency (e.g., listening to a local broadcast station and remaining 
indoors), the principal points of contact with the news media for 
dissemination of information during an emergency (including the physical 
location or locations) are established in advance and procedures for 
coordinated dissemination of information to the public are established.
    (8) Adequate emergency facilities and equipment to support the 
emergency response are provided and maintained.
    (9) Adequate methods, systems and equipment for assessing and 
monitoring actual or potential offsite consequences of a radiological 
emergency condition are in use.
    (10) A range of protective actions has been developed for the plume 
exposure pathway EPZ for emergency workers and the public. Guidelines 
for the choice of protective actions during an emergency, consistent 
with Federal guidance, are developed and in place and protective actions 
for the ingestion exposure pathway EPZ appropriate to the locale have 
been developed.
    (11) Means for controlling radiological exposures, in an emergency, 
are establishd for emergency workers. The means for controlling 
radiological exposures shall include exposure guidelines consistent with 
EPA Emergency Worker and Lifesaving Activity Protective Action Guides.
    (12) Arrangements are made for medical services for contaminated 
injured individuals.
    (13) General plans for recovery and reentry are developed.
    (14) Periodic exercises are (will be) conducted to evaluate major 
portions of emergency response capabilities, periodic drills are (will 
be) conducted to develop and maintain key skills and deficiencies 
identified as a result of exercises or drills are (will be) corrected.
    (15) Radiological emergency response training is provided to those 
who may be called upon to assist in an emergency.
    (16) Responsibilities for plan development and review and for 
distribution of emergency plans are established, and planners are 
properly trained.
    (b) In order for State of local plans and preparedness to be 
approved, such plans and preparedness must be determined to adequately 
protect the public health and safety by providing reasonable assurance 
that appropriate protective measures can be taken offsite in the event 
of a radiological emergency.



Sec. 350.6  Assistance in development of State and local plans.

    (a) An integrated approach to the development of offsite 
radiological emergency plans by States, localities and the licensees of 
NRC with the assistance of the Federal Government is the approach most 
likely to provide the best protection to the public. Hence, Federal 
agencies, including FEMA Regional staff, will be made available

[[Page 574]]

upon request to assist States and localities in the development of 
plans.
    (b) There now exists in each of the ten standard Federal Regions a 
Regional Assistance Committee (RAC) (formerly the Regional Advisory 
Committee) chaired by a FEMA Regional official and having members from 
the Nuclear Regulatory Commission, Department of Health and Human 
Services, Department of Energy, Department of Transportation, 
Environmental Protection Agency, the United States Department of 
Agriculture and Department of Commerce. Whereas in 44 CFR part 351, the 
Department of Defense is listed as a potential member of the RACs, it is 
not listed in this rule because military nuclear facilities are not the 
subject of concern. The RACs will assist State and local government 
officials in the development of their radiological emergency response 
plans, and will review plans and observe exercises to evaluate the 
adequacy of these plans and related preparedness. This assistance does 
not include the actual writing of State and local government plans by 
RAC members.
    (c) In accomplishing the foregoing, the RACs will use the standards 
and criteria in NUREG-0654/FEMA-REP-1, Rev. 1, and will render such 
technical assistance as may be required, appropriate to their agency 
mission and expertise. In observing and evaluating exercises, the RACs 
will identify, soon after an exercise, any deficiencies observed in the 
planning and preparedness effort including deficiencies in resources, 
training of staff, equipment, staffing levels and deficiencies in the 
qualifications of personnel.



Sec. 350.7  Application by State for review and approval.

    (a) A State which seeks formal review and approval by FEMA of the 
State's radiological emergency plan shall submit an application for such 
review and approval to the FEMA Regional Director of the Region in which 
the State is located. The application, in the form of a letter from the 
Govenor or from such other State official as the Governor may designate, 
shall contain one copy of the completed State plan, including coverage 
of response in the ingestion exposure pathway EPZ. The application will 
also include plans of all appropriate local governments. The application 
shall specify the site or sites for which plan approval is sought. For 
guidance on the local government plans that should be included with an 
application, refer to Part I.E. NUREG-0654/FEMA-REP-1, Rev. 1, entitled 
Contiguous Jurisdiction Governmental Emergency Planning (see (e)). Only 
a State may request formal review of State or local radiological 
emergency plans.
    (b) Generally, the plume exposure pathway EPZ for nuclear power 
facilities shall consist of an area about 10 miles (16 Km) in radius and 
the ingestion exposure pathway EPZ shall consist of an area about 50 
miles (80 Km) in radius. The exact size and configuration of the EPZs 
surrounding a particular nuclear power facility shall be determined by 
State and local governments in consultation with FEMA and NRC taking 
into account such local conditions as demography, topography, land 
characteristics, access routes and local jurisdiction boundaries. The 
size of the EPZs may be determined by NRC in consultation with FEMA on a 
case-by-case basis for gas cooled reactors and for reactors with an 
authorized power level less than 250 Mw thermal. The plans for the 
ingestion exposure pathway shall focus on such actions as are 
appropriate to protect the public from ingesting contaminated food and 
water.
    (c) A State may submit separately its plans for the EPZs and the 
local government plans related to individual nuclear power facilities. 
The purpose of separate submissions is to allow approval of a State 
plan, and of the plans necessary for specific nuclear power facilities 
in a multiple-facility State, while not approving or acting on the plans 
necessary for other nuclear power facilities within the State. If 
separate submissions are made, appropriate adjustments in the State plan 
may be necessary. In any event, FEMA approval of State plans and 
appropriate local government plans shall be site specific.
    (d) The applications shall contain a statement that the State plan, 
together with the appropriate local plans, is, in the opinion of the 
State,

[[Page 575]]

adequate to protect the public health and safety of its citizens living 
within the emergency planning zones for the nuclear power facilities 
included in the submission by providing reasonable assurance that State 
and local governments can and intend to effect appropriate protective 
measures offsite in the event of a radiological emergency.
    (e) FEMA and the States will make suitable arrangements in the case 
of overlapping or adjacent jurisdictions to permit an orderly assessment 
and approval of interstate or interregional plans.



Sec. 350.8  Initial FEMA action on State plan.

    (a) The Regional Director shall acknowledge in writing within ten 
days the receipt of the State application.
    (b) FEMA shall publish a notice signed by the Regional Director or 
designee in the Federal Register within 30 days after receipt of the 
application, that an application from a State has been received and that 
copies are available at the Regional Office for review and copying in 
accordance with 44 CFR 5.26.
    (c) The Regional Director shall furnish copies of the plan to 
members of the RAC for their analysis and evaluation.
    (d) The Regional Director shall make a detailed review of the State 
plan, including those of local governments, and assess the capability of 
State and local governments to effectively implement the plan (e.g., 
adequacy and maintenance of procedures, training, resources, staffing 
levels and qualification and equipment adequacy). Evaluation and 
comments of the RAC members will be used as part of the review process.
    (e) In connection with the review, the Regional Director may make 
suggestions to States concerning perceived gaps or deficiencies in the 
plans, and the State may amend the plan at any time prior to forwarding 
to the Associate Director of FEMA.
    (f) Two conditions for FEMA approval of State plans (including local 
government plans) are the requirements for an exercise (see Sec. 
350.9), and for public participation (see Sec. Sec. 350.9 and 350.10.). 
These activities occur during the Regional review and prior to the 
forwarding of the plan to the Associate Director.



Sec. 350.9  Exercises.

    (a) Before a Regional Director can forward a State plan to the 
Associate Director for approval, the State, together with all 
appropriate local governments, must conduct a joint exercise of that 
State plan, involving full participation \1\ of appropriate local 
government entities, the State and the appropriate licensee of the NRC. 
To the extent achievable, this exercise shall include participation by 
appropriate Federal agencies. This exercise shall be observed and 
evaluated by FEMA and by representatives of other Federal agencies with 
membership on the RACs and by NRC with respect to licensee response. 
Within 48 hours of the completion of the exercise, a briefing involving 
the exercise participants and Federal observers shall be conducted by 
the Regional Director to discuss the preliminary results of the 
exercise. If the exercise discloses any deficiencies in the State and 
local plans, or the ability of the State and local governments to 
implement the plans, the FEMA representatives shall make them known 
promptly in writing to appropriate State officials. To the extent 
necessary, the State shall amend the plan to incorporate recommended 
changes or improvements or take other corrective measures, such as 
remedial exercises,\1\ to demonstrate to the Regional Director that 
identified weaknesses have been corrected.
---------------------------------------------------------------------------

    \1\ See Sec. 350.2 for definitions of ``full participation'' and 
``remedial exercises''.
---------------------------------------------------------------------------

    (b) The Regional Director shall be the FEMA official responsible for 
certifying to the Associate Director that an exercise of the State plan 
has been conducted, and that changes and corrective measures in 
accordance with paragraph (a) of this section have been made.
    (c) State and local governments that have fully participated in a 
joint exercise within one year prior to the effective date of this final 
rule will have

[[Page 576]]

continuing approval of their radiological emergency plans and 
preparedness by following the frequency indicated in paragraphs (c) (1) 
through (4) of this section. State and local governments that have not 
fully participated in a joint exercise within one year prior to the 
effective date of this final rule will follow the frequency indicated in 
paragraphs (c) (1) through (4) of this section after completion of a 
joint exercise in which they have fully participated. If, in developing 
exercise schedules with State and local governments to implement the 
requirements in paragraphs (c) (1) through (4) of this section, the 
Regional Director finds that unusual hardships would result, he may seek 
relief from the Associate Director.
    (1) Each State which has a commercial nuclear power site within its 
boundaries or is within the 10-mile plume exposure pathway Emergency 
Planning Zone of such site shall fully participate in an exercise 
jointly with the nuclear power plant licensee and appropriate local 
governments at least every two years.
    (2) Each State with multiple sites within its boundaries shall fully 
participate in a joint exercise at some site on a rotational basis at 
least every 2 years. When not fully participating in an exercise at a 
site, the State shall partially participate \2\ at that site to support 
the full participation of appropriate local governments. Priority shall 
be given to new facilities seeking an operating license from the NRC and 
which have not fully participated in a joint exercise involving the 
State, local governments and the licensee at that site. State and local 
governments will coordinate the scheduling of these exercises with the 
appropriate FEMA and NRC Regional Offices and the affected licensees.
---------------------------------------------------------------------------

    \2\ See Sec. 350.2 for definition of ``partial exercise''.
---------------------------------------------------------------------------

    (3) Each appropriate local government which has a site within its 
boundaries or is within the 10-mile emergency planning zone shall fully 
participate in a joint exercise with the licensee and the State at least 
every two years. For those local governments that have planning and 
preparedness responsibilities for more than one facility, the Regional 
Director may seek an exemption from this requirement by recommending 
alternative arrangements for approval by the Associate Director.
    (4) States within the 50-mile emergency planning zone of a site 
shall exercise their plans and preparedness related to ingestion 
exposure pathway measures at least once every five years in conjunction 
with a plume exposure pathway exercise for that site.
    (5) Remedial exercises may be required to correct deficiencies 
observed in exercises conducted for continued FEMA approval. Should this 
occur, the FEMA Regional Director will determine the participation 
required from the States and/or local governments.
    (d) Within 48 hours of the completion of an exercise conducted for 
continued FEMA approval, a briefing involving the exercise participants 
and Federal observers shall be conducted by the Regional Director to 
discuss the preliminary results of the exercise. If the exercise 
discloses any deficiencies in the State and local plans, or the ability 
of the State and local governments to implement the plans, the FEMA 
representatives shall make them known promptly in writing to appropriate 
State officials. To the extent necessary, the State shall amend the plan 
to incorporate recommended changes or improvements or take other 
corrective measures, such as remedial exercises, to demonstrate to the 
Regional Director that identified weaknesses have been corrected. The 
Regional Director shall forward his or her evaluation of the exercise 
conducted for continued FEMA approval to the Associate Director 
including the certification that changes and corrective measures have 
been made.
    (e) Following the exercise conducted for continued FEMA approval, 
the Regional Director shall conduct a meeting in the vicinity of the 
nuclear power facility which will include the exercise participants, 
representatives from the NRC and other appropriate Federal agencies and 
the public and media as observers. The purpose of this meeting is to 
discuss the evaluation of the exercise. At the discretion of the 
Regional Director, written comments from the

[[Page 577]]

public and media may be submitted at or after the meeting. These 
comments will be taken into consideration by the Regional Director in 
his or her evaluation.
    (f) After FEMA approval of a State and local plan has been granted, 
failure to exercise the State and local plans at the frequency and 
participation described in this section shall be grounds for withdrawing 
FEMA approval. (See Sec. 350.13.)



Sec. 350.10  Public meeting in advance of FEMA approval.

    (a) During the FEMA Regional Office review of a State plan and prior 
to the submission by the Regional Director of the evaluation of the plan 
and exercise to the Associate Director, the FEMA Regional Director shall 
assure that there is at least one public meeting conducted in the 
vicinity of the nuclear power facility. The purpose of such a meeting, 
which may be conducted by the State or by the Regional Director, shall 
be to:
    (1) Acquaint the members of the public in the vicinity of each 
facility with the content of the State and related local plans, and with 
the conduct of the joint exercise which tested the plans;
    (2) Answer any questions about FEMA review of the plan and the 
exercise;
    (3) Receive suggestions from the public concerning improvements or 
changes that may be necessary; and
    (4) Describe to the public the way in which the plan is expected to 
function in the event of an actual emergency.
    (b) The Regional Director should assure that representatives from 
appropriate State and local government agencies, and the affected 
utility appear at such meetings to make presentations and to answer 
questions from the public. The public meeting should be held after the 
first joint (utility, State and local governments) exercise at a time 
mutually agreed to by State and local authorities, licensee and FEMA and 
NRC Regional officials. This meeting shall be noticed in the local 
newpaper with the largest circulation in the area, or other such media 
as the Regional Director may select, on at least two occasions, one of 
which is at least two weeks before the meeting takes place and the other 
is within a few days of the meeting date. Local radio and television 
stations should be notified of the scheduled meeting at least one week 
in advance. Representatives from NRC and other appropriate Federal 
agencies should also be invited to participate in these meetings. If, in 
the judgment of the FEMA Regional Director, the public meeting or 
meetings reveal deficiencies in the State plan and/or the joint 
exercise, the Regional Director shall inform the State of the fact 
together with recommendations for improvement. No FEMA approval of State 
and local plans and preparedness shall be made until a meeting described 
in this paragraph shall have been held at or near the nuclear power 
facility site for which the State is seeking approval.



Sec. 350.11  Action by FEMA Regional Director.

    (a) Upon completion of his or her review, including conduct of the 
exercise required by Sec. 350.9 and after the public meeting required 
by Sec. 350.10, the Regional Director shall prepare an evaluation of 
the State plan, including plans for local governments. Such evaluation 
shall be specific with respect to the plans applicable to each nuclear 
facility so that findings and determinations can be made by the 
Associate Director on a site-specific basis.
    (b) The Regional Director shall evaluate the adequacy of State and 
local plans and preparedness on the basis of the criteria set forth in 
Sec. 350.5, and shall report the evaluation with respect to each of the 
planning standards mentioned therein as such apply to State and local 
plans and preparedness.
    (c) The Regional Director shall forward the State plan together with 
his or her evaluation and other relevant record material to the 
Associate Director. Relevant record material will include the results of 
the exercise (i.e., deficiencies noted and corrections made), a summary 
of the deficiencies identified during the public meeting, 
recommendations made to the State and commitments made by the State for 
effecting improvements in its plans and preparedness and actions taken 
by the State.

[[Page 578]]



Sec. 350.12  FEMA Headquarters review and approval.

    (a) Upon receipt from a Regional Director of a State plan, the 
Associate Director shall conduct such review of the State plan as he or 
she shall deem necessary. The Associate Director shall arrange for 
copies of the plan, together with the Regional Director's evaluation, to 
be made available to the members of the Federal Radiological 
Preparedness Coordinating Committee (FRPCC) and to other offices of FEMA 
with appropriate guidance relative to any assistance that may be needed 
in the FEMA review and approval process.
    (b) If, after formal submission of the State plan and the Regional 
Director's evaluation, the Associate Director determines that the State 
plans and preparedness:
    (1) Are adequate to protect the health and safety of the public 
living in the vicinity of the nuclear power facility by providing 
reasonable assurance that appropriate protective measures can be taken 
offsite in the event of a radiological emergency; and
    (2) Are capable of being implemented (e.g. adequacy and maintenance 
of procedures, training, resources, staffing levels and qualification 
and equipment adequacy); the Associate Director shall approve in writing 
the State plan. The Associate Director shall concurrently communicate 
this FEMA approval to the Governor of the State(s) in question, the NRC 
and the pertinent Regional Director(s) and immediately shall publish in 
the Federal Register a notice of this effect.
    (c) If, after formal submission of the State plan, the Associate 
Director is not satisfied with the adequacy of the plan or preparedness 
with respect to a particular site, he or she shall concurrently 
communicate that decision to the Governor(s) of the State(s), the NRC 
and the pertinent Regional Director(s), together with a statement in 
writing explaining the reasons for the decision and requesting 
appropriate plan or preparedness revision. Such statement shall be 
transmitted to the Governor(s) through the appropriate Regional 
Director(s). The Associate Director shall immediately publish a notice 
to this effect in the Federal Register.
    (d) The approval shall be of the State plan together with the local 
plans for each nuclear power facility (including out-of-State 
facilities) for which approval has been requested. FEMA may withhold 
approval of plans applicable to a specific nuclear power facility in a 
multi-facility State, but nevertheless approve the State plan and 
associated local plans applicable to other facilities in a State. 
Approval may be withheld for a specific site until plans for all 
jurisdictions within the emergency planning zones of that site have been 
reviewed and found adequate.
    (e) Within 30 days after the date of notification of approval for a 
particular nuclear power facility or within 30 days of any statement of 
disapproval of a State plan, any interested person may appeal the 
decision of the Associate Director to the Director; however, such an 
appeal must be made solely upon the ground that the Associate Director's 
decision, based on the available record, was unsupported by substantial 
evidence. (See Sec. 350.15 for appeal procedures.)



Sec. 350.13  Withdrawal of approval.

    (a) If, at any time after granting approval of a State plan, the 
Associate Director determines, on his or her own initiative, motion or 
on the basis of information another person supplied, that the State or 
local plan is no longer adequate to protect public health and safety by 
providing reasonable assurance that appropriate protective measures can 
be taken, or is no longer capable of being implemented, he or she shall 
immediately advise the Governor of the affected State, through the 
appropriate Regional Director and the NRC of that initial determination 
in writing. FEMA shall spell out in detail the reasons for its initial 
determination, and shall describe the deficiencies in the plan or the 
preparedness of the State. If, after four months from the date of such 
an initial determination, the State in question has not either:
    (1) Corrected the deficiencies noted, or (2) submitted an acceptable 
plan for correcting those deficiencies, the Associate Director shall 
withdraw approval and shall immediately inform the NRC and the Governor 
of the affected State,

[[Page 579]]

of the determination to withdraw approval and shall publish in the 
Federal Register and the local newspaper having the largest daily 
circulation in the affected State notice of its withdrawal or approval. 
The basis upon which the Associate Director makes the determination for 
withdrawal of approval is the same basis used for reviewing plans and 
exercises, i.e., the planning standards and related criteria in 
NUREGO654/FEMA/REP-1, Rev. 1.
    (b) In the event that the State in question shall submit a plan for 
correcting the deficiencies, the Associate Director shall negotiate a 
schedule and a timetable under which the State shall correct the 
deficiencies. If, on the agreed upon date, the deficiencies have been 
corrected, the Associate Director shall withdraw the initial 
determination and the approval previously granted shall remain valid. He 
or she shall inform the Governor(s), the NRC, the pertinent Regional 
Directors(s) and notify the public as stated in paragraph (a) of this 
section. If, however, on the agreed upon date, the deficiencies are not 
corrected, FEMA shall withdraw its approval and shall communicate its 
decision to the Governor of the State whose plan is in question, the 
NRC, the appropriate Federal agencies and notify the public as indicated 
above.
    (c) Within 30 days after the date of notification of withdrawal of 
approval of a State or local plan, any interested person may appeal the 
decision of the Associate Director to the Director; however, such an 
appeal must be made solely upon the ground that the Associate Director's 
decision, based on the available record, was unsupported by substantial 
evidence. (See Sec. 350.15 for appeal procedures.)



