[Title 44 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2014 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]



          Title 44

Emergency Management and Assistance

                         Revised as of October 1, 2014

          Containing a codification of documents of general
          applicability and future effect

          As of October 1, 2014
                    Published by the Office of the Federal Register
                    National Archives and Records Administration as a
                    Special Edition of the Federal Register

[[Page ii]]

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[[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......     643
      List of CFR Sections Affected...........................     653

[[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, 2014), 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.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
    What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
    (a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
    (c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.

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 Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.

[[Page vii]]

    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

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this
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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
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    The e-CFR is a regularly updated, unofficial editorial compilation
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available at www.ecfr.gov.

    Charles A. Barth,
    Director,
    Office of the Federal Register.
    October 1, 2014.







[[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, 2014.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum
Martinez, assisted by Jim Hemphill.

[[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




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


  Editorial Note: Nomenclature changes to chapter I appear at 74 FR
15331, Apr. 3, 2009.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
0

General statements of policy [Reserved]

1               Rulemaking; policy and procedures...........           7
2               OMB control numbers.........................          13
3

[Reserved]

4               Intergovernmental review of Federal
                    Emergency Management Agency (FEMA)
                    programs and activities.................          14
5               Production or disclosure of information.....          17
6               Implementation of the Privacy Act of 1974...          33
7               Nondiscrimination in federally-assisted
                    programs (FEMA Reg. 5)..................          51
8

[Reserved]

9               Floodplain management and protection of
                    wetlands................................          67
10              Environmental considerations................          87
11              Claims......................................          97
12

[Reserved]

13              Uniform administrative requirements for
                    grants and cooperative agreements to
                    State and local governments.............         108
14

[Reserved]

15              Conduct at the Mt. Weather Emergency
                    Assistance Center and at the National
                    Emergency Training Center...............         135
16              Enforcement of nondiscrimination on the
                    basis of handicap in programs or
                    activities conducted by the Federal
                    Emergency Management Agency.............         139
17

[Reserved]

18              New restrictions on lobbying................         145

[[Page 4]]

19              Nondiscrimination on the basis of sex in
                    education programs or activities
                    receiving Federal financial assistance..         157
20-24

[Reserved]

25              Uniform relocation assistance and real
                    property acquisition for Federal and
                    federally assisted programs.............         173
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..........................         174
60              Criteria for land management and use........         190
61              Insurance coverage and rates................         206
62              Sale of insurance and adjustment of claims..         256
63              Implementation of section 1306(c) of the
                    National Flood Insurance Act of 1968....         273
64              Communities eligible for the sale of
                    insurance...............................         278
65              Identification and mapping of special hazard
                    areas...................................         281
66              Consultation with local officials...........         298
67              Appeals from proposed flood elevation
                    determinations..........................         299
68              Administrative hearing procedures...........         303
69

[Reserved]

70              Procedure for map correction................         305
71              Implementation of coastal barrier
                    legislation.............................         307
72              Procedures and fees for processing map
                    changes.................................         311
73              Implementation of section 1316 of the
                    National Flood Insurance Act of 1968....         314
74

[Reserved]

75              Exemption of State-owned properties under
                    self-insurance plan.....................         315
76-77

[Reserved]

78              Flood mitigation assistance.................         318
79              Flood mitigation grants.....................         321
80              Property acquisition and relocation for open
                    space...................................         330
81-149

[Reserved]

                SUBCHAPTER C--FIRE PREVENTION AND CONTROL
150             Public safety awards to public safety
                    officers................................         339

[[Page 5]]

151             Reimbursement for costs of firefighting on
                    Federal property........................         342
152             Assistance to firefighters grant program....         347
153-199

[Reserved]

                    SUBCHAPTER D--DISASTER ASSISTANCE
200

[Reserved]

201             Mitigation planning.........................         356
202-203

[Reserved]

204             Fire Management Assistance Grant Program....         366
205

[Reserved]

206             Federal disaster assistance.................         376
207             Management costs............................         494
208             National Urban Search and Rescue Response
                    System..................................         500
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
322

[Reserved]

323             Guidance on priority use of resources in
                    immediate post attack period (DMO-4)....         553
324-326

[Reserved]

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)...............         560

[[Page 6]]

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.............         567
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.............................         607
362             Criteria for acceptance of gifts, bequests,
                    or services.............................         613
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) Administrator means the Administrator, FEMA, or an official to
whom the Administrator 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 Administrator 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 Administrator
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 Administrator 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 Administrator, 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 12866 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 Chief 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 Chief 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 transmitted 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 Administrator'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 Administrator may permit the filing of comments in response to
original comments.
    (b) In appropriate cases, the Administrator 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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

[[Page 13]]

comments in general and the comments of persons directly affected by the
rule in particular.



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 Administrator 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 Administrator finds that the petition
contains adequate justification, a rulemaking proceeding will be
initiated or a final rule will be issued as appropriate. If the
Administrator 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 Administrator may
consider new evidence at any time; however, repetitious petitions for
rulemaking will not be considered.



PART 2_OMB CONTROL NUMBERS--Table of Contents



Sec.
2.1 Purpose.
2.2 OMB control numbers assigned to information collections.

    Authority: 5 U.S.C. 552; 42 U.S.C. 3507; 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: 74 FR 15332, Apr. 3, 2009, unless otherwise noted.



Sec. 2.1  Purpose.

    This part collects and displays the control numbers assigned to
information collection requirements of FEMA by the Office of Management
and Budget (OMB) pursuant to the Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.). FEMA intends that this part 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 OMB for each agency information collection requirement.



Sec. 2.2  OMB control numbers assigned to information collections.

----------------------------------------------------------------------------------------------------------------
  44 CFR part or section where identified or
                   described                                         Current OMB Control No.
----------------------------------------------------------------------------------------------------------------
59............................................  1660-0023
59.22.........................................  1660-0003, 1660-0004
59 subpart C..................................  1660-0045
60.6, 60.3....................................  1660-0033
61.13.........................................  1660-0006
62 subpart B..................................  1660-0005,1660-0095
62.23(l)......................................  1660-0086
62.24.........................................  1660-0020, 1660-0038
65, 70 generally..............................  1660-0037
71.4..........................................  1660-0010
72............................................  1660-0015, 1660-0016
75.11.........................................  1660-0013
78............................................  1660-0062, 1660-0072,1660-0075
79.7(d).......................................  1660-0104
80............................................  1660-0103
151.11........................................  1660-0014
152.4, 152.7..................................  1660-0069
201...........................................  1660-0062, 1660-0072, 1660-0103
204...........................................  1660-0058
206 subpart B: 206.34, 206.35, 206.36, 206.46,  1660-0009
 206.47.
206 subpart D: 206.101(e), 202.110, 206.117,    1660-0002
 206.119.
206.112, 206.114, 206.115.....................  1660-0061
206.171.......................................  1660-0085
206.202(f)(2), 206.203(c), 206.203(d)(i),       1660-0017
 206.204(f).

[[Page 14]]


206 subpart K.................................  1660-0082, 1660-0083
206 subpart N.................................  1660-0076
206.437.......................................  1660-0026
206.440.......................................  1660-0076
208...........................................  1660-0073
352...........................................  1660-0024
----------------------------------------------------------------------------------------------------------------

                            PART 3 [RESERVED]



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 Administrator'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 Administrator communicate with State and local
          officials concerning FEMA's programs and activities?
4.8 How does the Administrator provide an opportunity to comment on
          proposed Federal financial assistance and direct Federal
          development?
4.9 How does the Administrator receive and respond to comments?
4.10 How does the Administrator make efforts to accommodate
          intergovernmental concerns?
4.11 What are the Administrator's obligations in interstate situations?
4.12 How may a State simplify, consolidate, or substitute federally
          required State plans?
4.13 May the Administrator 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?

    Administrator means the Administrator of FEMA or an official or
employee of FEMA acting for the Administrator of FEMA under a delegation
of authority.
    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.''
    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.

[48 FR 29316, June 24, 1983, as amended at 74 FR 15332, Apr. 3, 2009]

[[Page 15]]



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

    The Administrator 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 Administrator's obligation with respect to Federal
interagency coordination?

    The Administrator, to the extent practicable, consults with and
seeks advice from all other substantially affected Federal departments
and agencies in 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 Administrator
of FEMA's programs and activities selected for that process.
    (c) A State may notify the Administrator of changes in its
selections at any time. For each change, the State shall submit to the
Administrator 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 Administrator of changes in
their program selections.
    (d) The Administrator uses a State's process as soon as feasible,
depending on individual programs and activities, after the Administrator
is notified of its selections.



Sec. 4.7  How does the Administrator 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 Administrator, 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 Administrator 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 Administrator provide an opportunity to comment
on proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Administrator gives state
processes or directly affected State, areawide, regional and local
officials and entities at least 60 days from the date established by the
Administrator 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.

[[Page 16]]



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

    (a) The Administrator 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.
    (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 Administrator follows the procedures of Sec. 4.10
of this part.
    (e) The Administrator considers comments which do not constitute a
state process recommendation submitted under these regulations and for
which the Administrator 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 Administrator 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 Administrator 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 Administrator in his or her
discretion deems appropriate. The Administrator 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
Administrator 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 Administrator 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 Administrator's obligations in interstate
situations?

    (a) The Administrator 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
program or activity;
    (4) Responding pursuant to Sec. 4.10 of this part if the
Administrator 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 Administrator uses the procedures in Sec. 4.10 if a state
process provides a state process recommendation

[[Page 17]]

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 Administrator.
    (c) The Administrator reviews each state plan that a State has
simplified, consolidated, or substituted and accepts the plan only if
its contents meet Federal requirements.



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

    In an emergency, the Administrator 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.

[[Page 18]]

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; 5 U.S.C. 301; 6 U.S.C. 101 et seq;
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).



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 Administrator, 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]

[[Page 19]]



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 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 Chief 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.

[[Page 20]]



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 Chief 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:
    (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: 99 High Street, 6th Floor, Boston, Massachusetts 02110.
Region II: 26 Federal Plaza, Suite 1337, New York, New York 10278.
Region III: 615 Chestnut Street, One Independence Mall, 6th Floor,
Philadelphia, Pennsylvania 19106.
Region IV: 3003 Chamblee Tucker Road, Atlanta, Georgia 30341.
Region V: 536 South Clark Street, 6th Floor, Chicago, Illinois 60605.
Region VI: Federal Regional Center, 800 North Loop 288, Denton, Texas
76209.
Region VII: 9221 Ward Parkway, Suite 300, Kansas City, Missouri 64114.
Region VIII: Denver Federal Center, Building 710, Box 25267, Denver,
Colorado 80255.
Region IX: 1111 Broadway, Suite 1200, Oakland, California 94607.
Region X: Federal Regional Center, 130 228th Street SW, Bothell,
Washington 98021.

    (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; 74 FR 15333,
Apr. 3, 2009]



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 Chief Counsel. A

[[Page 21]]

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 Administrator.



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
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, the FEMA Library at www.FEMA.gov, or
from the FEMA Distribution Center at P.O. Box 2012, 8231 Stayton Drive,
Jessup, Maryland 20794 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

[[Page 22]]

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 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.,

[[Page 23]]

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 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

[[Page 24]]

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 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\x14 inches, the
charge will be $.15 per page.
    (2) The fee for reproducing copies of records over 8\1/2\x14 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

[[Page 25]]

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 Administrator 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 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
records 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

[[Page 26]]

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 Administrator(s).
    (2) [Reserved]
    (3) Federal Insurance Administrator.
    (4) Assistant Administrators.
    (5) United States Fire Administrator.
    (6) Chief of Staff.
    (7) Office Directors.
    (8) Chief Counsel.
    (9) [Reserved]
    (10) Chief Financial Officer.
    (11) Regional Administrators.
    (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 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; 74 FR 15333,
Apr. 3, 2009]



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
Administrator.
    (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 Administrator for final administrative determination.
    (e) The Deputy Administrator 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 Administrator made the initial denial, the
Administrator will be the deciding official on any appeal from that
denial. In the absence of the Deputy Administrator, or in case of a
vacancy in that office, the Administrator may designate another FEMA
official to perform the Deputy Administrator's functions.
    (f) If an appeal is filed in response to a tentative denial pending
locating

[[Page 27]]

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 Administrator 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 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

[[Page 28]]

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 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 administrative 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

[[Page 29]]

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 Administrator 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 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
Administrator of FEMA and sends copies of the findings and
recommendations to the officer or employee or his or her representative.
The law requires the Administrator 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.

[[Page 30]]



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 enforcement 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;
    (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 Administrator 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.

[[Page 31]]



    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.).
    (d) The Department of Homeland Security's regulations, 6 CFR 5.41
through 5.49, apply to any subject matter not already covered by this
subpart, including but not limited to demands or requests directed to
current or former FEMA contractors.

[54 FR 11715, Mar. 22, 1989, as amended at 72 FR 43546, Aug. 6, 2007]



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 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 Administrator 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 Administrator listed in Sec.
5.26. For all other records or testimony, the subpoena should be
addressed to the Chief Counsel, FEMA, 500 C Street SW., Washington, DC
20472 Washington, DC 20472. No other official or employee of FEMA is
authorized to accept service of subpoenas on behalf of the Agency.

[[Page 32]]



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 Chief Counsel.
    (b) Whenever an official or employee of FEMA, including any Regional
Administrator, 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 Chief Counsel.
    (c) The Chief Counsel, 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 Chief Counsel, 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
Chief Counsel.
    (e) Where the release of documents in response to a subpoena duces
tecum is authorized by the Chief Counsel, 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 Chief
Counsel.



Sec. 5.85  Authentication and attestation of copies.

    The Administrator, Deputy Administrators, Regional Administrators,
Assistant Administrators, United States Fire Administrator, Federal
Insurance Administrator, Chief Counsel, and their designees, and other
heads of offices having possession of records are authorized in the name
of the Administrator 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.

[74 FR 15334, Apr. 3, 2009]



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, for the
disclosure of information described in paragraph (a) of this section,
that employee shall immediately notify the Office of Chief Counsel. The
Chief 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

[[Page 33]]

preclude prior notice to and consultation with the Chief Counsel, 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 Chief 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 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 Chief Counsel 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 Chief Counsel 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 Administrator 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 records.
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 records.
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.

[[Page 34]]

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 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

[[Page 35]]

individual provide information about himself or herself.
    (m) Administrator means the Administrator, FEMA.
    (n) Deputy Administrator means the Deputy Administrator, FEMA, or,
in the case of the absence of the Deputy Administrator, or a vacancy in
that office, a person designated by the Administrator to perform the
functions under this regulation of the Deputy Administrator.
    (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 routine uses to be made of the
information, and the effects on the individual, if any, of not providing
the information. The Director, Records Management Division, Office of
Management and Regional Administrators 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,

[[Page 36]]

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.



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 records; and (2) certification that the
records 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

[[Page 37]]

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 Administrator
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 Comptroller General in the course of the
performance of the duties of the Government Accountability 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 Administrator 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

[[Page 38]]

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 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

[[Page 39]]

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 Administrators.
    (2) [Reserved]
    (3) Federal Insurance Administrator.
    (4) Assistant Administrators.
    (5) United States Fire Administrator.
    (6) Chief of Staff.
    (7) Office Directors.
    (8) Chief Counsel.
    (9) [Reserved]
    (10) Chief Financial Officer.
    (11) Regional Administrators.
    (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 Chief 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; 74 FR 15334,
Apr. 3, 2009]



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 Administrator, 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

[[Page 40]]

personnel records should submit a written request to the Director, Human
Capital Division, 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 records.

    (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.



Sec. 6.52  Approval of requests to amend records.

    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 records.

    (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

[[Page 41]]

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
Chief 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.
    (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 Administrator for a final administrative
determination.
    (e) If the Deputy Administrator 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 Administrator 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 Administrator 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 Administrator may extend
this time limit by notifying the requestor in writing before the
expiration of the 30 workdays. The Administrator'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.

[[Page 42]]



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
Administrator 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 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 Administrator, 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
records 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 Administrator
deems necessary.

[[Page 43]]



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 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\x14 inches, the
charge will be $.15 per page.
    (2) The fee for reproducing copies of records over 8\1/2\x14 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

[[Page 44]]

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 Administrator, 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 Records.
    (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), (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

[[Page 45]]

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.
    (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 records 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 records
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

[[Page 46]]

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 records. 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 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

[[Page 47]]

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 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

[[Page 48]]

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
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 Administrator, 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.

[[Page 49]]

    (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 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

[[Page 50]]

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 records 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) 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 records
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

[[Page 51]]

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 Administrator, 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

    (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 Administrator, 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.

[[Page 52]]

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.
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 Administrator 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

[[Page 53]]

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
    (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,

[[Page 54]]

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, 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

[[Page 55]]

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 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

[[Page 56]]

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 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

[[Page 57]]

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 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
Administrator of the Federal Emergency Management Agency pursuant to
section 14, and (4) the expiration of 30 days after the Administrator
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
Administrator 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

[[Page 58]]

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 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 Administrator 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

[[Page 59]]

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 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 Administrator. 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 Administrator 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 Administrator 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

[[Page 60]]

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 Administrator 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 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.

[[Page 61]]

    (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.
    Administrator means the Administrator of the Federal Emergency
Management Agency.
    Age means how old a person is, or the number of years from the date
of a person's birth.
    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.
    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

[[Page 62]]

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 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; 74
FR 15335, Apr. 3, 2009]

              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

[[Page 63]]

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 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

[[Page 64]]

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, 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
Administrator 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

[[Page 65]]

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 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.

[[Page 66]]

    (c) FEMA will take no action under paragraph (a) until:
    (1) The Administrator 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 Administrator 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 Administrator 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 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 Administrator 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 Administrator 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

[[Page 67]]

    (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 Administrator, 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 [RESERVED]



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

    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;

[[Page 68]]

    (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.
    Administrator means the Administrator of the Federal Emergency
Management Agency.
    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.
    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.

[[Page 69]]

    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.
    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 official map of a
community, issued by the Administrator, 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.
    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. FIRMs are also
available digitally, and are called Digital Flood Insurance Rate Maps
(DFIRM).
    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.

[[Page 70]]

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.
    Mitigation Directorate means the Mitigation Directorate of the
Federal Emergency Management Agency.
    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 Administrator means the Regional Administrator of the
Federal Emergency Management Agency for the Region in which FEMA is
acting, or the Disaster Recovery Manager when one is designated.
    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.
    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

[[Page 71]]

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; 74 FR 15335, Apr. 3, 2009]



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 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 Administrators 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

[[Page 72]]

(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.
    (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 Administrator
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 Administrator 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

[[Page 73]]

    (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 the Mitigation Directorate, in administering 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 the Mitigation Directorate, 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 the
Mitigation Directorate, 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 the Mitigation Directorate, 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).)
    (2) The provisions set forth in this regulation are not applicable
to the actions enumerated below except that the Federal Insurance
Administrator or the Assistant Administrator for Mitigation, 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 Administrator 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
Administrator 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

[[Page 74]]

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 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

[[Page 75]]

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
Administrator 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 Administrator 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
Administrator 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 Administrator 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

    (iii) If the sources listed do not have or know of the information
necessary to comply with the Orders' requirements, the Regional
Administrator 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 Administrator 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

[[Page 76]]

new construction, the provisions of this regulation shall apply. Even if
the action is not in a wetland, the Regional Administrator 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 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:

[[Page 77]]

    (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 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.);

[[Page 78]]

    (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.
    (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

[[Page 79]]

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
Administrator 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 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

[[Page 80]]

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 Administrator 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 Administrator's determination. If the FIRM does not reflect
wave heights, or if there is no FIRM in effect, the Regional
Administrator 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
which the Regional Administrator 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

[[Page 81]]

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 Administrator 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 Administrator of FEMA based upon data generated by FEMA or
by another source, satisfactory to the Administrator; 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 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

[[Page 82]]

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, 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;

[[Page 83]]

    (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 Administrator 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 the Regional Administrator
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

[[Page 84]]

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 Administrator shall
notify the Assistant Administrator for Mitigation 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;
    (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

[[Page 85]]

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 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

[[Page 86]]

in addition to the Agency's existing approval criteria.



Sec. 9.18  Responsibilities.

    (a) Regional Administrators' responsibilities. Regional
Administrators 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
Administrator.
    (2) Consult with the Chief Counsel regarding any question of
interpretation concerning this regulation or the Orders.
    (b) The Heads of the Offices, Directorates and Administrations of
FEMA shall:
    (1) Implement the requirements of the Orders and this regulation.
When a decision of a Regional Administrator relating to disaster
assistance is appealed, the Assistant Administrator for Mitigation may
make determinations under these regulations on behalf of the Agency.
    (2) Prepare and submit to the Office of Chief 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;
74 FR 15336, Apr. 3, 2009]

[[Page 87]]



    Sec. 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 88]]

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 Administrator means the Regional Administrator 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 Director, Office of
Environmental Planning and Historic Preservation, Mitigation
Directorate, or his or her designee.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982;
50 FR 40006, Oct. 1, 1985; 74 FR 15336, Apr. 3, 2009]



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 89]]



                Subpart B_Agency Implementing Procedures



Sec. 10.5  Responsibilities.

    (a) The Regional Administrators 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 Chief Counsel (OCC);
    (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 Administrator
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 Offices, Directorates, 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;

[[Page 90]]

    (6) Provide applicants for FEMA assistance with technical assistance
regarding FEMA's environmental review process.
    (d) The Office of Chief 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 Administrator assumes
for a FEMA action in his/her respective region. For such policy-making
actions taken by the Administrator of FEMA, the Environmental Officer
shall assume the responsibilities that a Regional Administrator 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 Administrator 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 Administrator 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
Administrator 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 Administrator 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

[[Page 91]]

FEMA to determine the impact of the proposed action on the human
environment;
    (iii) Consult with appropriate Federal, regional, State, and local
agencies 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
approvals as early as possible in the planning process;
    (v) Notify the Regional Administrator 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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

[[Page 92]]

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
    (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

[[Page 93]]

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 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

[[Page 94]]

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 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 Administrator 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 Administrator shall revoke a
determination of categorical exclusion and shall require a full
environmental review if, subsequent to the granting an exclusion, the
Regional Administrator 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 Chief 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
Administrator shall prepare an environmental assessment.
    (f) Documentation. The Regional Administrator 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
Administrator 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 Administrator shall begin
preparation of an environmental assessment as early as possible after
the determination that an assessment is required. The Regional
Administrator 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:

[[Page 95]]

    (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.
    (5) Listing of agencies and persons consulted.
    (6) Conclusion of whether to prepare an environmental impact
statement.
    (c) Public participation. The Regional Administrator shall involve
environmental agencies, applicants, and the public, to the extent
practicable, in preparing environmental assessments. In determining ``to
the extent practicable,'' the Regional Administrator 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 Administrator 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 Administrator
determines on the basis of the environmental assessment not to prepare
an environmental impact statement, the Regional Administrator 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 Chief
Counsel (OCC) for approval. If Environmental Officer and OGC approval is
obtained, the Regional Administrator 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 OCC Disallowance. If the Environmental
Officer or OCC disagrees with the finding of no significant impact, the
Regional Administrator shall prepare an environmental impact statement.
Prior to preparation of an EIS, the Regional Administrator 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 Administrator. The Regional
Director may decide on his/her own to prepare an environmental impact
statement. In such case, the Regional Administrator 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 Administrator will initiate the scoping process in accordance
with Sec. 1501.7 of the CEQ regulations.
    (b) Preparation. Based on the scoping process, the Regional
Administrator 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
Administrator may at any time supplement a draft or final environmental
impact statement. The Regional Administrator 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
Administrator will prepare, circulate, and file a supplement to a
statement in the same fashion (exclusive of scoping) as a draft or final

[[Page 96]]

statement and will introduce the supplement into their formal
administrative record.
    (d) Circulation of Environmental Impact Statements. The Regional
Administrator 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
Administrator shall obtain the approval of the Environmental Officer and
OCC.

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



Sec. 10.11  Environmental information.

    Interested persons may contact the Environmental Officer or the
Regional Administrator 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 Administrator 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 Administrator 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 Administrator 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
Administrator 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 Administrator.
    (d) Monitoring. If a Regional Administrator determines that
monitoring is applicable for established mitigation, a monitoring
program will be adopted to assure the mitigation measures are
accomplished. The Regional Administrator 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 Administrator may be
required

[[Page 97]]

to take immediate action with significant environmental impact. The
Regional Administrator 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 Administrator 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]



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 [Reserved]

                 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 Government Accountability 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 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 Chief 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

[[Page 98]]

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 Chief 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 Administrator 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 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

[[Page 99]]

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 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 Chief Counsel of FEMA, or a designee of the Chief 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.

[[Page 100]]

    (b) Notwithstanding the delegation of authority in paragraph (a) of
this section, a Regional Administrator 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 Chief 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 Chief Counsel or his or her designee.



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,

[[Page 101]]

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 agent, 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 [Reserved]



                 Subpart D_Personnel Claims Regulations

    Authority: 31 U.S.C. 3721.

    Source: 50 FR 8112, Feb. 28, 1985, unless otherwise noted.



Sec. 11.70  Scope and purpose.

    (a) The Administrator, 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 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 Chief 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

[[Page 102]]

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 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

[[Page 103]]

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
    (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:

[[Page 104]]

    (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 Chief 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.
    (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.

[[Page 105]]



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 Chief
Counsel of FEMA.
    (3) The claimant shall timely advise the Chief Counsel in writing,
of any 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.

[[Page 106]]

    (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
Chief 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.
    (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;

[[Page 107]]

    (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 Chief 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.
    (b) The Chief Counsel may formulate such procedures and make such
redelegations as may be required to fulfill the objectives of this
subpart.
    (c) The Chief 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 Chief 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 Chief 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

[[Page 108]]

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.