Sec. 350.14  Amendments to State plans.

    (a) The State may amend a plan submitted to FEMA for review and 
approval under Sec. 350.7 at any time during the review process or may 
amend a plan at any time after FEMA approval has been granted under 
Sec. 350.12. A State must amend its plan in order to extend the 
coverage of the plan to any new nuclear power facility which becomes 
operational after a FEMA approval or in case of any other significant 
change. The State plan shall remain in effect as approved while any 
significant change is under review.
    (b) A significant change is one which involves the evaluation and 
assessment of a planning standard or which involves a matter which, if 
presented with the plan, would need to have been considered by the 
Associate Director in making a decision that State or local plans and 
preparedness are:
    (1) Adequate to protect the health and safety of the public living 
in the vicinity of the nuclear power facility by providing reasonable 
assurance that appropriate protective measures can be taken offsite in 
the event of a radiological emergency; and
    (2) Capable of being implemented.
    (c) A significant change will be processed in the same manner as if 
it were an initial plan submission. However, the Regional Director may 
determine that certain procedures, such as holding a public meeting or a 
complete exercise, would be unnecessary. The existing FEMA approval 
shall remain in effect while any significant changes are under review.
    (d) Changes, such as a change in a telephone number, that are not 
significant as defined in paragraphs (b) and (c) of this section, but 
are necessary to maintain currency of the plan, should be forwarded to 
the Regional Director.



Sec. 350.15  Appeal procedures.

    (a) Any interested person may appeal a decision made under 
Sec. Sec. 350.12 and 350.13 of this part, by submitting to the 
Director, FEMA, a written notice of appeal, within 30 days after the 
appearance in the Federal Register, of the notice of decision relating 
to the matter being appealed. The appeal must be addressed to the 
Director, Federal Emergency Management Agency, 500 C Street, SW., 
Washington, DC, 20472. The appeal letter shall state specific reasons 
for the appeal and include an offer to provide documentation supporting 
appellate arguments.
    (b) Upon receipt of an appeal, the Director or the Director's 
designee shall review the file, as submitted to the Associate Director, 
State and Local Programs and Support, by the Regional Director of the 
FEMA Region concerned, based on the information contained in the file 
and the appeal letter,

[[Page 580]]

with supporting documentation. The Director or the Director's designee 
shall decide whether or not the Associate Director's initial decision 
was supported by substantial evidence in the file and is consistent with 
FEMA policy.
    (c) The decision of the Director or the Director's designee shall be 
published in the Federal Register as the final agency decision on the 
matter and shall not be reviewable within FEMA, except upon a showing 
that it was procured by fraud or misrepresentation. In addition to 
publication in the Federal Register, copies of the decision shall be 
forwarded to the appellant, the Governor(s) of the State(s) affected, 
the NRC and the affected licensee of the involved power facility.



PART 351_RADIOLOGICAL EMERGENCY PLANNING AND PREPAREDNESS--Table of Contents




                            Subpart A_General

Sec.
351.1 Purpose.
351.2 Scope.
351.3 Limitation of scope.

 Subpart B_Federal Radiological Preparedness Coordinating Committee and 
                     Regional Assistance Committees

351.10 Establishment of committees.
351.11 Functions of committees.

                    Subpart C_Interagency Assignments

351.20 The Federal Emergency Management Agency.
351.21 The Nuclear Regulatory Commission.
351.22 The Environmental Protection Agency.
351.23 The Department of Health and Human Services.
351.24 The Department of Energy.
351.25 The Department of Transportation.
351.26 The United States Department of Agriculture.
351.27 The Department of Defense.
351.28 The Department of Commerce.

    Authority: 5 U.S.C. 552, Reorganization Plan No. 3 of 1978, E.O. 
12127, E.O. 12148, E.O. 12241; Presidential Directive of Dec. 7, 1979.

    Source: 47 FR 10759, Mar. 11, 1982, unless otherwise noted.



                            Subpart A_General



Sec. 351.1  Purpose.

    This part sets out Federal agency roles and assigns tasks regarding 
Federal assistance to State and local governments in their radiological 
emergency planning and preparedness activities. Assignments in this part 
are applicable to radiological accidents at fixed nuclear facilities and 
transportation accidents involving radioactive materials.



Sec. 351.2  Scope.

    The emergency planning and preparedness responsibilities covered by 
this part relate to consequences and activities which extend beyond the 
boundaries of any fixed nuclear facility with a potential for serious 
consequences and the area affected by a transportation accident 
involving radioactive materials.



Sec. 351.3  Limitation of scope.

    (a) This part covers Federal agency assignments and responsibilities 
in connection with State and local emergency plans and preparedness 
measures. It does not set forth criteria used in the review and approval 
of these plans and does not include any of the requirements associated 
with FEMA findings and determinations on the adequacy of State and local 
government radiological emergency preparedness. FEMA has published a 
separate rule on procedures and criteria for reviewing and approving 
these plans and preparedness capabilities. Furthermore, this part does 
not set forth Federal agency responsibilities or capabilities for 
responding to an accident at a fixed nuclear facility or a 
transportation accident involving radioactive materials. These 
responsibilities are addressed in the ``Federal Radiological Emergency 
Response Plan'' (50 FR 46542, November 8, 1985).
    (b) Nothing in this part authorizes access to or disclosure of 
classified information required to be protected in accordance with 
Federal law or regulation in the interest of national security.

[47 FR 10759, Mar. 11, 1982, as amended at 51 FR 34606, Sept. 30, 1986]

[[Page 581]]



 Subpart B_Federal Radiological Preparedness Coordinating Committee and 
                     Regional Assistance Committees



Sec. 351.10  Establishment of committees.

    (a) The Federal Radiological Preparedness Coordinating Committee 
(FRPCC) consists of the Federal Emergency Management Agency, which 
chairs the Committee, Nuclear Regulatory Commission, Environmental 
Protection Agency, Department of Health and Human Services, Department 
of Energy, Department of Transportation, Department of Defense, United 
States Department of Agriculture, Department of Commerce and, where 
appropriate and on an ad hoc basis, other Federal departments and 
agencies. In chairing the committee, FEMA will be responsible for 
assuring that all agency assignments described in this rule are 
coordinated through the Committee and carried out with or on behalf of 
State and local governments.
    (b) The Regional Assistance Committees (RACs), one in each of 10 
standard Federal regions,\1\ consist of a FEMA Regional Representative 
who chairs the Committee and representatives from the Nuclear Regulatory 
Commission, Environmental Protection Agency, Department of Health and 
Human Services, Department of Energy, Department of Transportation, 
United States Department of Agriculture, Department of Commerce and 
other Federal departments and agencies such as the Department of 
Defense, as appropriate. The FEMA Chairperson of the RACs will provide 
guidance and orientation to other agency members to assist them in 
carrying out their functions.
---------------------------------------------------------------------------

    \1\ I (Boston); II (New York); III (Philadelphia); IV (Atlanta); V 
(Chicago); VI (Dallas); VII (Kansas City); VIII (Denver); IX (San 
Francisco) and X (Seattle).
---------------------------------------------------------------------------



Sec. 351.11  Functions of committees.

    (a) The FRPCC shall assist FEMA in providing policy direction for 
the program of Federal assistance to State and local governments in 
their radiological emergency planning and preparedness activities. The 
FRPCC will establish subcommittees to aid in carrying out its functions; 
e.g., research, training, emergency instrumentation, transportation, 
information, education and Federal response. The FRPCC will assist FEMA 
in resolving issues relating to granting of final FEMA approval of a 
State plan. The FRPCC will coordinate research and study efforts of its 
member agencies related to State and local government radiological 
emergency preparedness to assure minimum duplication and maximum 
benefits to State and local governments. The FRPCC will also assure that 
the research efforts of its member agencies are coordinated with the 
Interagency Radiation Research Committee.
    (b) The RACs will assist State and local government officials in the 
development of their radiological emergency plans and will review these 
plans and observe exercises to evaluate adequacy of the plans. Each 
Federal agency member of the RACs will support the functions of these 
committees by becoming knowledgeable of Federal planning and guidance 
related to State and local radiological emergency plans, of their 
counterpart State organizations and personnel, where their agency can 
assist in improving the preparedness and by participating in RAC 
meetings.



                    Subpart C_Interagency Assignments



Sec. 351.20  The Federal Emergency Management Agency.

    (a) Establish policy and provide leadership via the FRPCC in the 
coordination of all Federal assistance and guidance to State and local 
governments for developing, reviewing, assessing and testing the State 
and local radiological emergency plans.
    (b) Issue guidance in cooperation with other Federal agencies 
concerning their responsibilities for providing radiological emergency 
planning and preparedness assistance to State and local governments.
    (c) Foster cooperation of industry, technical societies, Federal 
agencies and other constituencies in the radiological emergency planning 
and preparedness of State and local governments.

[[Page 582]]

    (d) Develop and promulgate preparedness criteria and guidance to 
State and local governments, in coordination with other Federal 
agencies, for the preparation, review and testing of State and local 
radiological emergency plans.
    (e) Provide assistance to State and local governments in the 
preparation, review and testing of radiological emergency plans.
    (f) Assess, with the assistance of other Federal agencies, the 
adequacy of State and local government emergency plans and the 
capability of the State and local government officials to implement them 
(e.g., adequacy and maintenance of equipment, procedures, training, 
resources, staffing levels and qualifications) and report the findings 
and determinations to NRC.
    (g) Review and approve State radiological emergency plans and 
preparedness in accordance with FEMA procedures in 44 CFR part 350.
    (h) Develop, implement and maintain a program of public education 
and information to support State and local radiological emergency plans 
and preparedness.
    (i) Develop and manage a radiological emergency response training 
program to meet State and local needs, using technical expertise and 
resources of other involved agencies. Develop and field test exercise 
materials and coordinate the Federal assistance required by States and 
localities in conducting exercises, including guidance for Federal 
observers.
    (j) Develop, with NRC and other Federal Agencies, representative 
scenarios from which NRC licensed facility operators and State and local 
governments may select for use in testing and exercising radiological 
emergency plans.
    (k) Issue guidance for establishment of State and local emergency 
instrumentation systems for radiation detection and measurement.
    (l) Provide guidance and assistance, in coordination with NRC and 
HHS, to State and local governments concerning the storage and 
distribution of radioprotective substances and prophylactic use of drugs 
(e.g., potassium iodide) to reduce the radiation dose to specific organs 
as a result of radiological emergencies.



Sec. 351.21  The Nuclear Regulatory Commission.

    (a) Assess NRC nuclear facility (e.g., commercial power plants, fuel 
processing centers and research reactors) licensee emergency plans for 
adequacy to protect the health and safety of the public.
    (b) Verify that nuclear facility licensee emergency plans can be 
adequately implemented (e.g., adequacy and maintenance of equipment, 
procedures, training, resources, staffing levels and qualifications).
    (c) Review FEMA's findings and determinations of State and local 
radiological emergency plans for areas surrounding NRC licensed nuclear 
facilities.
    (d) Take into account the overall state of emergency preparedness in 
making decisions to issue operating licenses or shut down licensed 
operating reactors, including the integration of assessments of 
emergency preparedness onsite by the NRC and offsite by FEMA.
    (e) Where not already established, determine, in cooperation with 
other Federal agencies, the appropriate planning bases for NRC licensed 
nuclear facilities including distances, times and radiological 
characteristics.
    (f) Assist FEMA in developing and promulgating guidance to State and 
local governments for the preparation of radiological emergency plans.
    (g) Participate with FEMA in assisting State and local governments 
in developing their radiological emergency plans, evaluating exercises 
to test plans and evaluating the plans and preparedness.
    (h) Assist FEMA and DOT in the preparation and promulgation of 
guidance to State and local governments for their use in developing the 
transportation portions of radiological emergency plans.
    (i) Provide representation to and support for the FRPCC and the 
RACs.
    (j) Assist FEMA in the development, implementation and maintenance 
of public information and education programs.
    (k) Assist FEMA with other Federal agencies in the development of 
representative scenarios from which nuclear facility operators and State 
and

[[Page 583]]

local governments may select for use in testing and exercising 
radiological emergency plans.
    (l) Assist FEMA in the development of guidance for State and local 
governments on emergency instrumentation systems for radiation detection 
and measurement.
    (m) Assist FEMA with the development, implementation and 
presentation to the extent that resources permit of training programs 
for Federal, State and local radiological emergency preparedness 
personnel.
    (n) Assist FEMA in providing guidance and assistance to State and 
local governments concerning the storage and distribution of 
radioprotective substances and prophylactic use of drugs (e.g., 
potassium iodide) to reduce the radiation dose to specific organs as a 
result of radiological emergencies.



Sec. 351.22  The Environmental Protection Agency.

    (a) Establish Protective Action Guides (PAGs) for all aspects of 
radiological emergency planning in coordination with appropriate Federal 
agencies.
    (b) Prepare guidance for State and local governments on implementing 
PAGs, including recommendations on protective actions which can be taken 
to mitigate the potential radiation dose to the population. This 
guidance will be presented in the Environmental Protection Agency (EPA) 
``Manual of Protective Action Guides and Protective Actions for Nuclear 
Incidents.'' (The preparation of PAGs related to human food and animal 
feed will be done in coordination with the Department of Health and 
Human Services (HHS)/Food and Drug Administration.)
    (c) Assist FEMA in developing and promulgating guidance to State and 
local governments for the preparation of radiological emergency plans.
    (d) Assist FEMA with the development, implementation and 
presentation to the extent that resources permit of technical training 
for State and local officials regarding PAGs and protective actions, 
radiation dose assessment and decisionmaking.
    (e) Participate with FEMA in assisting State and local governments 
in developing their radiological emergency plans, evaluating exercises 
to test plans and evaluating the plans and preparedness.
    (f) Assist FEMA in the development of guidance for State and local 
governments on emergency instrumentation systems for radiation detection 
and measurement.
    (g) Provide representation to and support for the FRPCC and the 
RACs.
    (h) Assist FEMA in developing representative scenarios from which 
nuclear facility operators and State and local governments may select 
for use in testing and exercising radiological emergency plans.
    (i) Assist FEMA in the development, implementation and maintenance 
of public information and education programs.



Sec. 351.23  The Department of Health and Human Services.

    (a) Develop and specify protective actions and associated guidance 
to State and local governments for human food and animal feed (in 
cooperation with the Environmental Protection Agency).
    (b) Provide guidance and assistance to State and local governments 
in preparing programs related to mental health, behavioral disturbances 
and epidemiology associated with radiological emergencies.
    (c) Assist FEMA in the development, implementation and maintenance 
of public information and education programs to support State and local 
government radiological emergency plans and preparedness.
    (d) Assist FEMA with the development, implementation and 
presentation to the extent that resources permit of a radiological 
emergency training program to support State and local government 
personnel in accident assessment, protective actions and decisionmaking.
    (e) Develop and assist in providing the requisite training programs 
for State and local health, mental health and social service agencies.
    (f) Provide guidance to State and local governments on the use of 
radio-protective substances and prophylactic use of drugs (e.g., 
potassium iodide) to reduce the radiation dose to specific organs 
including dosage and projected

[[Page 584]]

radiation exposures at which such drugs should be used.
    (g) Assist FEMA in developing and promulgating guidance to State and 
local governments for the preparation of radiological emergency plans.
    (h) Participate with FEMA in assisting State and local governments 
in developing their radiological emergency plans, evaluating exercises 
to test plans and evaluating the plans and preparedness.
    (i) Provide representation to and support for the FRPCC and the 
RACs.
    (j) Assist FEMA in developing representative scenarios from which 
nuclear facility operators and State and local governments may select 
for use in testing and exercising radiological emergency plans.
    (k) Assist FEMA in the development of guidance for State and local 
governments on emergency instrumentation systems for radiation detection 
and measurement.
    (l) Assist, in cooperation with the United States Department of 
Agriculture (USDA), the State and local governments in the planning for 
the safe production, during radiological emergencies, of human food and 
animal feed in the emergency planning zones around fixed nuclear 
facilities.
    (m) Assist FEMA, through the Interagency Radiation Research 
Committee, chaired by the Department of Health and Human Services, in 
the coordination of Federal research efforts, primarily in areas related 
to the bioeffects of radiation, applicable to State and local plans and 
preparedness.



Sec. 351.24  The Department of Energy.

    (a) Determine the appropriate planning bases for the Department of 
Energy (DOE) owned and contractor operated nuclear facilities (e.g., 
research and weapon production facilities) including distances, time and 
radiological characteristics.
    (b) Assess DOE nuclear facility emergency plans for adequacy in 
contributing to the health and safety of the public.
    (c) Verify that DOE nuclear facility emergency plans can be 
adequately implemented (e.g., adequacy and maintenance of equipment, 
procedures, training, resources, staffing levels and qualifications).
    (d) Assist State and local governments, within the constraints of 
national security and in coordination with FEMA, in the preparation of 
those portions of their radiological emergency plans related to DOE 
owned and contractor operated nuclear facilities and radioactive 
materials in transit.
    (e) Review and assess FEMA's findings and determinations on the 
adequacy of and capability to implement State and local radiological 
emergency plans for areas surrounding DOE nuclear facilities. Make 
independent assessments of the overall State of plans and preparedness.
    (f) Serve as the lead agency for coordinating the development and 
issuance of interagency instructions and guidance to implement the 
Federal Radiological Monitoring and Assessment Plan (FRMAP), which will 
replace the Interagency Radiological Assistance Plan. The FRMAP provides 
the framework through which participating Federal agencies will 
coordinate their emergency radiological monitoring and assessment 
activities with those of State and local governments.
    (g) Develop, maintain and improve capability to detect and assess 
hazardous levels of radiation.
    (h) Assist FEMA in developing and promulgating guidance to State and 
local governments for the preparation of radiological emergency plans.
    (i) Assist FEMA with the development, implementation and 
presentation to the extent that resources permit of training programs 
for Federal, State and local radiological emergency response personnel.
    (j) Participate with FEMA in assisting State and local governments 
in developing their radiological emergency plans, evaluating exercises 
to test plans and evaluating the plans and preparedness.
    (k) Develop, with FEMA, representative scenarios from which DOE 
facility operators and State and local governments may select for use in 
testing and exercising radiological emergency plans.
    (l) Provide representation to and support for the FRPCC and the 
RACs.

[[Page 585]]

    (m) Assist FEMA in the development of guidance for State and local 
governments on emergency instrumentation systems for radiation detection 
and measurement.



Sec. 351.25  The Department of Transportation.

    (a) Assist FEMA, along with NRC, in the preparation and promulgation 
of guidance to State and local governments for their use in developing 
the transportation portions of radiological emergency plans.
    (b) Assist FEMA in its review and approval of State and local 
radiological emergency plans and in the evaluation of exercises to test 
such plans.
    (c) Provide guidance and materials for use in training emergency 
services and other response personnel for transportation accidents 
involving radioactive materials and participate in interagency planning 
for such training.
    (d) Provide representation to and support for the FRPCC and the 
RACs.



Sec. 351.26  The United States Department of Agriculture.

    (a) Assist FEMA in developing and promulgating guidance to State and 
local governments for the preparation of radiological emergency plans.
    (b) Participate with FEMA in assisting State and local governments 
in developing their radiological emergency plans, evaluating exercises 
to test plans and reviewing and evaluating the plans and preparedness.
    (c) Assist State and local governments in preparing to implement 
protective actions in food ingestion pathway emergency planning zones 
around fixed nuclear facilities.
    (d) Develop, in coordination with FEMA, the HHS and other Federal 
agencies, guidance for assisting State and local governments in the 
production, processing and distribution of food resources under 
radiological emergency conditions.
    (e) Assist FEMA with the development, implementation and 
presentation to the extent that resources permit of training programs of 
Federal, State and local radiological emergency personnel.
    (f) Provide representation to and support for the FRPCC and the 
RACs.



Sec. 351.27  The Department of Defense.

    (a) Determine appropriate planning bases for Department of Defense 
(DOD) nuclear facilities and installations (e.g., missile bases, nuclear 
submarine facilities and weapon storage sites) including distances, time 
and radiological characteristics.
    (b) Develop, with FEMA, representative scenarios from which DOD 
nuclear facility commanders and State and local governments may select 
for use in testing and exercising radiological emergency plans.
    (c) Assist State and local governments, within the constraints of 
national security and in coordination with FEMA, in the development, 
review and assessment of those portions of their radiological emergency 
plans related to DOD nuclear facilities and assist State officials with 
planning for response to accidents involving DOD controlled radioactive 
materials in transit.
    (d) Provide representation to and support for the FRPCC and the RACs 
when appropriate.



Sec. 351.28  The Department of Commerce.

    (a) Assist State and local governments in determining their 
requirements for meteorological and hydrological services for 
radiological emergencies and assist State and local governments in 
preparing to meet these requirements within the limits of available 
resources.
    (b) Assist FEMA in developing and promulgating guidance to State and 
local governments for the preparation of radiological emergency plans.
    (c) Participate with FEMA in assisting State and local governments 
in developing their radiological emergency plans, evaluating exercises 
to test plans and evaluating the plans and preparedness.
    (d) Assist FEMA with the development, implementation and 
presentation to the extent that resources permit of technical training 
for State and local officials in the use of meterological information in 
responding to radiological emergencies.
    (e) Provide representation to and support for the FRPCC and the 
RACs.

[[Page 586]]

    (f) Assist FEMA in the development of guidance for State and local 
governments on the exposure and location of emergency instrumentation 
systems for radiation detection and measurement.
    (g) The Federal Coordinator for Meteorological Services and 
Supporting Research will, consistent with the provisions of the Office 
of Management and Budget Circular A-62, serve as the coordinating agent 
for any multiagency meteorological aspects of assisting State and local 
governments in their radiological emergency planning and preparedness.



PART 352_COMMERCIAL NUCLEAR POWER PLANTS: EMERGENCY PREPAREDNESS PLANNING
--Table of Contents




Sec.
352.1 Definitions.
352.2 Scope, purpose and applicability.

               Subpart A_Certifications and Determinations

352.3 Purpose and scope.
352.4 Licensee certification.
352.5 FEMA action on licensee certification.
352.6 FEMA determination on the commitment of Federal facilities and 
          resources.
352.7 Review and evaluation.

                     Subpart B_Federal Participation

352.20 Purpose and scope.
352.21 Participating Federal agencies.
352.22 Functions of the Federal Radiological Preparedness Coordinating 
          Committee (FRPCC).
352.23 Functions of a Regional Assistance Committee (RAC).
352.24 Provision of technical assistance and Federal facilities and 
          resources.
352.25 Limitation on committing Federal facilities and resources for 
          emergency preparedness.
352.26 Arrangements for Federal response in the licensee offsite 
          emergency response plan.
352.27 Federal role in the emergency response.
352.28 Reimbursement.
352.29 Appeal process.

    Authority: Federal Civil Defense Act of 1950, as amended (50 U.S.C. 
app. 2251 et seq.;) Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 et seq.; 31 U.S.C. 9701; Executive Order 
12657; Executive Order 12148; Executive Order 12127 and Executive Order 
12241.

    Source: 54 FR 31925, Aug. 2, 1989, unless otherwise noted.



Sec. 352.1  Definitions.

    As used in this part, the following terms and concepts are defined:
    (a) Associate Director means the Associate Director, State and Local 
Programs and Support, FEMA or designee.
    (b) Director means the Director, FEMA or designee.
    (c) EPZ means Emergency Planning Zone.
    (d) FEMA means the Federal Emergency Management Agency.
    (e) NRC means the Nuclear Regulatory Commission.
    (f) Regional Director means the Regional Director of FEMA or 
designee.
    (g) Local government means boroughs, cities, counties, 
municipalities, parishes, towns, townships or other local jurisdictions 
within the plume and ingestion exposure pathway EPZs that have specific 
roles in emergency planning and preparedness.
    (h) Decline or fail means a situation where State or local 
governments do not participate in preparing offsite emergency plans or 
have significant planning or preparedness inadequacies and have not 
demonstrated the commitment or capabilities to correct those 
inadequacies in a timely manner so as to satisfy NRC licensing 
requirements.
    (i) Governor means the Governor of a State or his/her designee.
    (j) Certification means the written justification by a licensee of 
the need for Federal compensatory assistance. This certification is 
required to activate the Federal assistance under this part.
    (k) Responsible local official means the highest elected official of 
an appropriate local government.
    (l) Technical assistance means services provided by FEMA and other 
Federal agencies to facilitate offsite radiological emergency planning 
and preparedness such as: Provision of support for the preparation off 
site radiological emergency response plans and procedures; FEMA 
coordination of services from other Federal agencies; provision and 
interpretation of Federal guidance;

[[Page 587]]

provision of Federal and contract personnel to offer advice and 
recommendations for specific aspects of preparedness such as alert and 
notification and emergency public information.
    (m) Federal facilities and resources means personnel, property 
(land, buildings, vehicles, equipment), and operational capabilities 
controlled by the Federal government related to establishing and 
maintaining radiological emergency response preparedness.
    (n) Licensee means the utility which has applied for or has received 
a license from the NRC to operate a commercial nuclear power plant.
    (o) Reimbursement means the payment to FEMA/Federal agencies, 
jointly or severally, by a licensee and State and local governments for 
assistance and services provided in processing certifications and 
implementing Federal compensatory assistance under this part 352.
    (p) Host FEMA Regional Office means the FEMA Regional Office that 
has primary jurisdiction by virtue of the nuclear power plant being 
located within its geographic boundaries.
    (q) Command and control means making and issuing protective action 
decisions and directing offsite emergency response resources, agencies, 
and activities.



Sec. 352.2  Scope, purpose and applicability.

    (a) This part applies whenever State or local governments, either 
individually or together, decline or fail to prepare commercial nuclear 
power plant offsite radiological emergency preparedness plans that are 
sufficient to satisfy NRC licensing requirements or to participate 
adequately in the preparation, demonstration, testing, exercise, or use 
of such plans. In order to request the assistance provided for in this 
part, an affected nuclear power plant applicant or licensee shall 
certify in writing to FEMA that the above situation exists.
    (b) The purposes of this part are as follows: (1) To establish 
policies and procedures for the submission of a licensee certification 
for Federal assistance under Executive Order 12657; (2) set forth 
policies and procedures for FEMA's determination to accept, accept with 
modification, or reject the licensee certification; (3) establish a 
framework for providing Federal assistance to licensees; and (4) provide 
procedures for the review and evaluation of the adequacy of offsite 
radiological emergency planning and preparedness. Findings and 
determinations on offsite planning and preparedness made under this part 
are provided to the NRC for its use in the licensing process.
    (c) This part applies only in instances where Executive Order 12657 
is used by a licensee and its provisions do not affect the validity of 
the emergency preparedness developed by the licensee independent of or 
prior to Executive Order 12657.



               Subpart A_Certifications and Determinations



Sec. 352.3  Purpose and scope.

    This subpart establishes policies and procedures for submission by a 
commercial nuclear power plant licensee of a certification for Federal 
assistance under Executive Order 12657. It contains policies and 
procedures for FEMA's determinations, with respect to a certification. 
It establishes a framework for providing Federal assistance to 
licensees. It also provides procedures for review and evaluation of the 
adequacy of licensee offsite radiological emergency planning and 
preparedness.



Sec. 352.4  Licensee certification.

    (a) A licensee which seeks Federal assistance under this part shall 
submit a certification to the host FEMA Region Director that a decline 
or fail situation exists. The certification shall be in the form of a 
letter from the chief executive officer of the licensee. The contents of 
this letter shall address the provisions set forth in paragraphs (b) and 
(c) of this section.
    (b) The licensee certification shall delineate why such assistance 
is needed based on the criteria of decline or fail for the relevant 
State or local governments.
    (c) The licensee certification shall document requests to and 
responses from the Governor(s) or responsible

[[Page 588]]

local official(s) with respect to the efforts taken by the licensee to 
secure their participation, cooperation, commitment of resources or 
timely correction of planning and preparedness failures.

(Approved by the Office of Management and Budget (OMB) under control 
number 3067-0201)



Sec. 352.5  FEMA action on licensee certification.

    (a) Upon receiving a licensee certification, the host Regional 
Director shall immediately notify FEMA Headquarters of the licensee 
certification. Within 5 days the host Regional Director shall notify the 
Governor of an affected State and the chief executive officer of any 
local government that a certification has been received, and make a copy 
of the certification available to such persons. Within 10 days, the host 
Regional Director shall acknowledge in writing the receipt of the 
certification to the licensee.
    (b) Within 15 days of receipt of the certification, the Regional 
Director shall publish a notice in the Federal Register that a 
certification from the licensee has been received, and that copies are 
available at the Regional Office for review and copying in accordance 
with 44 CFR 5.26.
    (c) FEMA Headquarters shall notify the NRC of receipt of the 
certification and shall request advice from the NRC on whether a decline 
or fail situation exists.
    (d) State and local governments may submit written statements to the 
host Regional Director outlining their position as to the facts stated 
in the letter of certification. Such statements shall be submitted to 
FEMA within 10 days of the date of notification provided to State and 
local government under Sec. 352.5(a). Any such statements shall be a 
part of the record and will be considered in arriving at recommendations 
or determinations made under the provisions of this part.
    (e) The host FEMA Regional Office shall provide, after consulting 
with State and responsible local officials, a recommended determination 
on whether a decline or fail situation exists to the FEMA Associate 
Director within 30 days of receipt of the licensee certification.
    (f) The FEMA Associate Director shall make a determination on 
whether a decline or fail situation exists within 45 days of receipt of 
the licensee certification and shall advise the licensee, NRC, and State 
and local officials.
    (g) The times for actions set out above may be extended up to an 
aggregate of 30 days by the host Regional Director or Associate 
Director, as appropriate.



Sec. 352.6  FEMA determination on the commitment of Federal facilities 
and resources.

    (a) A licensee request for Federal facilities and resources shall 
document the licensee's maximum feasible use of its resources and its 
efforts to secure the use of State and local government and volunteer 
resources.
    (b) Upon a licensee request for Federal facilities and resources, 
FEMA headquarters shall notify NRC and request advice from the NRC as to 
whether the licensee has made maximum use of its resources and the 
extent to which the licensee has complied with 10 CFR 50.47(c)(1). The 
host FEMA Regional Director shall make a recommendation to the FEMA 
Associate Director on whether the provision of these facilities and 
resources is warranted. The FEMA Associate Director shall make a final 
determination as to whether Federal facilities and resources are needed.
    (c) In making the determination under paragraph (b) of this section, 
FEMA:
    (1) Shall work actively with the licensee, and before relying upon 
any Federal resources, shall make maximum feasible use of the licensee's 
own resources, which may include agreements with volunteer organizations 
and other government entities and agencies; and
    (2) Shall assume that, in the event of an actual radiological 
emergency or disaster, State and local authorities would contribute 
their full resources and exercise their authorities in accordance with 
their duties to protect the public and would act generally in conformity 
with the licensee's radiological emergency preparedness plan.

[[Page 589]]

    (d) The FEMA Associate Director shall make a determination on the 
need for and commitment of Federal facilities and resources. The FEMA 
determination shall be made in consultation with affected Federal 
agencies and in accordance with 44 CFR 352.21. FEMA shall inform the 
licensee, the States and affected local governments in writing of the 
Federal support which will be provided. This information shall identify 
Federal agencies that are to provide Federal support, the extent and 
purpose of the support to be provided, the Federal facilities and 
resources to be committed and the limitations on their use. The 
provision of the identified Federal support shall be made under the 
policies and procedures of subpart B of this part.



Sec. 352.7  Review and evaluation.

    FEMA shall conduct its activities and make findings under this part 
in a manner consistent with 44 CFR part 350 to the extent that those 
procedures are appropriate and not inconsistent with the intent and 
procedures required by E.O. 12657. This Order shall take precedence, and 
any inconsistencies shall be resolved under the procedures in the NRC/
FEMA Memorandum of Understanding (MOU) on planning and preparedness. (50 
FR 15485, April 18, 1985)



                     Subpart B_Federal Participation



Sec. 352.20  Purpose and scope.

    This subpart establishes policy and procedures for providing support 
for offsite radiological emergency planning and preparedness in a 
situation where Federal support under Excutive Order 12657 (E.O. 12657) 
has been requested. This subpart:
    (a) Describes the process for providing Federal technical assistance 
to the licensee for developing its offsite emergency response plan after 
an affirmative determination on the licensee certification under subpart 
A (44 CFR 352.5(f));
    (b) Describes the process for providing Federal facilities and 
resources to the licensee after a determination under subpart A (44 CFR 
352.6(d)) that Federal resources are required;
    (c) Describes the principal response functions which Federal 
agencies may be called upon to provide;
    (d) Describes the process for allocating responsibilities among 
Federal agencies for planning site-specific emergency response 
functions; and
    (e) Provides for the participation of Federal agencies, including 
the members of the FRPCC and the RACs.



Sec. 352.21  Participating Federal agencies.

    (a) FEMA may call upon any Federal agency to participate in planning 
for the use of Federal facilities and resources in the licensee offsite 
emergency response plan.
    (b) FEMA may call upon the following agencies, and others as needed, 
to provide Federal technical assistance and Federal facilities and 
resources:
    (1) Department of Commerce;
    (2) Department of Defense;
    (3) Department of Energy;
    (4) Department of Health and Human Services;
    (5) Department of Housing and Urban Development;
    (6) Department of the Interior;
    (7) Department of Transportation;
    (8) Environmental Protection Agency;
    (9) Federal Communications Commission;
    (10) General Services Administration;
    (11) National Communications System;
    (12) Nuclear Regulatory Commission;
    (13) United States Department of Agriculture; and
    (14) Department of Veterans Affairs.
    (c) FEMA is the Federal agency primarily responsible for 
coordinating Federal assistance. FEMA may enter into Memorandums of 
Understanding (MOU) and other instruments with Federal agencies to 
provide technical assistance and to arrange for the commitment and 
utilization of Federal facilities and resources as necessary. FEMA also 
may use a MOU to delegate to another Federal agency, with the consent of 
that agency, any of the functions and duties assigned to FEMA. Following 
review and approval by OMB, FEMA will publish such documents in the 
Federal Register.

[[Page 590]]



Sec. 352.22  Functions of the Federal Radiological Preparedness 
Coordinating Committee (FRPCC).

    Under 44 CFR part 351, the role of the FRPCC is to assist FEMA in 
providing policy direction for the program of technical assistance to 
State and local governments in their radiological emergency planning and 
preparedness activities. Under this subpart, the role of the FRPCC is to 
provide advice to FEMA regarding Federal assistance and Federal 
facilities and resources for implementing subparts A and B of this part. 
This assistance activity is extended to licensees. The FRPCC will assist 
FEMA in revising the Federal Radiological Emergency Response Plan 
(FRERP).



Sec. 352.23  Functions of a Regional Assistance Committee (RAC).

    (a) Under 44 CFR part 351, the role of a RAC is to assist State and 
local government officials to develop their radiological emergency 
plans, to review the plans, and to observe exercises to evaluate the 
plans. Under subparts A and B of this part, these technical assistance 
activities are extended to the licensee.
    (b) Prior to a determination under subpart A (44 CFR 352.6(d)) that 
Federal facilities and resources are needed, the designated RAC for the 
specific site will assist the licensee, as necessary, in evaluating the 
need for Federal facilities and resources, in addition to providing 
technical assistance under Sec. 352.23(a).
    (c) In accomplishing the foregoing, the RAC will use the standards 
and evaluation criteria in NUREG-0654/FEMA-REP-1, Rev. 1 and Supp. 1.\1\ 
or approved alternative approaches, and RAC members shall render such 
technical assistance as appropriate to their agency mission and 
expertise.
---------------------------------------------------------------------------

    \1\ Copy available from FEMA Distribution Center, P.O. Box 70274 
Washington, DC 20024
---------------------------------------------------------------------------

    (d) Following determination under subpart A (44 CFR 352.6(d)) that 
Federal facilities and resources are needed, the RAC will assist FEMA in 
identifying agencies and specifying the Federal facilities and resources 
which the agencies are to provide.



Sec. 352.24  Provision of technical assistance and Federal facilities and 
resources.

    (a) Under a determination under subpart A (44 CFR 352.5(f) and 
352.4(e)) that a decline or fail situation exists, FEMA and other 
Federal agencies will provide technical assistance to the licensee. Such 
assistance may be provided during the pendency of an appeal under Sec. 
352.29.
    (b) The applicable criteria for the use of Federal facilities and 
resources are set forth in subpart A (44 CFR 352.6(c)(1)(2)). Upon a 
determination under subpart A (44 CFR 352.6(d)) that Federal resources 
or facilities will be required, FEMA will consult with the FRPCC, the 
RAC, the individual Federal agencies, and the licensee, to determine the 
extent of Federal facilities and resources that the government could 
provide, and the most effective way to do so. After such consultation, 
FEMA will specifically request Federal agencies to provide those Federal 
facilities and resources. The Federal agencies, in turn, will respond to 
confirm the availability of such facilities and resources and provide 
estimates of their costs.
    (c) FEMA will inform the licensee in writing of the Federal support 
which will be provided. This information will identify Federal agencies 
which are to be included in the plan, the extent and purpose of 
technical assistance to be provided and the Federal facilities and 
resources to be committed, and the limitations of their use. The 
information will also describe the requirements for reimbursement to the 
Federal Government for this support.
    (d) FEMA will coordinate the Federal effort in implementing the 
determinations made under subpart A (44 CFR 352.5(f) and 352.6(d)) so 
that each Federal agency maintains the committed technical assistance, 
facilities, and resources after the licensee offsite emergency response 
plan is completed. FEMA and other Federal agencies will participate in 
training, exercises, and drills, in support of the licensee offsite 
emergency response plan.
    (e) In carrying out paragraphs (a) through (c) of this section, FEMA 
will

[[Page 591]]

keep affected State and local governments informed of actions taken.

(Approval by the OMB under control number 3067-0201)



Sec. 352.25  Limitation on committing Federal facilities and resources for 
emergency preparedness.

    (a) The commitment of Federal facilities and resources will be made 
through the authority of the affected Federal agencies.
    (b) In implementing a determination under subpart A (44 CFR 
352.6(d)), that Federal facilities and resources are necessary for 
emergency preparedness, FEMA shall take care not to supplant State and 
local resources. Federal facilities and resources shall be substituted 
for those of the State and local governments in the licensee offsite 
emergency response plan only to the extent necessary to compensate for 
the nonparticipation or inadequate participation of those governments, 
and only as a last resort after consultation with the Governor(s) and 
responsible local officials in the affected area(s) regarding State and 
local participation.
    (c) All Federal planning activities described in this subpart will 
be conducted under the assumption that, in the event of an actual 
radiological emergency or disaster, State and local authorities would 
contribute their full resources and exercise their authorities in 
accordance with their duties to protect the public from harm and would 
act, generally, in conformity with the licensee's offsite emergency 
response plan.