[45 FR 15930, Mar. 12, 1980, as amended at 74 FR 15337, Apr. 3, 2009]

                           PART 12 [RESERVED]



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.

               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

[[Page 109]]

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 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

[[Page 110]]

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.
    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

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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:
    (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);

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    (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.
    (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

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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
    (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:

[[Page 114]]

    (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 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.

[[Page 115]]



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
    (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

[[Page 116]]

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:
    (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

[[Page 117]]

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.
    (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.

[[Page 118]]

    (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 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.

[[Page 119]]

    (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); 31 U.S.C. 503, 1111; Executive Order 8248;
Executive Order 11541; and revised OMB Circular A-133, ``Audits of
States, Local Governments, and Non-Profit Organizations.'' The audits
shall be made by 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 $500,000 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

[[Page 120]]

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, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45945, Aug.
29, 1997; 74 FR 15338, Apr. 3, 2009]

                    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 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.

[[Page 121]]

    (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.
    (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.

[[Page 122]]

    (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 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

[[Page 123]]

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, 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

[[Page 124]]

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 analysis 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 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:

[[Page 125]]

    (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 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:

[[Page 126]]

    (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 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;

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    (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.
    (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

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    (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.
    (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

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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;
    (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;

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    (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.
    (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

[[Page 131]]

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
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.

[[Page 132]]

    (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.
    (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.

[[Page 133]]

    (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.
    (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

[[Page 134]]

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 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.)

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    (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 administrative 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 [RESERVED]



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.
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 Operations Center (Mt. Weather) located at 19844 Blue Ridge
Mountain Road, Bluemont,

[[Page 136]]

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 of the Federal Emergency
Management Agency.
    Assistant Administrator means the Assistant Administrator, United
States Fire Administration, FEMA.
    FEMA means the Federal Emergency Management Agency.
    Mt. Weather means the Mt. Weather Emergency Operations Center,
Bluemont, Virginia.
    Mt. Weather Executive Director means the Executive Director of the
Mt. Weather Emergency Operations Center.
    NETC means the National Emergency Training Center, Emmitsburg, MD.
    We means the Federal Emergency Management Agency or FEMA.

[64 FR 31137, June 10, 1999, as amended at 74 FR 15338, Apr. 3, 2009]



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 Administrator or the Mt.
Weather Executive Director 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 Administrator or the Mt.
Weather Executive Director 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.



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,

[[Page 137]]

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
Assistant Administrator, the Mt. Weather Executive Director, 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 Administrator or the Mt. Weather Executive Director authorizes
in writing; and
    (2) In the NETC Recreation Association and other locations that the
Assistant Administrator for the United States Fire Administration 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 Assistant Administrator for the United States Fire Administration or
the Mt. Weather Executive Director 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 as authorized by 5 CFR part 950, Solicitation of Federal
Civilian and Uniformed Service Personnel for Contributions to Private
Voluntary Organizations. The Administrator, or the Senior Resident
Manager, or the Assistant Administrator for the United States Fire
Administration 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 Administrator, the Mt. Weather Executive Director, or the
Deputy Assistant Administrator for the United States Fire Administration
or designee, approves such distribution or display, or when such
distribution or display is conducted as part of authorized government
activities.

[[Page 138]]



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 Administrator or Mt. Weather
Executive Director 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 Director of Management Operations and Systems 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 Administrator, Mt. Weather Executive Director, or the
Assistant Administrator for the United States Fire Administration 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 or incendiary device, either openly or concealed, except:
    (a) For official purposes if the Administrator, Mt. Weather
Executive Director, or the Assistant Administrator for the United States
Fire Administration 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

[[Page 139]]

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--
    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.

[[Page 140]]

    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;
    (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

[[Page 141]]

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, 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

[[Page 142]]

    (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.



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

[[Page 143]]

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, 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,

[[Page 144]]

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 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 the Office of Equal Rights shall be responsible
for coordinating implementation of this section. Complaints may be sent
to Director of the Office of Equal Rights, 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.

[[Page 145]]

    (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 [RESERVED]



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, 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 agreement 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

[[Page 146]]

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.



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.

[[Page 147]]

    (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 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 professional 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:

[[Page 148]]

    (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,


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

[[Page 149]]

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, 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

[[Page 150]]

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 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.

[[Page 151]]

    (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 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

[[Page 152]]

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.
    (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.



      Sec. 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.

[[Page 153]]

            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 154]]



     Sec. Appendix B to Part 18--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC02FE91.075


[[Page 155]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.076


[[Page 156]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.077


[[Page 157]]





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 158]]

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 159]]

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 160]]

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 161]]



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 162]]



                           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 163]]

    (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 164]]

    (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 165]]

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 166]]

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 167]]

    (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 168]]

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 169]]



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 170]]

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 171]]

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 172]]

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 173]]



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. 19.605  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 174]]



              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 Administrator of the Federal Emergency
Management Agency.
    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 175]]

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 Federal Insurance
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

[[Page 176]]

``start 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.
    Eligible community or participating community means a community for
which the Federal Insurance 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 manufactured 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,
and for any machinery, equipment, fixtures, and furnishings contained or
to

[[Page 177]]

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 Federal
Insurance 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 means an official map of a community,
issued by the Federal Insurance 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 Federal Insurance Administrator has delineated
both the special hazard areas and the risk premium zones applicable to
the community. A FIRM that has been made available digitally is called a
Digital Flood Insurance Rate Map (DFIRM).
    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.

[[Page 178]]

    Flood proofing means any combination of structural and non-
structural additions, changes, or adjustments to structures which reduce
or eliminate 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.
    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 179]]

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 180]]

    New 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 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 this is not possible, to reduce the impacts of its noncompliance.
Ways that

[[Page 181]]

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 means those rates established by the Federal
Insurance 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 Federal Insurance 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 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 Coordinating Agency means the agency of the state government
(or other office designated by the Governor of the state or by state
statute) that, at the request of the Federal Insurance Administrator,
assists in the implementation of the National Flood Insurance Program in
that state.
    Storm cellar means a space below grade used to accommodate occupants
of the structure and emergency supplies as a means of temporary shelter

[[Page 182]]

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 Federal Insurance
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 at www.fdsys.gov.

[[Page 183]]



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 Federal Insurance
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 Federal Insurance
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 184]]

    (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 185]]

    (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 Federal Insurance 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 Federal Insurance 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, mudslide (i.e., mudflow) and/or flood-related erosion areas
in order to prevent aggravation of existing hazards;
    (v) Upon occurrence, notify the Federal Insurance 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 boundaries, 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
Federal Insurance 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 Federal
Insurance 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]

[[Page 186]]



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 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 mudslide (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. Sec. 60.4 or 60.5, within six months from the
date the Federal Insurance 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 Federal
Insurance 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 Federal Insurance 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 Federal Insurance 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 Federal Insurance Administrator
receive copies of adequate flood plain management regulations within the
notice period, the suspension notice shall be rescinded by the Federal
Insurance Administrator. If the Federal Insurance 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 Federal Insurance
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 Federal Insurance 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 Federal Insurance Administrator
regards the community's flood plain management program as not compliant
with NFIP criteria. Prior to imposing probation, the Federal Insurance
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

[[Page 187]]

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 violations to the maximum extent possible. If, at the end
of the 90-day period, the Federal Insurance 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 Federal
Insurance Administrator shall grant the community 30 days in which to
show cause why it should not be suspended. The Federal Insurance
Administrator may conduct a hearing, written or oral, before commencing
suspensive action. If a community is to be suspended, the Federal
Insurance 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 Federal Insurance
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 Federal Insurance 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 Federal Insurance 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 Federal Insurance 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

[[Page 188]]

management regulations have been received and approved by the Federal
Insurance Administrator.
    (e) A community eligible for the sale of flood insurance may
withdraw from the Program by submitting to theFederal Insurance
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 Federal
Insurance Administrator shall withdraw the community from the Program
and publish in the Federal Register under 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 Federal Insurance 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 Federal Insurance Administrator shall promptly notify the
servicing company and any insurers issuing flood insurance pursuant to
an arrangement with the Federal Insurance 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 Federal Insurance
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
Federal Insurance Administrator will establish the starting date and the
termination date for implementing the pilot inspection procedure upon
the recommendation of the Regional Administrator. The Regional Director
will consult with each community.
    (2) Extension. TheFederal Insurance Administrator may extend the
implementation of the inspection procedure with a new termination date
upon the

[[Page 189]]

recommendation of the Regional Administrator. The Regional Administrator
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 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 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

[[Page 190]]

and renewal premium payment, the insurer will issue a flood insurance
policy.

[65 FR 39748, June 27, 2000, as amended at 67 FR 10633, Mar. 8, 2002; 74
FR 15339, Apr. 3, 2009]



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.
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 Federal Insurance Administrator.
    (b) This subpart sets forth the criteria developed in accordance
with the Act by which the Federal Insurance 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

[[Page 191]]

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 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 Federal Insurance 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 Federal Insurance 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 Federal Insurance 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 Federal Insurance
Administrator. Without prior approval of the Federal Insurance
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 Federal Insurance Administrator will provide the data upon which
flood plain management regulations shall be based. If the Federal
Insurance 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 Federal
Insurance Administrator. However, when special flood hazard area

[[Page 192]]

designations and water surface elevations have been furnished by the
Federal Insurance 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 Federal Insurance
Administrator. Minimum standards for communities are as follows:
    (a) When the Federal Insurance 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 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 Federal Insurance 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;

[[Page 193]]

    (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 (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 Federal
Insurance 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 Federal Insurance 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 Federal Insurance 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

[[Page 194]]

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 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

[[Page 195]]

    (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 Federal Insurance 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 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 Federal Insurance 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 Federal
Insurance Administrator.
    (e) When the Federal Insurance 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;

[[Page 196]]

    (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 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.

[[Page 197]]


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 Federal Insurance 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:
    (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 at www.fdsys.gov.



Sec. 60.4  Flood plain management criteria for mudslide (i.e.,
mudflow)-prone areas.

    The Federal Insurance Administrator will provide the data upon which
flood plain management regulations shall be based. If the Federal
Insurance 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 Federal
Insurance Administrator. However, when special mudslide (i.e., mudflow)
hazard area designations have been furnished by the Federal Insurance
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 Federal
Insurance Administrator. Minimum standards for communities are as
follows:
    (a) When the Federal Insurance Administrator has not yet identified
any

[[Page 198]]

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
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 Federal Insurance 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 Federal Insurance 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 Federal Insurance Administrator will provide the data upon which
flood plain management regulations for flood-related erosion-prone areas
shall be based. If the Federal Insurance 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 Federal Insurance Administrator. However, when
special flood-related erosion hazard area designations have been
furnished by the Federal Insurance 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 Federal Insurance Administrator. Minimum standards
for communities are as follows:
    (a) When the Federal Insurance Administrator has not yet identified
any area within the community as having

[[Page 199]]

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 Federal Insurance 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 Federal Insurance Administrator according to the
flood-related erosion hazard and erosion 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 Federal Insurance 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 Federal Insurance 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 Federal Insurance 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

[[Page 200]]

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
Federal Insurance 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 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 Federal Insurance 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
Federal Insurance 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 Federal Insurance 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. Notwithstanding the requirements of paragraph (b) of
this section the Federal Insurance 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

[[Page 201]]

    (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;
    (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 structural 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 Federal Insurance Administrator.
    (b) This subpart sets forth the flood plain management criteria
required for State-owned properties located within special hazard areas
identified by the Federal Insurance 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 Federal Insurance 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]

[[Page 202]]



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. Where the State fails to
adequately enforce its flood plain management regulations, the Federal
Insurance 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

[[Page 203]]

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 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 mudslide (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)

[[Page 204]]

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, 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.

[[Page 205]]



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;
    (6) Assist in the delineation of riverine and coastal flood-prone
areas, whenever possible, and provide all relevant technical information
to the Federal Insurance 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 Federal Insurance 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 Federal
Insurance 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 Federal Insurance 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

[[Page 206]]

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
          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 Federal
Insurance 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 Federal Insurance
Administrator for substance and form, and which is subject to
interpretation by the Federal Insurance Administrator as to scope of
coverage pursuant to the applicable statutes and regulations;

[[Page 207]]

    (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
                                                             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]

[[Page 208]]



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.

    (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 Federal Insurance
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 Federal Insurance 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.

[[Page 209]]



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).

    (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.
    (d) Properties that meet the definition of Severe Repetitive Loss
properties as defined in Sec. 79.2(g) of this subchapter, and who
refuse an offer of mitigation pursuant to Sec. 79.7 of this subchapter
are not eligible for the rates identified in paragraphs (a) through (c)
of this section.
    (e) Properties leased from the Federal Government and located either
on the river-facing side of a dike, levee, or other riverine flood
control structure, or seaward of any seawall or other coastal flood
control structure are not eligible for the rates identified in
paragraphs (a) through (c) of this section.

[64 FR 13116, Mar. 17, 1999, as amended at 67 FR 8905, Feb. 27, 2002; 68
FR 15668, Apr. 1, 2003; 72 FR 61737, Oct. 31, 2007]



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

[[Page 210]]

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 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 Federal Insurance
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 Federal Insurance 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

[[Page 211]]

the Federal Insurance 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 Federal Insurance 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 Analysis Division, Mitigation
Directorate, 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 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 Federal Insurance 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 Federal
Insurance 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 Federal Insurance
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 Federal Insurance 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

[[Page 212]]

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 Federal Insurance
Administrator through the issuance of an appropriate amendatory
endorsement, approved by the Federal Insurance 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 Federal Insurance 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 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]



Sec. 61.14  Standard Flood Insurance Policy Interpretations.

    (a) Definition. A Standard Flood Insurance Policy Interpretation is
a written determination by the Federal Insurance 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 Federal
Insurance 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; 74
FR 15340, Apr. 3, 2009]



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

[[Page 213]]

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]



                      Sec. 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,

[[Page 214]]

    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 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.

[[Page 215]]

    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 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;

[[Page 216]]

    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
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:

[[Page 217]]

    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
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

[[Page 218]]

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 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

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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.
    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

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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;
    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.

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    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 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.

[[Page 222]]

                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 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;

[[Page 223]]

    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;
    (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

[[Page 224]]

    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.
    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

[[Page 225]]

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.
    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.

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    h. This paragraph T.2. will be in effect for a community when the
FEMA Regional Administrator 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 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.

[[Page 227]]

                       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.
    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.
                        Administrator, Federal Insurance Administration.

[65 FR 60769, Oct. 12, 2000, as amended at 68 FR 9897, Mar. 3, 2003]

[[Page 228]]



                      Sec. 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 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.

[[Page 229]]

    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 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

[[Page 230]]

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.
    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

[[Page 231]]

    (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. 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.
    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;

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    (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: 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

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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.
    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

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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;
    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;

[[Page 235]]

    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:
    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.

[[Page 236]]

    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 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.

[[Page 237]]

                            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;
    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.

[[Page 238]]

    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 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

[[Page 239]]

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 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,

[[Page 240]]

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 Administrator 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.
    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.
                        Administrator, Federal Insurance Administration.

[65 FR 60778, Oct. 12, 2000, as amended at 68 FR 9897, Mar. 3, 2003; 76
FR 7510, Feb. 10, 2011]

[[Page 241]]



                      Sec. 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
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

[[Page 242]]

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.
    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:

[[Page 243]]

    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.).
    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

[[Page 244]]

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.
    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

[[Page 245]]

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.
    (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

[[Page 246]]

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.
    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,

[[Page 247]]

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:
    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.

[[Page 248]]

                            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).
    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:

[[Page 249]]

    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 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.

[[Page 250]]

    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;
    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;

[[Page 251]]

    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
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.

[[Page 252]]

    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:
    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

[[Page 253]]

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 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.

[[Page 254]]

    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.
    In Witness Whereof, we have signed this policy below and hereby
enter into this Insurance Agreement.
                        Administrator, Federal Insurance Administration.

[65 FR 60785, Oct. 12, 2000, as amended at 68 FR 9897, Mar. 3, 2003]



                      Sec. 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

[[Page 255]]

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]



                      Sec. 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]



                      Sec. 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]

[[Page 256]]



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, Claims Appeals, and Judicial Review

62.20 Claims appeals.
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 Federal Insurance 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.



Sec. 62.3  Servicing agent.

    (a) Pursuant to sections 1345 and 1346 of the Act, the Federal
Insurance 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 Federal Insurance
Administrator and to accept responsibility for delivery of policies and
payment of claims for losses as prescribed by and at the discretion of
the Federal Insurance 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
Federal Insurance 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

[[Page 257]]

to the Federal Insurance 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 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:

------------------------------------------------------------------------
                 Premium amount                   Commissions (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:

------------------------------------------------------------------------
                 Premium amount                   Commissions (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, Claims Appeals, and Judicial Review



Sec. 62.20  Claims appeals.

    (a) Definitions.
    Appeal decision means the disposition of the appeal by the Federal
Insurance Administrator.

[[Page 258]]

    Decision means the insurer's final claim determination, which is the
insurer's written denial, in whole or in part, of the insured's claim.
    (b) Appeal. A National Flood Insurance Program (NFIP) policyholder,
whether insured by a participating Write-Your-Own (WYO) Company or
directly by the Federal Emergency Management Agency (FEMA), may appeal a
decision, including a determination of any insurance agent, adjuster,
insurance company, or any FEMA employee or contractor with respect to a
claim, proof of loss, and loss estimate. In order to file an appeal, the
insured must comply with all requirements set out in the Standard Flood
Insurance Policy (SFIP). This appeals process is available after the
issuance of the insurer's final claim determination, which is the
insurer's written denial, in whole or in part, of the insured's claim.
Once the final claim determination is issued, an insured may appeal any
action taken by the insurer, FEMA employee, FEMA contractor, insurance
adjuster, or insurance agent.
    (c) Limitations on Appeals. The appeals process is intended to
resolve claim issues and is not intended to grant coverage or limits
that are not provided by the SFIP. Filing an appeal does not waive any
of the requirements for perfecting a claim under the SFIP or extend any
of the time limitations set forth in the SFIP.
    (1) Disputes that are or have been subject to appraisal as provided
for in the SFIP cannot be appealed under this section.
    (2) When a policyholder files an appeal on any issue, that issue is
no longer subject to resolution by appraisal or other pre-litigation
remedies.
    (d) Litigation preclusion. An insured who files suit against an
insurer on the flood insurance claim issue is prohibited from filing an
appeal under this section. All appeals submitted for decision but not
yet resolved shall be terminated upon notice of the commencement of
litigation regarding the claim.
    (e) Procedures. To pursue an appeal under this section a
policyholder must:
    (1) Submit a written appeal to FEMA within 60 days from the date of
the decision. The appeal should be sent to: DHS/FEMA, Mitigation
Directorate, Federal Insurance Administrator, 1800 South Bell Street,
Arlington, VA 20598-MS3010;
    (2) Provide a copy of the insurer's written denial, in whole or in
part, of the claim;
    (3) Identify relevant policy and claim information and state the
basis for the appeal; and
    (4) Submit relevant documentation to support the appeal. The
policyholder should submit only the documentation that pertains to his
or her claim. The following are examples of the kinds of documentation
which FEMA will require to adjudicate the appeal: A copy of the proof of
loss submitted to the insurer as required in the policy; room by room
itemized estimates from the adjuster (includes contractors' estimates),
detailing unit cost and quantities for the items needing repair or
replacement; replacement cost proofs of loss; Preliminary Report; Final
Report; detailed damaged personal property inventories that include the
approximate age of the items; completed Mobile Home Worksheet; Mobile
Home Title, including Salvage Titles; real estate appraisals that
exclude land values; advance payment information; clear photographs
(exterior and interior) confirming damage resulted from direct physical
loss by or from flood; proof of prior repair; evidence of insurance and
policy information , i.e. declarations page; Elevation Certificate, if
the risk is an elevated building; the community's determination made
concerning substantial damage; information regarding substantial
improvement; zone determinations; pre-loss and post-loss inventories;
financial statements; tax records, lease agreements, sales contracts,
settlement papers, deed, etc.; emergency (911) address change
information; salvage information (proceeds and sales); condominium
association by-laws; proof of other insurance, including homeowners or
wind policies and any claim information submitted to the other
companies; Waiver, Letter of Map Revision (LOMR) or Letter of Map
Amendment (LOMA) information; paid receipts and invoices including
cancelled checks that support an insured's out-of-pocket

[[Page 259]]

expenses pertaining to the claim; underwriting decisions; architectural
plans and drawings; death certificates; a copy of the will; divorce
decree, power of attorney; current lienholder information; current loss
payee information; paid receipts and invoices documenting damaged stock;
detailed engineering reports specifically addressing flood-related
damage and pre-existing damage; engineering surveys; market values;
documentation of Flood Insurance Rate Maps (FIRM) dates; documentation
reflecting date(s) of construction and substantial improvement; loan
documents including closings; evidence of insurability as a Residential
Condominium Association; Franchise Agreements; letters of
representation, i.e. attorneys and public adjusters; any assignment of
interest in a claim; and, any other pertinent information which FEMA may
request in processing a claim.
    (f) Appeal resolution. (1) FEMA will acknowledge, in writing,
receipt of a policyholder's appeal and include in the acknowledgement
contact information for a FEMA point of contact who can advise the
policyholder as to the status of his or her claim.
    (2) The Federal Insurance Administrator will review the appeal
documents and may notify the policyholder in writing of the need for
additional information. A request for the additional information will
include the date by which the information must be provided, and shall in
no case be less than 14 calendar days. Failure to provide the requested
information in full, or to request an extension by the due date, may
result in a dismissal of the appeal. A re-inspection of the
policyholder's property may be conducted at the discretion of the
Federal Insurance Administrator to gather more information. The Federal
Insurance Administrator will ensure that all information necessary to
rule on the appeal has been provided prior to making an appeal decision.
    (3) The Federal Insurance Administrator will review the appeal
documents, including any reinspection report, if appropriate. The
Federal Insurance Administrator will provide specific information on
what grounds the claim was denied initially. The Federal Insurance
Administrator will provide an appeal decision in writing to the
policyholder and insurer within 90 days from the date that all
information has been submitted by the policyholder and include specific
information for the resolution of the appeal. No further administrative
review will be provided to the insured.
    (4) A policyholder who does not agree with FEMA's appeal decision
should refer to the SFIP, for options for further action (see Part 61,
App. A(1) VII.R., Part 61, App. A(2) VII.R., and Part 61, App. A(3)
VIII.R.). The one-year period to file suit commences with the written
denial from the insurer and is not extended by the appeals process.

[71 FR 30298, May 26, 2006, as amended at 71 FR 60438, Oct. 13, 2006; 74
FR 56123, Oct. 30, 2009]



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

[[Page 260]]

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 the Administrator of FEMA 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 Federal Insurance
Administrator may enter into arrangements with individual private sector
property insurance companies or other insurers, such as public entity
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
Federal Insurance Administrator under the Act.
    (f) To facilitate the marketing of flood insurance coverage under
the Program to policyholders of WYO Companies, the Federal Insurance
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 Federal Insurance Administrator has established ``A Plan to Maintain
Financial Control for Business Written Under the Write Your

[[Page 261]]

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 Federal
Insurance 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.
    (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 Federal
Insurance 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.

[[Page 262]]

    (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.
    (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 Chief Counsel (OCC), will forward
the cause of action to OCC 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 Chief 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

[[Page 263]]

(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 Chief Financial Officer 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 DHS'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 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 Federal Insurance
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

[[Page 264]]

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.

[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; 74 FR 15341, Apr.
3, 2009]



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

[[Page 265]]

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 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]



Sec. 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

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    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 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 Federal Insurance 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 Federal Insurance Administrator in accordance with the Act.
    3. All such policies of insurance shall conform to the regulations
prescribed by the Federal Insurance Administrator pursuant to the Act,
and be issued on a form approved by the Federal Insurance 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 Federal Insurance
Administrator and only where the Company is licensed by State

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law to engage in the property insurance business.
    5. The Federal Insurance 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.
    3. The Company shall notify its agents of the requirement to comply
with State regulations regarding flood insurance agent education, notify
agents of flood insurance training opportunities, and assist FEMA in
periodic assessment of agent training needs.

 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 Federal Insurance 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 expense shall be reimbursed to the
Company pursuant to a ``ULAE Schedule'' coordinated with the Company and
provided by the Federal Insurance Administrator.
    2. Allocated loss adjustment expense shall be reimbursed to the
Company pursuant to a ``Fee Schedule'' coordinated with the Company and
provided by the Federal Insurance Administrator.
    3. Special allocated loss expenses shall be reimbursed to the
Company in accordance with guidelines issued by the Federal Insurance
Administrator.
    D. Loss Payments.

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    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 Federal Insurance
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 Chief Counsel (``OCC'') 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 OCC shall make
a recommendation to the Federal Insurance Administrator regarding
whether all or part of the litigation is significantly outside the scope
of the Arrangement.
    b. In the event the Federal Insurance Administrator agrees with the
determination of the FEMA OCC under Article III, Section D.3.a then the
Company will be notified in writing within thirty (30) days of the
Federal Insurance 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 FEMA OCC shall make a recommendation to the Federal
Insurance 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 Federal
Insurance 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 Federal Insurance Administrator. The Federal
Insurance 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.

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                 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 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.

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              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. In the event that adequate Letter of
Credit funding is not available to meet current Company obligations for
flood policy claim payments issued, FIA shall direct the Company to
immediately suspend the issuance of loss payments until such time as
adequate funds are available. The Companies are not required to pay
claims from their own funds in the event of such suspension.
    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 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

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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 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 Federal Insurance 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.