Sec. 352.26  Arrangements for Federal response in the licensee offsite 
emergency response plan.

    Federal agencies may be called upon to assist the licensee in 
developing a licensee offsite emergency response plan in areas such as:
    (a) Arrangements for use of Federal facilities and resources for 
response functions such as:
    (1) Prompt notification of the emergency to the public;
    (2) Assisting in any necessary evacuation;
    (3) Providing reception centers or shelters and related facilities 
and services for evacuees;
    (4) Providing emergency medical services at Federal hospitals; and
    (5) Ensuring the creation and maintenance of channels of 
communication from commercial nuclear power plant licensees to State and 
local governments and to surrounding members of the public.
    (b) Arrangements for transferring response functions to State and 
local governments during the response in an actual emergency; and
    (c) Arrangements which may be necessary for FEMA coordination of the 
response of other Federal agencies.



Sec. 352.27  Federal role in the emergency response.

    In addition to the Federal component of the licensee offsite 
emergency response plan described in subpart B (Sec. 352.26), and after 
complying with E.O. 12657, Section 2(b)(2), which states that FEMA:

    (2) Shall take care not to supplant State and local resources and 
that FEMA shall substitute its own resources for those of State and 
local governments only to the extent necessary to compensate for the 
nonparticipation or inadequate participation of those governments, and 
only as a last resort after appropriate consultation with the Governors 
and responsible local officials in the affected area regarding State and 
local participation;


FEMA shall provide for initial Federal response activities, including 
command and control of the offsite response, as may be needed. Any 
Federal response role, undertaken pursuant to this section, shall be 
transferred to State and local governments as soon as feasible after the 
onset of an actual emergency.



Sec. 352.28  Reimbursement.

    In accordance with Executive Order 12657, Section 6(d), and to the 
extent permitted by law, FEMA will coordinate full reimbursement, either 
jointly or severally, to the agencies performing services or furnishing 
resources, from any affected licensee and from any affected 
nonparticipating or inadequately participating State or local 
government.

[[Page 592]]



Sec. 352.29  Appeal process.

    (a) Any interested party may appeal a determination made by the 
Associate Director, under Sec. Sec. 352.5 and 352.6 of this part, by 
submitting to the Director, FEMA, a written notice of appeal, within 30 
days after issuance. The appeal is to be addressed to the Director, 
Federal Emergency Management Agency, 500 C Street SW., Washington, DC 
20472. The appeal letter shall state the specific reasons for the appeal 
and include documentation to support appellant arguments. The appeal is 
limited to matters of record under Sec. Sec. 352.5 and 352.6.
    (b) Within 30 days of receipt of this letter, the FEMA Director or 
designee will review the record and make a final determination on the 
matter.
    (c) Copies of this determination shall be furnished to the 
Appellant, the State(s), affected local governments, and the NRC.
    (d) For purposes of this section, the term interested party means 
only a licensee, a State or a local government, as defined in Sec. 
352.1(g).



PART 353_FEE FOR SERVICES IN SUPPORT, REVIEW AND APPROVAL OF STATE AND 

LOCAL GOVERNMENT OR LICENSEE RADIOLOGICAL EMERGENCY PLANS AND PREPAREDNESS
--Table of Contents




Sec.
353.1 Purpose.
353.2 Scope.
353.3 Definitions.
353.4 Payment of fees.
353.5 Average cost per FEMA professional staff-hour.
353.6 Schedule of services.
353.7 Failure to pay.

Appendix A to Part 353--Memorandum of Understanding Between Federal 
          Emergency Management Agency and Nuclear Regulatory Commission

    Authority: 31 U.S.C. 9701; E.O. 12657 of Nov. 18, 1988; 3 CFR, 1988 
Comp., p. 611; 50 U.S.C. app. 2251 note; E.O. 12148 of July 20, 1979; 3 
CFR, 1979 Comp., p. 412, 50 U.S.C. app. 2251 note.

    Source: 56 FR 9455, March 6, 1991, unless otherwise noted.



Sec. 353.1  Purpose.

    This part sets out fees charged for site-specific radiological 
emergency planning and preparedness services rendered by the Federal 
Emergency Management Agency, as authorized by 31 U.S.C. 9701.



Sec. 353.2  Scope.

    The regulation in this part applies to all licensees who have 
applied for or have received a license from the Nuclear Regulatory 
Commission to operate a commercial nuclear power plant.



Sec. 353.3  Definitions.

    As used in this part, the following terms and concepts are defined:
    (a) FEMA means the Federal Emergency Management Agency.
    (b) NRC means the Nuclear Regulatory Commission.
    (c) Certification means the written justification by a licensee of 
the need for Federal compensatory assistance, as authorized in 44 CFR 
part 352 and E.O. 12657.
    (d) Technical assistance means services provided by FEMA to 
facilitate offsite radiological emergency planning and preparedness such 
as provision of support for the preparation of offsite radiological 
emergency response plans and procedures; provision of advice and 
recommendations for specific aspects of preparedness such as alert and 
notification and emergency public information.
    (e) Licensee means the utility which has applied for or has received 
a license from the NRC to operate a commercial nuclear power plant.
    (f) Governor means the Governor of a State or his/her designee.
    (g) RAC means Regional Assistance Committee chaired by FEMA with 
representatives from the Nuclear Regulatory Commission, Environmental 
Protection Agency, Department of Health and Human Services, Department 
of Energy, Department of Agriculture, Department of Transportation, 
Department of Commerce and other Federal Departments and agencies as 
appropriate.
    (h) REP means FEMA's Radiological Emergency Preparedness Program.
    (i) Fiscal Year means Federal fiscal year commencing on the first 
day of

[[Page 593]]

October through the thirtieth day of September.
    (j) Federal Radiological Preparedness Coordinating Committee is the 
national level committee chaired by FEMA with representatives from the 
Nuclear Regulatory Commission, Environmental Protection Agency, 
Department of Health and Human Services, Department of Interior, 
Department of Energy, Department of Transportation, United States 
Department of Agriculture, Department of Commerce and other Federal 
Departments and agencies as appropriate.



Sec. 353.4  Payment of fees.

    Fees for site-specific offsite radiological emergency plans and 
preparedness services and related site-specific legal services are 
payable upon notification by FEMA. FEMA services will be billed at 6-
month intervals for all accumulated costs on a site-specific basis. Each 
bill will identify the costs related to services for each nuclear power 
plant site.



Sec. 353.5  Average cost per FEMA professional staff-hour.

    Fees for FEMA services rendered will be calculated based upon the 
costs for such services using a professional staff rate per hour 
equivalent to the sum of the average cost to the agency of maintaining a 
professional staff member performing site-specific services related to 
the Radiological Emergency Preparedness Program, including salary, 
benefits, administrative support, travel and overhead. This rate will be 
charged when FEMA performs such services as: Development of exercise 
objectives and scenarios, pre-exercise logistics, exercise conduct and 
participation, evaluation, meetings and reports; review and approval of 
Plan revisions that are utility-requested or exercise inadequacy 
related; remedial exercise, medical drill or any other exercise or drill 
upon which a license is predicated, with regard to preparation, review, 
conduct, participation, evaluation, meetings and reports; the issuance 
of interim findings pursuant to the FEMA/NRC Memorandum of Understanding 
(MOU) (App. A of this part); review of utility plan submissions through 
the NRC under the MOU; utility certification submission review under 44 
CFR part 352 and follow-on activities; site-specific adjudicatory 
proceedings and any other site-specific legal costs and technical 
assistance that is utility requested or exercise inadequacy related. The 
professional staff rate for FY 91 is $39.00 per hour. The referenced 
FEMA/NRC MOU is provided in this rule as appendix A. The professional 
staff rate for the REP Program and related legal services will be 
revised on a fiscal year basis using the most current fiscal data 
available and the revised hourly rate will be published as a notice in 
the Federal Register for each fiscal year if the rate increases or 
decreases.



Sec. 353.6  Schedule of services.

    Recipients shall be charged the full cost of site-specific services 
based upon the appropriate professional hourly staff rate for the FEMA 
services described in this Section and for related contractual services 
which will be charged to the licensee by FEMA, at the rate and cost 
incurred.
    (a) When a State seeks formal review and approval by FEMA of the 
State's radiological emergency response plan pursuant to 44 CFR part 350 
(Review and Approval Process of State and Local Radiological Emergency 
Plans and Preparedness), FEMA shall provide the services as described in 
44 CFR part 350 in regard to that request and fees will be charged for 
such services to the licensee, which is the ultimate beneficiary of FEMA 
services. This provision does not apply where an operating license has 
been granted or the application denied or withdrawn, except as necessary 
to support biennial exercises and related activities. Fees will be 
charged for all FEMA, but not other Federal agency activities related to 
such services, including but not limited to the following:
    (1) Development of exercise objectives and scenarios, preexercise 
logistics, exercise conduct and participation, evaluation, meetings and 
reports.
    (2) Review of plan revisions that are exercise-inadequacy related;
    (3) Technical assistance that is exercise-inadequacy related;
    (4) Remedial exercise, medical drill, or any other exercise or drill 
upon

[[Page 594]]

which maintenance of a license is predicated, with regard to 
preparation, review, conduct, participation, evaluation, meetings and 
reports.
    (b) Interim findings. Where the NRC seeks from FEMA under the FEMA/
NRC MOU an interim finding of the status of radiological emergency 
planning and preparedness at a particular time for a nuclear power 
plant, FEMA shall assess a fee to the licensee for providing this 
service. The provision of this service consists of making a 
determination whether the plans are adequate to protect the health and 
safety of the public living in the vicinity of the nuclear power 
facility by providing reasonable assurance that appropriate protective 
measures can be taken offsite in the event of a radiological emergency 
and that such plans are capable of being implemented.
    (c) NRC utility plan submissions. Fees will be charged for all FEMA 
but not other Federal agency activities related to such services, 
including but not limited to the following:
    (1) Development of exercise objectives and scenarios, preexercise 
logistics, exercise conduct and participation, evaluation and post-
exercise meetings and reports.
    (2) Notice and conduct of public meeting.
    (3) Regional finding and determination of adequacy of plans and 
preparedness followed by review by FEMA Headquarters resulting in final 
FEMA determination of adequacy of plans and preparedness,
    (4) Remedial exercise, medical drill, or any other exercise or drill 
upon which maintenance of a license is predicated, with regard to 
preparation, review, conduct, participation, evaluation, meetings and 
reports.
    (d) Utility certification submission review. When a licensee seeks 
Federal assistance within the framework of 44 CFR part 352 due to the 
decline or failure of a State or local government to adequately prepare 
an emergency plan, FEMA shall process the licensee's certification and 
make the determination whether a decline or fail situation exists. Fees 
will be charged for services rendered in making the determination. Upon 
the determination that a decline or fail situation does exist, any 
services provided or secured by FEMA consisting of assistance to the 
licensee, as described in 44 CFR part 352, will have a fee charged for 
such services.
    (e) FEMA participation in site-specific NRC adjudicatory proceedings 
and any other site-specific legal costs. Where FEMA participates in NRC 
licensing proceedings and any related court actions to support FEMA 
findings as a result of its review and approval of offsite emergency 
plans and preparedness, or provides legal support for any other site 
specific FEMA activities comprised in this rule, fees will be charged to 
the licensee for such participation.
    (f) Rendering technical assistance. Where FEMA is requested by a 
licensee to provide any technical assistance, or where a State or local 
government requests technical assistance in order to correct an 
inadequacy identified as a result of a biennial exercise or any other 
drill or exercise upon which maintenance of a license is predicated, 
FEMA will charge such assistance to the licensee for the provision of 
such service.



Sec. 353.7  Failure to pay.

    In any case where there is a dispute over the FEMA bill or where 
FEMA finds that a licensee has failed to pay a prescribed fee required 
under this part, procedures will be implemented in accordance with 44 
CFR part 11 subpart C to effectuate collections under the Debt 
Collection Act of 1982 (31 U.S.C. 3711 et seq.).

  Appendix A to Part 353--Memorandum of Understanding Between Federal 
      Emergency Management Agency and Nuclear Regulatory Commission

    The Federal Emergency Management Agency (FEMA) and the Nuclear 
Regulatory Commission (NRC) have entered into a new Memorandum of 
Understanding (MOU) Relating To Radiological Emergency Planning and 
Preparedness. This supersedes a memorandum entered into on November 1, 
1980 (published December 16, 1980, 45 FR 82713), revised April 9, 1985 
(published April 18, 1985, 50 FR 15485), and published as Appendix A to 
44 CFR part 353. The substantive changes in the new MOU are: (1) Self-
initiated review by the

[[Page 595]]

NRC; (2) Early Site Permit process; (3) adoption of FEMA exercise time-
frames; (4) incorporation of FEMA definition of exercise deficiency; (5) 
NRC commitment to work with licensees in support of State and local 
governments to correct exercise deficiencies; (6) correlation of FEMA 
actions on withdrawal of approvals under 44 CFR part 350 and NRC 
enforcement actions; and (7) disaster-initiated reviews in situations 
that affect offsite emergency infrastructures. The text of the MOU 
follows.

      Memorandum of Understanding Between NRC and FEMA Relating to 
            Radiological Emergency Planning and Preparedness

                       I. Background and Purposes

    This Memorandum of Understanding (MOU) establishes a framework of 
cooperation between the Federal Emergency Management Agency (FEMA) and 
the U.S. Nuclear Regulatory Commission (NRC) in radiological emergency 
response planning matters so that their mutual efforts will be directed 
toward more effective plans and related preparedness measures at and in 
the vicinity of nuclear reactors and fuel cycle facilities which are 
subject to 10 CFR part 50, appendix E, and certain other fuel cycle and 
materials licensees which have potential for significant accidental 
offsite radiological releases. The memorandum is responsive to the 
President's decision of December 7, 1979, that FEMA will take the lead 
in offsite planning and response, his request that NRC assist FEMA in 
carrying out this role, and the NRC's continuing statutory 
responsibility for the radiological health and safety of the public.
    On January 14, 1980, the two agencies entered into a ``Memorandum of 
Understanding Between NRC and FEMA to Accomplish a Prompt Improvement in 
Radiological Emergency Preparedness,'' that was responsive to the 
President's December 7, 1979, statement. A revised and updated 
Memorandum of Understanding became effective November 1, 1980. The MOU 
was further revised and updated on April 9, 1985. This MOU is a further 
revision to reflect the evolving relationship between NRC and FEMA and 
the experience gained in carrying out the provisions of the previous 
MOU's. This MOU supersedes these two earlier versions of the MOU.
    The general principles agreed to in the previous MOU's and 
reaffirmed in this MOU, are as follows: FEMA coordinates all Federal 
planning for the offsite impact of radiological emergencies and takes 
the lead for assessing offsite radiological emergency response plans 
1 and preparedness, makes findings and determinations as to 
the adequacy and capability of implementing offsite plans, and 
communicates those findings and determinations to the NRC. The NRC 
reviews those FEMA findings and determinations in conjunction with the 
NRC onsite findings for the purpose of making determinations on the 
overall state of emergency preparedness. These overall findings and 
determinations are used by NRC to make radiological health and safety 
decisions in the issuance of licenses and the continued operation of 
licensed plants to include taking enforcement actions as notices of 
violations, civil penalties, orders, or shutdown of operating reactors. 
This delineation of responsibilities avoids duplicative efforts by the 
NRC staff in offsite preparedness matters. However, if FEMA informs the 
NRC that an emergency, unforeseen contingency, or other reason would 
prevent FEMA from providing a requested finding in a reasonable time, 
then, in consultation with FEMA, the NRC might initiate its own review 
of offsite emergency preparedness.
---------------------------------------------------------------------------

    \1\ Assessments of offsite plans may be based on State and local 
government plans submitted to FEMA under its rule (44 CFR Part 350), and 
as noted in 44 CFR 350.3(f), may also be based on plans currently 
available to FEMA or furnished to FEMA through the NRC/FEMA Steering 
Committee.
---------------------------------------------------------------------------

    A separate MOU dated October 22, 1980, deals with NRC/FEMA 
cooperation and responsibilities in response to an actual or potential 
radiological emergency. Operations Response Procedures have been 
developed that implement the provisions of the Incident Response MOU. 
These documents are intended to be consistent with the Federal 
Radiological Emergency Response Plan which describes the relationships, 
roles, and responsibilities of Federal Agencies for responding to 
accidents involving peacetime nuclear emergencies. On December 1, 1991, 
the NRC and FEMA also concluded a separate MOU in support of Executive 
Order 12657 (FEMA Assistance in Emergency Preparedness Planning at 
Commercial Nuclear Power Plants).

                  II. Authorities and Responsibilities

    FEMA-Executive Order 12148 charges the Director, FEMA, with the 
responsibility to ``* * * establish Federal policies for, and 
coordinate, all civil defense and civil emergency planning, management, 
mitigation, and assistance functions of Executive agencies'' (Section 2-
101) and ``* * * represent the President in working with State and local 
governments and the private sector to stimulate vigorous participation 
in civil emergency preparedness, mitigation, response, and recovery 
programs'' (Section 2-104.).
    On December 7, 1979, the President, in response to the 
recommendations of the Kemeny Commission on the Accident at

[[Page 596]]

Three Mile Island, directed that FEMA assume lead responsibility for all 
offsite nuclear emergency planning and response.
    Specifically, the FEMA responsibilities with respect to radiological 
emergency preparedness as they relate to NRC are:
    1. To take the lead in offsite emergency planning and to review and 
assess offsite emergency plans and preparedness for adequacy.
    2. To make findings and determinations as to whether offsite 
emergency plans are adequate and can be implemented (e.g., adequacy and 
maintenance of procedures, training, resources, staffing levels and 
qualifications, and equipment). Notwithstanding the procedures which are 
set forth in 44 CFR part 350 for requesting and reaching a FEMA 
administrative approval of State and local plans, findings, and 
determinations on the current status of emergency planning and 
preparedness around particular sites, referred to as interim findings, 
will be provided by FEMA for use as needed in the NRC licensing process. 
Such findings will be provided by FEMA on mutually agreed to schedules 
or on specific NRC request. The request and findings will normally be by 
written communications between the co-chairs of the NRC/FEMA Steering 
Committee. An interim finding provided under this arrangement will be an 
extension of FEMA's procedures for review and approval of offsite 
radiological emergency plans and preparedness set forth in 44 CFR part 
350. It will be based on the review of currently available plans and, if 
appropriate, joint exercise results related to a specific nuclear power 
plant site.
    If the review involves an application under 10 CFR part 52 for an 
early site permit, the NRC will forward to FEMA pertinent information 
provided by the applicant and consult with FEMA as to whether there is 
any significant impediment to the development of offsite emergency 
plans. As appropriate, depending upon the nature of information provided 
by the applicant, the NRC will also request that FEMA determine whether 
major features of offsite emergency plans submitted by the applicant are 
acceptable, or whether offsite emergency plans submitted by the 
applicant are adequate, as discussed below.
    An interim finding based only on the review of currently available 
offsite plans will include an assessment as to whether these plans are 
adequate when measured against the standards and criteria of NUREG-0654/
FEMA-REP-1, and, pending a demonstration through an exercise, whether 
there is reasonable assurance that the plans can be implemented. The 
finding will indicate one of the following conditions: (1) Plans are 
adequate and there is reasonable assurance that they can be implemented 
with only limited or no corrections needed; (2) plans are adequate, but 
before a determination can be made as to whether they can be 
implemented, corrections must be made to the plans or supporting 
measures must be demonstrated (e.g., adequacy and maintenance of 
procedures, training, resources, staffing levels and qualifications, and 
equipment) or (3) plans are inadequate and cannot be implemented until 
they are revised to correct deficiencies noted in the Federal review.
    If, in FEMA's view, the plans that are available are not completed 
or are not ready for review, FEMA will provide NRC with a status report 
delineating milestones for preparation of the plan by the offsite 
authorities as well as FEMA's actions to assist in timely development 
and review of the plans.
    An interim finding on preparedness will be based on review of 
currently available plans and joint exercise results and will include an 
assessment as to (1) whether offsite emergency plans are adequate as 
measured against the standards and criteria of NUREG-0654/FEMA-REP-1 and 
(2) whether the exercise(s) demonstrated that there is reasonable 
assurance that the plans can be implemented.
    An interim finding on preparedness will indicate one of the 
following conditions: (1) There is reasonable assurance that the plans 
are adequate and can be implemented as demonstrated in an exercise; (2) 
there are deficiencies that must be corrected; or (3) FEMA is undecided 
and will provide a schedule of actions leading to a decision.
    3. To assume responsibility, as a supplement to State, local, and 
utility efforts, for radiological emergency preparedness training of 
State and local officials.
    4. To develop and issue an updated series of interagency assignments 
which delineate respective agency capabilities and responsibilities and 
define procedures for coordination and direction for emergency planning 
and response. [Current assignments are in 44 CFR part 351, March 11, 
1982. (47 FR 10758)]
    NRC-The Atomic Energy Act of 1954, as amended, requires that the NRC 
grant licenses only if the health and safety of the public is adequately 
protected. While the Atomic Energy Act does not specifically require 
emergency plans and related preparedness measures, the NRC requires 
consideration of overall emergency preparedness as a part of the 
licensing process. The NRC rules (10 CFR 50.33, 50.34, 50.47, 50.54, and 
appendix E to 10 CFR part 50, and 10 CFR part 52) include requirements 
for the licensee's emergency plans.
    Specifically, the NRC responsibilities for radiological emergency 
preparedness are:
    1. To assess licensee emergency plans for adequacy. This review will 
include organizations with whom licensees have written agreements to 
provide onsite support services under emergency conditions.