[[Page 272]]

 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; 73 FR 18187, 18188, Apr. 3, 2008]



      Sec. 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 Federal Insurance 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 Federal Insurance Administrator. The Standards Committee
will review and recommend to the Federal Insurance 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.

[[Page 273]]

    (2) The Federal Insurance Administrator appoints the members of the
Standards Committee, which consists of five (5) members from FIA, one
(1) member from FEMA's Office of Chief Financial Officer, 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 DHS'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:
    (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 Federal Insurance
          Administrator.
63.17 Procedures and data requirements for imminent collapse
          certifications by States.

[[Page 274]]

63.18 Review of State certification by the Federal Insurance
          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 Federal Insurance 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 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 Federal
Insurance 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

[[Page 275]]

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.



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

[[Page 276]]

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 Federal
Insurance 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 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 Federal Insurance
Administrator.

    (a) The Federal Insurance 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 Federal Insurance
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.

[[Page 277]]

    (c) Upon determining that the State program and data base meets the
criteria set forth in Sec. 63.14, the Federal Insurance Administrator
shall approve the State as eligible to certify structures subject to
imminent collapse. Such approval, however, is in all cases provisional.
The Federal Insurance 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 Federal Insurance 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 Federal
Insurance 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 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

[[Page 278]]

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 Federal Insurance
Administrator.

    The Federal Insurance 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.



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, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 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 Federal Insurance 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 Federal Insurance
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

[[Page 279]]

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 Federal Insurance
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
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
Federal Insurance 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]

[[Page 280]]

    (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-acquired area the requirements of Sec. 60.3(b) of this
subchapter. During the six 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 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
Federal Insurance 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.

[[Page 281]]

    (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 Federal Insurance 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 at www.fdsys.gov.



PART 65_IDENTIFICATION AND MAPPING OF SPECIAL HAZARD AREAS--Table of
Contents



Sec.
65.1 Purpose of part.
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.
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 Administrator to identify and publish
information with respect to all areas within the United States having
special flood,

[[Page 282]]

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 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 at www.fdsys.gov.



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

[[Page 283]]

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 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)

[[Page 284]]

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 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

[[Page 285]]

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 Federal Insurance 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 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.

[[Page 286]]

    (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.
    (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

[[Page 287]]

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
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,

[[Page 288]]

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 Federal Insurance 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 Federal Insurance 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 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
Federal Insurance 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

[[Page 289]]

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.
    (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

[[Page 290]]

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 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

[[Page 291]]

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]



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 Federal Insurance 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;

[[Page 292]]

    (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 Federal Insurance Administrator's
conditional approval of map change and prior to approving the proposed
encroachments, a community shall provide evidence to the Federal
Insurance 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 Federal Insurance 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 Federal Insurance 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 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.

[[Page 293]]

    (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 sources
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.

[54 FR 33551, Aug. 15, 1989, as amended at 74 FR 15342, Apr. 3, 2009]



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 Federal Insurance 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 Federal Insurance 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 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.

[[Page 294]]

    (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 Federal Insurance 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 Federal
Insurance 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
Federal Insurance 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 Federal
Insurance 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:
    (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.

[[Page 295]]

    (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 Federal Insurance Administrator. The
review and response by the Federal Insurance 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 any permitting or construction problems that will delay the
project completion from the restoration plan previously submitted to the
Federal Insurance Administrator. The FEMA Regional Office having
jurisdiction will make an annual assessment and recommendation to the
Federal Insurance 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.

[[Page 296]]

    (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 Federal Insurance 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 Federal
Insurance 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 Federal Insurance
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 Federal
Insurance 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 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 at www.fdsys.gov.



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

[[Page 297]]

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.
    (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]

[[Page 298]]



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 Federal Insurance 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 Federal
Insurance 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 Federal Insurance Administrator shall be placed in
the community file. Even if a map is administratively rescinded or
withdrawn after notice under part 65 of 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 Federal Insurance 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
Federal Insurance 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]

[[Page 299]]



Sec. 66.4  Appointment of consultation coordination officer.

    The Federal Insurance 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 Federal Insurance Administrator, the responsibilities for
consultation and coordination as set forth in Sec. 66.5 shall be
carried out by the CCO. The Federal Insurance 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 Federal Insurance 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 Regional Administrator 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]



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.

[[Page 300]]



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 Federal Insurance 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 Federal
Insurance Administrator from the CEO;
    (f) Copies of all comments received by the Federal Insurance
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 Federal Insurance 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 at
www.fdsys.gov.



Sec. 67.5  Right of appeal.

    (a) Any owner or lessee of real property, within a community where a
proposed flood elevation determination 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 Federal
Insurance 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 Federal Insurance 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

[[Page 301]]

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
Federal Insurance 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
Federal Insurance Administrator's findings.
    (b) Copies of all individual appeals received by the CEO shall be
forwarded, as soon as they are received, to the Federal Insurance
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 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 Federal Insurance Administrator not later than ninety
days after the date of the second newspaper publication of the Federal
Insurance 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 Federal Insurance Administrator

[[Page 302]]

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 Federal Insurance 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 Federal Insurance 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 Federal Insurance 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 Federal Insurance 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 Federal Insurance 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 at www.fdsys.gov.



Sec. 67.12  Appeal to District Court.

    (a) An appellant aggrieved by the final determination of the Federal
Insurance 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 Federal Insurance 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]

[[Page 303]]



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 Federal Insurance 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 Federal Insurance Administrator's flood
elevation determination established pursuant to Sec. 67.8 of this
subchapter, and the Federal Insurance 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 Federal
Insurance 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 Administrator 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 Administrator will appoint an alternate Judge
if the appointed Judge becomes unavailable.



Sec. 68.5  Establishment of a docket.

    The Chief Counsel shall establish a docket for appeals referred to
him/her by the Federal Insurance 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 Federal Insurance Administrator and the
Chief Counsel shall be promptly advised of such designations.

[[Page 304]]

    (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 Federal Insurance Administrator shall be represented by the
Chief Counsel or his/her designee.
    (c) One administrative hearing shall be held for any one community
unless the Federal Insurance 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 Federal
Insurance 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.



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 Administrator for review and
approval. The Administrator 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]

[[Page 305]]



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 Administrator.
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 Federal Insurance 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 Federal Insurance Administrator for the Federal
Insurance 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 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;

[[Page 306]]

    (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 Administrator.

    The Administrator, 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 Federal
Insurance 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]



Sec. 70.7  Notice of Letter of Map Amendment.

    (a) The Federal Insurance 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

[[Page 307]]

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 at
www.fdsys.gov.



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 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

[[Page 308]]

    (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 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]

[[Page 309]]



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
    (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 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

[[Page 310]]

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 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

[[Page 311]]

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.

[48 FR 37039, Aug. 16, 1983, as amended at 57 FR 22662, May 29, 1992; 74
FR 15343, Apr. 3, 2009]



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.
    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,

[[Page 312]]

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 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

[[Page 313]]

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 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.

[[Page 314]]

    (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 Federal Insurance 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 finding by the Federal Insurance Administrator of a valid
declaration of a violation.
    (c) States and communities shall determine whether to submit a
declaration to the Federal Insurance 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

[[Page 315]]

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 Federal Insurance Administrator of a valid rescission of
a declaration of a violation.
    (b) A valid rescission shall be submitted to the Federal Insurance
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 Federal Insurance Administrator.
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 Federal Insurance 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 Federal
Insurance 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 of self-
insurance is adequate and equals or exceeds the standards provided in
this part.

[[Page 316]]



                    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
Federal Insurance 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 Federal
Insurance 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
Federal Insurance 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 Federal Insurance 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 Federal Insurance 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 contents based upon incurred losses for

[[Page 317]]

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 Federal Insurance 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 Federal Insurance Administrator.

    (a) The Federal Insurance 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 Federal Insurance 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
Federal Insurance 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 Federal Insurance 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
Federal Insurance 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 Federal Insurance
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 Federal Insurance 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 Federal
Insurance 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 318]]



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: 6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C. 4104c,
4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O.
12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619,
3 CFR, 2003 Comp., p. 166.

    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. The rules in
this part apply to the administration of funds awarded under the FMA
program for which the application period opened prior to December 3,
2007. On or after that date, the administration of funds awarded under
FMA program shall be subject to the rules in part 79 of this subchapter.
    (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 insured
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.

[62 FR 13347, Mar. 20, 1997, as amended at 72 FR 61552, 61738, Oct. 31,
2007]



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 Administrator will allocate available funds to each
FEMA Region. The FEMA Regional Administrator 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:

[[Page 319]]

    (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 Administrator for approval;
    (4) Evaluate project applications, selecting projects to forward to
the FEMA Regional Administrator for final approval; and
    (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 part 13, 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.

[62 FR 13347, Mar. 20, 1997, as amended at 74 FR 15343, Apr. 3, 2009]



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 Administrator , 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 Administrator for approval. The Regional Administrator will
notify the State POC of the approval or disapproval of the plan within
120 days after submission. If the Regional Administrator does not
approve a mitigation plan, the Regional Administrator 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 Administrator 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

[[Page 320]]

criteria as the Administrator 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.
    (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 Administrator 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.

[[Page 321]]

    (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. 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 part 13.
    (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.

[62 FR 13347, Mar. 20, 1997, as amended at 74 FR 15343, Apr. 3, 2009]



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 Administrator . If a Governor chooses not
to identify a POC to coordinate the FMA, communities may also submit
plans and applications to the FEMA Regional Administrator.



PART 79_FLOOD MITIGATION GRANTS--Table of Contents



Sec.
79.1 Purpose.
79.2 Definitions.
79.3 Responsibilities.
79.4 Availability of funding.
79.5 Application process.
79.6 Eligibility.
79.7 Offers and appeals under the SRL program.
79.8 Allowable costs.
79.9 Grant administration.

    Authority: 6 U.S.C. 101; 42 U.S.C. 4001 et seq.; 42 U.S.C. 4104c,
4104d; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O.
12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619,
3 CFR, 2003 Comp., p. 166.

    Source: 72 FR 61738, Oct. 31, 2007, unless otherwise noted.



Sec. 79.1  Purpose.

    (a) The purpose of this part is to prescribe actions, procedures,
and requirements for administration of the hazard mitigation grant
programs made available under the National Flood Insurance Act of 1968,
as amended, and the Flood Disaster Protection Act of 1973, as amended,
42 U.S.C. 4001 et seq. The Severe Repetitive Loss (SRL) and Flood
Mitigation Assistance (FMA) grant programs mitigate losses from floods,
minimizing impacts to the National Flood Insurance Fund (NFIF). The
rules in this part apply to the administration of funds under the SRL
and FMA programs for which the application period opens on or after
December 3, 2007. Prior to this date, the administration of funds under
the FMA program shall be subject to the rules in part 78 of this
subchapter.
    (b) The purpose of the SRL program is to:
    (1) Assist State and local governments in funding actions that
reduce or eliminate the risk of flood damage to residential properties
insured under the National Flood Insurance Program (NFIP) that meet the
definition of severe repetitive loss property;

[[Page 322]]

    (2) Reduce the need to increase flood insurance premiums of NFIP
policyholders that would otherwise be required to pay for potential
future repetitive claims associated with severe repetitive loss
properties; and
    (3) Reduce loss of life, property damage, outlays for the NFIF, and
Federal disaster assistance by reducing or eliminating the risk of flood
damage to those insured properties that have historically experienced
the most severe flood losses.
    (c) The purpose of the FMA program is to assist State and local
governments in funding cost-effective actions that reduce or eliminate
the risk of flood damage to buildings, manufactured homes, and other
structures insured under the NFIP.



Sec. 79.2  Definitions.

    (a) Except as otherwise provided in this part, the definitions set
forth in section 59.1 of this subchapter are applicable to this part.
    (b) Applicant is the State or Indian tribal government applying to
FEMA for a grant, and which will be accountable for the use of the
funds.
    (c) Community means:
    (1) A political subdivision, including any Indian Tribe, authorized
Tribal organization, Alaska Native village or authorized native
organization, that has zoning and building code jurisdiction over a
particular area having special flood hazards, and is participating in
the NFIP; or
    (2) A political subdivision of a State, or other authority that is
designated by a political subdivision to develop and administer a
mitigation plan.
    (d) Grantee means the State or Indian tribal government to which
FEMA awards a grant and which is accountable for the use of the funds
provided. The grantee is the entire legal entity, even if only a
particular component of the entity is designated in the grant award
document.
    (e) 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
Indian 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.
    (f) Market Value is generally defined as the amount in cash, or on
terms reasonably equivalent to cash, for which in all probability the
property would have sold on the effective date of the valuation, after a
reasonable exposure time on the open competitive market, from a willing
and reasonably knowledgeable seller to a willing and reasonably
knowledgeable buyer, with neither acting under any compulsion to buy or
sell, giving due consideration to all available economic uses of the
property at the time of the valuation.
    (g) Multifamily Property means a property consisting of 5 or more
residences.
    (h) Severe Repetitive Loss Properties are defined as single or
multifamily residential properties that are covered under an NFIP flood
insurance policy and:
    (1) That have incurred flood-related damage for which 4 or more
separate claims payments have been made, with the amount of each claim
(including building and contents payments) exceeding $5,000, and with
the cumulative amount of such claims payments exceeding $20,000; or
    (2) For which at least 2 separate claims payments (building payments
only) have been made under such coverage, with cumulative amount of such
claims exceeding the market value of the building.
    (3) In both instances, at least 2 of the claims must be within 10
years of each other, and claims made within 10 days of each other will
be counted as 1 claim.
    (i) Subapplicant means a State agency, community, or Indian tribal
government submitting an application for planning or project activity to
the applicant for assistance under the FMA or SRL programs. Upon grant
award, the subapplicant is referred to as the subgrantee.
    (j) Subgrant means an award of financial assistance made under a
grantee to an eligible subgrantee.
    (k) Subgrantee means the State agency, community, or Indian tribal
government or other legal entity to which

[[Page 323]]

a subgrant is awarded and which is accountable to the grantee for the
use of the funds provided.
    (l) Administrator means the head of the Federal Emergency Management
Agency, or his/her designated representative.
    (m) Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated representative.

[72 FR 61738, Oct. 31, 2007, as amended at 74 FR 47480, Sept. 16, 2009]



Sec. 79.3  Responsibilities.

    (a) Federal Emergency Management Agency (FEMA). Administer and
provide oversight to all FEMA-related hazard mitigation programs and
grants, including:
    (1) Issue program implementation procedures, as necessary, which
will include information on availability of funding;
    (2) Allocate funds to States for the FMA and for the SRL programs;
    (3) Award all grants to the grantee after evaluating subgrant
applications for eligibility and ensuring compliance with applicable
Federal laws, giving priority to such properties, or to the subset of
such properties, as the Administrator may determine are in the best
interest of the NFIF;
    (4) Provide technical assistance and training to State, local and
Indian tribal governments regarding the mitigation and grants management
process;
    (5) Review and approve State, Indian tribal, and local mitigation
plans in accordance with part 201 of this chapter;
    (6) Comply with applicable Federal statutory, regulatory, and
Executive Order requirements related to environmental and historic
preservation compliance, including reviewing and supplementing, if
necessary, the environmental analyses conducted by the State and
subgrantee in accordance with part 10 of this chapter;
    (7) Establish and maintain an updated list of SRL properties and
make such information available to States and communities; and
    (8) Notify owners of SRL properties that their properties meet the
definition of a severe repetitive loss property and provide a summary of
the opportunities and implications of being identified as such.
    (b) State. The State will serve as the applicant and grantee through
a single Point of Contact (POC) for the FMA and SRL programs. The POC is
a State agency that must have working knowledge of NFIP goals,
requirements, and processes and ensure that the programs are coordinated
with other mitigation activities at the State level. States will:
    (1) Have a FEMA approved Mitigation Plan in accordance with part 201
of this chapter;
    (2) Review and submit local mitigation plans to the FEMA Regional
Administrator for final review and approval;
    (3) Provide technical assistance and training to communities on
mitigation planning, mitigation project activities, developing subgrant
applications, and implementing approved subgrants;
    (4) Prioritize and recommend subgrant applications to be approved by
FEMA, based on the State Mitigation Plan, other State evaluation
criteria and the eligibility criteria described in Sec. 79.6;
    (5) Award FEMA-approved subgrants; and
    (6) Comply with program requirements under this part, grant
management requirements identified under part 13 of this chapter, the
grant agreement articles, and other applicable Federal, State, tribal
and local laws and regulations.
    (c) Indian tribal governments. The Indian tribal government will
coordinate all tribal activities relating to hazard evaluation and
mitigation including:
    (1) Have a FEMA approved Tribal Mitigation Plan in accordance with
Sec. 201.7 of this chapter;
    (2) A Federally Recognized Indian tribal government as defined by
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a,
applying directly to FEMA for mitigation grant funding will assume the
responsibilities of the ``State'' as the term is used in this part, as
applicant or grantee, described in paragraphs (b)(3) through (6) of this
section; and
    (3) A Federally Recognized Indian tribal government as defined by
the Federally Recognized Indian Tribe List

[[Page 324]]

Act of 1994, 25 U.S.C. 479a, applying through the State, will assume the
responsibilities of the community (as the subapplicant or subgrantee)
described in paragraphs (d)(2) through (4) of this section.
    (d) Community. The community (referred to as both subapplicant and
subgrantee) will:
    (1) Prepare and submit a FEMA-approved Local Mitigation Plan,
consistent with the requirements of part 201 of this chapter;
    (2) Complete and submit subgrant applications to the State POC for
FMA planning, project and management cost subgrants, and for SRL project
and management cost subgrants;
    (3) Implement all approved subgrants; notifying each holder of a
recorded interest in severe repetitive loss properties when an offer of
mitigation assistance has been made under the SRL program, and when such
offer has been refused; and
    (4) Comply with program requirements under this part, grant
management requirements identified under part 13 of this chapter, the
grant agreement articles, and other applicable Federal, State, tribal
and local laws and regulations.



Sec. 79.4  Availability of funding.

    (a) Allocation. (1) For the amount made available for the SRL
program, the Administrator will allocate the available funds to States
each fiscal year based upon the percentage of the total number of severe
repetitive loss properties located within that State. Ten percent of the
total funds made available in any fiscal year will be made available to
States and Indian tribal applicants that have at least 1 SRL property
and that receive little or no allocation.
    (2) For the amount made available for the FMA program, the
Administrator will allocate the available funds each fiscal year. Funds
will be distributed based upon the number of NFIP policies, repetitive
loss structures, and any other such criteria as the Administrator may
determine are in the best interests of the NFIF.
    (i) A maximum of 7.5 percent of the amount made available in any
fiscal year may be allocated for FMA planning grants nationally. A
planning grant will not be awarded to a State or community more than
once every 5 years, and an individual planning grant will not exceed
$150,000 to any State agency applicant, or $50,000 to any community
subapplicant. The total planning grant made in any fiscal year to any
State, including all communities located in the State, will not exceed
$300,000.
    (ii) The total amount of FMA project grant funds provided during any
5-year period will not exceed $10,000,000 to any State agency(s) or
$3,300,000 to any community. The total amount of project grant funds
provided to any State, including all communities located in the State
will not exceed $20,000,000 during any 5-year period. The Administrator
may waive the limits of this subsection for any 5-year period when a
major disaster or emergency is declared pursuant to the Robert T.
Stafford Disaster Relief and Emergency Assistance Act for flood
conditions.
    (b) Redistribution. Funds allocated to States who choose not to
participate in either the FMA or SRL program in any given year will be
reallocated to participating States and Indian tribal applicants. Any
funds allocated to a State, and the communities within the State, which
have not been obligated within the timeframes established by the
Administrator, shall be redistributed by the Administrator to other
States and communities to carry out eligible activities in accordance
with this part.
    (c) Cost Share. All mitigation activities approved under the grant
will be subject to the following cost-share provisions:
    (1) FEMA may contribute up to 75 percent of the eligible cost of
activities for grants approved for funding; or
    (2) FEMA may contribute up to 90 percent of the cost of the eligible
activities for each severe repetitive loss property for which grant
amounts are provided if the applicant has an approved Mitigation Plan
meeting the repetitive loss requirements identified in Sec.
201.4(c)(3)(v) or Sec. 201.7(c)(3)(vi) of this chapter, as applicable,
at the time the project application is submitted;

[[Page 325]]

    (3) For the FMA program only, of the non-Federal contribution, not
more than one half will be provided from in-kind contributions.

[72 FR 61738, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009]



Sec. 79.5  Application process.

    (a) Applicant or grantee. (1) States will be notified of the amount
allocated to them for the SRL and FMA programs each fiscal year, along
with the application timeframes.
    (2) The State will be responsible for soliciting applications from
eligible communities, or subapplicants, and for reviewing and
prioritizing applications prior to forwarding them to FEMA for review
and award.
    (3) Participation in these flood mitigation grant programs is
voluntary, and States may elect not to participate in either the SRL or
FMA program in any fiscal year without compromising their eligibility in
future years.
    (4) Indian tribal governments interested in applying directly to
FEMA for either the FMA or SRL program grants should contact the
appropriate FEMA Regional Administrator for application information.
    (b) Subapplicant or subgrantee. Participation in the SRL and the FMA
program is voluntary, and communities may elect not to apply.
Communities or other subapplicants who choose to apply must develop
applications within the timeframes and requirements established by FEMA
and must submit applications to the State.



Sec. 79.6  Eligibility.

    (a) Eligible applicants and subapplicants. (1) States, Indian tribal
governments, and communities participating in the NFIP may apply for FMA
planning and project grants and associated management costs.
    (2) States, Indian tribal governments, and communities participating
in the NFIP may apply for SRL project grants and associated management
costs.
    (3) Communities withdrawn, suspended, or not participating under
part 60 of this subchapter of the NFIP are not eligible for either the
FMA or SRL programs.
    (b) Plan requirement. (1) States must have an approved State
Mitigation Plan meeting the requirements of Sec. Sec. 201.4 or 201.5 of
this chapter in order to apply for grants through the FMA or SRL
programs. Indian Tribal governments must have an approved plan meeting
the requirements of Sec. 201.7 of this chapter at the time of
application.
    (2) In order to be eligible for FMA and SRL project grants,
subapplicants must have an approved mitigation plan at the time of
application in accordance with part 201 of this chapter that, at a
minimum, addresses flood hazards.
    (c) Eligible activities. (1) Planning. FMA planning grants may be
used to develop or update State, Indian tribal and/or local mitigation
plans which meet the planning criteria outlined in part 201 of this
chapter. FMA planning grants are limited to those activities necessary
to develop or update the flood portion of any mitigation plan. Planning
grants are not eligible for funding under the SRL program.
    (2) Projects. Projects funded under the SRL program are limited to
those activities that specifically reduce or eliminate flood damages to
severe repetitive loss properties. Projects funded under the FMA program
are limited to activities that reduce flood damages to properties
insured under the NFIP. For either program, applications involving any
activities for which implementation has already been initiated or
completed are not eligible for funding, and will not be considered.
Eligible activities are:
    (i) Acquisition of real property from property owners, and
demolition or relocation of buildings and/or structures to areas outside
of the floodplain to convert the property to open space use in
perpetuity, in accordance with part 80 of this subchapter;
    (ii) Elevation of existing structures to at least base flood levels
or higher, if required by FEMA or if required by any State or local
ordinance, and in accordance with criteria established by the
Administrator;
    (iii) Floodproofing of existing non-residential structures in
accordance with the requirements of the NFIP or higher standards if
required by FEMA

[[Page 326]]

or if required by any State or local ordinance, and in accordance with
criteria established by the Administrator;
    (iv) Floodproofing of historic structures as defined in Sec. 59.1
of this subchapter;
    (v) For SRL only, demolition and rebuilding of properties to at
least base flood levels or higher, if required by FEMA or if required by
any State or local ordinance, and in accordance with criteria
established by the Administrator; and
    (vi) Minor physical localized flood reduction measures that lessen
the frequency or severity of flooding and decrease predicted flood
damages, and that do not duplicate the flood prevention activities of
other Federal agencies. Major flood control projects such as dikes,
levees, floodwalls, seawalls, groins, jetties, dams and large-scale
waterway channelization projects are not eligible.
    (d) Minimum project criteria. In addition to being an eligible
project type, mitigation grant projects must also:
    (1) Be in conformance with mitigation plans approved under part 201
of this chapter for the State and community where the project is
located;
    (2) Be in conformance with part 9 of this chapter, Floodplain
management and protection of wetlands, part 10 of this chapter,
Environmental considerations, Sec. 60.3 of this subchapter, Flood plain
management criteria for flood-prone areas, and other applicable Federal,
State, tribal, and local laws and regulations;
    (3) Be technically feasible;
    (4) Solve a problem independently, or constitute a functional
portion of a long-term solution where there is assurance that the
project as a whole will be completed. This assurance will include
documentation identifying the remaining funds necessary to complete the
project, and the timeframe for completing the project;
    (5) Be cost-effective and reduce the risk of future flood damage;
    (6) Consider long-term changes to the areas and entities it
protects, and have manageable future maintenance and modification
requirements. The subgrantee is responsible for the continued
maintenance needed to preserve the hazard mitigation benefits of these
measures; and
    (7) Not duplicate benefits available from another source for the
same purpose or assistance that another Federal agency or program has
more primary authority to provide.

[72 FR 61738, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009]



Sec. 79.7  Offers and appeals under the SRL program.

    (a) Consultation. States and communities shall consult, to the
extent practicable, and in accordance with criteria determined by the
Administrator, with owners of the severe repetitive loss properties to
select the most appropriate eligible mitigation activity. These
consultations shall be initiated in the early stages of the project
development, and shall continue throughout the process. After FEMA
awards the project grant, the subgrantee shall continue to consult with
the property owners to determine the specific conditions of the offer.
    (b) Mitigation offer. After FEMA awards the grant and the subgrantee
completes final consultations with the property owners, the subgrantee
shall develop and present official offers to the property owners
participating in the mitigation activities.
    (1) The offer shall include all pertinent information regarding the
mitigation activity, including a detailed description of the activity
(e.g. property acquisition, elevation), the responsibilities of and
benefits to the property owner, a summary of the consultation process,
timeframes, and the consequences of refusing such offer. For open space
acquisitions, it will also include the market value of the property, the
basis for the purchase offer, and the final offer amount. The offer will
also clearly state that the property owner's participation in the SRL
program is voluntary.
    (2) The subgrantee will send the written offer to the property
owner's current mailing address as a certified letter, along with a copy
to the appropriate FEMA Regional Administrator. In addition, the
subgrantee will notify each holder of a recorded interest on the
property when such offer is extended, along with the identification of

[[Page 327]]

the mitigation assistance being offered.
    (3) The property owner will have 45 days from the date of the letter
to accept or refuse the offer of mitigation assistance in writing.
Failure to respond in writing within this time period will be deemed a
refusal of the offer.
    (c) Insurance increases due to refusal of offer. In any case in
which the property owner refuses an offer of mitigation assistance made
through the SRL program, the Administrator shall provide written notice
that the chargeable insurance rates with respect to the property will
increase effective on the next renewal of the policy.
    (1) The chargeable insurance premium rate shall be increased to the
amount equal to 150 percent of the chargeable rate for the property at
the time that the offer was made, as adjusted by any other premium
adjustments otherwise applicable to the property. Each time there is
another claim payment in excess of $1,500, the chargeable premium rate
for that property shall be the amount equal to 150 percent over the
chargeable rate at the time of every such claim, as adjusted by any
other premium adjustments otherwise applicable to the property. The
increases shall end when the actuarial rate is reached.
    (2) Upon each renewal or modification of the flood insurance
coverage, the property owner will be able to accept the original
mitigation offer, if the community, through the State, forwards the
request to FEMA, and if sufficient funds are available.
    (d) Appeals of insurance rate increases. Any owner of a severe
repetitive loss property may appeal the decision to increase the
chargeable insurance premium rate as described in paragraph (c) of this
section by submitting a written appeal, including supporting
documentation that is postmarked or delivered to the appropriate FEMA
Regional Administrator within 90 days of the date of the notice of the
insurance increase. The increase in the amount of chargeable premium
rate for flood insurance coverage for the property will be suspended
pending the outcome of the appeal.
    (1) Appeals must be based upon one or more of the following grounds.
The property owner must include documentation to support each ground
serving as a basis for the appeal:
    (i) The offered mitigation activity is an acquisition and the
property owner would be unable to purchase a replacement of the primary
residence that is of comparable value and that is functionally
equivalent. The property owner must document the actions taken to locate
such replacement dwelling and demonstrate that no such dwelling is
available.
    (ii)(A) The amount of Federal funds offered for a mitigation
activity, when combined with funds from the required non-Federal
sources, would not cover the actual eligible costs of the mitigation
activity contained in the mitigation offer, based on independent
information. In the case of an acquisition, the purchase offer is not an
accurate estimation of the market value of the property, based on
independent information.
    (B) For a mitigation activity other than acquisition, the property
owner must submit independent estimates from professional engineers or
registered architects to support this claim. For an acquisition, the
property owner must submit an appraisal from a qualified appraiser to
support this claim, and valuations will be considered by a review
appraiser.
    (iii) The offered mitigation activity would diminish the integrity
of a historic district, site, building, or object's significant historic
characteristics to the extent where the historic resource would lose its
status as listed or eligible for inclusion on the National Register of
Historic Places. The property owner must submit appropriate
documentation from the State Historic Preservation Officer/Tribal
Historic Preservation Officer to support this claim.
    (iv) For a multifamily property: Each of the flood insurance claims
payments that served as the basis for its designation as a severe
repetitive loss property must have resulted directly from the actions of
a third party in violation of Federal, State, or local law, ordinance,
or regulation. The property owner(s)

[[Page 328]]

must submit appropriate evidence, documentation, or data to support this
claim.
    (v) The property owner relied upon FEMA Flood Insurance Rate Maps
(FIRMs) that were current at the time the property was purchased, and
the effective FIRM and associated Flood Insurance Study (FIS) did not
indicate that the property was located in an area having special flood
hazards. The property owner must produce the dated FIRM and FIS in
effect at the time the property was purchased to support this claim.
    (vi) An alternative mitigation activity would be at least as cost
effective as the offered mitigation activity. The property owner must
submit documentation of the costs for a technically feasible and
eligible alternative mitigation activity based on estimates from
qualified appraisers, professional engineers, or registered architects,
and information and documentation demonstrating the cost effectiveness
using a FEMA approved methodology to support this claim.
    (2) The FEMA Regional Administrator will conduct an initial review
of each appeal that is filed on a timely basis to determine if the
appeal complies with this section and includes sufficient documentation
to be evaluated. The Regional Administrator may reject an appeal on
initial review if it is made on a basis other than those listed in
paragraph (d)(1) of this section; if the property owner does not provide
sufficient documentation, including, if applicable, supplemental
information requested by the Regional Administrator by the deadline
established by the Regional Administrator, which shall not exceed the
timeframe described in paragraph (d) of this section; or if the appeal
otherwise fails to comply with this section.
    (3) If, upon initial review, the Regional Administrator determines
that the basis for the offered mitigation activity was erroneous on its
face and the appeal can be resolved in favor of the property owner, the
appeal will be closed and no insurance increase will apply to the
property. All other cases will be referred to the Administrator for
assignment to an independent third party for review. The independent
third party shall make a final determination on each appeal within 90
days of the date on which FEMA receives the appeal. As a low cost
option, the property owner may request that the Administrator substitute
a reviewer from FEMA's Alternative Dispute Resolution Office for the
independent third party.
    (4) A property owner who brings an appeal will be responsible for
paying his/her attorneys' fees and costs to gather the necessary
documentation and data to demonstrate the ground(s) for the appeal.
Attorneys' fees and costs cannot be awarded by the independent third
party.
    (5) If the property owner prevails on appeal, the independent third
party shall require the Administrator to charge the risk premium rate
for flood insurance coverage of the property at the amount paid prior to
the mitigation offer, as adjusted by any other premium adjustments
otherwise applicable to the property. If the independent third party
hearing the appeal is compensated for such service, the NFIF shall bear
the costs of such compensation.
    (6) If the property owner loses the appeal, the Administrator shall
promptly increase the chargeable risk premium rate for flood insurance
coverage of the property to the amount established pursuant to paragraph
(c) of this section, and shall collect from the property owner the
amount necessary to cover the stay of the applicability of such
increased rates while the appeal was pending. If FEMA does not receive
the additional premium by the date it is due, the amount of coverage
will be reduced to match the amount of premium payment received. If the
independent third party hearing the appeal is compensated for such
service, the property owner shall bear the costs of such compensation.



Sec. 79.8  Allowable costs.

    (a) General. General policies for determining allowable costs are
addressed in Sec. Sec. 13.4, 13.6, and 13.22 of this chapter. Allowable
costs are explained in this paragraph.
    (1) Eligible Management Costs--(i) Grantee. States are eligible to
receive

[[Page 329]]

management costs consisting of a maximum of 10 percent of the planning
and project activities awarded to the State, each fiscal year under FMA
and SRL, respectively. These costs must be included in the application
to FEMA. An Indian tribal government applying directly to FEMA is
eligible for management costs consisting of a maximum of 10 percent of
grants awarded for planning and project activities under the SRL and FMA
programs respectively.
    (ii) Subgrantee. Subapplicants may include a maximum of 5 percent of
the total funds requested for their subapplication for management costs
to support the implementation of their planning or project activity.
These costs must be included in the subapplication to the State.
    (2) Indirect costs. Indirect costs of administering the FMA and SRL
programs are eligible as part of the 10 percent management costs for the
grantee or the 5 percent management costs of the subgrantee, but in no
case do they make the recipient eligible for additional management costs
that exceed the caps identified in paragraph (a)(1) of this section. In
addition, all costs must be in accordance with the provisions of part 13
of this chapter and Office of Management and Budget Circular A-87.
    (b) Pre-award costs. FEMA may fund eligible pre-award planning or
project costs at its discretion and as funds are available. Grantees and
subgrantees may be reimbursed for eligible pre-award costs for
activities directly related to the development of the project or
planning proposal. These costs can only be incurred during the open
application period of the respective grant program. Costs associated
with implementation of the activity but incurred prior to grant award
are not eligible. Therefore, activities where implementation is
initiated or completed prior to award are not eligible and will not be
reimbursed.
    (c) Duplication of benefits. Grant funds may not duplicate benefits
received by or available to applicants, subapplicants and project
participants from insurance, other assistance programs, legal awards, or
any other source to address the same purpose. Such individual or entity
must notify the grantee and FEMA of all benefits that it receives or
anticipates from other sources for the same purpose. FEMA will reduce
the subgrant award by the amounts available for the same purpose from
another source.
    (d) Negligence or other tortious conduct. FEMA grant funds are not
available where an applicant, subapplicant, other project participant,
or third party's negligence or intentional actions contributed to the
conditions to be mitigated. If the applicant, subapplicant, or project
participant suspects negligence or other tortious conduct by a third
party for causing such condition, they are responsible for taking all
reasonable steps to recover all costs attributable to the tortious
conduct of the third party. FEMA generally considers such amounts to be
duplicated benefits available for the same purpose, and will treat them
consistent with paragraph (c) of this section.
    (e) FEMA grant funds are not available to satisfy or reimburse for
legal obligations, such as those imposed by a legal settlement, court
order, or State law.



Sec. 79.9  Grant administration.

    (a) The Grantee must follow FEMA grant requirements, including
submission of performance and financial status reports, and shall follow
adequate competitive procurement procedures. In addition, grantees are
responsible for ensuring that all subgrantees are aware of and follow
the requirements contained in part 13 of this chapter.
    (b) During the implementation of an approved grant, the State POC
may find that actual costs are exceeding the approved award amount.
While there is no guarantee of additional funding, FEMA will only
consider requests made by the State POC to pay for such overruns if:
    (1) Funds are available to meet the requested increase in funding;
    (2) The amended grant award meets the cost-share requirements
identified in this section; and
    (3) The total amount obligated to the State does not exceed the
maximum funding amounts set in Sec. 79.4(a)(2).
    (c) Grantees may use cost underruns from ongoing subgrants to offset
overruns incurred by another subgrant(s)

[[Page 330]]

awarded under the same grant. All costs for which funding is requested
must have been included in the original application's cost estimate.
    (d) For all cost overruns that exceed the amount approved under the
grant, and which require additional Federal funds, the State POC shall
submit a written request with a recommendation, including a
justification for the additional funding to the Regional Administrator
for a determination. If approved, the Regional Administrator shall
increase the grant through an amendment to the original award document.
    (e) At the time of closeout, FEMA will recapture any funds provided
to a State or a community under these programs if the applicant has not
provided the appropriate matching funds, the approved project has not
been completed within the timeframes specified in the grant agreement,
or the completed project does not meet the criteria specified in this
part.



PART 80_PROPERTY ACQUISITION AND RELOCATION FOR OPEN SPACE--Table of
Contents



                            Subpart A_General

Sec.
80.1 Purpose and scope.
80.3 Definitions.
80.5 Roles and responsibilities.

                  Subpart B_Requirements Prior to Award

80.7 General.
80.9 Eligible and ineligible costs.
80.11 Project eligibility.
80.13 Application information.

                    Subpart C_Post-Award Requirements

80.15 General.
80.17 Project implementation.
80.19 Land use and oversight.

                 Subpart D_After the Grant Requirements

80.21 Closeout requirements.

    Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; the National Flood
Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p.
329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR
19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979
Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.

    Source: 72 FR 61743, Oct. 31, 2007, unless otherwise noted.



                            Subpart A_General



Sec. 80.1  Purpose and scope.

    This part provides guidance on the administration of FEMA mitigation
assistance for projects to acquire property for open space purposes
under all FEMA hazard mitigation assistance programs. It provides
information on the eligibility and procedures for implementing projects
for acquisition and relocation of at-risk properties from the hazard
area to maintain the property for open space purposes. This part applies
to property acquisition for open space project awards made under any
FEMA hazard mitigation assistance program. This part supplements general
program requirements of the funding grant program and must be read in
conjunction with the relevant program regulations and guidance available
at http://www.fema.gov.This part, with the exception of Sec. 80.19 Land
use and oversight, applies to projects for which the funding program
application period opens or for which funding is made available pursuant
to a major disaster declared on or after December 3, 2007. Prior to that
date, applicable program regulations and guidance in effect for the
funding program (available at http://www.fema.gov) shall apply. Section
80.19 Land use and oversight apply as of December 3, 2007 to all FEMA
funded acquisitions for the purpose of open space.



Sec. 80.3  Definitions.

    (a) Except as noted in this part, the definitions applicable to the
funding program apply to implementation of this part. In addition, for
purposes of this part:
    (b) Applicant is the State or Indian tribal government applying to
FEMA for a grant, and which will be accountable for the use of the
funds.
    (c) Grantee means the State or Indian tribal government to which
FEMA awards a grant and which is accountable for the use of the funds
provided. The grantee is the entire legal entity, even if only a
particular component of

[[Page 331]]

the entity is designated in the grant award document.
    (d) Market Value is generally defined as the amount in cash, or on
terms reasonably equivalent to cash, for which in all probability the
property would have sold on the effective date of the valuation, after a
reasonable exposure time on the open competitive market, from a willing
and reasonably knowledgeable seller to a willing and reasonably
knowledgeable buyer, with neither acting under any compulsion to buy or
sell, giving due consideration to all available economic uses of the
property at the time of the valuation.
    (e) National of the United States means a person within the meaning
of the term as defined in the Immigration and Nationality Act, 8 U.S.C.
section 1101(a)(22).
    (f) Purchase offer is the initial value assigned to the property,
which is later adjusted by applicable additions and deductions,
resulting in a final offer amount to a property owner.
    (g) Qualified alien means a person within the meaning of the term as
defined at 8 U.S.C. 1641.
    (h) ``Qualified conservation organization'' means a qualified
organization with a conservation purpose pursuant to 26 CFR 1.170A-14
and applicable implementing regulations, that is such an organization at
the time it acquires the property interest and that was such an
organization at the time of the major disaster declaration, or for at
least 2 years prior to the opening of the grant application period.
    (i) Subapplicant means the entity that submits an application for
FEMA mitigation assistance to the State or Indian tribal applicant/
grantee. With respect to open space acquisition projects under the
Hazard Mitigation Grant Program (HMGP), this term has the same meaning
as given to the term ``applicant'' in part 206, subpart N of this
chapter. Upon grant award, the subapplicant is referred to as the
subgrantee.
    (j) Subgrant means an award of financial assistance made under a
grantee to an eligible subgrantee.
    (k) Subgrantee means the State agency, community, or Indian tribal
government or other legal entity to which a subgrant is awarded and
which is accountable to the grantee for the use of the funds provided.
    (l) Administrator means the head of the Federal Emergency Management
Agency, or his/her designated representative.
    (m) Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated representative.

[72 FR 61743, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009]



Sec. 80.5  Roles and responsibilities.

    The roles and responsibilities of FEMA, the State, the subapplicant/
subgrantee, and participating property owners in the particular context
of mitigation projects for the purpose of creating open space include
the activities in this section. These are in addition to grants
management roles and responsibilities identified in regulations and
guidance of the program funding the project (available at http://
www.fema.gov) and other responsibilities specified in this part.
    (a) Federal roles and responsibilities. Oversee property acquisition
activities undertaken under FEMA mitigation grant programs, including:
    (1) Providing technical assistance to the applicant/grantee to
assist in implementing project activities in compliance with this part;
    (2) Reviewing applications for eligibility and compliance with this
part;
    (3) Reviewing proposals for subsequent transfer of a property
interest and approving appropriate transferees;
    (4) Making determinations on the compatibility of proposed uses with
the open space purpose, in accordance with Sec. 80.19;
    (5) Complying with applicable Federal statutory, regulatory, and
Executive Order requirements related to environmental and historic
preservation compliance, including reviewing and supplementing, if
necessary, environmental analyses conducted by the State and subgrantee
in accordance with part 10 of this chapter;
    (6) Providing no Federal disaster assistance, flood insurance claims
payments, or other FEMA assistance with respect to the property or any
open-space related improvements, after the property interest transfers;
and

[[Page 332]]

    (7) Enforcing the requirements of this part and the deed
restrictions to ensure that the property remains in open space use in
perpetuity.
    (b) State (applicant/grantee) roles and responsibilities. Serve as
the point of contact for all property acquisition activities by
coordinating with the subapplicant/subgrantee and with FEMA to ensure
that the project is implemented in compliance with this part, including:
    (1) Providing technical assistance to the subapplicant/subgrantee to
assist in implementing project activities in compliance with this part;
    (2) Ensuring that applications are not framed in a manner that has
the effect of circumventing any requirements of this part;
    (3) Reviewing the application to ensure that the proposed activity
complies with this part, including ensuring that the property
acquisition activities remain voluntary in nature, and that the
subgrantee and property owners are made aware of such;
    (4) Submitting to FEMA subapplications for proposed projects in
accordance with the respective program schedule and programmatic
requirements, and including all the requisite information to enable FEMA
to determine the eligibility, technical feasibility, cost effectiveness,
and environmental and historic preservation compliance of the proposed
projects;
    (5) Reviewing proposals for subsequent transfer of property interest
and obtaining FEMA approval of such transfers; and ensuring that all
uses proposed for the property are compatible with open space project
purposes;
    (6) Making no application for, nor providing, Federal disaster
assistance or other FEMA assistance for the property or any open-space
related improvements, after the property interest transfers;
    (7) Enforcing the terms of this part and the deed restrictions to
ensure that the property remains in open space use in perpetuity; and
    (8) Reporting on property compliance with the open space
requirements after the grant is awarded.
    (c) Subapplicant/Subgrantee roles and responsibilities. Coordinate
with the applicant/grantee and with the property owners to ensure that
the project is implemented in compliance with this part, including:
    (1) Submitting all applications for proposed projects in accordance
with the respective program schedule and programmatic requirements, and
including all the requisite information to enable the applicant/grantee
and FEMA to determine the eligibility, technical feasibility, cost
effectiveness, and environmental and historic preservation compliance of
the proposed projects;
    (2) Ensuring that applications are not framed in a manner that has
the effect of circumventing any requirements of this part;
    (3) Coordinating with the property owners to ensure they understand
the benefits and responsibilities of participating in the project,
including that participation in the project is voluntary, and that the
property owner(s) are made aware of such;
    (4) Developing the application and implementing property acquisition
activities in compliance with this part, and ensuring that all terms of
the deed restrictions and grant award are enforced;
    (5) Ensuring fair procedures and processes are in place to
compensate property owners and tenants affected by the purchase of
property; such as determining property values and/or the amount of the
mitigation offer, and reviewing property owner disputes regarding such
offers;
    (6) Making no application for Federal disaster assistance, flood
insurance, or other FEMA benefits for the property or any open-space
related improvements, after the property interest transfers;
    (7) Taking and retaining full property interest, consistent with
this part; or if transferring such interest, obtaining approval of the
grantee and FEMA;
    (8) Submitting to the grantee and FEMA proposed uses on the property
for open space compatibility determinations; and
    (9) Monitoring and reporting on property compliance after the grant
is awarded.
    (d) Participating property owner roles and responsibilities. Notify
the subapplicant/subgrantee of its interest to

[[Page 333]]

participate, provide information to the subapplicant/subgrantee, and
take all required actions necessary for the completion of the grant
application and the implementation of property acquisition activities in
accordance with this part.



                  Subpart B_Requirements Prior to Award



Sec. 80.7  General.

    A project involving property acquisition or the relocation of
structures for open space is eligible for hazard mitigation assistance
only if the subapplicant meets the pre-award requirements set forth in
this subpart. A project may not be framed in a manner that has the
effect of circumventing the requirements of this subpart.



Sec. 80.9  Eligible and ineligible costs.

    (a) Allowable costs. Eligible project costs may include compensation
for the value of structures, for their relocation or demolition, for
associated land, and associated costs. For land that is already held by
an eligible entity, compensation for the land is not an allowable cost,
but compensation for development rights may be allowable.
    (b) Pre-award costs. FEMA may fund eligible pre-award project costs
at its discretion and as funds are available. Grantees and subgrantees
may be reimbursed for eligible pre-award costs for activities directly
related to the development of the project proposal. These costs can only
be incurred during the open application period of the respective grant
program. Costs associated with implementation of the project but
incurred prior to grant award are not eligible. Therefore, activities
where implementation is initiated or completed prior to award are not
eligible and will not be reimbursed.
    (c) Duplication of benefits. Grant funds may not duplicate benefits
received by or available to applicants, subapplicants and other project
participants from insurance, other assistance programs, legal awards, or
any other source to address the same purpose. Such individual or entity
must notify the subapplicant and FEMA of all benefits that it receives,
anticipates, or has available from other sources for the same purpose.
FEMA will reduce the subgrant award by the amounts available for the
same purpose from another source.
    (d) Negligence or other tortious conduct. FEMA acquisition funds are
not available where an applicant, subapplicant, other project
participant, or third party's negligence or intentional actions
contributed to the conditions to be mitigated. If the applicant,
subapplicant, or project participant suspects negligence or other
tortious conduct by a third party for causing such condition, they are
responsible for taking all reasonable steps to recover all costs
attributable to the tortious conduct of the third party. FEMA generally
considers such amounts to be duplicated benefits available for the same
purpose, and will treat them consistent with paragraph (c) of this
section.
    (e) FEMA mitigation grant funds are not available to satisfy or
reimburse for legal obligations, such as those imposed by a legal
settlement, court order, or State law.



Sec. 80.11  Project eligibility.

    (a) Voluntary participation. Eligible acquisition projects are those
where the property owner participates voluntarily, and the grantee/
subgrantee will not use its eminent domain authority to acquire the
property for the open space purposes should negotiations fail.
    (b) Acquisition of improved properties. Eligible properties are
those with at-risk structures on the property, including those that are
damaged or destroyed due to an event. In some cases, undeveloped, at-
risk land adjacent to an eligible property with existing structures may
be eligible.
    (c) Subdivision restrictions. The land may not be subdivided prior
to acquisition except for portions outside the identified hazard area,
such as the Special Flood Hazard Area or any risk zone identified by
FEMA.
    (d) Subapplicant property interest. To be eligible, the subapplicant
must acquire or retain fee title (full property interest), except for
encumbrances FEMA determines are compatible with open space uses, as
part of the project implementation. A pass through of funds from an
eligible entity to an ineligible entity must not occur.

[[Page 334]]

    (e) Hazardous materials. Eligible properties include only those that
are not contaminated with hazardous materials, except for incidental
demolition and household hazardous waste.
    (f) Open space restrictions. Property acquired or from which a
structure is removed must be dedicated to and maintained as open space
in perpetuity consistent with this part.

[72 FR 61743, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009]



Sec. 80.13  Application information.

    (a) An application for acquisition of property for the purpose of
open space must include:
    (1) A photograph that represents the appearance of each property
site at the time of application;
    (2) Assurances that the subapplicant will implement the project
grant award in compliance with subparts C and D of this part;
    (3) The deed restriction language, which shall be consistent with
the FEMA model deed restriction that the local government will record
with the property deeds. Any variation from the model deed restriction
language can only be made with prior approval from FEMA's Office of
General Counsel;
    (4) The documentation of voluntary interest signed by each property
owner, which must include that the subapplicant has informed them in
writing that it will not use its eminent domain authority for the open
space purpose; and
    (5) Assurance that the subject property is not part of an intended,
planned, or designated project area for which the land is to be acquired
by a certain date, and that local and State governments have no
intention to use the property for any public or private facility in the
future inconsistent with this part;
    (6) If the subapplicant is offering pre-event value: the property
owner's certification that the property owner is a National of the
United States or qualified alien; and
    (7) Other information as determined by the Administrator.
    (b) Consultation regarding other ongoing Federal activities. (1) The
subapplicant must demonstrate that it has consulted with the United
States Army Corps of Engineers (USACE) regarding the subject land's
potential future use for the construction of a levee system. The
subapplicant must also demonstrate that it has, and will, reject any
future consideration of such use if it accepts FEMA assistance to
convert the property to permanent open space.
    (2) The subapplicant must demonstrate that it has coordinated with
its State Department of Transportation to ensure that no future, planned
modifications, improvements, or enhancements to Federal aid systems are
under consideration that will affect the subject property.
    (c) Restriction on alternate properties. Changes to the properties
in an approved mitigation project will be considered by FEMA but not
approved automatically. The subapplicant must identify the alternate
properties in the project application and each alternate property must
meet eligibility requirements in order to be considered.

[72 FR 61743, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009]



                    Subpart C_Post-Award Requirements



Sec. 80.15  General.

    A project involving property acquisition or the relocation of
structures for open space must be implemented consistent with the
requirements set forth in this subpart.



Sec. 80.17  Project implementation.

    (a) Hazardous materials. The subgrantee shall take steps to ensure
it does not acquire or include in the project properties contaminated
with hazardous materials by seeking information from property owners and
from other sources on the use and presence of contaminants affecting the
property from owners of properties that are or were industrial or
commercial, or adjacent to such. A contaminated property must be
certified clean prior to participation. This excludes permitted disposal
of incidental demolition and household hazardous wastes. FEMA mitigation
grant funds may not be used for clean up or remediation of contaminated
properties.