[[Page 597]]

    2. To verify that licensee emergency plans are adequately 
implemented (e.g., adequacy and maintenance of procedures, training, 
resources, staffing levels and qualifications, and equipment).
    3. To review the FEMA findings and determinations as to whether 
offsite plans are adequate and can be implemented.
    4. To make radiological health and safety decisions with regard to 
the overall state of emergency preparedness (i.e., integration of 
emergency preparedness onsite as determined by the NRC and offsite as 
determined by FEMA and reviewed by NRC) such as assurance for continued 
operation, for issuance of operating licenses, or for taking enforcement 
actions, such as notices of violations, civil penalties, orders, or 
shutdown of operating reactors.

                        III. Areas of Cooperation

                        A. NRC Licensing Reviews

    FEMA will provide support to the NRC for licensing reviews related 
to reactors, fuel facilities, and materials licensees with regard to the 
assessment of the adequacy of offsite radiological emergency response 
plans and preparedness. This will include timely submittal of an 
evaluation suitable for inclusion in NRC safety evaluation reports.
    Substantially prior to the time that a FEMA evaluation is required 
with regard to fuel facility or materials license review, NRC will 
identify those fuel and materials licensees with potential for 
significant accidental offsite radiological releases and transmit a 
request for review to FEMA as the emergency plans are completed.
    FEMA routine support will include providing assessments, findings 
and determinations (interim and final) on offsite plans and preparedness 
related to reactor license reviews. To support its findings and 
determinations, FEMA will make expert witnesses available before the 
Commission, the NRC Advisory Committee on Reactor Safeguards, NRC 
hearing boards and administrative law judges, for any court actions, and 
during any related discovery proceedings.
    FEMA will appear in NRC licensing proceedings as part of the 
presentation of the NRC staff. FEMA counsel will normally present FEMA 
witnesses and be permitted, at the discretion of the NRC licensing 
board, to cross-examine the witnesses of parties, other than the NRC 
witnesses, on matters involving FEMA findings and determinations, 
policies, or operations; however, FEMA will not be asked to testify on 
status reports. FEMA is not a party to NRC proceedings and, therefore, 
is not subject to formal discovery requirements placed upon parties to 
NRC proceedings. Consistent with available resources, however, FEMA will 
respond informally to discovery requests by parties. Specific assignment 
of professional responsibilities between NRC and FEMA counsel will be 
primarily the responsibility of the attorneys assigned to a particular 
case. In situations where questions of professional responsibility 
cannot be resolved by the attorneys assigned, resolution of any 
differences will be made by the General Counsel of FEMA and the General 
Counsel of the NRC or their designees. NRC will request the presiding 
Board to place FEMA on the service list for all litigation in which it 
is expected to participate.
    Nothing in this MOU shall be construed in any way to diminish NRC's 
responsibility for protecting the radiological health and safety of the 
public.

            B. FEMA Review of Offsite Plans and Preparedness

    NRC will assist in the development and review of offsite plans and 
preparedness through its membership on the Regional Assistance 
Committees (RAC). FEMA will chair the Regional Assistance Committees. 
Consistent with NRC's statutory responsibility, NRC will recognize FEMA 
as the interface with State and local governments for interpreting 
offsite radiological emergency planning and preparedness criteria as 
they affect those governments and for reporting to those governments the 
results of any evaluation of their radiological emergency plans and 
preparedness.
    Where questions arise concerning the interpretation of the criteria, 
such questions will continue to be referred to FEMA Headquarters, and 
when appropriate, to the NRC/FEMA Steering Committee to assure uniform 
interpretation.

          C. Preparation for and Evaluation of Joint Exercises

    FEMA and NRC will cooperate in determining exercise requirements for 
licensees, and State and local governments. They will also jointly 
observe and evaluate exercises. NRC and FEMA will institute procedures 
to enhance the review of objectives and scenarios for joint exercises. 
This review is to assure that both the onsite considerations of NRC and 
the offsite considerations of FEMA are adequately addressed and 
integrated in a manner that will provide for a technically sound 
exercise upon which an assessment of preparedness capabilities can be 
based. The NRC/FEMA procedures will provide for the availability of 
exercise objectives and scenarios sufficiently in advance of scheduled 
exercises to allow enough time for adequate review by NRC and FEMA and 
correction of any deficiencies by the licensee. The failure of a 
licensee to develop a scenario that adequately addresses both onsite and 
offsite considerations may result in NRC taking enforcement actions.

[[Page 598]]

    The FEMA reports will be a part of an interim finding on emergency 
preparedness; or will be the result of an exercise conducted pursuant to 
FEMA's review and approval procedures under 44 CFR part 350 and NRC's 
requirement under 10 CFR part 50, appendix E, Section IV.F. Exercise 
evaluations will identify one of the following conditions: (1) There is 
reasonable assurance that the plans are adequate and can be implemented 
as demonstrated in the exercise; (2) there are deficiencies that must be 
corrected; or (3) FEMA is undecided and will provide a schedule of 
actions leading to a decision. The schedule for issuance of the draft 
and final exercise reports will be as shown in FEMA-REP-14 (Radiological 
Emergency Preparedness Exercise Manual).
    The deficiency referred to in (2) above is defined as an observed or 
identified inadequacy of organizational performance in an exercise that 
could cause a finding that offsite emergency preparedness is not 
adequate to provide reasonable assurance that appropriate protective 
measures can be taken in the event of a radiological emergency to 
protect the health and safety of the public living in the vicinity of a 
nuclear power plant. Because of the potential impact of deficiencies on 
emergency preparedness, they should be corrected within 120 days through 
appropriate remedial actions, including remedial exercises, drills, or 
other actions.
    Where there are deficiencies of the types noted above, and when 
there is a potential for remedial actions, FEMA Headquarters will 
promptly (1-2 days) discuss these with NRC Headquarters. Within 10 days 
of the exercise, official notification of identified deficiencies will 
be made by FEMA to the State, NRC Headquarters, and the RAC with an 
information copy to the licensee. NRC will formally notify the licensee 
of the deficiencies and monitor the licensee's efforts to work with 
State and local authorities to correct the deficiencies. Approximately 
60 days after official notification of the deficiency, the NRC, in 
consultation with FEMA, will assess the progress being made toward 
resolution of the deficiencies.

              D. Withdrawal of Reasonable Assurance Finding

    If FEMA determines under 44 CFR 350.13 of its regulations that 
offsite emergency plans or preparedness are not adequate to provide 
reasonable assurance that appropriate protective measures can be taken 
in the event of radiological emergency to protect the health and safety 
of the public, FEMA shall, as described in its rule, withdraw approval.
    Upon receiving notification of such action from FEMA, the NRC will 
promptly review FEMA's findings and determinations and formally document 
the NRC's position. When, as described in 10 CFR 50.54(s)(2)(ii) and 
50.54(s)(3) of its regulations, the NRC finds the state of emergency 
preparedness does not provide reasonable assurance that adequate 
protective measures can and will be taken in the event of a radiological 
emergency, the NRC will notify the affected licensee accordingly and 
start the ``120-day clock.'' 2
---------------------------------------------------------------------------

    \2\ Per 10 CFR 50.54(s)(2)(ii), the Commission will determine 
whether the reactor shall be shut down or other appropriate enforcement 
actions if such conditions are not corrected within four months. The NRC 
is not limited by this provision of the rule, for, as stated in 10 CFR 
50.54(s)(3), ``Nothing in this paragraph shall be construed as limiting 
the authority of the Commission to take action under any other 
regulation or authority of the Commission or at any time other than that 
specified in this paragraph'' (emphasis added).
---------------------------------------------------------------------------

             E. Emergency Planning and Preparedness Guidance

    NRC has lead responsibility for the development of emergency 
planning and preparedness guidance for licensees. FEMA has lead 
responsibility for the development of radiological emergency planning 
and preparedness guidance for State and local agencies. NRC and FEMA 
recognize the need for an integrated, coordinated approach to 
radiological emergency planning and preparedness by NRC licensees and 
State and local governments. NRC and FEMA will each, therefore, provide 
opportunity for the other agency to review and comment on such guidance 
(including interpretations of agreed joint guidance) prior to adoption 
as formal agency guidance.

                F. Support for Document Management System

    FEMA and NRC will each provide the other with continued access to 
those automatic data processing support systems which contain relevant 
emergency preparedness data.

            G. Ongoing NRC Research and Development Programs

    Ongoing NRC and FEMA research and development programs that are 
related to State and local radiological emergency planning and 
preparedness will be coordinated. NRC and FEMA will each provide 
opportunity for the other agency to review and comment on relevant 
research and development programs prior to implementing them.

              H. Public Information and Education Programs

    FEMA will take the lead in developing public information and 
educational programs. NRC will assist FEMA by reviewing for accuracy 
educational materials concerning radiation, and its hazards and 
information regarding appropriate actions to be

[[Page 599]]

taken by the general public in the event of an accident involving 
radioactive materials.

   I. Recovery from Disasters Affecting Offsite Emergency Preparedness

    Disasters that destroy roads, buildings, communications, 
transportation resources or other offsite infrastructure in the vicinity 
of a nuclear power plant can degrade the capabilities of offsite 
response organizations in the 10-mile plume emergency planning zone. 
Examples of events that could cause such devastation are hurricanes, 
tornadoes, earthquakes, tsunamis, volcanic eruptions, major fires, large 
explosions, and riots.
    If a disaster damages the area around a licensed operating nuclear 
power plant to an extent that FEMA seriously questions the continued 
adequacy of offsite emergency preparedness, FEMA will inform the NRC 
promptly. Likewise, the NRC will inform FEMA promptly of any information 
it receives from licensees, its inspectors, or others, that raises 
serious questions about the continued adequacy of offsite emergency 
preparedness. If FEMA concludes that a disaster-initiated review of 
offsite radiological emergency preparedness is necessary to determine if 
offsite emergency preparedness is still adequate, it will inform the NRC 
in writing, as soon as practicable, including a schedule for conduct of 
the review. FEMA will also give the NRC (1) interim written reports of 
its findings, as appropriate, and (2) a final written report on the 
results of its review.
    The disaster-initiated review is performed to reaffirm the 
radiological emergency preparedness capabilities of affected offsite 
jurisdictions located in the 10-mile emergency planning zone and is not 
intended to be a comprehensive review of offsite plans and preparedness.
    The NRC will consider information provided by FEMA Headquarters and 
pertinent findings from FEMA's disaster-initiated review in making 
decisions regarding the restart or continued operation of an affected 
operating nuclear power reactor. The NRC will notify FEMA Headquarters, 
in writing, of the schedule for restart of an affected reactor and keep 
FEMA Headquarters informed of changes in that schedule.

                     IV. NRC/FEMA Steering Committee

    The NRC/FEMA Steering Committee on Emergency Preparedness will 
continue to be the focal point for coordination of emergency planning 
and preparedness. As discussed in Section I of this agreement, response 
activities between these two agencies are addressed in a separate MOU. 
The Steering Committee will consist of an equal number of members to 
represent each agency with one vote per agency. When the Steering 
Committee cannot agree on the resolution of an issue, the issue will be 
referred to NRC and FEMA management. The NRC members will have lead 
responsibility for licensee planning and preparedness and the FEMA 
members will have lead responsibility for offsite planning and 
preparedness. The Steering Committee will assure coordination of plans 
and preparedness evaluation activities and revise, as necessary, 
acceptance criteria for licensee, State and local radiological emergency 
planning and preparedness. NRC and FEMA will then consider and adopt 
criteria, as appropriate, in their respective jurisdictions. (See 
Attachment 1).

                         V. Working Arrangements

    A. The normal point of contact for implementation of the points in 
this MOU will be the NRC/FEMA Steering Committee.
    B. The Steering Committee will establish the day-to-day procedures 
for assuring that the arrangements of this MOU are carried out.

                     VI. Memorandum of Understanding

    A. This MOU shall be effective as of date of signature and shall 
continue in effect unless terminated by either party upon 30 days notice 
in writing.
    B. Amendments or modifications to this MOU may be made upon written 
agreement by both parties.

    Approved for the U.S. Nuclear Regulatory Commission.

    Dated: June 17, 1993.

James M. Taylor,

    Executive Director for Operations.
    Dated: June 17, 1993.

    Approved for the Federal Emergency Management Agency.

Richard W. Krimm,
    Acting Associate Director, State and Local Programs and Support.

                Attachment 1--FEMA/NRC Steering Committee

                                 Purpose

    Assure coordination of efforts to maintain and improve emergency 
planning and preparedness for nuclear power reactors as described in the 
NRC and FEMA rules and the NRC/FEMA MOU on Radiological Emergency 
Planning and Preparedness. Coordinate consistent criteria for licensee, 
State and local emergency plans and preparedness.

                               Membership

    The NRC and FEMA consignees of this MOU will designate respective 
co-chairs for the Steering Committee. The designated co-chairs will, in 
turn, appoint their respective members to the Committee.

[[Page 600]]

                           Membership Changes

    Changes to the membership of the NRC/FEMA Steering Committee may be 
made by the co-chairs representing the agency whose member is being 
changed.

                          Operating Procedures

    The Steering Committee will maintain a record of each meeting to 
include identification of issues discussed and conclusions reached. No 
meeting will be held without the attendance and participation of at 
least the co-chairs or two assigned members of each agency.

                              Coordination

    When items involving responsibilities of other NRC or FEMA offices 
are discussed, the affected offices will be contacted as appropriate.

[58 FR 47997, Sept. 14, 1993]



PART 354_FEE FOR SERVICES TO SUPPORT FEMA'S OFFSITE RADIOLOGICAL EMERGENCY 
PREPAREDNESS PROGRAM--Table of Contents




Sec.
354.1 Purpose.
354.2 Scope of this regulation.
354.3 Definitions.
354.4 Assessment of fees.
354.5 Description of site-specific, plume pathway EPZ biennial exercise-
          related component services and other services.
354.6 Billing and payment of fees.
354.7 Failure to pay.

    Authority: Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 
1978 Comp., p. 329; Sec. 109, Pub. L. 96-295, 94 Stat. 780; Sec. 2901, 
Pub. L. 98-369, 98 Stat. 494; Title III, Pub. L. 103-327, 108 Stat. 
2323-2325; Pub.L. 105-276, 112 Stat. 2502; EO 12148, 44 FR 43239, 3 CFR, 
1979 Comp., p. 412; EO 12657, 53 FR 47513, 3 CFR, 1988 Comp., p. 611.

    Source: 66 FR 32577, June 15, 2001, unless otherwise noted.



Sec. 354.1  Purpose.

    This part establishes the methodology for FEMA to assess and collect 
user fees from Nuclear Regulatory Commission (NRC) licensees of 
commercial nuclear power plants to recover at least 100 percent of the 
amounts that we anticipate to obligate for our Radiological Emergency 
Preparedness (REP) Program as authorized under Title III, Public Law 
105-276, 112 Stat. 2461, 2502. Public Law 105-276 established in the 
Treasury a Radiological Emergency Preparedness Fund, to be available 
under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et. 
seq.), and under Executive Order 12657 (3 CFR, 1988 Comp., p. 611), for 
offsite radiological emergency planning, preparedness, and response. 
Beginning in fiscal year 1999 and thereafter, the Director of FEMA must 
publish fees to be assessed and collected, applicable to persons subject 
to FEMA's radiological emergency preparedness regulations. The 
methodology for assessment and collection of fees must be fair and 
equitable and must reflect the full amount of costs of providing 
radiological emergency planning, preparedness, response and associated 
services. Our assessment of fees include our costs for use of agency 
resources for classes of regulated persons and our administrative costs 
to collect the fees. Licensees deposit fees by electronic transfer into 
the Radiological Emergency Preparedness Fund in the U.S. Treasury as 
offsetting collections.



Sec. 354.2  Scope of this regulation.

    The regulation in this part applies to all persons or licensees who 
have applied for or have received from the NRC:
    (a) A license to construct or operate a commercial nuclear power 
plant;
    (b) A possession-only license for a commercial nuclear power plant, 
with the exception of licensees that have received an NRC-approved 
exemption to 10 CFR 50.54(q) requirements;
    (c) An early site permit for a commercial nuclear power plant;
    (d) A combined construction permit and operating license for a 
commercial nuclear power plant; or
    (e) Any other NRC licensee that is now or may become subject to 
requirements for offsite radiological emergency planning and 
preparedness.



Sec. 354.3  Definitions.

    The following definitions of terms and concepts apply to this part:
    Biennial exercise means the joint licensee/State and local 
government exercise, evaluated by FEMA, conducted around a commercial 
nuclear power plant site once every two years in conformance with 44 CFR 
part 350.
    EPZ means emergency planning zone.