[[Page 335]]

    (b) Clear title. The subgrantee will obtain a title insurance policy
demonstrating that fee title conveys to the subgrantee for each property
to ensure that it acquires only a property with clear title. The
property interest generally must transfer by a general warranty deed.
Any incompatible easements or other encumbrances to the property must be
extinguished before acquisition.
    (c) Purchase offer and supplemental payments. (1) The amount of
purchase offer is the current market value of the property or the market
value of the property immediately before the relevant event affecting
the property (``pre-event'').
    (i) The relevant event for Robert T. Stafford Disaster Relief and
Emergency Assistance Act assistance under HMGP is the major disaster
under which funds are available; for assistance under the Pre-disaster
Mitigation program (PDM) (42 U.S.C. 5133), it is the most recent major
disaster. Where multiple disasters have affected the same property, the
grantee and subgrantee shall determine which is the relevant event.
    (ii) The relevant event for assistance under the National Flood
Insurance Act is the most recent event resulting in a National Flood
Insurance Program (NFIP) claim of at least $5000.
    (2) For acquisition of properties under the Severe Repetitive Loss
program under part 79 of this subchapter, the purchase offer is not less
than the greatest of the amount in paragraph (c)(1) of this section; the
original purchase price paid by the participating property owner holding
the flood insurance policy; or the outstanding amount of any loan to the
participating property owner, which is secured by a recorded interest in
the property at the time of the purchase offer.
    (3) The grantee should coordinate with the subgrantee in their
determination of whether the valuation should be based on pre-event or
current market value. Generally, the same method to determine market
value should be used for all participants in the project.
    (4) A property owner who did not own the property at the time of the
relevant event, or who is not a National of the United States or
qualified alien, is not eligible for a purchase offer based on pre-event
market value of the property. Subgrantees who offer pre-event market
value to the property owner must have already obtained certification
during the application process that the property owner is either a
National of the United States or a qualified alien.
    (5) Certain tenants who must relocate as a result of the project are
entitled to relocation benefits under the Uniform Relocation Assistance
and Real Property Acquisition Policies Act (such as moving expenses,
replacement housing rental payments, and relocation assistance advisory
services) in accordance with 49 CFR part 24.
    (6) If a purchase offer for a residential property is less than the
cost of the homeowner-occupant to purchase a comparable replacement
dwelling outside the hazard-prone area in the same community, the
subgrantee for funding under the Severe Repetitive Loss program
implemented at part 79 of this subchapter shall make available a
supplemental payment to the homeowner-occupant to apply to the
difference. Subgrantees for other mitigation grant programs may make
such a payment available in accordance with criteria determined by the
Administrator.
    (7) The subgrantee must inform each property owner, in writing, of
what it considers to be the market value of the property, the method of
valuation and basis for the purchase offer, and the final offer amount.
The offer will also clearly state that the property owner's
participation in the project is voluntary.
    (d) Removal of Existing Buildings. Existing incompatible facilities
must be removed by demolition or by relocation outside of the hazard
area within 90 days of settlement of the property transaction. The FEMA
Regional Administrator may grant an exception to this deadline only for
a particular property based upon written justification if extenuating
circumstances exist, but shall specify a final date for removal.
    (e) Deed Restriction. The subgrantee, upon settlement of the
property transaction, shall record with the deed of

[[Page 336]]

the subject property notice of applicable land use restrictions and
related procedures described in this part, consistent with FEMA model
deed restriction language.

[72 FR 61743, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009]



Sec. 80.19  Land use and oversight.

    This section applies to acquisitions for open space projects to
address flood hazards. If the Administrator determines to mitigate in
other circumstances, he/she will adapt the provisions of this section as
appropriate.
    (a) Open space requirements. The property shall be dedicated and
maintained in perpetuity as open space for the conservation of natural
floodplain functions.
    (1) These uses may include: Parks for outdoor recreational
activities; wetlands management; nature reserves; cultivation; grazing;
camping (except where adequate warning time is not available to allow
evacuation); unimproved, unpaved parking lots; buffer zones; and other
uses FEMA determines compatible with this part.
    (i) Allowable uses generally do not include: Walled buildings,
levees, dikes, or floodwalls, paved roads, highways, bridges,
cemeteries, landfills, storage of any hazardous or toxic materials,
above or below ground pumping and switching stations, above or below
ground storage tanks, paved parking, off-site fill or other uses that
obstruct the natural and beneficial functions of the floodplain.
    (ii) In the rare circumstances where the Administrator has
determined competing Federal interests were unavoidable and has analyzed
floodplain impacts for compliance with Sec. 60.3 of this subchapter or
higher standards, the Administrator may find only USACE projects
recognized by FEMA in 2000 and improvements to pre-existing Federal-aid
transportation systems to be allowable uses.
    (2) No new structures or improvements will be built on the property
except as indicated below:
    (i) A public facility that is open on all sides and functionally
related to a designated open space or recreational use;
    (ii) A public restroom; or
    (iii) A structure that is compatible with open space and conserves
the natural function of the floodplain, which the Administrator approves
in writing before the construction of the structure begins.
    (3) Any improvements on the property shall be in accordance with
proper floodplain management policies and practices. Structures built on
the property according to paragraph (a)(2) of this section shall be
floodproofed or elevated to at least the base flood level plus 1 foot of
freeboard, or greater, if required by FEMA, or if required by any State
or local ordinance, and in accordance with criteria established by the
Administrator.
    (4) After the date of property settlement, no Federal entity or
source may provide disaster assistance for any purpose with respect to
the property, nor may any application for such assistance be made to any
Federal entity or source.
    (5) The property is not eligible for coverage under the NFIP for
damage to structures on the property occurring after the date of the
property settlement, except for pre-existing structures being relocated
off the property as a result of the project.
    (b) Subsequent transfer. After acquiring the property interest, the
subgrantee, including successors in interest, shall convey any interest
in the property only if the Regional Administrator, through the State,
gives prior written approval of the transferee in accordance with this
paragraph.
    (1) The request by the subgrantee, through the State, to the
Regional Administrator must include a signed statement from the proposed
transferee that it acknowledges and agrees to be bound by the terms of
this section, and documentation of its status as a qualified
conservation organization if applicable.
    (2) The subgrantee may convey a property interest only to a public
entity or to a qualified conservation organization. However, the
subgrantee may convey an easement or lease to a private individual or
entity for purposes compatible with the uses described in paragraph (a),
of this section, with the prior approval of the Regional Administrator,
and so long as the conveyance

[[Page 337]]

does not include authority to control and enforce the terms and
conditions of this section.
    (3) If title to the property is transferred to a public entity other
than one with a conservation mission, it must be conveyed subject to a
conservation easement that shall be recorded with the deed and shall
incorporate all terms and conditions set forth in this section,
including the easement holder's responsibility to enforce the easement.
This shall be accomplished by one of the following means:
    (i) The subgrantee shall convey, in accordance with this paragraph,
a conservation easement to an entity other than the title holder, which
shall be recorded with the deed, or
    (ii) At the time of title transfer, the subgrantee shall retain such
conservation easement, and record it with the deed.
    (4) Conveyance of any property interest must reference and
incorporate the original deed restrictions providing notice of the
conditions in this section and must incorporate a provision for the
property interest to revert to the subgrantee or grantee in the event
that the transferee ceases to exist or loses its eligible status under
this section.
    (c) Inspection. FEMA, its representatives and assigns, including the
grantee shall have the right to enter upon the property, at reasonable
times and with reasonable notice, for the purpose of inspecting the
property to ensure compliance with the terms of this part, the property
conveyance and of the grant award.
    (d) Monitoring and reporting. Every 3 years the subgrantee (in
coordination with any current successor in interest) through the
grantee, shall submit to the FEMA Regional Administrator a report
certifying that the subgrantee has inspected the property within the
month preceding the report, and that the property continues to be
maintained consistent with the provisions of this part, the property
conveyance and the grant award.
    (e) Enforcement. The subgrantee, grantee, FEMA, and their respective
representatives, successors and assigns, are responsible for taking
measures to bring the property back into compliance if the property is
not maintained according to the terms of this part, the conveyance, and
the grant award. The relative rights and responsibilities of FEMA, the
grantee, the subgrantee, and subsequent holders of the property interest
at the time of enforcement, shall include the following:
    (1) The grantee will notify the subgrantee and any current holder of
the property interest in writing and advise them that they have 60 days
to correct the violation.
    (i) If the subgrantee or any current holder of the property interest
fails to demonstrate a good faith effort to come into compliance with
the terms of the grant within the 60-day period, the grantee shall
enforce the terms of the grant by taking any measures it deems
appropriate, including but not limited to bringing an action at law or
in equity in a court of competent jurisdiction.
    (ii) FEMA, its representatives, and assignees may enforce the terms
of the grant by taking any measures it deems appropriate, including but
not limited to 1 or more of the following:
    (A) Withholding FEMA mitigation awards or assistance from the State
and subgrantee; and current holder of the property interest.
    (B) Requiring transfer of title. The subgrantee or the current
holder of the property interest shall bear the costs of bringing the
property back into compliance with the terms of the grant; or
    (C) Bringing an action at law or in equity in a court of competent
jurisdiction against any or all of the following parties: the grantee,
the subgrantee, and their respective successors.



                 Subpart D_After the Grant Requirements



Sec. 80.21  Closeout requirements.

    Upon closeout of the grant, the subgrantee, through the grantee,
shall provide FEMA, with the following:
    (a) A copy of the deed recorded for each property, demonstrating
that each property approved in the original application was mitigated
and that the deed restrictions recorded are consistent with the FEMA
model deed restriction language to meet the requirements of this part;

[[Page 338]]

    (b) A photo of each property site after project completion;
    (c) The latitude-longitude coordinates of each property site;
    (d) Identification of each property as a repetitive loss property,
if applicable; and
    (e) Other information as determined by the Administrator.

                         PARTS 81	149 [RESERVED]

[[Page 339]]



                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 Administrator 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
Administrator , FEMA. Since initial passage of the Act, civil defense
functions which then were delegated to the Secretary of Defense have
been delegated to theAdministrator, 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
Administrator , 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 Administrator 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 Administrator 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 340]]

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 Administrator 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.

[49 FR 39845, Oct. 11, 1984, as amended at 50 FR 3350, Jan. 24, 1985; 74
FR 15344, Apr. 3, 2009]



Sec. 150.4  Nomination and selection criteria.

    (a) Nominations for the President's Award or 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 Award must indicate not only that the

[[Page 341]]

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.

[49 FR 39845, Oct. 11, 1984, as amended at 74 FR 15344, Apr. 3,2009]



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 Administrator 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 Administrator 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 nominations for the President's
Award and shall recommend to the Administrator , 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 Administrator 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 342]]



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 requirements 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 Administrator 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 Administrator 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 Administratorof 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 Administrator of FEMA or a
designee at such time, place and circumstances as the Administrator 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.

[[Page 343]]

151.23 Penalties.

    Authority: Secs. 11 and 21(b)(5), Federal Fire Prevention and
Control Act of 1974 (15 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 Administrator 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) Administrator means the Administrator 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.

[[Page 344]]

    (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 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
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, 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.

[49 FR 5929, Feb. 16, 1984, as amended at 74 FR 15344, Apr. 3, 2009]



               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

[[Page 345]]

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 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 Administrator
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.

[49 FR 5929, Feb. 16, 1984, as amended at 74 FR 15344, Apr. 3, 2009]



Sec. 151.12  Determination of amount authorized for payment.

    (a) The Administrator 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 Administrator 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

[[Page 346]]

mutual aid agreement--its term or if none is determinable, the Federal
fiscal year) determined under paragraph (a)(2) of this section.
    (b) The Administrator will first determine the costs as contemplated
in paragraph (a)(1) of this section. The Administrator 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
Administrator , within 30 days, of its reasons for its rejection. Upon
receipt of notification of rejection, the Administrator shall reconsider
his determination and notify the claimant of the results of the
reconsideration. The amount 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 Administrator will, following
such verification or investigation as the Administrator 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 Administrator'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 Administrator , 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
Administrator will forward the claim, a copy of the Administrator'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
Administrator 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 Administrator in writing of its objections
and set forth the reasons why the Administrator should reconsider the
determination. The Administrator 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 Administrator shall
cause a reconsideration by the Secretary of the Treasury of the amount
actually available and authorized for payment by the Treasury. The
Administrator, 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

[[Page 347]]

the Administrator) of its receipt of that determination notify the
Administrator of its acceptance in writing accompanied by a properly
executed document of release. Upon receipt of such notice and document
of release, the Administrator will forward the claim, a copy of the
Administrator'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 Administrator 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 Administrator, all claims submitted under
section 11 of the Act and all records of the claimant will be subject to
audit by the Administrator 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

[[Page 348]]

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, 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

[[Page 349]]

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 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

[[Page 350]]

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 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

[[Page 351]]

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 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 an 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

[[Page 352]]

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 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.
    (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.

[68 FR 12547, Mar. 14, 2003, as amended at 74 FR 15344, Apr. 3, 2009]



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 353]]

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 354]]

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.

[68 FR 12547, Mar. 14, 2003, as amended at 74 FR 15344, Apr. 3, 2009]



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 related to the initial
grant award on their merits.

[[Page 355]]

    (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: Assistant
Administrator, Grant Programs Directorate, Assistance to Firefighters
Grant Program, FEMA, 800 K Street, NW., South Tower 5th Floor,
Washington, DC 20001.

                        PARTS 153	199 [RESERVED]

[[Page 356]]



                    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.
201.7 Tribal Mitigation Plans.

    Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Reorganization Plan No. 3
of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act
of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p.
376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68
FR 10619, 3 CFR, 2003 Comp., p. 166.

    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.

    Administrator means the head of the Federal Emergency Management
Agency, or his/her designated representative.
    Flood Mitigation Assistance (FMA) means the program authorized by
section 1366 of the National Flood Insurance Act of 1968, as amended, 42
U.S.C. 4104c, and implemented at parts 78 and 79.
    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 (HMGP) means the program authorized
under section 404 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5170c, and implemented at part 206,
subpart N of this chapter.
    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 Indian 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.

[[Page 357]]

    Pre-Disaster Mitigation Program (PDM) means the program authorized
under section 203 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5133.
    Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated representative.
    Repetitive Flood Claims (RFC) program means the program authorized
under section 1323 of the National Flood Insurance Act of 1968, as
amended, 42 U.S.C. 4011, which provides funding to reduce flood damages
to individual properties for which 1 or more claim payments for losses
have been made under flood insurance coverage and that will result in
the greatest savings to the National Flood Insurance Program (NFIP) in
the shortest period of time.
    Severe Repetitive Loss (SRL) program means the program authorized
under section 1361(a) of the National Flood Insurance Act of 1968, as
amended, 42 U.S.C. 4102a, and implemented at part 79 of this chapter.
    Severe Repetitive Loss properties are defined as single or
multifamily residential properties that are covered under an NFIP flood
insurance policy and:
    (1) That have incurred flood-related damage for which 4 or more
separate claims payments have been made, with the amount of each claim
(including building and contents payments) exceeding $5,000, and with
the cumulative amount of such claims payments exceeding $20,000; or
    (2) For which at least 2 separate claims payments (building payments
only) have been made under such coverage, with cumulative amount of such
claims exceeding the market value of the property.
    (3) In both instances, at least 2 of the claims must be within 10
years of each other, and claims made within 10 days of each other will
be counted as 1 claim.
    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 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.

[67 FR 8848, Feb. 26, 2002, as amended at 72 FR 61747, Oct. 31, 2007; 74
FR 15344, Apr. 3, 2009; 74 FR 47481, Sept. 16, 2009]



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 Administrator 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;

[[Page 358]]

    (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 5 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 non-emergency Stafford Act assistance and FEMA mitigation
grants. In addition, a State may choose to address severe repetitive
loss properties in their plan as identified in Sec. 201.4(c)(3)(v) to
receive the reduced cost share for the Flood Mitigation Assistance (FMA)
and Severe Repetitive Loss (SRL) programs, pursuant to Sec. 79.4(c)(2)
of this chapter.
    (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 5
years from the date of the approval of the previous plan.
    (3) At a minimum, review and update the Standard State Mitigation
Plan every 5 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).
    (d) Local governments. The key responsibilities of local governments
are to:
    (1) Prepare and adopt a jurisdiction-wide natural hazard mitigation
plan as a condition of receiving project grant funds under the HMGP, in
accordance with Sec. 201.6.
    (2) At a minimum, review and update the local mitigation plan every
5 years from date of plan approval of the previous plan in order to
continue program eligibility.
    (e) Indian tribal governments. The key responsibilities of the
Indian tribal government are to coordinate all tribal activities
relating to hazard evaluation and mitigation and to:
    (1) Prepare and submit to FEMA a Tribal Mitigation Plan following
the criteria established in Sec. 201.7 as a condition of receiving non-
emergency Stafford Act assistance as a grantee. This plan will also
allow Indian tribal governments to apply through the State, as a
subgrantee, for any FEMA mitigation project grant. Indian tribal
governments with a plan approved by FEMA on or before October 1, 2008
under Sec. 201.4 or Sec. 201.6 will also meet this planning
requirement. All Tribal Mitigation Plans approved after that date must
follow the criteria identified in Sec. 201.7. In addition, an Indian
Tribal government applying to FEMA as a grantee may choose to address
severe repetitive loss properties as identified in Sec. 201.4(c)(3)(v)
as a condition of receiving the reduced cost share for the FMA and SRL
programs, pursuant to Sec. 79.4(c)(2) of this chapter.
    (2) Review and update the Tribal Mitigation Plan at least every 5
years from the date of approval of the previous plan in order to
continue program eligibility.
    (3) In order to be considered for the increased HMGP funding, the
Tribal Mitigation Plan must meet the Enhanced State Mitigation Plan
criteria identified in Sec. 201.5. The plan must be reviewed and
updated at least every 5 years from the date of approval of the previous
plan.

[67 FR 8848, Feb. 26, 2002, as amended at 67 FR 61515, Oct. 1, 2002; 69
FR 55096, Sept. 13, 2004; 72 FR 61748, Oct. 31, 2007; 74 FR 47482, Sept.
16, 2009; 79 FR 22882, Apr. 25, 2014.]

[[Page 359]]



Sec. 201.4  Standard State Mitigation Plans.

    (a) Plan requirement. States must have an approved Standard State
Mitigation Plans meeting the requirements of this section as a condition
of receiving non-emergency Stafford Act assistance and FEMA mitigation
grants. Emergency assistance provided under 42 U.S.C. 5170a, 5170b,
5173, 5174, 5177, 5179, 5180, 5182, 5183, 5184, 5192 will not be
affected. Mitigation planning grants provided through the Pre-disaster
Mitigation (PDM) program, authorized under section 203 of the Stafford
Act, 42 U.S.C. 5133, will also continue to be available. The mitigation
plan is the demonstration of the State's commitment to reduce risks from
natural hazards and serves as a guide for State decision makers as they
commit resources to reducing the effects of natural hazards.
    (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 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 or operated critical
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

[[Page 360]]

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.
    (v) A State may request the reduced cost share authorized under
Sec. 79.4(c)(2) of this chapter for the FMA and SRL programs, if it has
an approved State Mitigation Plan meeting the requirements of this
section that also identifies specific actions the State has taken to
reduce the number of repetitive loss properties (which must include
severe repetitive loss properties), and specifies how the State intends
to reduce the number of such repetitive loss properties. In addition,
the plan must describe the strategy the State has to ensure that local
jurisdictions with severe repetitive loss properties take actions to
reduce the number of these properties, including the development of
local mitigation plans.
    (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) of this chapter. The State will amend
its plan whenever necessary to reflect changes in State or Federal
statutes and regulations as required in 44 CFR 13.11(d) of this chapter.
    (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 Administrator every 5 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; 72 FR 61565, 61738, Oct. 31, 2007; 79 FR
22883, Apr. 25, 2014]



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 5 years prior to the disaster
declaration.

[[Page 361]]

    (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 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 Administrator every 5 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 5 years prior to the current major disaster declaration.

[67 FR 8848, Feb. 26, 2002, as amended at 79 FR 22883, Apr. 25, 2014]

[[Page 362]]



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) A local government must have a mitigation
plan approved pursuant to this section in order to receive HMGP project
grants. The Administrator may, at his discretion, require a local
mitigation plan for the Repetitive Flood Claims Program. A local
government must have a mitigation plan approved pursuant to this section
in order to apply for and receive mitigation project grants under all
other mitigation grant programs.
    (2) Plans prepared for the FMA program, described at part 79 of this
chapter, need only address these requirements as they relate to flood
hazards in order to be eligible for FMA project grants. However, these
plans must be clearly identified as being flood mitigation plans, and
they will not meet the eligibility criteria for other mitigation grant
programs, unless flooding is the only natural hazard the jurisdiction
faces.
    (3) Regional Administrator's 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 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. All plans approved after October 1, 2008 must
also address NFIP insured structures that have been repetitively damaged
by floods. The plan should describe vulnerability in terms of:
    (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)(ii)(A) of

[[Page 363]]

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. All plans approved by FEMA after October
1, 2008, must also address the jurisdiction's participation in the NFIP,
and continued compliance with NFIP requirements, as appropriate.
    (iii) An action plan describing how the actions identified in
paragraph (c)(3)(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 (SHMO) for initial review and coordination. The State
will then send the plan to the appropriate FEMA Regional Office for
formal review and approval. Where the State point of contact for the FMA
program is different from the SHMO, the SHMO will be responsible for
coordinating the local plan reviews between the FMA point of contact and
FEMA.
    (2) The Regional review will be completed within 45 days after
receipt from the State, whenever possible.
    (3) A local jurisdiction must review and revise its plan to reflect
changes in development, progress in local mitigation efforts, and
changes in priorities, and resubmit it for approval within 5 years in
order to continue to be eligible for mitigation project grant funding.
    (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 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; 72 FR 61748, Oct.
31, 2007 ; 74 FR 47482, Sept. 16, 2009]



Sec. 201.7  Tribal Mitigation Plans.

    The Indian Tribal Mitigation Plan is the representation of the
Indian tribal government's commitment to reduce risks from natural
hazards, serving as a guide for decision makers as they

[[Page 364]]

commit resources to reducing the effects of natural hazards.
    (a) Plan requirement. (1) Indian tribal governments applying to FEMA
as a grantee must have an approved Tribal Mitigation Plan meeting the
requirements of this section as a condition of receiving non-emergency
Stafford Act assistance and FEMA mitigation grants. Emergency assistance
provided under 42 U.S.C. 5170a, 5170b, 5173, 5174, 5177, 5179, 5180,
5182, 5183, 5184, 5192 will not be affected. Mitigation planning grants
provided through the PDM program, authorized under section 203 of the
Stafford Act, 42 U.S.C. 5133, will also continue to be available.
    (2) An Indian Tribal government applying to FEMA as a grantee may
choose to address severe repetitive loss properties in their plan, as
identified in Sec. 201.4(c)(3)(v), to receive the reduced cost share
for the FMA and SRL programs.
    (3) Indian Tribal governments applying through the State as a
subgrantee must have an approved Tribal Mitigation Plan meeting the
requirements of this section in order to receive HMGP project grants
and, the Administrator, at his discretion may require a Tribal
Mitigation Plan for the Repetitive Flood Claims Program. A Tribe must
have an approved Tribal Mitigation Plan in order to apply for and
receive FEMA mitigation project grants, under all other mitigation grant
programs. The provisions in Sec. 201.6(a)(3) are available to Tribes
applying as subgrantees.
    (4) Multi-jurisdictional plans (e.g. county-wide or watershed plans)
may be accepted, as appropriate, as long as the Indian tribal government
has participated in the process and has officially adopted the plan.
Indian tribal governments must address all the elements identified in
this section to ensure eligibility as a grantee or as a subgrantee.
    (b) An effective planning process is essential in developing and
maintaining a good plan. The mitigation planning process should include
coordination with other tribal agencies, appropriate Federal agencies,
adjacent jurisdictions, interested groups, and be integrated to the
extent possible with other ongoing tribal planning efforts as well as
other FEMA mitigation programs and initiatives.
    (c) Plan content. The plan shall include the following:
    (1) Documentation of the planning process used to develop the plan,
including how it was prepared, who was involved in the process, and how
the public was involved. This shall include:
    (i) An opportunity for the public to comment on the plan during the
drafting stage and prior to plan approval, including a description of
how the Indian tribal government defined ``public;''
    (ii) As appropriate, an opportunity for neighboring communities,
tribal and regional agencies involved in hazard mitigation activities,
and agencies that have the authority to regulate development, as well as
businesses, academia, and other private and nonprofit interests to be
involved in the planning process;
    (iii) Review and incorporation, if appropriate, of existing plans,
studies, and reports; and
    (iv) Be integrated to the extent possible with other ongoing tribal
planning efforts as well as other FEMA programs and initiatives.
    (2) A risk assessment that provides the factual basis for activities
proposed in the strategy to reduce losses from identified hazards.
Tribal risk assessments must provide sufficient information to enable
the Indian tribal government to identify and prioritize appropriate
mitigation actions to reduce losses from identified hazards. The risk
assessment shall include:
    (i) A description of the type, location, and extent of all natural
hazards that can affect the tribal planning area. The plan shall include
information on previous occurrences of hazard events and on the
probability of future hazard events.
    (ii) A description of the Indian tribal government's vulnerability
to the hazards described in paragraph (c)(2)(i) of this section. This
description shall include an overall summary of each hazard and its
impact on the tribe. The plan should describe vulnerability in terms of:

[[Page 365]]

    (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)(ii)(A) of this section and a
description of the methodology used to prepare the estimate;
    (C) A general description of land uses and development trends within
the tribal planning area so that mitigation options can be considered in
future land use decisions; and
    (D) Cultural and sacred sites that are significant, even if they
cannot be valued in monetary terms.
    (3) A mitigation strategy that provides the Indian tribal
government's blueprint for reducing the potential losses identified in
the risk assessment, based on existing authorities, policies, programs
and resources, and its ability to expand on and improve these existing
tools. This section shall include:
    (i) A description of mitigation goals to reduce or avoid long-term
vulnerabilities to the identified hazards.
    (ii) A section that identifies and analyzes a comprehensive range of
specific mitigation actions and projects being considered to reduce the
effects of each hazard, with particular emphasis on new and existing
buildings and infrastructure.
    (iii) An action plan describing how the actions identified in
paragraph (c)(3)(ii) of this section will be prioritized, implemented,
and administered by the Indian Tribal government.
    (iv) A discussion of the Indian tribal government's pre- and post-
disaster hazard management policies, programs, and capabilities to
mitigate the hazards in the area, including: An evaluation of tribal
laws, regulations, policies, and programs related to hazard mitigation
as well as to development in hazard-prone areas; and a discussion of
tribal funding capabilities for hazard mitigation projects.
    (v) Identification of current and potential sources of Federal,
tribal, or private funding to implement mitigation activities.
    (vi) An Indian Tribal government applying to FEMA as a grantee may
request the reduced cost share authorized under Sec. 79.4(c)(2) of this
chapter of the FMA and SRL programs if they have an approved Tribal
Mitigation Plan meeting the requirements of this section that also
identifies actions the Indian Tribal government has taken to reduce the
number of repetitive loss properties (which must include severe
repetitive loss properties), and specifies how the Indian Tribal
government intends to reduce the number of such repetitive loss
properties.
    (4) A plan maintenance process that includes:
    (i) A section describing the method and schedule of monitoring,
evaluating, and updating the mitigation plan.
    (ii) A system for monitoring implementation of mitigation measures
and project closeouts.
    (iii) A process by which the Indian tribal government incorporates
the requirements of the mitigation plan into other planning mechanisms
such as reservation master plans or capital improvement plans, when
appropriate.
    (iv) Discussion on how the Indian tribal government will continue
public participation in the plan maintenance process.
    (v) A system for reviewing progress on achieving goals as well as
activities and projects identified in the mitigation strategy.
    (5) Plan Adoption Process. The plan must be formally adopted by the
governing body of the Indian tribal government prior to submittal to
FEMA for final review and approval.
    (6) Assurances. The plan must include assurances that the Indian
tribal government will comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding, in compliance with Sec. 13.11(c) of this chapter. The
Indian tribal government will amend its plan whenever necessary to
reflect changes in tribal or Federal laws and statutes as required in
Sec. 13.11(d) of this chapter.
    (d) Plan review and updates. (1) Plans must be submitted to the
appropriate FEMA Regional Office for formal review and approval. Indian
tribal governments who would like the option of being a subgrantee under
the State

[[Page 366]]

must also submit their plan to the State Hazard Mitigation Officer for
review and coordination.
    (2) The Regional review will be completed within 45 days after
receipt from the Indian tribal government, whenever possible.
    (3) Indian tribal governments must review and revise their plan to
reflect changes in development, progress in local mitigation efforts,
and changes in priorities, and resubmit it for approval within 5 years
in order to continue to be eligible for non-emergency Stafford Act
assistance and FEMA mitigation grant funding, with the exception of the
Repetitive Flood Claims program.