[[Page 601]]

    Federal Radiological Preparedness Coordinating Committee (FRPCC) 
means a committee chaired by FEMA with representatives from the Nuclear 
Regulatory Commission, Environmental Protection Agency, Department of 
Health and Human Services, Department of Interior, Department of Energy, 
Department of Transportation, Department of Agriculture, Department of 
Commerce, Department of State, Department of Veterans Affairs, General 
Services Administration, National Communications System, the National 
Aeronautics and Space Administration and other Federal departments and 
agencies as appropriate.
    FEMA means the Federal Emergency Management Agency.
    Fiscal Year means the Federal fiscal year, which begins on the first 
day of October and ends on the thirtieth day of September.
    NRC means the U. S. Nuclear Regulatory Commission.
    Obligate or obligation means a legal reservation of appropriated 
funds for expenditure.
    Persons or Licensee means the utility or organization that has 
applied for or has received from the NRC:
    (1) A license to construct or operate a commercial nuclear power 
plant;
    (2) A possession-only license for a commercial nuclear power plant, 
with the exception of licensees that have received an NRC-approved 
exemption to 10 CFR 50.54(q) requirements;
    (3) An early site permit for a commercial nuclear power plant;
    (4) A combined construction permit and operating license for a 
commercial nuclear power plant; or
    (5) Any other NRC license that is now or may become subject to 
requirements for offsite radiological emergency planning and 
preparedness activities.
    Plume pathway EPZ means for planning purposes, the area within 
approximately a 10-mile radius of a nuclear plant site.
    RAC means Regional Assistance Committee chaired by FEMA with 
representatives from the Nuclear Regulatory Commission, Environmental 
Protection Agency, Department of Health and Human Services, Department 
of Energy, Department of Agriculture, Department of Transportation, 
Department of Commerce, Department of Interior, and other Federal 
departments and agencies as appropriate.
    REP means Radiological Emergency Preparedness, as in FEMA's REP 
Program.
    Site means the location at which one or more commercial nuclear 
power plants (reactor units) have been, or are planned to be built.
    Site-specific services mean offsite radiological emergency planning, 
preparedness and response services provided by FEMA personnel and by 
FEMA contractors that pertain to a specific commercial nuclear power 
plant site.
    Technical assistance means services provided by FEMA to accomplish 
offsite radiological emergency planning, preparedness and response, 
including provision of support for the preparation of offsite 
radiological emergency response plans and procedures, and provision of 
advice and recommendations for specific aspects of radiological 
emergency planning, preparedness and response, such as alert and 
notification and emergency public information.
    We, our, us, means and refers to FEMA.



Sec. 354.4  Assessment of fees.

    (a)(1) We assess user fees from licensees using a methodology that 
includes charges for REP Program services provided by both our personnel 
and our contractors. Beginning in FY 1995, we established a four-year 
cycle from FY 1995-1998 with predetermined user fee assessments that 
were collected each year of the cycle. The following six-year cycle will 
run from FY 1999 through FY 2004. The fee for each site consists of two 
distinct components:
    (i) A site-specific, biennial exercise-related component to recover 
the portion of the REP program budget associated only with plume pathway 
emergency planning zone (EPZ) biennial exercise-related activities. We 
determine this component by reviewing average biennial exercise-related 
activities/hours that we use in exercises conducted since the inception 
of our REP user fee program in 1991. We completed an analysis of REP 
Program activities/hours used during the FY 1991-1995 cycle at the end 
of that four-year cycle. We will make adjustments to the site-specific

[[Page 602]]

user fees for the next proposed FY 1999-2004 six-year cycle.
    (ii) A flat fee component that is the same for each site and 
recovers the remaining portion of the REP Program budgeted funding that 
does not include biennial exercise-related activities.
    (2) We will assess fees only for REP Program services provided by 
our personnel and by our contractors, and we will not assess fees for 
those services that other Federal agencies involved in the FRPCC or the 
RAC's provide.
    (b) Determination of site-specific, biennial exercise-related 
component for our personnel. We will determine an average biennial 
exercise-related cost for our personnel for each commercial nuclear 
power plant site in the REP Program. We base this annualized cost 
(dividing the average biennial exercise-related cost by two) on the 
average number of hours spent by our personnel in REP exercise-related 
activities for each site. We will determine the average number of hours 
using an analysis of site-specific exercise activity spent since the 
beginning of our user fee program (1991). We determine the actual user 
fee assessment for this component by multiplying the average number of 
REP exercise-related hours that we determine and annualize for each site 
by the average hourly rate in effect for the fiscal year for a REP 
Program employee. We will revise the hourly rate annually to reflect 
actual budget and cost of living factors, but the number of annualized, 
site-specific exercise hours will remain constant for user fee 
calculations and assessments throughout the six-year cycle. We will 
continue to track and monitor exercise activity during the six-year 
cycle, FY 1999-2004. We will make appropriate adjustments to this 
component to calculate user fee assessments for later six-year cycles.
    (c) Determination of site-specific, biennial exercise-related 
component for FEMA contract personnel. We have determined an average 
biennial exercise-related cost for REP contractors for each commercial 
nuclear power plant site in the REP Program. We base this annualized 
cost (dividing the average biennial exercise-related cost by two) on the 
average costs of contract personnel in REP site-specific exercise-
related activities since the beginning of our user fee program (1991). 
We will continue to track and monitor activity during the initial six-
year cycle, FY 1999-2004, and we will make appropriate adjustments to 
this component for calculation of user fee assessments during subsequent 
six-year cycles.
    (d) Determination of flat fee component. For each year of the six-
year cycle, we recover the remainder of REP Program budgeted funds as a 
flat fee component. Specifically, we determine the flat fee component by 
subtracting the total of our personnel and contractor site-specific, 
biennial exercise-related components, as outlined in paragraphs (a) and 
(b) of this section, from the total REP budget for that fiscal year. We 
then divide the resulting amount equally among the total number of 
licensed commercial nuclear power plant sites (defined under 354.2) to 
arrive at each site's flat fee component for that fiscal year.
    (e) Discontinuation of charges. When we receive a copy from the NRC 
of their approved exemption to 10 CFR 50.54(q) requirements stating that 
offsite radiological emergency planning and preparedness are no longer 
required at a particular commercial nuclear power plant site, we will 
discontinue REP Program services at that site. We will no longer assess 
a user fee for that site from the beginning of the next fiscal year.



Sec. 354.5  Description of site-specific, plume pathway EPZ biennial 
exercise-related component services and other services.

    Site-specific and other REP Program services provided by FEMA and 
FEMA contractors for which FEMA will assess fees on licensees include 
the following:
    (a) Site-specific, plume pathway EPZ biennial exercise-related 
component services. (1) Schedule plume pathway EPZ biennial exercises.
    (2) Review plume pathway EPZ biennial exercise objectives and 
scenarios.
    (3) Provide pre-plume pathway EPZ biennial exercise logistics.
    (4) Conduct plume pathway EPZ biennial exercises, evaluations, and 
post exercise briefings.

[[Page 603]]

    (5) Prepare, review and finalize plume pathway EPZ biennial exercise 
reports, give notice and conduct public meetings.
    (6) Activities related to Medical Services and other drills 
conducted in support of a biennial, plume pathway exercise.
    (b) Flat fee component services. (1) Evaluate State and local 
offsite radiological emergency plans and preparedness.
    (2) Schedule other than plume pathway EPZ biennial exercises.
    (3) Develop other than plume pathway EPZ biennial exercise 
objectives and scenarios.
    (4) Pre-exercise logistics for other than the plume pathway EPZ.
    (5) Conduct other than plume pathway EPZ biennial exercises and 
evaluations.
    (6) Prepare, review and finalize other than plume pathway EPZ 
biennial exercise reports, notice and conduct of public meetings.
    (7) Prepare findings and determinations on the adequacy or approval 
of plans and preparedness.
    (8) Conduct the formal 44 CFR part 350 review process.
    (9) Provide technical assistance to States and local governments.
    (10) Review licensee submissions pursuant to 44 CFR part 352.
    (11) Review NRC licensee offsite plan submissions under the NRC/FEMA 
Memorandum of Understanding on Planning and Preparedness, and NUREG-
0654/FEMA-REP-1, Revision 1, Supplement 1. You may obtain copies of the 
NUREG-0654 from the Superintendent of Documents, U.S. Government 
Printing Office.
    (12) Participate in NRC adjudication proceedings and any other site-
specific legal forums.
    (13) Alert and notification system reviews.
    (14) Responses to petitions filed under 10 CFR 2.206.
    (15) Congressionally-initiated reviews and evaluations.
    (16) Responses to licensee's challenges to FEMA's administration of 
the fee program.
    (17) Respond to actual radiological emergencies.
    (18) Develop regulations, guidance, planning standards and policy.
    (19) Coordinate with other Federal agencies to enhance the 
preparedness of State and local governments for radiological 
emergencies.
    (20) Coordinate REP Program issues with constituent organizations 
such as the National Emergency Management Association, Conference of 
Radiation Control Program Directors, and the Nuclear Energy Institute.
    (21) Implement and coordinate REP Program training with FEMA's 
Emergency Management Institute (EMI) to assure effective development and 
implementation of REP training courses and conferences.
    (22) Participation of REP personnel as lecturers or to perform other 
functions at EMI, conferences and workshops.
    (23) Any other costs that we incur resulting from our REP Program 
Strategic Review implementation and oversight working group activities.
    (24) Costs associated with a transition phase should we decide to 
advertise and award a contract for technical support to the REP Program. 
Transition phase activities may include training new contractor 
personnel in the REP Exercise Evaluation and Planning courses, and on-
the-job training for new evaluators at a select number of REP exercises.
    (25) Services associated with the assessment of fees, billing, and 
administration of this part.
    (26) Disaster-initiated reviews and evaluations.



Sec. 354.6  Billing and payment of fees.

    (a) Electronic billing and payment. We will deposit all funds 
collected under this part to the Radiological Emergency Preparedness 
Fund as offsetting collections, which will be available for our REP 
Program. The Department of the Treasury revisions to section 8025.30 of 
publication I-TFM 6-8000 require Federal agencies to collect funds by 
electronic funds transfer when such collection is cost-effective, 
practicable, and consistent with current statutory authority. Working 
with the Department of the Treasury we now provide for payment of bills 
by electronic

[[Page 604]]

transfers through Automated Clearing House (ACH) credit payments.
    (b) We will send bills that are based on the assessment methodology 
set out in Sec. 354.4 to licensees to recover the full amount of the 
funds that we budget to provide REP Program services. Licensees that 
have more than one site will receive consolidated bills. We will forward 
one bill to each licensee during the first quarter of the fiscal year, 
with payment due within 30 days. If we exceed our original budget for 
the fiscal year and need to make minor adjustments, the adjustment will 
appear in the bill for the next fiscal year.



Sec. 354.7  Failure to pay.

    Where a licensee fails to pay a prescribed fee required under this 
part, we will implement procedures under 44 CFR part 11, subpart C, to 
collect the fees under the Debt Collection Act of 1982 (31 U.S.C. 3711 
et seq.).

                        PARTS 355-359 [RESERVED]



PART 360_STATE ASSISTANCE PROGRAMS FOR TRAINING AND EDUCATION IN 
COMPREHENSIVE EMERGENCY MANAGEMENT--Table of Contents




Sec.
360.1 Purpose.
360.2 Description of program.
360.3 Eligible applicants.
360.4 Administrative procedures.
360.5 General provisions for State Cooperative Agreement.

    Authority: Reorganization Plan No. 3 (3 CFR, 1978 Comp., p. 329); 
E.O. 12127 (44 FR 19367); E.O. 12148 (44 FR 43239).

    Source: 46 FR 1271, Jan. 6, 1981, unless otherwise noted.



Sec. 360.1  Purpose.

    The Emergency Management Training Program is designed to enhance the 
States' emergency management training program to increase State 
capabilities and those of local governments in this field, as well as to 
give States the opportunity to develop new capabilities and techniques. 
The Program is an ongoing intergovernmental endeavor which combines 
financial and human resources to fill the unique training needs of local 
government, State emergency staffs and State agencies, as well as the 
general public. States will have the opportunity to develop, implement 
and evaluate various approaches to accomplish FEMA emergency objectives 
as well as goals and objectives of their own. The intended result is an 
enhanced capability to protect lives and property through planning, 
mitigation, operational skill, and rapid response in case of disaster or 
attack on this country.



Sec. 360.2  Description of program.

    (a) The program is designed for all States regardless of their 
present level of involvement in training or their degree of expertise in 
originating and presenting training courses in the past. The needs of 
individual States, difference in numbers to be trained, and levels of 
sophistication in any previous training program have been recognized. It 
is thus believed that all States are best able to meet their own unique 
situations and those of local government by being given this opportunity 
and flexibility.
    (b) Each State is asked to submit an acceptable application, to be 
accompanied by a Training and Education (T&E) plan for a total of three 
years, only the first year of which will be required to be detailed. The 
remaining two year program should be presented in terms of ongoing 
training objectives and programs. In the first year plan applicants 
shall delineate their objectives in training and education, including a 
description of the programs to be offered, and identify the audiences 
and numbers to be trained. Additionally, the State is asked to note the 
month in which the activity is to be presented, the location, and cost 
estimates including instructional costs and participant's travel and per 
diem. These specifics of date, place, and costs will be required for the 
first year of any three year plan. A three year plan will be submitted 
each year with an application. Each negotiated agreement will include a 
section of required training (Radiological Defense), and a section 
including optional courses to be conducted in response to State and 
local needs.
    (c) FEMA support to the States in their training program for State 
and local officials, has been designed

[[Page 605]]

around three Program elements. Each activity listed in the State 
Training and Education (T&E) Plan will be derived from the following 
three elements:
    (1) Government Conducted Courses: Such courses require the least 
capability on the part of the State. They are usually conducted through 
provisions in a FEMA Regional Support Contract and/or FEMA or other 
Federal agency staff. The State's responsibilities fall primarily into 
administrative areas of recruiting participants, making all arrangements 
for the facilities needed for presentation of the course, and the 
handling of the cost reimbursement to participants, though State staff 
may participate as instructors. These courses for example include:
    (i) Career Development Courses: Phases I, II, and III,
    (ii) Radiological Officer and Instructor Courses,
    (iii) Technical Workshops on Disaster Recovery or Hazard Mitigation.
    (2) Government and recipient conducted courses: Responsibilities in 
these courses fall jointly upon Federal and State government as agreed 
in the planning for the course. Courses in this category might include:
    (i) Emergency Management Workshops,
    (ii) Multijurisdictional Emergency Operations Simulation Training.

In this category also, it is expected that the State will be responsible 
for administrative and logistical requirements, plus any instructional 
activity as agreed upon prior to the conduct of the course.
    (3) Recipient conducted courses: This element requires the greatest 
degree of sophistication in program planning and delivery on the part of 
the State. Training events proposed by the State must be justified as 
addressing Emergency Management Training Program objectives. 
Additionally, they must address State or community needs and indicate 
the State's ability to present and carry out the Program of Instruction. 
Courses in this category could include:
    (i) Radiological Monitoring,
    (ii) Emergency Operations Simulating Training,
    (iii) Shelter Management.
    (d) In order that this three year comprehensive Training and 
Education Program planning can proceed in a timely and logical manner, 
each State will be provided three target appropriation figures, one for 
each of the three program years. States will develop their proposals, 
using the target figure to develop their scope of work. Adjustments in 
funding and the scope of work will be subject to negotiation before 
finalization. Both the funding and the scope of work will be reviewed 
each year and adjustments in the out years will reflect increased 
sophistication and expertise of the States as well as changing training 
needs within each State.
    (e)(1) FEMA funding through the State Cooperative Agreement for the 
training activities is to be used for travel and per diem expenses of 
students selected by the States for courses reflecting individually 
needed or required training. Additionally funds may be expended for 
course materials and instructor expenses. The funding provided in the 
State Cooperative Agreement is not for the purpose of conducting ongoing 
State activities or for funding staff positions to accomplish work to be 
performed under this Agreement. Nor is the Agreement for the purpose of 
purchasing equipment which may be obtained with the help of Personnel 
and Administrative funds. In cases where equipment has been identified 
as needed in the scope of work submitted with the application, and where 
it serves as an outreach to a new audience or methodology, equipment 
purchase may be approved at the time of initial application approval.
    (2) Allowable cost will be funded at 100%.

[46 FR 1271, Jan. 6, 1981, as amended at 48 FR 9646, Mar. 8, 1983]



Sec. 360.3  Eligible applicants.

    Each of the 50 States, independent commonwealths, and territories is 
eligible to participate in a State Cooperative Agreement with FEMA. The 
department, division, or agency of the State government assigned the 
responsibility for State training in comprehensive emergency management 
should file the application.

[[Page 606]]



Sec. 360.4  Administrative procedures.

    (a) Award. Each State desiring to participate will negotiate the 
amount of financial support for the training and education program. 
Deciding factors will be the scope of the program, a prudent budget, the 
number of individuals to be trained, and variety of audiences included 
which are in need of training. All these factors are part of the 
required application as discussed in Sec. 360.2.
    (b) Period of agreement. Agreements will be negotiated annually and 
will be in effect for a period of 12 months. Each agreement, however, 
will include a scope of work for three years as reflected in Sec. 
360.2(b) to give continuity to the total training and education program.
    (c) Submission procedure. Each State applicant shall comply with the 
following procedures:
    (1) Issuance of a request for application: Each State emergency 
management agency will receive a Request for Application Package from 
the State's respective FEMA Regional Director.
    (2) How to submit: Each State shall submit the completed application 
package to the Regional Director of the Appropriate Region.
    (3) Application package: The Application Package should include:
    (i) A transmittal letter signed by the State Director of the agency 
tasked with emergency management responsibilities for that State.
    (ii) A three year projected training and education scope of work 
including both ``required'' training and ``optional'' courses. The first 
of the projected three year program is to be detailed as to list of 
courses, description of training to be offered, audiences to be reached 
and numbers to be trained. Dates and locations of training as well as 
costs of delivery and student travel and per diem are to be estimated. 
Special instructions for this portion of the submittal will be included 
in the Application Package.
    (iii) Standard Form 270 ``Request for Advance or Reimbursement'' as 
required by OMB Circular A-102 and FEMA General Provisions for 
Cooperative Agreements.
    (d) Reporting agreements. Recipients of State Agreement benefits 
will report quarterly during the Federal Fiscal year, directly to the 
Regional Director of their respective Regions. The report should include 
a narrative of the training programs conducted accompanied by rosters 
for each event, agenda, and a summary financial statement on the status 
of the Agreement funds. Any course or training activity included in the 
Scope of Work and not presented as scheduled should be explained in 
detail as to the reason for cancellation in the quarterly report. The 
costs allocated to this cancelled activity should be reprogrammed to 
another training activity approved by the Regional Director no later 
than the last day of the 3rd quarter, or released to the Region. An 
evaluation of the degree to which objectives were met, the effectiveness 
of the methodology, and the appropriateness of the resources and 
references used should also be included in the quarterly report. The 
report is due in the Regional Office no later than the 15th day of 
January, April, and July. A final report for the year is due the 15th of 
October.



Sec. 360.5  General provisions for State Cooperative Agreement.

    The legal funding instrument for the State Assistance Program for 
Training and Education FEMA is the State Cooperative Agreement. All 
States will be required to comply with FEMA General Provisions for the 
State Cooperative Agreement. The General Provisions for the State 
Cooperative Agreement will be provided to the States as part of the 
Request for Application package. The General Provisions will become part 
of the Cooperative Agreement.



PART 361_NATIONAL EARTHQUAKE HAZARDS REDUCTION ASSISTANCE TO STATE AND 
LOCAL GOVERNMENTS--Table of Contents




        Subpart A_Earthquake Hazards Reduction Assistance Program

Sec.
361.1 Purpose.
361.2 Definitions.
361.3 Project description.
361.4 Matching contributions.

[[Page 607]]

361.5 Criteria for program assistance, matching contributions, and 
          return of program assistance funds.
361.6 Documentation of matching contributions.
361.7 General eligible expenditures.
361.8 Ineligible expenditures.

Subpart B [Reserved]

    Authority: Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 
1978 Comp., p. 329; Earthquake Hazards Reduction Act of 1977, as 
amended, 42 U.S.C. 7701 et seq.; E.O. 12148, 44 FR 43239, 3 CFR, 1979 
Comp., p. 412; and E.O. 12381, 47 FR 39795, 3 CFR, 1982 Comp., p. 207.