[72 FR 61749, Oct. 31, 2007, as amended at 74 FR 47482, Sept. 16, 2009]

                        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. 5121-5207; 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.

[[Page 367]]

    Declared fire. An uncontrolled fire or fire complex, threatening
such destruction as would constitute a major disaster, which the
Administrator 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 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 Administrator , 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

[[Page 368]]

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 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 Administrator. The administrator 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;
74 FR 15345, Apr. 3, 2009; 75 FR 50715, Aug. 17, 2010]



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 Administrator 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.

[66 FR 57347, Nov. 14, 2001, as amended at 75 FR 50715, Aug. 17, 2010]

[[Page 369]]



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 constitute a major
disaster. The request must be submitted to the Regional Administrator
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 Administrator, in coordination with the
Principal Advisor, will verify the information submitted in the State's
request.
    (b) The Principal Advisor, at the request of the Regional
Administrator, is responsible for providing FEMA 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 FEMA with an accurate
assessment.

[75 FR 50715, Aug. 17, 2010]



Sec. 204.24  Determination on request for a fire management assistance
declaration.

    The Administrator will review all information submitted in the
State's request along with the Principal Advisor's assessment 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 Administrator will evaluate the request and make a
determination within several hours. Once the Administrator renders a
determination, FEMA will promptly notify the State of the determination.

[75 FR 50715, Aug. 17, 2010]



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 Administrator
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.



Sec. 204.26  Appeal of fire management assistance declaration denial.

    (a) Submitting an appeal. When a State's request for a fire
management assistance declaration is denied, the Governor or GAR may
appeal the decision in writing within 30 days after the

[[Page 370]]

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 Administrator through the Regional
Administrator. The Administrator will reevaluate the State's request and
notify the State of the final determination within 90 days of receipt of
the appeal or the receipt of additional requested information.
    (b) Requesting a time-extension. The Administrator may extend the
30-day period for filing an appeal, provided that the Governor or the
GAR submits a written
    (c) Request for such an extension within the 30-day period. The
Administrator 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.

[75 FR 50715, Aug. 17, 2010]



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 Administrator 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.
    (d) Travel and per diem costs. Eligible costs include:

[[Page 371]]

    (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 Administrator must approve all pre-positioning
costs.
    (i) Upon approval of a State's request for a fire management
assistance declaration by the Assistant Administrator for the Disaster
Assistance Directorate , the State should immediately notify the
Regional Administrator 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 Administrator 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 Administrator will notify the Assistant Administrator for
the Disaster Assistance Directorate 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

[[Page 372]]

fire incident involving co-mingled Federal/State and privately-owned
forest or grassland.)



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 Administrator . 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 Administrator 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
Administrator has 45 days from receipt the State's grant application or
an amendment to the

[[Page 373]]

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.
    (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 Administrator . Once these plans are approved by the Regional
Administrator , 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 Administrator 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
Administrator for final review and determination. The Grantee may also
forward a recommendation for approval of the Request to the Regional
Administrator when appropriate.
    (3) The Regional Administrator will approve or deny the request
based on the eligibility requirements outlined in Sec. 204.41.
    (4) The Regional Administrator will notify the Grantee of his/her
determination; the Grantee will inform the applicant.
    (b) Preparing a Project Worksheet. (1) Once the Regional
Administrator approves an applicant's Request for Fire Management
Assistance, the Regional Administrator's staff may begin to work with
the Grantee and local staff

[[Page 374]]

to prepare Project Worksheets (FEMA Form 90-91).
    (2) The Regional Administrator 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.
    (c) Submitting a Project Worksheet. (1) Applicants should submit all
Project Worksheets through the Grantee for approval and transmittal to
the Regional Administrator 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 Administrator 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 Administrator .
The grantee will review and evaluate all subgrantee appeals before
submission to the Regional Administrator . The grantee may make grantee-
related appeals to the Regional Administrator . 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 Administrator will consider
first appeals for fire management assistance grant-related decisions
under subparts A through E of this part.
    (2) The Assistant Administrator for the Disaster Assistance
Directorate will consider appeals of the Regional Administrator'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 Administrator
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional
Administrator (for first appeals) or Assistant Administrator for the
Disaster Assistance Directorate (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 Administrator or
Assistant Administrator for the Disaster Assistance Directorate for
additional information will include a date by which the information must
be provided.

[[Page 375]]

Within 90 days following the receipt of the requested additional
information or following expiration of the period for providing the
information, the Regional Administrator or Assistant Administrator for
the Disaster Assistance Directorate will notify the grantee in writing
of the disposition of the appeal. If the decision is to grant the
appeal, the Regional Administrator will take appropriate implementing
action.
    (d) Technical advice. In appeals involving highly technical issues,
the Regional Administrator or 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 Administrator or Assistant Administrator for the Disaster
Assistance Directorate will notify the grantee in writing of the
disposition of the appeal.
    (e) The decision of the Assistant Administrator for the Disaster
Assistance Directorate 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.

[[Page 376]]



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.



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--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]

[[Page 377]]

             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]
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 Arbitration for Public Assistance determinations related to
          Hurricanes Katrina and Rita (Major disaster declarations DR-
          1603, DR-1604, DR-1605, DR-1606, and DR-1607).
206.210 Dispute Resolution Pilot Program.
206.211-206.219 [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.
206.368-206.369 [Reserved]
206.370 Purpose and scope.
206.371 Loan program.
206.372 Responsibilities.
206.373 Eligibility criteria.
206.374 Loan application.
206.375 Loan administration.
206.376 Loan cancellation.
206.377 Loan repayment.
206.378-206.389 [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.

[[Page 378]]

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 through 5207; Homeland Security Act of
2002, 6 U.S.C. 101 et seq.; Department of Homeland Security Delegation
9001.1; sec. 1105, Pub. L. 113-2, 127 Stat. 43 (42 U.S.C. 5189a note).

    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 93-288, as amended, delegated to the Administrator, 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) [Reserved]
    (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) Administrator: The Administrator, FEMA.
    (8) Disaster Recovery Manager (DRM): The person appointed to
exercise the authority of a Regional Administrator 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
Administrator, or in his absence, the Deputy 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.

[[Page 379]]

    (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, 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 Administrator, Assistant Administrator for the Disaster
Operations Directorate, or Administrator, 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 Administrator: An administrator of a regional office
of FEMA, or his/her designated representative. As used in these
regulations, Regional Administrator also means the Disaster Recovery
Manager who has been appointed to exercise the authority of the Regional
Administrator 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

[[Page 380]]

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.
    (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; 74 FR 15346,
Apr. 3, 2009]



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 Administrator, Assistant
Administrator for the Disaster Operations Directorate, or the Regional
Administrator 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 Administrator, Assistant
Administrator for the Disaster Operations Directorate, or the Regional
Administrator 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 Administrator,
Assistant Administrator for the Disaster Operations Directorate, or the
Regional Administrator 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.

[[Page 381]]

    (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 Administrator 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
Assistant Administrator for the Disaster Operations Directorate under
these regulations.
    (f) Assistance under paragraphs (a), (b), or (c) of this section,
when directed by the Administrator, Assistant Administrator for the
Disaster Operations Directorate, or the Regional Administrator, 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 Administrator, Assistant
Administrator for the Disaster Operations Directorate, or the Regional
Administrator 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 Administrator, Assistant Administrator for the
Disaster Assistance Directorate, or the Regional Administrator or
Regional Director.
    (b) The Administrator, Assistant Administrator for the Disaster
Assistance Directorate, or the Regional Administrator 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 Administrator,
Assistant Administrator for the Disaster Assistance Directorate, or the
Regional Administrator 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.

[[Page 382]]

    (2) Wages, travel, and per diem of temporary Federal agency
personnel assigned solely to performance of services directed by the
Administrator, Assistant Administrator for the Disaster Assistance
Directorate, or the Regional Administrator 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 Administrator,
Assistant Administrator for the Disaster Assistance Directorate, or the
Regional Administrator 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 Administrator,
Assistant Administrator for the Disaster Assistance Directorate, or the
Regional Administrator 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.
    (7) Other costs submitted by an agency with written justification or
otherwise agreed to in writing by the Administrator, Assistant
Administrator for the Disaster Assistance Directorate, or the Regional
Administrator 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 Administrator 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

[[Page 383]]

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, 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 Administrator 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 Administrator finds that such utilization is necessary.
    (b) The Administrator 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 Administrator 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 Administrator 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 Administrator may direct
Federal agencies to submit reports relating to their disaster assistance
activities. The Administrator may request similar reports from the
States relating to these activities on the part of State and local
governments. Additionally, the Administrator 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]

[[Page 384]]



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 the Stafford 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 the Stafford Act,
including any civil penalty imposed under the Stafford 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 Office of Chief Counsel shall
expeditiously refer to the Attorney General for appropriate action any
evidence developed in the performance of functions under the Stafford
Act that may warrant consideration for criminal prosecution.
    (d) Civil penalty. Any individual who knowingly violates any order
or regulation shall be subject to a civil penalty of not more than
$5,500 for each violation.

[55 FR 2288, Jan. 23, 1990, as amended at 74 FR 15346, Apr. 3, 2009; 74
FR 58850, Nov. 16, 2009]



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 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 13, relating to requirements for single
audits, the Administrator, the Assistant Administrator for the Disaster
Operations Directorate, or the Regional Administrator 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
Administrator, the Regional Administrator, the Assistant Administrator
for the Disaster Assistance Directorate, the DHS Inspector General, 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.

[55 FR 2288, Jan. 23, 1990, as amended at 74 FR 15346, Apr. 3, 2009]



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:

[[Page 385]]

    (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 public sector, and the community
as a whole. Information 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 Administrator 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 Administrator upon consultation with the State. It may be
necessary, however, to conduct an assessment to determine unmet needs
for managerial response purposes.

[[Page 386]]



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 Assistant
Administrator for the Disaster Assistance Directorate 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 Assistant Administrator for the Disaster
Assistance Directorate through the appropriate Regional Administrator 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:
    (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 Administrator shall gather adequate information to support a
recommendation and forward it to the Assistant Administrator for the
Disaster Assistance Directorate. If the Assistant Administrator for the
Disaster Assistance Directorate 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 Assistant Administrator for the
Disaster Assistance Directorate.
    (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
Administrator 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 Administrator 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

[[Page 387]]

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 Administrator
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
Assistant Administrator for the Disaster Assistance Directorate 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 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 Administrator. Any recommendation for a
Presidential declaration of emergency in the absence of a Governor's
request must be initiated by the Regional Administrator or transmitted
through the Regional Administrator by another Federal agency. In
determining that such an emergency exists, the Assistant Administrator
for the Disaster Assistance Directorate or Regional Administrator 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 Administrator 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 Assistant Administrator for the
Disaster Assistance Directorate, provided that a written request for an
extension is submitted by the Governor, or Acting Governor, during

[[Page 388]]

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 Administrator
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 Administrator 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 Assistant Administrator for the Disaster Assistance Directorateshall
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 Administrator 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 Administrator shall promptly prepare a summary of
the PDA findings. The data will be analyzed and submitted with a
recommendation to the Assistant Administrator for the Disaster
Assistance Directorate. 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
Administrator 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;

[[Page 389]]

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 Administrator or
his/her designee of a declaration by the President that an emergency or
a major disaster exists. FEMA also will notify other Federal agencies
and other interested parties.
    (b) The Governor will be promptly notified by the Administrator 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 Administrator or the Assistant Administrator for the Disaster
Assistance Directorate 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 Assistant Administrator for the
Disaster Assistance Directorate 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 Assistant Administrator for the Disaster
Assistance Directorate 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 Assistant Administrator for the Disaster Assistance
Directorate may authorize all, or only particular types of,
supplementary Federal assistance requested by the Governor.
    (b) Areas eligible to receive assistance. The Assistant
Administrator for the Disaster Assistance Directorate also has been
delegated authority to designate the affected areas eligible for
supplementary Federal assistance

[[Page 390]]

under the Stafford Act. These designations shall be published in the
Federal Register. An affected area designated by the Assistant
Administrator for the Disaster Assistance Directorate includes all local
government jurisdictions within its boundaries. The Assistant
Administrator for the Disaster Assistance Directorate 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 Assistant Administrator for the Disaster Assistance
Directorate. 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 Assistant Administrator for the Disaster Assistance
Directorate 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.

[55 FR 2292, Jan. 23, 1990, as amended at 74 FR 60213, Nov. 20, 2009]



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 Administrator or
Deputy Administrator 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 Administrator shall
designate a DRM to exercise all the authority of the Regional
Administrator 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.



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,

[[Page 391]]

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
Administrator 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
Administrator 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 modified, such
changes will be reflected in properly executed amendments to the
Agreement, which may be signed by the GAR and the Regional Administrator
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
Assistant Administrator for the Disaster Assistance Directorate together
with the Chief Financial Officer 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

[[Page 392]]

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
Assistant Administrator for the Disaster Assistance Directorate together
with the Chief Financial Officer.
    (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
Administrator. 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 Assistant Administrator for the Disaster Assistance
Directoratethrough the appropriate Regional Administrator.
    (c) Denial of advance of non-Federal share. In those instances where
the Governor's request for an advance is 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 Assistant Administrator for the Disaster Assistance
Directoratethrough the appropriate Regional Administrator.
    (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
Assistant Administrator for the Disaster Assistance Directorate provided
that a written request for such an extension, citing reasons for the
delay, is made during this 30-day period, and if the Assistant
Administrator for the Disaster Assistance Directorate 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

[[Page 393]]

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 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

[[Page 394]]

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.
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.

[[Page 395]]

    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 Regional Administrator or
Administrator 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]



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 Administrator
that:
    (a) Continued emergency assistance is immediately required;

[[Page 396]]

    (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
Administrator 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 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 Administrator.
    (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

[[Page 397]]

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
Administrator 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.
    (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 Administrator 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

[[Page 398]]

a serious health or safety hazard which did not exist prior to the
disaster. The Regional Administrator 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 Administrator, 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 Administrator; 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 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 Administrator. Authorized expenditures for
transient accommodations shall be restricted to

[[Page 399]]

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 Assistant Administrator for the Disaster
Assistance Directorate has determined that leasing commercial sites at
Federal expense is in the public interest. When the Regional
Administrator 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 Assistant Administrator for the Disaster Assistance
Directorate 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 Assistant Administrator for the Disaster Assistance
Directorate may authorize development of group sites, including
installation of essential utilities, by the Federal Government, based on
a recommendation from the Regional Administrator; 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 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 Administrator, 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

[[Page 400]]

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 Administrator. 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
Assistant Administrator for the Disaster Assistance Directorate.
    (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 Administrator 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 Assistant Administrator for the Disaster Assistance
Directorate. The Regional Administrator 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 Administrator 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;
    (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.

[[Page 401]]

    (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 Administrator 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 Administrator, 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
Administrator 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 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:

[[Page 402]]

    (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 Administrator 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
Administrator 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 Administrator 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 Administrator 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 Administrator 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 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,

[[Page 403]]

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
Administrator, 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 Administrator 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
Assistant Administrator for the Disaster Assistance Directorate 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 is not feasible or cost effective, the Assistant Administrator
for the Disaster Assistance Directorate 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 Administrator 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;

[[Page 404]]

    (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 Assistant Administrator for the
Disaster Assistance Directorate 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
Assistant Administrator for the Disaster Assistance Directorate. 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 Assistant Administrator for the
Disaster Assistance Directorate.
    (C) The Regional Administrator 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 Administrator 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.
    (3) Transfer. The Assistant Administrator for the Disaster
Assistance Directorate 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

[[Page 405]]

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 Assistant Administrator for the Disaster Assistance Directorate
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 Assistant
Administrator for the Disaster Assistance Directorate 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 Assistant Administrator for the Disaster Assistance
Directorate, Regional Administrator, 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 Assistant
Administrator for the Disaster Assistance Directorate, based on a
determination that an extension is necessary and in the public interest.
The Regional Administrator 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 Administrator from
the Governor or his/her authorized representative. The Associate
Director shall approve such a request based on the Regional
Administrator'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:
    (A) Assignment of temporary housing assistance responsibilities to
State and/or local officials and agencies;

[[Page 406]]

    (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
Administrator to provide technical assistance in the preparation of an
administrative plan.
    (iii) The Governor or designee shall submit the plan to the Regional
Administrator for approval. Plans shall be revised, as necessary, and
shall be reviewed at least annually by the Regional Administrator.
    (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 Administrator 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 Administrator 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 Assistant Administrator for the Disaster
Assistance Directorate based on an evaluation of the capabilities and
commitment of the entity by the Regional Administrator. 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 Administrator 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 407]]

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 Assistant
Administrator for the Disaster Assistance Directorate. All contracts
require the review and approval of the Regional Administrator prior to
award, in order to be considered as an authorized expenditure.
    (6) Federal monitoring and oversight. The Regional Administrator
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 Administrator 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 Administrator 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.

[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; 74 FR 15347, Apr.
3, 2009]



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 408]]

    (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 Assistant Administrator for the Disaster Assistance
Directorate 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

[[Page 409]]

providing additional State or local disaster assistance to individuals
and households.
    (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

[[Page 410]]

household income; and is within the financial ability of the occupant.
    Alternative housing resources means any housing that is available or
can 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 Administrator.
    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;

[[Page 411]]

    (2) Private site, a site that the applicant provides or obtains at
no cost to the Federal Government, complete with utilities; and
    (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 administrator
or his/her designee may extend the registration period when the State
requests more time to collect registrations from the affected
population. The Regional Administrator 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;

[[Page 412]]

    (3) In a situation where the applicant has insurance, when the
insured individual or household's insurance proceeds have been
significantly delayed 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

[[Page 413]]

exceed the maximum amount of assistance for the program, based on need,
and generally only when adequate, alternate housing is not available or
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 Administrator 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.

[[Page 414]]

    (e) The appropriate FEMA or State program official will notify the
applicant in writing of the receipt of the appeal.
    (f) The Regional Administrator or his/her designee or appropriate
State official will review the original decision after 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) Definitions. The definitions in this paragraph apply to this
section only.
    ``Caused by the disaster'' means as a direct result of a peril
identified in the Federal Register Notice of a Presidentially-declared
major disaster or emergency, the component is no longer functional.
    ``Real Property Component'' or ``Component'' means each individual
part of a dwelling that makes it habitable, as enumerated in paragraph
(b)(2)(ii) of this section.
    ``Semi-Permanent Housing'' means housing designed and constructed
with finishes, material, and systems selected for moderate (or better)
energy efficiency, maintenance, and life cycle cost, and with a life
expectancy of more than 5 years but less than 25 years.
    (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 Administrator 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 Administrator 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

[[Page 415]]

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 Administrator 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 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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

[[Page 416]]

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
repair of real property components in an owner's primary residence if:
    (A) The eligibility criteria in Sec. 206.113 are met;
    (B) The component was functional immediately before the declared
event;
    (C) The component was damaged, and the damage was caused by the
disaster;
    (D) The damage to the component is not covered by insurance; and
    (E) Repair of the component is necessary to ensure the safety or
health of the occupant or to make the residence functional.
    (ii) FEMA may provide financial assistance for the repair of:
    (A) Structural components of the residence. This includes real
property components, such as the foundation, exterior walls, and roof.
    (B) Windows and doors.
    (C) The Heating, Ventilation and Air Conditioning system.
    (D) Utility systems. This includes electrical, gas, water and sewage
systems.
    (E) Interior components. This includes, but is not limited to, the
structure's floors, walls, ceilings, and cabinetry.
    (F) The structure's access and egress, including privately owned
access roads and privately owned bridges.
    (G) Blocking, leveling, and anchoring of a mobile home, and
reconnecting or resetting mobile home sewer, water, electrical and fuel
lines and tanks.
    (H) Items or services determined to be eligible hazard mitigation
measures that reduce the likelihood of future damage to the residence,
utilities, or infrastructure.
    (iii) The components that may be deemed eligible for repair
assistance, and the type of repairs authorized, will vary depending upon
the nature of the disaster. Repairs are limited to restoration of the
dwelling to a safe and sanitary living or functioning condition. Repair
assistance will only be provided to the extent that the work makes the
component functional. FEMA may provide for the replacement of components
if repair is not feasible. The repairs of components must be of average
quality, size, and capacity, taking into consideration the needs of the
occupant.
    (iv) Components that were functional immediately before the declared
event may be eligible for repair assistance if the damage to the
component was caused by the disaster and the component is no longer
functional.
    (v) Eligible individuals or households may receive up to the maximum
amount of assistance (See Sec. 206.110(b) of this part) to repair
damages to their primary residence irrespective of other financial
resources, except insurance proceeds.
    (vi) The individual or household is responsible for obtaining all
local permits or inspections that applicable State or local building
codes may require.
    (vii) If the applicant disputes a determination made by FEMA
regarding eligibility for repair assistance, the applicant may appeal
that determination pursuant to the procedures in Sec. 206.115 of this
part. In addition to the requirements in Sec. 206.115, the applicant
must provide proof that the component meets the requirements of
paragraph (b)(2)(i) of this section, including that the component was
functional before the declared event and proof that the declared event
caused the component to stop functioning. If the applicant disputes the
amount of repair assistance awarded, the applicant must also provide
justification for the amount sought.
    (3) Housing replacement. (i) FEMA may provide financial assistance
for the replacement of an owner's primary residence if:
    (A) The eligibility criteria in Sec. 206.113 of this part are met;
    (B) The residence was functional immediately before the disaster;
    (C) The residence was destroyed, and the damage was caused by, the
disaster;
    (D) The damage to the residence is not covered by insurance;

[[Page 417]]

    (E) Repair is not feasible, will not ensure the safety or health of
the occupant, or will not make the residence functional; and
    (F) Replacement is necessary to ensure the safety or health of the
occupant.
    (ii) All replacement assistance awards must be approved by the
Regional Administrator or his/her designee. If replacement assistance is
granted, the applicant may either use the maximum amount of assistance
(See Sec. 206.110(b) of this part) to replace the dwelling in its
entirety, or may use the assistance toward the cost of acquiring a new
permanent residence.
    (iii) Housing replacement assistance will be based on the verified
disaster-related level of damage to the dwelling, or the statutory
maximum (See Sec. 206.110(b) of this part), whichever is less.
    (iv) If the applicant disputes a determination made by FEMA
regarding eligibility for replacement assistance, the applicant may
appeal that determination pursuant to the procedures in Sec. 206.115 of
this part. In addition to the requirements in Sec. 206.115, the
applicant must provide proof that repair is not feasible, or will not
ensure the safety or health of the occupant or make the residence
functional. If the applicant disputes the amount of replacement
assistance awarded, the applicant must also provide justification for
the amount sought.
    (4) Permanent and semi-permanent housing construction. (i) FEMA may
provide financial or direct assistance to applicants for the purpose of
constructing permanent and semi-permanent housing if:
    (A) The eligibility criteria in Sec. 206.113 of this part are met;
    (B) The residence was functional immediately before the declared
event;
    (C) The residence was damaged by the event;
    (D) The damage to the residence is not covered by insurance;
    (E) The residence was an owner-occupied primary residence; and
    (F) The residence is located in an insular area outside the
continental United States or in another location where alternative
housing resources are not available and the types of financial or direct
temporary housing assistance described in paragraphs (b)(1), (2), and
(3) of this section are unavailable, infeasible, or not cost-effective.
    (ii) Permanent and semi-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.
    (iii) If the applicant disputes a determination made by FEMA
regarding eligibility for construction assistance, the applicant may
appeal that determination pursuant to the procedures in Sec. 206.115 of
this part. In addition to the requirements in Sec. 206.115, the
applicant must provide proof that the property is either located in an
insular area outside the continental United States, or in a location
where alternative housing resources are not available. The applicant
must also provide proof that the types of financial or direct temporary
housing assistance described in paragraph (b)(1) of this section are
unavailable, infeasible, or not cost effective. If the applicant
disputes the amount of construction assistance awarded, the applicant
must also provide justification for the amount sought.