    Source: 57 FR 34869, Aug. 7, 1992, unless otherwise noted.



        Subpart A_Earthquake Hazards Reduction Assistance Program



Sec. 361.1  Purpose.

    This part prescribes the policies to be followed by the Federal 
Emergency Management Agency (FEMA) and States in the administration of 
FEMA's earthquake hazards reduction assistance program, and establishes 
the criteria for cost-sharing.



Sec. 361.2  Definitions.

    Cash Contribution means the State cash outlay (expenditure), 
including the outlay of money contributed to the State by other public 
agencies and institutions, and private organizations and individuals. 
All expenditures must be listed in the project's approved budget.
    Certification represents the Governor's written assurance describing 
the steps State agencies will take toward meeting the 50 percent cash 
contribution required following the third year of program funding. The 
letter of certification is intended to assist the State maintain a 
commitment to and plan for securing the future cash match with the long-
range goal of developing an ongoing, rather than a short-term, State 
program.
    Cost Sharing and Matching represent that portion of project costs 
not borne by the Federal Government.
    Eligible Activities are activities for which FEMA may provide 
funding to States under this section. They include specific activities 
or projects related to earthquake hazards reduction which fall into one 
or more of the following categories: Preparedness and response planning; 
mitigation planning and implementation, including inventories 
preparation, seismic safety inspections of critical structures and 
lifelines, updating building and zoning codes and ordinances to enhance 
seismic safety; and public awareness and education. The activities that 
will actually be funded shall be determined through individual 
negotiations between FEMA and the States (see criteria in Sec. 
361.3(3)).
    In-kind contributions represent the value of non-cash contributions 
provided by the States and other non-Federal parties. In-kind 
contributions may be in the form of charges for real property and non-
expendable personal property and the value of goods and services 
directly benefiting and specifically identifiable to the States' 
earthquake hazards reduction projects.
    Project means the complete set of approved earthquake hazards 
reduction activities undertaken by a State, or other jurisdiction, on a 
cost-shared basis with FEMA in a given Federal fiscal year.
    Project Period is the duration of time over which an earthquake 
hazards reduction project is implemented.
    State refers to the States of the United States of America, 
individually or collectively, the District of Columbia, the Commonwealth 
of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Mariana 
Islands, and any other territory or possession of the United States. It 
also means local units of government or substate areas that include a 
number of local government jurisdictions.
    State Assistance means the funding provided under this subpart by 
FEMA through the National Earthquake Hazards Reduction Program (NEHRP) 
to States to develop State programs specifically related to earthquake 
hazards reduction. The term also includes assistance to local units of 
government or substate areas, such as a group of several counties.
    Target Allocation is the maximum amount of FEMA earthquake program 
funds presumably available to an eligible State in a fiscal year. It is 
based

[[Page 608]]

primarily upon the total amount of State assistance funds available to 
FEMA annually, the number of eligible States, and a nationally 
standardized comparison of these States' seismic hazard and population-
at-risk. The target allocation is not necessarily the amount of funding 
that a State will actually receive from FEMA. Rather, it represents a 
planning basis of negotiations between the State and its FEMA Regional 
Office which will ultimately determine the actual amount of earthquake 
State assistance to be provided by FEMA.



Sec. 361.3  Project description.

    (a) An objective of the Earthquake Hazards Reduction Act is to 
develop, in areas of seismic risk, improved understanding of and 
capability with respect to earthquake-related issues, including methods 
of mitigating earthquake damage, planning to prevent or minimize 
earthquake damage, disseminating warnings of earthquakes, organizing 
emergency services, and planning for post-earthquake recovery. To 
achieve this objective, FEMA has implemented an earthquake hazards 
reduction assistance program for State and local governments in seismic 
risk areas.
    (b) This assistance program provides funding for earthquake hazards 
reduction activities which are eligible according to the definition in 
Sec. 361.2. The categories, or program elements, listed therein 
comprise a comprehensive earthquake hazards reduction project for any 
given seismic hazard area. Key aspects of each of these elements are as 
follows:
    (1) Mitigation involves developing and implementing strategies for 
reducing losses from earthquakes by incorporating principles of seismic 
safety into public and private decisions regarding the siting, design, 
and construction of structures (i.e., updating building and zoning codes 
and ordinances to enhance seismic safety), and regarding buildings' 
nonstructural elements, contents and furnishings. Mitigation includes 
preparing inventories of and conducting seismic safety inspections of 
critical structures and lifelines, and developing plans for identifying 
and retrofitting existing structures that pose threats to life or would 
suffer major damage in the event of a serious earthquake.
    (2) Preparedness/response planning are closely related and usually 
considered as one comprehensive activity. They do differ, however, in 
that preparedness planning involves those efforts undertaken before an 
earthquake to prepare for or improve capability to respond to the event, 
while response planning can be defined as the planning necessary to 
implement an effective response once the earthquake has occurred. 
Preparedness/response planning usually considers functions related to 
the following:
    (i) Rescue and fire services;
    (ii) Medical services;
    (iii) Damage assessments;
    (iv) Communications;
    (v) Security;
    (vi) Restoration of lifeline and utility services;
    (vii) Transportation;
    (viii) Sheltering, food and water supplies;
    (ix) Public health and information services;
    (x) Post-disaster recovery and the return of economic stability;
    (xi) Secondary impacts, such as dam failures, toxic releases, etc.; 
and
    (xii) Organization and management.
    (3) Public awareness/earthquake education activities are designed to 
increase public awareness of earthquakes and their associated risks, and 
to stimulate behavioral changes to foster a self-help approach to 
earthquake preparedness, response, and mitigation. Audiences that may be 
targeted for such efforts include:
    (i) The general public;
    (ii) School populations (administrators, teachers, students, and 
parents);
    (iii) Special needs groups (e.g., elderly, disabled, non-English 
speaking);
    (iv) Business and industry;
    (v) Engineers, architects, builders;
    (vi) The media; and
    (vii) Public officials.
    (4) Other Activities in support of those listed in Sec. 
361.3(b)(1), (b)(2), and (b)(3) may include, but are not limited to, 
State seismic advisory boards which provide State and local officials 
responsible for implementing earthquake hazards reduction projects with 
expert

[[Page 609]]

advice in a variety of fields; hazard identification which defines the 
potential for earthquakes and their related geological hazards in a 
particular area; and vulnerability assessments, also known as loss 
estimation studies, which provide information on the impacts and 
consequences of an earthquake on an area's resources, as well as 
opportunities for earthquake hazards mitigation.
    (c) State eligibility for financial assistance to States under this 
section is determined by FEMA based on a combination of the following 
criteria:
    (1) Seismic hazard, including the historic occurrence of damaging 
earthquakes, as well as probable seismic activity;
    (2) Total population and major urban concentrations exposed to such 
risk; and
    (3) Other factors, the loss, damage, or disruption of which by a 
severe earthquake would have serious national impacts upon national 
security, such as industrial concentrations, concentrations or 
occurrences of natural resources, financial/economic centers and 
national defense facilities.
    (d) Each fiscal year, FEMA will establish a target allocation of 
earthquake program funds for each eligible State.
    (e) The specific activities, and the distribution of funds among 
them, that will be undertaken with this assistance will be determined 
during the annual Comprehensive Cooperative Agreement (CCA) negotiations 
between FEMA and the State, and will be based upon the following:
    (1) The availability of information regarding identification of 
seismic hazards and vulnerability to those hazards;
    (2) Earthquake hazards reduction accomplishments of the State to 
date;
    (3) State and Federal priorities for needed earthquake hazards 
reduction activities; and
    (4) State and local capabilities with respect to staffing, 
professional expertise, and funding.
    (f) As a condition of receiving FEMA funding, a percentage of the 
amount of the total State project (FEMA State assistance, combined with 
the State match) must be spent for activities under the Mitigation 
Planning element. The percentage, to be determined by FEMA, may be 
increased by no more than 5 percent annually, beginning at 15 percent in 
fiscal year 1991 with a limit of 50 percent of the total State project. 
The increase will take into account the amount of time a State has been 
participating in the program. States may expend more than the required 
percentage of funding on eligible mitigation activities.
    (g) The State match may be distributed among the eligible activities 
in any manner that is mutually agreed upon by FEMA and the State in the 
CCA negotiations.
    (h) Negotiations between FEMA and the State regarding the scope of 
work and the determination of the amount of State assistance to be 
awarded shall consider earthquake hazards reduction activities 
previously accomplished by the State, as well as the quality of their 
performance.



Sec. 361.4  Matching contributions.

    (a) All State assistance will be cost shared after the first year of 
funding. States which received a grant before October 1, 1990, which 
included the 50 percent non-Federal contribution to the State program, 
will continue to match the Federal funds on a 50 percent cash match 
basis.
    (b) States which did not receive a grant before October 1, 1990, 
will assume cost sharing on a phased-in basis over a period of four 
years with the full cost sharing requirements being implemented in the 
fourth year. The sequence is as follows:
    (1) For the first fiscal year, cost sharing will be voluntary. FEMA 
will provide State assistance without requiring a State match. Those 
States that are able to cost-share are encouraged to do so (on either a 
cash or in-kind basis).
    (2) For the second fiscal year, the minimum acceptable non-Federal 
contribution is 25 percent of the total project cost, which may be 
satisfied through an in-kind contribution. Those States that are able to 
cost-share on a cash-contribution basis are encouraged to do so.
    (3) For the third fiscal year, the minimum acceptable non-Federal 
contribution is 35 percent of the total project

[[Page 610]]

cost, which may be satisfied through an in-kind contribution. Those 
States that are able to cost-share on a cash-contribution basis are 
encouraged to do so.
    (4) For the fourth and subsequent fiscal years, full cost sharing 
will be implemented, requiring a minimum of a 50 percent non-Federal 
contribution to a State program, with this share required to be cash. 
In-kind matching will no longer be acceptable. Thus, every dollar FEMA 
provides to a State must be matched by one dollar from the State. States 
that can contribute an amount greater than that required by the match 
are permitted and encouraged to do so. However, State assistance will 
not exceed the established target allocation.
    (c) The State contribution need not be applied at the exact time of 
the obligation of the Federal funds. However, the State full matching 
share must be obligated by the end of the project period for which the 
State assistance has been made available for obligation under an 
approved program or budget.
    (d) In the event a State interrupts its participation in this 
program, if it later elects to participate again, the nature and amount 
of that State's cost sharing shall be determined by the regulations then 
in effect, taking into account the number of years in which the State 
previously participated.



Sec. 361.5  Criteria for program assistance, matching contributions, and 
return of program assistance funds.

    (a) In order to qualify for assistance, a State must:
    (1) Demonstrate that the assistance will result in enhanced seismic 
safety in the State;
    (2) Provide a share of the costs of the activities for which 
assistance is being given, in accordance with Sec. 361.4; and
    (3) Demonstrate that it is taking actions to ensure its ability to 
meet the 50 percent cash contribution commitment either on an ongoing 
basis or for new States, by the fourth year of funding.
    (i) The Governor of newly participating State must certify to the 
FEMA Regional Director the State will take steps to meet the 50 percent 
cash contribution requirement after the third year of funding. The 
specific steps to be taken will be outlined in the certification which 
must be submitted prior to the State receiving program funds.
    (ii) The Governor must certify the State's continued commitment in 
the second and third years of funding. The certification will describe 
the progress made on the steps contained in the previous year's 
certification and steps to be taken in the future. The certification 
must be submitted to the Regional Director before the State will receive 
program funds.
    (iii) If a State encounters difficulties meeting the 50 percent cash 
contribution requirement for the target allocation following the fourth 
year of funding, the Regional Director may require the Governor to 
continue certifying the State is working to resolve the difficulty.
    (iv) A State will not receive Federal funds if it cannot provide the 
required cash contribution.
    (b) The value of any resources accepted as a matching share under 
one Federal agreement or program cannot be counted again as a 
contribution under another.
    (c) The State seeking the match shall submit documentation 
sufficient for FEMA to determine that the contribution meets the 
following requirements. The match shall be:
    (1) Necessary and reasonable for proper, cost-effective and 
efficient administration of the project, allocable solely thereto, and 
except as specifically provided herein, not be a general expense 
required to carry out the overall responsibilities of State and local 
governments;
    (2) Verifiable from the recipient State's records;
    (3) Not allocable to or included as a cost of any other Federally 
financed program in either the current or a prior period;
    (4) Authorized under State law;
    (5) Consistent with any limitations or exclusions set forth in these 
regulations, Federal laws or other governing limitations as to types of 
cost items;
    (6) Accorded consistent treatment through application of generally 
accepted accounting principles appropriate to the circumstances;

[[Page 611]]

    (7) Provided for in the approved budget/workplan of the State; and
    (8) Consistent with OMB Circular A-87, ``Cost Principles for State 
and Local Governments,'' and with 44 CFR part 13, Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments.
    (d) A State must submit and FEMA must approve a statement of work 
before the State receives any grant funds. The statement of work and 
target allocation of funds are based on a 12-month performance period. 
Except under extenuating circumstances, the funds initially obligated to 
the State will be based on the amount of time remaining in the 
performance period at the time the statement of work is approved. 
(Approved by the Office of Management and Budget under OMB control 
number 3067-0170)
    (e) States are expected to perform activities and therefore expend 
funds on a quarterly basis in accordance with the approved statement of 
work. At the end of the third quarter, State and FEMA regional office 
staff will review the State's accomplishments to date. Funds not 
expended in accordance with the approved statement of work by the end of 
the third quarter of the performance period will not be made available 
to the State unless the State can demonstrate, and FEMA approves, its 
ability to perform activities adequately resulting in the expenditure of 
the funds by the end of the performance period.



Sec. 361.6  Documentation of matching contributions.

    (a) The statement of work provided by the State to FEMA describing 
the specific activities comprising its earthquake hazards reduction 
project, including the project budget, shall reflect a level of effort 
commensurate with the total of the State and FEMA contributions.
    (b) The basis by which the State determines the value of an in-kind 
match must be documented and a copy retained as part of the official 
record.
    (c) The State shall maintain all records pertaining to matching 
contributions for a three-year period after the date of submission of 
the final financial report required by the CCA, or date of audit, 
whichever date comes first.



Sec. 361.7  General eligible expenditures.

    (a) Expenditures must be for activities described in the statement 
of work mutually agreed to by FEMA and the State during the annual 
negotiation process, or for activities that the State agrees to perform 
as a result of subsequent modifications to that statement of work. These 
activities shall be consistent with the definition of eligible 
activities in Sec. 361.2.
    (b) The following is a list of eligible expenditures. When items do 
not appear on the list they will be considered on a case-by-case basis 
for policy determinations, based on criteria set forth in Sec. 361.5. 
All costs must be reasonable, and consistent with OMB Circular A-87.
    (1) Direct and indirect salaries or wages (including overtime) of 
employees hired specifically for carrying out earthquake hazards 
reduction activities are eligible when engaged in the performance of 
eligible work.
    (2) Reasonable costs for work performed by private contractors on 
eligible projects contracted for by the State.
    (3) Travel costs and per diem costs of State employees not to exceed 
the actual subsistence expense basis for the permanent or temporary 
activity, as determined by the State's cost principles governing travel.
    (4) Non-expendable personal property, office supplies, and supplies 
for workshops; exhibits.
    (5) A maximum of $8,000 or 10 percent of the total project 
allocation, whichever is less, may be expended for personal computer 
equipment in the first year of program funding. A full-time earthquake 
staff person must be employed and the equipment must be dedicated 
entirely to the earthquake project.
    (6) Meetings and conferences, when the primary purpose is 
dissemination of information relating to the earthquake hazards 
reduction project.
    (7) Training which directly benefits the conduct of earthquake 
hazards reduction activities.

[[Page 612]]



Sec. 361.8  Ineligible expenditures.

    (a) Expenditures for anything defined as an unallowable cost by OMB 
Circular A-87.
    (b) Federal funds may not be used for the purchase or rental of any 
equipment such as radio/telephone communications equipment, warning 
systems, and computers and other related information processing 
equipment, except as stated in Sec. 361.7(b)(5). If a State wishes to 
use its matching funds for this purpose, it must:
    (1) Document during the annual negotiation process with FEMA how 
this equipment will support the earthquake hazards reduction activities 
in its scope of work (see Sec. 361.7(a)); and
    (2) Claim as credit for its match, if the equipment is to be used 
for purposes in addition to support of earthquake hazards reduction 
activities, only that proportion of costs directly related to its 
earthquake hazards reduction project.

Subpart B [Reserved]



PART 362_CRITERIA FOR ACCEPTANCE OF GIFTS, BEQUESTS, OR SERVICES
--Table of Contents




Sec.
362.1 Purpose.
362.2 Definitions.
362.3 Criteria for determining acceptance.

    Authority: 42 U.S.C. 7701, 7705c.

    Source: 59 FR 35631, July 13, 1994, unless otherwise noted.



Sec. 362.1  Purpose.

    This part establishes criteria for determining whether the Director 
may accept gifts, bequests, or donations of services, money or property 
for the National Earthquake Hazards Reduction Program (NEHRP), under 
section 9 of the National Earthquake Hazards Reduction Program 
Reauthorization Act, 42 U.S.C. 7705c.



Sec. 362.2  Definitions.

    As used in this part--
    Gifts of property means a gratuitous, voluntary transfer or 
conveyance of ownership in property by one person to another without any 
consideration, including transfer by donation, devise or bequest.
    Gifts of services means a gratuitous, voluntary offer of labor or 
professional work by one person to another without any compensation for 
that labor or professional work.
    Program Agencies means the Federal Emergency Management Agency, the 
United States Geological Survey, the National Science Foundation, and 
the National Institute of Standards and Technology.
    Property means real or personal property, tangible or intangible, 
including money, certificates of stocks, bonds, or other evidence of 
value.
    Services means labor or professional work performed for the benefit 
of another or at another's command.
    Solicit means to endeavor to obtain by asking or pleading.



Sec. 362.3  Criteria for determining acceptance.

    The following criteria shall be applied whenever a gift of property 
or gift of services is offered to the Director for the benefit of the 
National Earthquake Hazards Reduction Program.
    (a) The gift of property or gift of services must clearly and 
directly further the objectives of the National Earthquake Hazards 
Reduction Program, as defined in 42 U.S.C. 7702.
    (b) All gifts of property must be offered unconditionally, with sole 
discretion of use, administration and disposition of such property to be 
determined by the Director or his designee.
    (c) The Director may accept and use gifts of services of voluntary 
and uncompensated personnel, and may provide transportation and 
subsistence as authorized by 5 U.S.C. 5703 for persons serving without 
compensation.
    (d) Employees of FEMA or the Program agencies may not solicit gifts 
of property, or gifts of services.
    (e) Acceptance of gifts of property, or gifts of services must first 
be approved by the Office of the General Counsel, FEMA, for conformance 
with all applicable laws and regulations.
    (f) In all cases where it is determined that the acceptance of a 
gift may create a conflict of interest, or the appearance of a conflict 
of interest, the gift will be declined.

[[Page 613]]

                        PARTS 363-399 [RESERVED]

[[Page 615]]



   CHAPTER IV--DEPARTMENT OF COMMERCE AND DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
401             Shipping restrictions (T-1).................         617
402             Shipments on American flag ships and 
                    aircraft (T-1, Int. 1)..................         618
403-499         [Reserved]

[[Page 617]]



PART 401_SHIPPING RESTRICTIONS (T-1)--Table of Contents




Sec.
401.1 Prohibited transportation and discharge.
401.2 Application for adjustment or exceptions.
401.3 Reports.
401.4 Records.
401.5 Defense against claims for damages.
401.6 Violations.

    Authority: Sec. 704, 64 Stat. 816, as amended; 50 U.S.C. app. 2154, 
as amended; Interpret or apply secs. 101, 705, 64 Stat. 799, as amended; 
50 U.S.C. app. 2071; E.O. 10480, 3 CFR, 1949-1953 Comp., p. 962.

    Source: Transportation Order T-1, 30 FR 9092, July 21, 1965; 32 FR 
15831, Nov. 17, 1967. Redesignated at 45 FR 44574, July 1, 1980, unless 
otherwise noted.



Sec. 401.1  Prohibited transportation and discharge.

    No person shall transport in any ship documented under the laws of 
the United States or in any aircraft registered under the laws of the 
United States any commodity at the time not identified by the Symbol B 
in the last column of the Commodity Control List (339.1 of the 
Comprehensive Export Schedule, issued by the Bureau of International 
Commerce, Department of Commerce (15 CFR parts 368 through 399), any 
article designated as arms, ammunition, and implements of war in the 
United States Munitions List (22 CFR parts 121 through 128), or any 
commodity, including fissionable, materials controlled for export under 
the Atomic Energy Act of 1954, as amended, to any destination at the 
time in country groups X, Y, or Z as set forth in the Comprehensive 
Export Schedule (15 CFR 370.1(g)(2)), and no person shall discharge from 
any such ship or any such aircraft any such commodity or article at any 
such port or place or at any other port or place in transit to any such 
destination, unless a validated export license under the Export Control 
Act of 1949, as amended, under section 414 of the Mutual Security Act of 
1954, as amended, or under the Atomic Energy Act of 1954, as amended, 
has been obtained for the shipment, or unless authorization for the 
shipment has been obtained from the Assistant Secretary for Domestic and 
International Business. This prohibition applies to the owner of the 
ship or aircraft, the master of the ship or aircraft, or any other 
officer, employee or agent of the owner of the ship or aircraft who 
participates in the transportation. The consular officers of the United 
States are furnished with current copies of the Commodity Control List.



Sec. 401.2  Application for adjustment or exceptions.

    Any person affected by any provisions of this order may file an 
application for an adjustment or exception upon the ground that such 
provision works an exceptional hardship upon him, not suffered by 
others, or that its enforcement against him would not be in the interest 
of the national defense program. Such an application may be made by 
letter or telegram addressed to the Assistant Secretary for Domestic and 
International Business, Department of Commerce, Washington, DC, 20230, 
reference T-1. If authorization is requested, any such application 
should specify in detail the material to be shipped, the name and 
address of the shipper and of the recipient of the shipment, the ports 
or places from which and to which the shipment is being made and the use 
to which the material shipped will be put. The application should also 
specify in detail the facts which support the applicant's claim for an 
exception.



Sec. 401.3  Reports.

    Persons subject to this order shall submit such reports to the 
Assistant Secretary for Domestic and International Business as he shall 
require, subject to the terms of the Federal Reports Act.



Sec. 401.4  Records.

    Each person participating in any transaction covered by this order 
shall retain in his possession, for at least 2 years, records of 
shipments in sufficient detail to permit an audit that determines for 
each transaction that the provisions of this order have been met. This 
does not specify any particular accounting method and does not require 
alteration of the system of rec ords customarily maintained, provided 
such records supply an adequate basis for

[[Page 618]]

audit. Records may be retained in the form of microfilm or other 
photographic copies instead of the originals.



Sec. 401.5  Defense against claims for damages.

    No person shall be held liable for damages or penalties for any 
default under any contract or order which shall result directly or 
indirectly from compliance with this order or any provision thereof, 
notwithstanding that this order or such provision shall thereafter be 
declared by judicial or other competent authority to be invalid.



Sec. 401.6  Violations.

    Any person who wilfully violates any provisions of this order or 
wilfully conceals a material fact or furnishes false information in the 
course of operation under this order is guilty of a crime and upon 
conviction may be punished by fine or imprisonment or both. In addition, 
administrative action may be taken against any such person, denying him 
the privileges generally accorded under this order.



PART 402_SHIPMENTS ON AMERICAN FLAG SHIPS AND AIRCRAFT (T-1, INT. 1)
--Table of Contents




Sec.
402.1 Shipments from the United States.
402.2 Restricted commodities.
402.3 Addition of commodities to the Positive List.
402.4 Calls at restricted ports en route to an unrestricted port with 
          restricted cargo.
402.5 Forwarding commodities previously shipped.
402.6 Relation to Transportation Order T-2.

    Authority: Sec. 704, 64 Stat. 816, as amended; 50 U.S.C. app. 2154. 
Interpret or apply sec. 101, 64 Stat. 799, as amended; 50 U.S.C. app. 
2071, E.O. 10480, 3 CFR, 1949-1953 Comp., p. 962.

    Source: Transportation Order T-1, Interpretation 1, 15 FR 9145, Dec. 
21, 1950; 32 FR 15831, Nov. 17, 1967. Redesignated at 45 FR 44574, July 
1, 1980, unless otherwise noted.



Sec. 402.1  Shipments from the United States.

    Transportation Order T-1 applies to shipments from the United 
States, as well as to shipments from foreign ports, on American flag 
ships and aircraft.



Sec. 402.2  Restricted commodities.

    The restrictions of Transportation Order T-1 apply to the 
transportation or discharge of (a) commodities on the Positive List (15 
CFR part 399) (as amended from time to time) of the Comprehensive Export 
Schedule of the Office of International Trade, Department of Commerce, 
(b) articles on the list of arms, ammunition and implements of war 
coming within the meaning of Proclamation No. 2776 of March 26, 1948, 
and (c) commodities, including fissionable materials, controlled for 
export under the Atomic Energy Act of 1946. The restrictions imposed by 
Transportation Order T-1 do not apply to other commodities, not within 
these restricted classes at the time of transportation or discharge, 
even though authorization for the export of the commodity from the 
United States to the particular destination is required under 
regulations of the Office of International Trade or under other Federal 
law or regulation. In this respect, Order T-1 is different from Order T-
2 which applies to all commodities destined to Communist China. Order T-
1 does not relax or modify any of the requirements of any other 
regulation or law.



Sec. 402.3  Addition of commodities to the Positive List.

    Order T-1 applies to the transportation or discharge of commodities 
which are restricted at the time of transportation or discharge. 
Accordingly, if a commodity is added to the Positive List while the 
commodity is being transported on an American flag ship or aircraft, the 
restrictions of Order T-1 immediately apply and the commodity may not be 
transported to or discharged at any of the restricted ports or 
discharged in transit to one of the restricted ports, unless 
authorization under Order T-1 is obtained.



Sec. 402.4  Calls at restricted ports en route to an unrestricted port 
with restricted cargo.

    Order T-1 does not prohibit an American flag ship or aircraft from 
going to or calling at one of the restricted

[[Page 619]]

ports, even though it has on board a commodity which could not be 
discharged at that port. (Note, however, that Order T-2 prohibits 
American flag ships and aircraft from calling at any port or other place 
in Communist China.) For example, an American flag ship may call at one 
of the restricted ports (except one in Communist China), even though it 
has on board the following classes of commodities:
    (a) A Positive List commodity manifested to a destination outside 
the restricted area, with an export license and an export declaration 
showing the unrestricted destination at the ultimate destination, (b) a 
Positive List commodity destined for the restricted port of call which 
cannot be discharged there because there is no export license or 
authorization from the Assistant Secretary for Domestic and 
International Business permitting discharge at the restricted port of 
call, (c) a commodity of any kind destined for Communist China (the 
transportation and discharge of which is covered by Order T-2). None of 
these commodities may be discharged at the restricted port of call. 
Discharge of any of these commodities at the port covered by the 
restrictions of Order T-1 is prohibited and subject to penalty, 
regardless of the circumstances under which the discharge of the cargo 
at the restricted port occurs, unless appropriate authorization is 
obtained.



Sec. 402.5  Forwarding commodities previously shipped.

    Order T-1 applies to transportation on or discharge from ships 
documented under the laws of the United States and aircraft registered 
under the laws of the United States. These restrictions apply either in 
the case of a discharge at one of the restricted ports or to discharge 
at any other port in transit to a restricted destination. The 
restrictions of Order T-1 do not apply to transportation by foreign 
carriers, as long as there is no prohibited transportation or discharge 
by or from a United States flag ship or aircraft after the issuance of 
Order T-1. Accordingly, if an American flag ship or aircraft, before the 
issuance of Order T-1, had transported restricted commodities manifested 
to restricted destinations, and had completed the transportation to a 
foreign intermediate point and had completed the discharge from the 
American flag ship or aircraft before the issuance of Order T-1, no 
violation of that order would have occurred, but Order T-1 would 
prohibit further shipment on an American flag ship or aircraft unless 
authorization under Order T-1 is obtained.



Sec. 402.6  Relation to Transportation Order T-2.

    Transportation Order T-1 applies to the transportation of 
commodities to, or in transit to, destinations in Sub-Group A, Hong Kong 
or Macao. It applies, however, only to commodities on the Positive List 
of the Office of International Trade, arms and ammunition, and 
commodities controlled under the Atomic Energy Act (see section 2 of 
this interpretation). Transportation Order T-2 applies to the 
transportation of commodities of any kind which are destined to 
Communist China (Order T-2 also prohibits American ships and aircraft 
from calling at any port or place in Communist China). Since Communist 
China is in Sub-Group A, the restrictions of both orders apply to the 
transportation of commodities to Communist China or to any other point 
in transit to Communist China.

                        PARTS 403-499 [RESERVED]

[[Page 621]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.


  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 623]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2004)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance 
                [Reserved]
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 624]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)

[[Page 625]]

     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)

[[Page 626]]

      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)

[[Page 627]]

       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)

[[Page 628]]

       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

[[Page 629]]

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)

[[Page 630]]

        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]

[[Page 631]]

       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

[[Page 632]]

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)

[[Page 633]]

        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 634]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 635]]

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)

[[Page 636]]

       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 637]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 638]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)

[[Page 639]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)

[[Page 640]]

         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 641]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2004)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 642]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 643]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 644]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 645]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 646]]

  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 647]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 648]]

Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV

[[Page 649]]

Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 651]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

44 CFR
                                                                   66 FR
                                                                    Page
Chapter I
2.81 Amended (OMB numbers).........................................57347
9 Authority citation revised.......................................57347
9.5 (c)(6) revised.................................................57347
10.8 (d)(2)(xix)(N) revised........................................57347
59.1 Amended.......................................................59170
62 Appendix B amended..............................................40917
64.3 (a)(1) introductory text and concluding text revised; (a)(1) 
        table amended..............................................59170
64.6 Table amended.......2826, 10586, 15640, 19096, 22937, 31179, 36948, 
                                              43092, 51321, 54719, 63628
65.2 (c) added.....................................................22442
65.4 Flood elevation determinations....1600, 10589, 10591, 10593, 13240, 
         13264, 21099, 21103, 24281, 24282, 31181, 31183, 33891, 39105, 
         39108, 43094, 43096, 44984, 49548, 49549, 53112, 53114, 53116, 
                                              56770, 56774, 65108, 65110
65.5 Revised.......................................................22442
65.6 (a)(14) and (15) added........................................22442
67.11 Flood elevation determinations.........10596, 24284, 33893, 39112, 
                                       42147, 49553, 53117, 65115, 65121
70.4 Revised.......................................................33900
152 Added..........................................................15972
204 Added..........................................................57347
206.2 (a)(3)(i) revised............................................57352
    (a)(20) revised................................................57353
206.203 (d)(2)(iii) and (iv) redesignated as (d)(2)(iv) and (v); 
        (d)(2)(ii) revised; new (d)(2)(iii) added; interim.........22444
206.221 (e)(3) through (6) redesignated as (e)(4) through (7); new 
        (e)(3) added; interim......................................22445
206.224 (a) revised................................................33901
206.226 (b) through (i) redesignated as (c) through (j); new (b) 
        added; interim.............................................22445
206.361 (b) revised................................................22445
206.363 (b)(1) revised.............................................22445
209 Revised........................................................32669
209.2 Corrected....................................................49554
209.7 (d) correctly designated as (b)..............................49554
209.8 (c)(8)(ii), (9)(xiii) corrected; second (c)(9) correctly 
        designated as (c)(10)......................................49554
295 (Subchapter E) Revised.........................................15959
354 Revised........................................................32577

                                  2002

44 CFR
                                                                   67 FR
                                                                    Page
Chapter I
59.30 (a) revised; interim.........................................10633
61.9 (a) revised....................................................8905
61.17 (a) through (d) and (h) revised; interim.....................61462
61 Appendixes (A)(4), (5) and (6) amended; interim.................10634
62.23 (a) and (b) revised..........................................13549
62.24 Revised......................................................13550
62 Appendix A amended.......................................13550, 51769
64.6 Table amended.......5222, 13290, 16031, 30330, 42502, 44078, 50818, 
                                       54588, 63272, 67118, 72594, 79880

[[Page 652]]

65.4 Flood elevation determinations........1610, 1612, 5223, 5225, 5228, 
          5231, 11047, 11049, 21179, 35744, 35746, 35750, 35753, 45657, 
         46399, 48043, 50363, 53746, 53748, 57173, 57175, 63274, 63830, 
                                63835, 65719, 67120, 67123, 70697, 71483
    Corrected......................................................54700
67.11 Flood elevation determinations.......676, 1614, 5232, 5234, 11053, 
         12480, 20447, 35757, 35759, 45659, 45666, 48046, 53751, 57177, 
                  63275, 63838, 63849, 67126, 67127, 67128, 70699, 70701
152 Revised; interim................................................9148
201 Added; interim..................................................8848
201.3 (c)(3) revised; interim......................................61515
201.4 (a) revised; interim.........................................61515
201.6 (a) revised; interim.........................................61515
206 Authority citation revised......................................8852
206.44 (a) amended; interim........................................61460
206.62 (f) revised; interim........................................61460
206.101-206.120 (Subpart D) Heading correctly revised..............62896
206.101 (e)(1) correctly revised; CFR correction...................13093
    Heading revised; (a) amended; interim..........................61460
206.110--206.120 (Subpart D) Revised; interim......................61452
206.110 Correctly added............................................62896
206.111 Correctly added............................................62896
206.112 Correctly added............................................62896
206.113 Correctly added............................................62896
206.114 Correctly added............................................62896
206.115 Correctly added; (c) corrected.............................62896
206.116 Correctly added............................................62896
206.117 Correctly added; (b)(1)(ii) correctly designated; 
        (b)(1)(ii)(G)(1) corrected.................................62896
206.118 Correctly added............................................62896
206.119 Correctly added............................................62896
206.120 Correctly added............................................62896
    Corrected......................................................62897
    (d)(4)(viii) correctly designated..............................62897
206.131 Heading revised; (a) amended; interim......................61460
206.191 (d)(2)(ii) and (iv) revised; interim.......................61460
206.220 Revised; interim............................................8854
206.226 (b) through (j) redesignated as (c) through (k); new (b) 
        added; (g)(5) revised; interim..............................8854
206.400--206.402 (Subpart M) Revised; interim.......................8852
206.431 Revised; interim............................................8852
206.432 (b) revised; interim........................................8853
    (b)(1) revised; interim........................................61515
206.434 (b) through (g) redesignated as (c) through (h); new (b) 
        added; (c) introductory text, (1) and (d) revised; interim
                                                                    8853
    (b)(1) revised; interim........................................61515
206.435 (a) revised; interim........................................8853
206.436 Revised; interim............................................8853

                                  2003

44 CFR
                                                                   68 FR
                                                                    Page
Chapter I
Chapter I Heading revised..........................................15668
7.1--7.16 (Subpart A) Heading revised..............................51379
7.2 (d) revised; (f) and (g) amended...............................51379
7.3 Revised........................................................51379
7.4 Amended........................................................51379
7.5 (a) introductory text amended..................................51379
7.7 Amended........................................................51379
7.9 (b) revised....................................................51379
7.10 (b) and (d) amended...........................................51379
7.13 (e) amended...................................................51379
7.14 (f) amended...................................................51379
7.16 (a) amended...................................................51379
7.910--7.949 (Subpart E) Heading and authority citation revised....51380
7.910 Amended......................................................51380
7.911 Amended......................................................51380
7.912 Heading revised; (a) amended.................................51380
7.913 Amended......................................................51380
7.925 Amended......................................................51380
7.926 Amended......................................................51380
7.930 Amended......................................................51380
7.931 (b) amended..................................................51380
7.943 (a)(2) amended...............................................51380
7.945 (b) and (c)(2) amended.......................................51380
7.948 (b)(2) amended...............................................51380
59.30 Regulation at 67 FR 10633 confirmed..........................59127
61 Regulation at 67 FR 10634 confirmed.............................59127
61.9 (a) revised...................................................15668
61 Appendices (A)(1),(2) and (3) amended............................9897
62 Appendix A amended; interim..............................52701, 75454

[[Page 653]]

64.6 Table amended........5853, 9898, 15968, 23409, 32657, 39020, 51918, 
                                              60043, 61117, 62749, 67052
65.4 Flood elevation determinations........1541, 1543, 4942, 4945, 4947, 
            6644, 6823, 6827, 22617, 22618, 27474, 31616, 32659, 32661, 
         38199, 38200, 39021, 44461, 44462, 49366, 54843, 54846, 57625, 
                  60857, 60859, 64810, 64812, 66020, 67053, 69324, 69959
67.11 Flood elevation determinations.......1547, 1550, 1551, 4950, 4951, 
           6829, 6831, 22621, 22622, 23899, 27478, 32665, 32670, 38202, 
         38203, 39023, 44463, 44466, 44467, 49371, 54852, 54853, 57826, 
           57828, 60860, 60861, 64817, 64819, 66023, 66024, 67056, 69962
152 Revised........................................................12547
201.6 (a)(2) revised; interim......................................61370
203.226 Regulation at 66 FR 22445 confirmed........................34545
204.3 Amended; interim.............................................61370
204.51 (d)(2) revised; interim.....................................61371
206.171 (g)(4)(i) revised; interim..................................9900
206.203 Regulation at 66 FR 22444 confirmed........................34545
206.221 Regulation at 66 FR 22445 confirmed........................34545
206.226 (b) revised; interim.......................................61371
206.361 Regulation at 66 FR 22445 confirmed........................34545
206.363 Regulation at 66 FR 22445 confirmed........................34545
206.435 (b) introductory text revised..............................63738

                                  2004

  (Regulations published from January 1, 2004, through October 1, 2004)

44 CFR
                                                                   69 FR
                                                                    Page
Chapter I
62.22 (a) revised; interim.........................................45610
62.23 (g) revised; interim.........................................45610
62 Appendix A amended; interim.......................23659, 45611, 45612
64.6 Table amended.....41, 5475, 7166, 9756, 17311, 23660, 31023, 40325, 
                                              42585, 46436, 53836, 58335
65.4 Flood elevation determinations.....514, 517, 519, 6165, 6167, 6170, 
         10924, 12082, 12085, 12977, 17598, 17601, 21967, 21969, 29662, 
           31025, 31026, 47781, 47786, 50313, 50321, 51374, 51376, 51381
    Flood elevation determinations; interim..........34586, 50319, 50322
67.11 Flood elevation determinations....521, 523, 524, 6173, 6179, 8113, 
          8114, 10925, 10928, 17312, 17607, 17608, 21973, 31209, 34589, 
                  46436, 46438, 50325, 50326, 50332, 50333, 51383, 51388
201.3 (c)(7) added; interim........................................55096
201.4 (a) revised; interim.........................................55096
201.6 (a)(1) revised; interim......................................55096
206.2 (a)(16), (22) and (26) revised; interim......................24083
206.226 (b) revised; interim.......................................55097
206.432 (b) introductory text and (1) revised; interim.............55097
206.434 (b)(1) revised; interim....................................55097


                                  [all]