[67 FR 61452, Sept. 30, 2002; 67 FR 62896, Oct. 9, 2002, as amended at
78 FR 66856, Nov. 7, 2013]



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.
    (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

[[Page 418]]

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
    (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.

[[Page 419]]

    (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 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

[[Page 420]]

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
Administrator. 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 Administrator 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
Administrator 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 Administrator.
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.
    (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.

[[Page 421]]

    (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 DHS Office of Inspector General.
    (x) Capacity to investigate allegations of waste, fraud and abuse
independently if requested by DHS OIG, or in conjunction with DHS 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 Administrator 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 Assistant Administrator for the Disaster Assistance Directorate.
The State must include 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

[[Page 422]]

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 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

[[Page 423]]

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 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.

[[Page 424]]

    (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 Assistant Administrator for Mitigation 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 Administrator
for the purpose of accepting and processing grant applications in that
community. The Regional Administrator or Assistant Administrator for the
Disaster Assistance Directorate, 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 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

[[Page 425]]

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 Administrator 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:
    (i) Housing. With respect to primary residences (including mobile
homes) which are owner-occupied at the time

[[Page 426]]

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 Administrator and
request guidance. The Assistant Administrator for the Disaster
Assistance Directorate also may determine that other necessary expenses
and serious needs are eligible for grant assistance. Following such a
determination, the Assistant Administrator for the Disaster Assistance
Directorate shall advise the State, through the Regional Administrator,
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 427]]

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 Administrator 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
Administrator;
    (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,

[[Page 428]]

i.e., FEMA will not hold the State responsible for repaying to FEMA the
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 Administrator, 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 Government Accountability 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
Administrator 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 Administrator. The Regional Administrator
shall review and approve the plan annually. In each disaster for which
assistance under this section is requested, the Regional Administrator
shall request the State to prepare any amendments required to meet
current policy guidance. The Regional Administrator 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 Administrator, 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;

[[Page 429]]

    (2) That the State will pay its 25 percent share of all grants to
individuals and families;
    (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 Assistant Administrator for the Disaster
Assistance Directorate; and
    (6) To maintain close coordination with and provide reports to the
Regional Administrator.
    (g) Funding. (1) The Regional Administrator 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 Administrator may then obligate funds for the
Federal share for the current disaster.
    (2) The Regional Administrator 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 Administrator.
Advances to the State are governed by 44 CFR 13.21, Payment.
    (3) The Regional Administrator 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 Administrator 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 13. 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),

[[Page 430]]

then such an application referred to the State by 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
Administrator 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 Administrator 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 Administrator may
approve the request for a period not to exceed 90 days. The Assistant
Administrator for the Disaster Assistance Directorate 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 Administrator. 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 Administrator 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 Administrator. Such appeals shall be made in writing within 60
days of the Regional Administrator 's decision. The appeal must include
information justifying a reversal of the decision. The Regional
Administrator 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 Assistant Administrator for the Disaster
Assistance Directorate. The State may further appeal the Regional
Administrator 's decisions to the Assistant Administrator for the
Disaster Assistance Directorate. This appeal shall be made in writing
within 60 days of the Regional Administrator 's decision. The appeal
must include information justifying a reversal of the decision. The
Assistant Administrator for the Disaster Assistance Directorate 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
Administrator 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; 74 FR 15348, Apr. 3, 2009]



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

[[Page 431]]

issue regulations, are currently delegated to the Secretary of Labor.



Sec. Sec. 206.142-206.150  [Reserved]



Sec. 206.151  Food commodities.

    (a) The Administrator will assure that adequate stocks of food will
be ready and conveniently available for 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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 Administrator has determined that
there is no other means of obtaining adequate legal assistance for
qualified disaster victims; or
    (4) Any other arrangement the Regional Administrator deems
appropriate.
    The Assistant Administrator for the Disaster Assistance Directorate
shall coordinate with appropriate Federal agencies and the appropriate
national,

[[Page 432]]

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
Administrator, 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
Administrator. At the Regional Administrator 's discretion,
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 Administrator  means the head of the
Disaster Assistance Directorate; 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 Administrator or Deputy Administrator 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 Administrator 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 Administrator  means the director of a regional office
of FEMA, or the Disaster Recovery Manager, as the delegate of the
Regional Administrator.
    (10) Secretary means the Secretary of DHHS or his/her delegate.
    (11) State Coordinating Officer (SCO) means the person appointed by
the

[[Page 433]]

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 Administrator and Assistant Administrator for the
Disaster Assistance Directorate, in fulfilling 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
Administrator for the Disaster Assistance Directorate.
    (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 Administrator 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 Administrator, 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 Administrator
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
Administrator;
    (iii) To maintain close coordination with and provide reports to the
Regional Administrator; 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
Administrator:
    (i) A mid-program report only when a regular program grant
application is

[[Page 434]]

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 Administrator, upon written
request from 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 Administrator '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 Administrator 's
decision to the Assistant Administrator for the Disaster Assistance
Directorate. This appeal shall be made in writing within 60 days of the
date of the Regional Administrator 's notification of the decision on
the immediate services application. The appeal must include information
justifying a reversal of the decision. The Assistant Administrator for
the Disaster Assistance Directorate, or other impartial person, shall
review the material submitted, and after consultation with the Secretary
and Regional Administrator, 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
Administrator for the Disaster Assistance Directorate through the
Regional Administrator, 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
Administrator for the Disaster Assistance Directorate;
    (iii) To maintain close coordination with and provide reports to the
Regional Administrator, the Assistant Administrator for the Disaster
Assistance Directorate, 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;

[[Page 435]]

    (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 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 Administrator, the Secretary, and the State
Coordinating Officer:
    (i) Quarterly progress reports, as required by the Regional
Administrator 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 Administrator,
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
Administrator and the Secretary, the Assistant Administrator for the
Disaster Assistance Directorate 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 Administrator for the Disaster
Assistance Directorate 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 Administrator for
the Disaster Assistance Directorate '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
Administrator for the Disaster Assistance Directorate, or other
impartial person, in consultation with the Secretary and Regional
Administrator, 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

[[Page 436]]

    (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 Administrator
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;
    (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 Administrator 's and Secretary's recommendations
and documentation to the Assistant Administrator for the Disaster
Assistance Directorate;
    (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 Administrator 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 Administrator, 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
Administrator, and the Assistant Administrator for the Disaster
Assistance Directorate;
    (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 Administrator and Assistant Administrator for the Disaster
Assistance Directorate 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 Administrator, FCO, or Assistant Administrator for the Disaster
Assistance Directorate;

[[Page 437]]

    (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 Administrator for
the Disaster Assistance Directorate, 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 Administrator for the Disaster Assistance
Directorate shall:
    (i) Approve or disapprove a State's request for assistance based on
recommendations of the Regional Administrator 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 Administrator;
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.
    (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 Assistant Administrator for the Disaster Assistance
Directorate, the Regional Administrator, the DHS 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

[[Page 438]]

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 disaster assistance through notice in the Federal Register,
and only at the discretion of the Assistant Administrator for the
Disaster Assistance Directorate. 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
Administrator for the Disaster Assistance Directorate 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 Administrator for
the Disaster Assistance Directorate, based on the Regional Administrator
'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
Administrator for the Disaster Assistance Directorate 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 Administrator for
the Disaster Assistance Directorate, shall be responsible for awarding
funds and authorizing disbursement.
    (2) The Chief Financial Officer shall be responsible for fund
accountability and, in coordination with the Assistant Administrator for
the Disaster Assistance Directorate, for liaison with the Department of
the Treasury concerning the investment of excess

[[Page 439]]

money in the fund pursuant to the provisions contained in section 601 of
the Act.
    (3) Each FEMA Regional Administrator may submit requests to the
Assistant Administrator for the Disaster Assistance Directorate 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 Administrator for the Disaster Assistance Directorate
shall review the facts and make a determination. If the award amount is
below $2,000, the Assistant Administrator for the Disaster Assistance
Directorate may appoint a designee to have approval authority; approval
authority of $2,000 or above shall be retained by the Assistant
Administrator for the Disaster Assistance Directorate. The Assistant
Administrator for the Disaster Assistance Directorate shall notify the
Chief Financial Officer of a decision for approval, and the Chief
Financial Officer shall order a check to be sent to the disaster victim
(or jointly to the disaster victim and an assistance organization),
through the Regional Administrator. The Assistant Administrator for the
Disaster Assistance Directorate shall also notify the Regional
Administrator of the decision, whether for approval or disapproval. The
Regional Administrator 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 Administrator shall submit his/her recommendation
and supporting documentation to the Assistant Administrator for the
Disaster Assistance Directorate (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 Administrator for the
Disaster Assistance Directorate shall request the Chief Financial
Officer to send a check to the intended recipient or provider, as
appropriate. The Assistant Administrator for the Disaster Assistance
Directorate shall notify the Regional Administrator of the decision. The
Regional Administrator shall notify a representative of the group in
writing.
    (5) The Chief Financial Officer shall process requests for checks,
shall keep records of disbursements and balances in the account, and
shall provide the Assistant Administrator for the Disaster Assistance
Directorate with quarterly reports.
    (e) Audits. The Inspector General of DHS may 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 Administrator, for information, comments and appropriate
action. A copy shall be provided to the Chief Financial Officer 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

[[Page 440]]

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 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:

[[Page 441]]

    (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 Administrator, 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 Administrator 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 Administrator 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
Administrator 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 Administrator 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 Administrator
will take no further action. If the agency was not successful in
correcting the duplication, and the Regional Administrator 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 Administrator is not satisfied that
the procedures were followed in an acceptable manner, then the Regional
Administrator 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 Administrator 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 Administrator'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 Administrator 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

[[Page 442]]

312, the Regional Administrator 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 the Department of Homeland Security's Debt
Collection Regulations (6 CFR part 11--Claims).

[54 FR 11615, Mar. 21, 1989, as amended at 67 FR 61460, Sept. 30, 2002;
74 FR 15350, Apr. 3, 2009]



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]



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. 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,
except as provided in Sec. 206.202(f), the State for which the
emergency or major disaster is declared is the grantee. However, an
Indian Tribal government may choose to be a grantee, or it may act as a
subgrantee under the State. If an Indian Tribal government is the
grantee, it will assume the responsibilities of the ``grantee'' or
``State'' as described in this part with respect to administration of
the Public Assistance program.
    (f) Hazard mitigation means any cost effective measure which will
reduce the potential for damage to a facility from a disaster event.
    (g) Host-State. A State or Indian Tribal government that by
agreement with

[[Page 443]]

FEMA provides sheltering and/or evacuation support to evacuees from an
impact-State. An Indian Tribal government may also be referred to as a
``Host-Tribe.''
    (h) Impact-State. The State for which the President has declared an
emergency or major disaster and that, due to a need to evacuate and/or
shelter affected individuals outside the State, requests such assistance
from FEMA pursuant to Sec. 206.208.
    (i) 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 the 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.
    (j) 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.
    (k) 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.
    (l) 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.
    (m) Project approval means the process in which the Regional
Administrator, 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.
    (n) Subgrant means an award of financial assistance under a grant by
a grantee to an eligible subgrantee.
    (o) 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; 74 FR 60213, Nov. 20, 2009]



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 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 Administrator for
each applicant who requests public assistance. You must send Requests to
the Regional Administrator 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)

[[Page 444]]

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
$3,000, that work is not eligible and we will not approve a Project
Worksheet for the project. Such $3,000 amount shall be adjusted annually
to reflect changes in the Consumer Price Index for All Urban Consumers
published by the Department of Labor.
    (e) Grant approval. (1) Before we obligate any funds to the State,
the Grantee must complete and send to the Regional Administrator 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 Administrator 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 this section.
    (1) Host-State Evacuation and/or Sheltering. (i) General. A grant to
a host-State for sheltering and/or evacuation support is available under
this section when an impact-State requests direct Federal assistance for
sheltering and/or evacuation support pursuant to Sec. 206.208. To
receive this grant, a host-State must enter into a FEMA-Host-State
Agreement, amend its State Administrative Plan pursuant to Sec.
206.207, and submit a Standard Form SF424 Application for Federal
Assistance directly to FEMA to apply for reimbursement of eligible costs
for evacuating and/or sheltering individuals from an impact-State. Upon
award, the host-State assumes the responsibilities of the ``grantee'' or
``State'' under this part with respect to its grant award.
    (ii) Force Account Labor Costs. For the performance of eligible
evacuation and sheltering support under sections 403 or 502 of the
Stafford Act, the straight-time salaries and benefits of a host-State's
permanently employed personnel are eligible for reimbursement. This is
an exception to Sec. 206.228(a)(2).
    (2) Time limitations. The Regional Administrator 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 circumstances beyond the grantee's or
subgrantee's control.

[64 FR 55160, Oct. 12, 1999, as amended at 74 FR 15350, Apr. 3, 2009; 74
FR 60213, Nov. 20, 2009; 79 FR 10686, Feb. 26, 2014]



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 $120,000 or greater,
Federal funding shall equal the Federal share of the actual eligible
costs documented by a grantee. Such $120,000 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 $120,000, Federal funding shall equal
the Federal share of the approved estimate of eligible costs. Such
$120,000 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.

[[Page 445]]

    (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 Regional Administrator approve an alternate project.
    (i) The alternate project option may be taken only on permanent
restorative work.
    (ii) Federal funding for alternate projects for damaged public
facilities will be 90 percent of the Federal share of the Federal
estimate of the cost of repairing, restoring, reconstructing, or
replacing the facility and of management expenses.
    (iii) Federal funding for alternate projects for damaged private
nonprofit facilities will be 75 percent of the Federal share of the
Federal estimate of the cost of repairing, restoring, reconstructing, or
replacing the facility and of management expenses.
    (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 Regional Administrator 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; 73
FR 20551, Apr. 16, 2008; 79 FR 10686, Feb. 26, 2014]



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
Regional Administrator 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 Regional Administrator shall review the request and
make a determination. The Grantee shall be notified of the Regional
Administrator's determination in writing. If the Regional Administrator
approves the request, the letter shall reflect the approved completion
date and any other requirements the Regional Administrator may determine
necessary to ensure that the new completion date is met. If the Regional
Administrator 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.

[[Page 446]]

    (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 Regional Administrator for a final determination. All requests
for the Regional Administrator'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 Regional Administrator 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 Regional Administrator quarterly. The Regional
Administrator 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
Regional Administrator 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 Regional Administrator 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 Regional Administrator 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 Regional Administrator 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

[[Page 447]]

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 Administrator. The
grantee shall review and evaluate all subgrantee appeals before
submission to the Regional Administrator. The grantee may make grantee-
related appeals to the Regional Administrator. 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 Administrator will consider
first appeals for public assistance-related decisions under subparts A
through L of this part.
    (2) The Assistant Administrator for the Disaster Assistance
Directorate will consider appeals of the Regional Administrator'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 Administrator
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional
Administrator (for first appeals) or Assistant Administrator for the
Disaster Assistance Directorate (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 Administrator or
Assistant Administrator for the Disaster Assistance Directorate 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 Administrator or Assistant
Administrator for the Disaster Assistance Directorate will notify the
grantee in writing of the disposition of the appeal. If the decision is
to grant the appeal, the Regional Administrator will take appropriate
implementing action.
    (d) Technical Advice. In appeals involving highly technical issues,
the Regional Administrator or Assistant Administrator for the Disaster
Assistance Directorate may, at his or her discretion, submit the appeal
to an independent scientific or technical person or group having
expertise in the subject matter of the appeal for advice or
recommendation. The period for this technical review may be in addition
to other allotted time periods. Within 90 days of receipt of the report,
the Regional Administrator or Assistant Administrator for the Disaster
Assistance Directorate 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 Assistant Administrator
for the Disaster Assistance Directorate before May 8, 1998 may be
appealed to the Administrator 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

[[Page 448]]

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;
    (H) Compliance with the audit requirements of 44 CFR part 13;
    (I) Processing requests for advances of funds and reimbursement; and
    (J) Determining staffing and budgeting requirements necessary for
proper program management.
    (K) Determining the reasonable percentage or amount of pass-through
funds for management costs provided under 44 CFR part 207 that the
grantee will make available to subgrantees, and the basis, criteria, or
formula for determining the subgrantee percentage or amount.
    (2) The Grantee may request the Regional Administrator 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 Regional
Administrator annually. In each disaster for which Public Assistance is
included, the Regional Administrator 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 13 or OMB Circular A-110 as appropriate.
    (2) Federal audit. In accordance with 44 CFR part 13, 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, as amended at 72
FR 57875, Oct. 11, 2007; 74 FR 15350, Apr. 3, 2009]



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(1) and (4), 403, 407, 502(a)(1), (5) and (7)
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 Regional
Administrator 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.

[[Page 449]]

    (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 Regional Administrator 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 Regional
Administrator.
    (2) If all or any part of the requested work falls within the
statutory authority of another Federal agency, the Regional
Administrator 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.
    (3) If an impact-State requests assistance in providing evacuation
and sheltering support outside an impact-State, FEMA may directly
reimburse a host-State for such eligible costs through a grant to a
host-State under an impact-State's declaration, consistent with Sec.
206.202(f)(1). FEMA may award a grant to a host-State when FEMA
determines that a host-State has sufficient capability to meet some or
all of the sheltering and/or evacuation needs of an impact-State, and a
host-State agrees in writing to provide such support to an impact-State.
    (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 Regional Administrator may extend this time
limitation.
    (e) Project management. (1) The performing Federal agency shall
ensure that the work is completed in accordance with the Regional
Administrator's approved scope of work, costs and time limitations. The
performing Federal agency shall also keep the Regional Administrator 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; 74
FR 60214, Nov. 20, 2009]



Sec. 206.209  Arbitration for Public Assistance determinations related
to Hurricanes Katrina and Rita (Major disaster declarations DR-1603,

DR-1604, DR-1605, DR-1606, and DR-1607).

    (a) Scope. Pursuant to section 601 of the American Recovery and
Reinvestment Act of 2009, Public Law 111-5, this section establishes
procedures for arbitration to resolve disputed Public Assistance
applications under the following major disaster declarations: DR-1603,
DR-1604, DR-1605, DR-1606, and DR-1607.
    (b) Applicability. An applicant or subgrantee (hereinafter
``applicant'' for purposes of this section) may request arbitration of a
determination made by FEMA on an application for Public Assistance,
provided that the total amount of the project is greater than $500,000,
and provided that:
    (1) the applicant is eligible to file an appeal under Sec. 206.206;
or

[[Page 450]]

    (2) the applicant had a first or second level appeal pending with
FEMA pursuant to Sec. 206.206 on or after February 17, 2009.
    (c) Governing rules. An applicant that elects arbitration agrees to
abide by this section and applicable guidance. The arbitration will be
conducted pursuant to procedure established by the arbitration panel.
    (d) Limitations--(1) Election of remedies. A request for arbitration
under this section is in lieu of filing or continuing an appeal under
Sec. 206.206.
    (2) Final agency action under Sec. 206.206. Arbitration is not
available for any matter that obtained final agency action by FEMA
pursuant to Sec. 206.206 prior to February 17, 2009. Arbitration is not
available for determinations for which the applicant failed to file a
timely appeal under the provisions of Sec. 206.206 prior to August 31,
2009, or for determinations which received a decision on a second appeal
from FEMA prior to February 17, 2009.
    (e) Request for arbitration--(1) Content of request. The request for
arbitration must contain a written statement and all documentation
supporting the position of the applicant, the disaster number, and the
name and address of the applicant's authorized representative or
counsel.
    (2) Submission by the applicant to the Grantee, the FEMA Regional
Administrator, and the arbitration administrator. An applicant under
paragraph (b)(1) of this section must submit its request for arbitration
in writing simultaneously to the Grantee, the FEMA Regional
Administrator, and the arbitration administrator within 30 calendar days
after receipt of notice of the determination that is the subject of the
arbitration request or by September 30, 2009, whichever is later. An
applicant under paragraph (b)(2) of this section must make a request for
arbitration in writing and, if FEMA has not issued a decision on the
appeal, submit a withdrawal of the pending appeal, simultaneously to the
Grantee, the FEMA Regional Administrator, and the arbitration
administrator by October 30, 2009.
    (3) Submission by the Grantee to the arbitration administrator and
FEMA. Within 15 calendar days of receipt of the applicant's request for
arbitration, the Grantee must forward the name and address of the
Grantee's authorized representative or counsel, and may forward a
written recommendation in support or opposition to the applicant's
request for arbitration, simultaneously to the FEMA Regional
Administrator, the arbitration administrator, and the applicant.
    (4) Submission of FEMA's response. FEMA will submit a memorandum in
support of its position, a copy of the Project Worksheet(s), and any
other supporting information, as well as the name and address of its
authorized representative or counsel, simultaneously to the arbitration
administrator, the Grantee, and the applicant, within 30 calendar days
of receipt of the applicant's request for arbitration.
    (5) Process for submissions. When submitting a request for
arbitration, the applicant should describe its claim with sufficient
detail so that the circumstances of the dispute are clear to the
arbitration panel. All papers, notices, or other documents submitted to
the arbitration administrator under this section by the applicant, the
Grantee, or FEMA will be served on each party's authorized
representative or counsel. The submitting party will make such service
by courier or overnight delivery service (such as Federal Express, DHL,
United Parcel Service, or the United States Postal Service overnight
delivery), addressed to the party, representative, or counsel, as
applicable, at its last known address.
    (f) Selection of arbitration panel. The arbitration administrator
will select the arbitration panel for arbitration and notify the
applicant, FEMA, and the Grantee of the names and identities of the
arbitrators selected for the panel.
    (g) Preliminary conference. The arbitration panel will hold a
preliminary conference with the parties and/or representatives of the
parties within 10 business days of the panel's receipt of FEMA's
response to the request for arbitration. The panel and the parties will
discuss the future conduct of the arbitration, including clarification
of the disputed issues, request for disqualification of an arbitrator
(if applicable), and any other preliminary matters. The date and place
of any oral

[[Page 451]]

hearing will be set at the preliminary conference. The preliminary
conference will be conducted by telephone.
    (h) Hearing--(1) Request for hearing. The panel will provide the
applicant and FEMA with an opportunity to make an oral presentation on
the substance of the applicant's claim in person, by telephone
conference, or other means during which all the parties may
simultaneously hear all other participants. If the applicant or FEMA
would like to request an oral hearing, the request must be made no later
than the preliminary conference.
    (2) Location of hearing. If an in-person hearing is authorized, it
will be held at a hearing facility of the arbitration panel's choosing.
    (3) Conduct of hearing. Each party may present its position through
oral presentations by individuals designated in advance of the hearing.
These presentations may reference documents submitted pursuant to
paragraph (e) of this section; the parties may not provide additional
paper submissions at the hearing. If the panel deems it appropriate or
necessary, it may request additional written materials from either or
both parties or seek the advice or expertise of independent scientific
or technical subject matter experts.
    (4) Closing of hearing. The panel will inquire of each party whether
it has any further argument. When satisfied that the record is complete,
the panel will declare the hearing closed, unless a post-hearing
submission of additional information or a memorandum of law is to be
provided in accordance with this paragraph. The hearing will be declared
closed as of the date set by the panel for the submission of the
additional information or the memorandum of law.
    (5) Time limits. The panel will endeavor to hold the hearing within
60 calendar days of the preliminary conference.
    (6) Postponement. The arbitration panel may postpone a hearing upon
agreement of the parties, or upon request of a party for good cause
shown. Within 10 business days of the postponement, the arbitration
panel will notify the parties of the rescheduled date of the hearing.
    (7) Record of the hearing. There will be no recording of the
hearing, unless a party specifically requests and arranges for such
recording at its own expense.
    (8) Post-hearing submission of additional information. A party may
file with the arbitration panel additional information or a memorandum
of law after the hearing upon the arbitration panel's request or upon
the request of one of the parties with the panel's consent. The panel
will set the time for submission of the additional information or the
memorandum of law.
    (9) Reopening of hearing. The hearing may be reopened on the panel's
initiative under compelling circumstances at any time before the
decision is made.
    (i) Review by the arbitration panel. (1) Determination of
timeliness. Upon notification by FEMA, or on its own initiative, the
arbitration panel will determine whether the applicant timely filed a
request for arbitration.
    (2) Substantive review. The arbitration panel will consider all
relevant written materials provided by the applicant, the Grantee, and
FEMA, as well as oral presentations, if any. If the panel deems it
appropriate or necessary, it may request additional written materials
from either or both parties or seek the advice or expertise of
independent scientific or technical subject matter experts.
    (j) Ex parte communications. No party and no one acting on behalf of
any party will engage in ex parte communications with a member of the
arbitration panel. If a party or someone acting on behalf of any party
engages in ex parte communications with a member of the arbitration
panel, the party that engaged in such communication will provide a
summary or a transcript of the entire communication to the other
parties.
    (k) Decision--(1) Time limits. The panel will make every effort to
issue a written decision within 60 calendar days after the panel
declares the hearing closed pursuant to paragraph (h)(4) of this
section, or, if a hearing was not requested, within 60 calendar days
following the receipt of FEMA's response to the request for arbitration.
A decision of the panel may take longer than

[[Page 452]]

60 calendar days if the arbitration involves a highly technical or
complex matter.
    (2) Form and content. The decision of the panel will be in writing
and signed by each member of the panel. The panel will issue a reasoned
decision that includes a brief and informal discussion of the factual
and legal basis for the decision.
    (3) Finality of decision. A decision of the majority of the panel
shall constitute a final decision, binding on all parties. Final
decisions are not subject to further administrative review. Final
decisions are not subject to judicial review, except as permitted by 9
U.S.C. 10.
    (4) Delivery of decision. Notice and delivery of the decision will
be by facsimile or other electronic means and by regular mail to each
party or its authorized representative or counsel.
    (l) Costs. FEMA will pay the fees associated with the arbitration
panel, the costs of any expert retained by the panel, and the
arbitration facility costs, if any. The expenses for each party,
including attorney's fees, representative fees, copying costs, costs
associated with attending any hearing, or any other fees not listed in
this paragraph will be paid by the party incurring such costs.
    (m) Guidance. FEMA may issue separate guidance as necessary to
supplement this section.

[FR 44767, Aug. 31, 2009]



Sec. 206.210  Dispute Resolution Pilot Program.

    (a) Scope. Pursuant to section 1105 of the Sandy Recovery
Improvement Act of 2013, Public Law 113-2, this section establishes
procedures for a Dispute Resolution Pilot Program under which an
applicant or subgrantee (hereinafter ``applicant'' for purposes of this
section) may request the use of binding arbitration by a panel to
resolve disputes arising under section 403, 406, or 407 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b,
5172, 5173).
    (b) Definitions. In this section, the following definitions apply:
    Administrative record means all the documents and materials directly
or indirectly considered by the agency and relied upon in making the
first appeal determination pursuant to Sec. 206.206. This record may
include, but is not limited to, Project Worksheets (all versions) and
supporting backup documentation, correspondence, photographs, and
technical reports.
    Applicant is used throughout this regulation text and refers to the
definition in FEMA's regulations at 44 CFR 206.201(a).
    Arbitration sponsor means the entity or entities FEMA selects to
administer the arbitrations requested under this rule.
    Frivolous means the applicant knew or reasonably should have known
that its actions lack an arguable basis in law, policy, or in fact.
    Grantee is used throughout this regulation text and it refers to the
definition in FEMA's regulations at 44 CFR 206.201(e).
    Legitimate amount in dispute means the difference between the amount
of grant funding sought by the applicant for a project as reimbursable
under the Public Assistance Program and the amount of grant funding
which FEMA has determined eligible for a project under the Public
Assistance Program.
    Non-Federal share means that the project is not 100% federally
funded and the applicant or grantee bear a percentage of the costs
pursuant to the cost sharing provisions established in the FEMA-State
Agreement and the Stafford Act;
    Notice means actual notice that is transmitted to and received by a
representative of the applicant either via regular mail, facsimile, or
electronic transmission. The notice may be transmitted simultaneously to
the grantee and the applicant.
    Panel means an independent review panel referenced in section
1105(b)(1) of SRIA. A panel consists of three members who are qualified
to review and resolve disputes under section 1105 of the SRIA.
    (c) Applicability. This section applies to an applicant that wants
to request arbitration of a determination FEMA has previously made on an
applicant's application for Public Assistance for disasters declared on
or after October 30, 2012. The following criteria apply:

[[Page 453]]

    (1) The legitimate amount in dispute is equal to or greater than
$1,000,000, which sum the FEMA Administrator will adjust annually via a
Federal Register Notice to reflect changes in the Consumer Price Index
for all Urban Consumers published by the Department of Labor;
    (2) The applicant bears a non-Federal share of the cost; and,
    (3) The applicant has received a decision on a first appeal, but not
a decision on a second appeal, pursuant to Sec. 206.206.
    (d) Governing rules. The arbitration will be governed by applicable
requirements in section 403, 406, or 407 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b, 5172,
5173) and the interpretations of those sections of the Stafford Act.
    (e) Limitations--(1) Date of disaster. FEMA can only consider an
applicant's Request for Arbitration of a public assistance grant for
disasters declared on or after October 30, 2012.
    (2) Election of remedies. An applicant can only request arbitration
under this section if the applicant has not previously filed a second
appeal under Sec. 206.206. If an applicant requests arbitration under
this section, the applicant waives the option of filing a second appeal
under Sec. 206.206.
    (3) Final agency action under Sec. 206.206. Arbitration under this
section is not available for any request submitted by an applicant for
which FEMA issued a final agency action in the form of a decision on a
second appeal pursuant to Sec. 206.206.
    (f) Request for Arbitration. (1) An applicant who is dissatisfied
with a decision on a first appeal may initiate binding arbitration by
submitting a Request for Arbitration simultaneously to the grantee, the
arbitration sponsor and FEMA.
    (2) An applicant must submit the Request for Arbitration no later
than 15 calendar days of applicant's receipt of notice of the first
appeal decision that is the subject of the arbitration request.
    (g) Administrative record. Within 15 calendar days of receipt of the
Request for Arbitration, FEMA will simultaneously provide a copy of the
administrative record to the arbitration sponsor, the applicant and the
grantee.
    (h) Submissions related to arbitration--(1) Grantee recommendation.
    (i) Within 15 calendar days of receipt of the Request for
Arbitration, the grantee must forward to FEMA the name and address of
the grantee's authorized representative.
    (ii) The grantee may submit a written recommendation in support or
opposition of the applicant's claim via electronic submission
simultaneously to the applicant, the arbitration sponsor, and FEMA.
    (2) Applicant statement of claim. (i) Within 30 calendar days of
applicant's receipt of the administrative record, the applicant must
submit a written arbitration statement of claim that makes the
circumstances of the dispute clear. The written arbitration statement of
claim must include sufficient detail and citation to supporting
documents from the administrative record and specific section
references, so that the circumstances of the dispute are clear.
    (ii) The applicant will only include issues directly raised and
decided in the first appeal and will also cite to applicable statutes,
regulations, policies, or guidance in support of their claim.
    (iii) The applicant must provide the written statement of claim via
electronic submission simultaneously to FEMA, the grantee, and the
arbitration sponsor.
    (3) FEMA response. Within 30 calendar days of receipt of the
applicant's statement of claim, FEMA will submit a memorandum in support
of its position and the name and address of its authorized
representative via electronic submission simultaneously to the
arbitration sponsor, the grantee, and the applicant.
    (i) Selection of panel. The arbitration sponsor will select the
panel. All arbitrators must be neutral, independent, and impartial.
    (j) Challenge of arbitrator(s). Any arbitrator may be challenged by
a party, if circumstances exist that give rise to justifiable doubt as
to the arbitrator's impartiality or independence.
    (1) A party challenging an arbitrator will send notice stating the
reasons for the challenge within 15 calendar days

[[Page 454]]

after being notified of that arbitrator's appointment or after becoming
aware of the circumstances that give rise to the party's justifiable
doubt as to that arbitrator's impartiality or independence.
    (2) When an arbitrator has been challenged by a party, the other
party will have the right to respond to the challenge within 15 calendar
days after receipt of the notice of the challenge.
    (3) The other party may agree to the challenge and in such
circumstances the arbitration sponsor will appoint a replacement
arbitrator. If the other party does not agree to the challenge and the
challenged arbitrator does not withdraw, the decision on the challenge
will be made by the arbitration sponsor. If the arbitration sponsor
orders the withdrawal of the challenged arbitrator, the arbitrator
sponsor will appoint a replacement arbitrator.
    (k) Preliminary administrative conference. The panel will hold a
preliminary administrative conference with the parties and/or
representatives of the parties within 15 calendar days of the panel's
receipt of FEMA's response to the applicant's statement of claim. The
panel and the parties will discuss the future conduct of the
arbitration, including clarification of the disputed issues, request for
disqualification of an arbitrator (if applicable), and any other
preliminary matters. The panel will provide the parties with the
opportunity to request a hearing and, if requested,
    (1) A party must request a hearing to the panel no later than the
time of the preliminary administrative conference.
    (2) If a hearing is requested, the panel will set the date and place
of any hearing and set a deadline for the parties to exchange witness
lists. Within 10 calendar days of the preliminary conference, the
independent review panel will issue a scheduling order which
memorializes the matters heard at the conference and the upcoming
deadlines.
    (l) Jurisdictional and arbitrability challenges. Any party may raise
a jurisdictional or arbitrability challenge at any time during the
arbitration.
    (1) When jurisdiction or arbitrability has been challenged by a
party, the other party will have the right to respond to the challenge
within 15 calendar days after receipt of the notice of the challenge.
    (2) The panel may suspend or continue the arbitration proceedings
during the pendency of the challenge. The panel must rule upon the
challenge prior to any hearing in the matter and will dismiss any matter
that is untimely or outside the panel's jurisdiction. The panel's
dismissal will be with prejudice and there will be no further
arbitration of the issue giving rise to the Request for Arbitration.
    (m) Hearing--(1) Request for hearing. The panel will provide the
applicant and FEMA with an opportunity to make an oral presentation on
the substance of the applicant's claim, by telephone conference, or
other means during which all parties may simultaneously hear all other
participants.
    (2) Location of hearing. If an in-person hearing is requested and
authorized by the panel, it will be held at a hearing facility of the
panel's choosing.
    (3) Conduct of hearing. Each party must present its position at the
hearing through oral presentations by witnesses the party has identified
pursuant to the deadline and terms established by the panel. The
presentations will only relate to those issues raised and decided in the
first appeal and only reference documents included in the administrative
record.
    (4) Time limits. The panel should hold the hearing within 60
calendar days of the preliminary conference.
    (5) Postponement or continuance. The panel may postpone or continue
a hearing upon agreement of the parties, or upon request of a party for
good cause shown. Within 10 calendar days of the date the panel grants a
party's request for postponement or continuance, the panel will notify
the parties of the rescheduled date of the hearing.
    (6) Transcript of the hearing. A party may specifically request and
arrange for a written transcript of the hearing at its own expense.
    (n) Standard of review. The panel will only set aside the agency
determination if it is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. In the case of a FEMA finding of
material fact adverse to the applicant on the first appeal, the

[[Page 455]]

panel will only set aside or reverse such a finding if the finding was
clearly erroneous.
    (o) Ex parte communications. No party will have any ex parte
communication with the arbitrators unless the parties agree otherwise.
If a party violates this provision, the panel will ensure that a
memorandum of the communication is included in the record and that an
opportunity for rebuttal is allowed. The panel may require the party who
engages in an unauthorized ex parte communication, to show cause why the
issue should not be resolved against it for the improper conduct.
    (p) Decision--(1) Time limits.
    (i) The panel will issue a written decision within 60 calendar days
from the conclusion of the hearing.
    (ii) If a hearing was not requested and approved, the panel will
issue a written decision within 60 calendar days from the preliminary
administrative conference.
    (2) Form and content. The panel will issue a reasoned decision that
includes findings of fact and conclusions of law that will set forth the
reasons for the decision, with citations to the record or testimony
taken during the hearing under this section which support the panel's
disposition of a decision. The majority decision of the panel will be in
writing, signed by each member of the panel in agreement with the
decision. A dissenting member of the panel may issue a separate written
dissent that will set forth the reasons for the dissent.
    (3) Finality of decision. A decision of the majority of the panel
will constitute a final decision, binding on all parties, but will not
be binding precedent for any future arbitration hearings or FEMA
administrative decisions. Final decisions are not subject to further
administrative review. Final decisions are not subject to judicial
review, except as permitted by 9 U.S.C. 10.
    (4) Delivery of decision. The panel will deliver its decision via
simultaneous electronic submission to each party or its authorized
representative.
    (q) Costs--(1) Fees. FEMA will pay all fees associated with the
independent review panel, including arbitrator compensation, and the
arbitration facility costs.
    (2) Expenses. Expenses for each party will be paid by the party who
incurred the expense.
    (r) Frivolous requests. If, upon notification by FEMA, or on its own
initiative the panel determines the applicant's Request for Arbitration
to be frivolous, the panel will deny the Request for Arbitration and
direct the applicant to reimburse FEMA for reasonable costs FEMA
incurred, including fees and expenses.
    (s) Deadline. FEMA cannot consider an applicant's request for review
by a panel under this section if the request is made after December 31,
2015. However, pursuant to this rule, FEMA will continue to process and
finalize any proper request made on or before December 31, 2015.

[78 FR 49961, Aug. 16, 2013]



Sec. Sec. 206.211-206.219  [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:

[[Page 456]]

    (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 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, including 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

[[Page 457]]

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 emergency or major disaster
event;
    (2) Be located within the designated area of a major disaster or
emergency declaration, except that sheltering and evacuation activities
may be located outside the designated 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 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.

[55 FR 2307, Jan. 23, 1990, as amended at 71 FR 40027, July 14, 2006; 74
FR 60214, Nov. 20, 2009]



Sec. 206.224  Debris removal.

    (a) Public interest. Upon determination that debris removal is in
the public interest, the Regional Administrator 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 Assistant Administrator for the Disaster
Assistance Directorate 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.

[[Page 458]]

    (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
Administrator 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 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, the

[[Page 459]]

State or Indian Tribal government applying to FEMA as a grantee must
have in place a FEMA approved State or Tribal Mitigation Plan, as
applicable, 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(c)(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 (d) 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
    (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 Administrator 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 Administrator 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 Administrator,
eligible work includes land acquisition and ancillary facilities such as
roads and utilities, in addition to work normally eligible as

[[Page 460]]

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 Administrator, 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 Administrator, 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 Administrator 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 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; 74 FR
15350, Apr. 3, 2009; 74 FR 47482, Sept. 16, 2009]



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

[[Page 461]]

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) Force Account Labor Costs. The straight- or regular-time
salaries and benefits of a grantee's or subgrantee's permanently
employed personnel are:
    (i) Eligible in calculating the cost of eligible permanent repair,
restoration, and replacement of facilities under section 406 of the
Stafford Act;
    (ii) Eligible, at the Administrator's discretion, in calculating the
cost of eligible debris removal work under sections 403(a)(3)(A),
502(a)(5), and 407 of the Stafford Act for a period not to exceed 30
consecutive calendar days, provided the grantee's or subgrantee's
permanently employed personnel are dedicated solely to eligible debris
removal work for any major disaster or emergency declared by the
President on or after October 27, 2012, in response to Hurricane Sandy;
and
    (iii) Not eligible in calculating the cost of other eligible
emergency protective measures under sections 403 and 502 of the Stafford
Act, except for those costs associated with host state evacuation and
sheltering, as established in Sec. 206.202.
    (3) Administrative and management costs for major disasters and
emergencies will be paid in accordance with 44 CFR part 207.
    (b) [Reserved]

[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; 72 FR 57875,
Oct. 11, 2007; 77 FR 67290, Nov. 9, 2012]



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

[[Page 462]]

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.
    (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
Administrator, 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 Administrator of any entitlement to an
insurance settlement or recovery. The Regional Administrator 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 Administrator 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 Administrator of any
entitlement to insurance settlement or recovery for such facility and
its contents. The Regional Administrator 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 Administrator
shall not require greater types and extent of insurance than are
certified as

[[Page 463]]

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.
    (c) The Regional Administrator 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 Administrator 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 Administrator 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

[[Page 464]]

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 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.

[[Page 465]]



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.



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
Regional Administrator 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
Regional Administrator 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

[[Page 466]]

    (6) Repair of nonstructural projects 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 Administrator 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 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 Administrator 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
Administrator 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 Administrator
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.

[[Page 467]]

    (2) Notification. As soon as practicable, the Regional Administrator
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 Director, Office of
Environmental Planning and Historic Preservation, Mitigation Directorate
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 Administrator shall meet the requirements set
out below.
    (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

[[Page 468]]

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
Administrator 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.
    (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 Administrator
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
Administrator will submit the issue to the Director, Office of
Environmental Planning and Historic Preservation, Mitigation
Directorate. In coordination with the Office of Chief Counsel (OCC),
consultation will be accomplished at the FEMA National Office with the
DOI consultation officer. After this consultation, the Director, Office
of Environmental Planning and Historic Preservation, Mitigation
Directorate, 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 Administrator 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

[[Page 469]]

    (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 Administrator before funding may
be approved for that action.



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 Stafford Act. Sections 206.360 through
206.367 of the subpart do not implement the Community Disaster Loan Act
of 2005. (see Sec. 206.370).

[70 FR 60446, Oct. 18, 2005]



Sec. 206.361  Loan program.

    (a) General. The Assistant Administrator for the Disaster Assistance
Directorate 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 Assistant Administrator for the Disaster
Assistance Directorate 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 Assistant Administrator for the Disaster Assistance
Directorate. The Assistant Administrator for the Disaster Assistance
Directorate 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 Assistant Administrator for the Disaster
Assistance Directorate shall cancel repayment of all or part of a
Community Disaster

[[Page 470]]

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 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 Assistant Administrator for the Disaster Assistance
Directorate.
    (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 Administrator 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 Assistant Administrator for the Disaster
Assistance Directorate. He/she may submit appropriate recommendations to
the Assistant Administrator for the Disaster Assistance Directorate.
    (d) The Assistant Administrator for the Disaster Assistance
Directorate, or a designee, shall execute a Promissory Note with the
local government, and the FEMA Finance Center, shall administer the loan
until repayment or cancellation is completed and the Promissory Note is
discharged.
    (e) The Assistant Administrator for the Disaster Assistance
Directorate 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
Administrator. The Assistant Administrator for the Disaster Assistance
Directorate or designee shall approve or disapprove a request for loan
cancellation in accordance with the criteria for cancellation in these
regulations.
    (f) The Chief Financial Officer 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 Assistant Administrator for the
Disaster Assistance Directorate 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.

[[Page 471]]

    (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;
    (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 Administrator 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

[[Page 472]]

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 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 Assistant Administrator for the Disaster
Assistance Directorate 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 Assistant Administrator for the
Disaster Assistance Directorate 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 Assistant
Administrator for the Disaster Assistance Directorate 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 Assistant
Administrator for the Disaster Assistance Directorate 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.

[[Page 473]]

    (ii) If the State cannot legally cosign the Promissory Note, the
local government must pledge collateral security, acceptable to the
Assistant Administrator for the Disaster Assistance Directorate, 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.

[55 FR 2314, Jan. 23, 1990, as amended at 74 FR 15351, Apr. 3, 2009]



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.
    (2) FEMA auditors, State auditors, the GAR, the Regional
Administrator, the Assistant Administrator for the Disaster Assistance
Directorate, 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 Disaster Assistance Directorate, 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 Disaster Assistance Directorate, 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 Assistant Administrator
for the Disaster Assistance Directorate 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

[[Page 474]]

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 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

[[Page 475]]

the Governor's Authorized Representative to the Regional Administrator
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.
    (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 Assistant Administrator for the Disaster Assistance
Directorate 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
Assistant Administrator for the Disaster Assistance Directorate
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 Assistant Administrator
for the Disaster Assistance Directorate'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: Chief
Financial Officer.
    (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 Assistant Administrator for the Disaster
Assistance Directorate 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 Assistant Administrator for
the Disaster Assistance Directorate or designee on the submission is
final.

[55 FR 2314, Jan. 23, 1990, as amended at 74 FR 15351, Apr. 3, 2009]



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 due and payable in

[[Page 476]]

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 Assistant Administrator for the Disaster Assistance
Directorate. 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 Assistant Administrator for the Disaster Assistance
Directorate 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
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 Assistant Administrator for the Disaster
Assistance Directorate 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. 206.368-206.369  [Reserved]



Sec. 206.370  Purpose and scope.

    (a) Purpose. Sections 206.370 through 206.377 provide procedures for
local governments and State and Federal officials concerning the Special
Community Disaster Loans program under section 417 of the Stafford Act
(42 U.S.C. 5184), the Community Disaster Loan Act of 2005, Public Law
109-88, and the Emergency Supplemental Appropriations Act for Defense,
the Global War on Terror, and Hurricane Recovery, 2006, Public Law 109-
234.
    (b) Scope. Sections 206.370 through 206.377 apply only to Special
Community Disaster Loans issued under the Community Disaster Loan Act of
2005, Public Law 109-88, and the Emergency Supplemental Appropriations
Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006,
Public Law 109-234.

[70 FR 60446, Oct. 18, 2005, as amended at 75 FR 2817, Jan. 19, 2010]

[[Page 477]]



Sec. 206.371  Loan program.

    (a) General. The Assistant Administrator for the Disaster Assistance
Directorate may make a Special 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 provide essential services.
    (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. 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. If an applicant can demonstrate
unusual circumstances involving financial hardship, the Assistant
Administrator for the Disaster Assistance Directorate may approve a rate
equal to the five year maturity rate plus 1 per centum, adjusted to the
nearest \1/8\ percent, and further reduced by one-half.
    (d) Time limitation. The Assistant Administrator for the Disaster
Assistance Directorate may approve a loan in either the fiscal year in
which the disaster occurred or the fiscal year immediately following
that year.
    (e) Term of loan. The term of the loan is 5 years, unless otherwise
extended by the Assistant Administrator for the Disaster Assistance
Directorate. The Assistant Administrator for the Disaster Assistance
Directorate may consider a request for an extension of a loan based on
the local government's financial condition. The total term of any loan
under section 417(a) of the Stafford Act normally may not exceed 10
years from the date the Promissory Note was executed. However, when
extenuating circumstances exist and the 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. 206.377(c)).
    (f) Use of loan funds. The local government shall use the loaned
funds to assist in providing essential services. 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 non-Federal share of any Federal program,
including those under the Stafford Act.
    (g) Relation to other assistance. Any Special Community Disaster
Loans including cancellations of loans made under this subpart shall not
reduce or otherwise affect any commitments, grants, or other assistance
provided under the authority of the Stafford Act or this part.
    (h) Cancellation. The Director of the Public Assistance Division
shall cancel repayment of all or part of a Special Community Disaster
Loan to the extent that he/she determines that revenues of the local
government during the three full 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.

[70 FR 60446, Oct. 18, 2005, as amended at 75 FR 2817, Jan. 19, 2010]



Sec. 206.372  Responsibilities.

    (a) The local government shall submit the financial information
required by FEMA in the application for a Community Disaster Loan or
other format specified by FEMA and comply with the assurances on the
application, the terms and conditions of the Promissory Note, the
application for loan cancellation, if submitted, and Sec. Sec. 206.370
through 206.377. The local government shall send all loan application,
loan administration, loan cancellation, and loan settlement
correspondence through the Governor's Authorized Representative (GAR)
and the FEMA Regional Office to the Director of the Public Assistance
Division.
    (b) The GAR shall certify on the loan application that the local
government

[[Page 478]]

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 resulting from major disasters.
    (c) The Regional Administrator 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 Director of the Public Assistance
Division. He/she may also submit appropriate recommendations to the
Director of the Public Assistance Division.
    (d) The Director of the Public Assistance Division or a designee,
shall execute a Promissory Note with the local government and shall
administer the loan until repayment or cancellation is completed and the
Promissory Note is discharged.
    (e) The Director of the Public Assistance Division 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 Administrator. The Director of the Public
Assistance Division shall approve or disapprove a request for loan
cancellation in accordance with the criteria for cancellation in these
regulations.
    (f) The FEMA Chief Financial Officer shall establish and maintain a
financial account for each outstanding loan and disburse funds against
the Promissory Note.

[70 FR 60446, Oct. 18, 2005, as amended at 75 FR 2818, Jan. 19, 2010]



Sec. 206.373  Eligibility criteria.

    (a) Local government. (1) The local government must be located
within the area 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 Special 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 essential governmental
functions, the maintenance of an annual operating budget, and the
responsibility to provide essential services to the community.
Eligibility for other assistance under the Stafford 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, and it must demonstrate a need for financial assistance in
order to provide essential municipal services. 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
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.
    (3) Demonstrated need for financial assistance. The local government
must demonstrate a need for financial assistance in order to perform
essential governmental functions. The criteria used

[[Page 479]]

in making this determination may include some or all of the following
factors:
    (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) Displacement of revenue-producing business due to property
destruction;
    (vii) Necessity to reduce or eliminate essential services; and
    (viii) Danger of municipal insolvency.

[70 FR 60446, Oct. 18, 2005]



Sec. 206.374  Loan application.

    (a) Application. (1) The local government shall submit an
application for a Special 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.
206.377(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 of the submission. The GAR may request the Regional
Administrator 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 paragraph (b)(2) of this section) and shall
include a Summary of Revenue Loss and Unreimbursed Disaster-Related
Expenses, a Statement of the Applicant's Operating Results--Cash
Position, and certification and assurances requested by the Assistant
Administrator for the Disaster Assistance Directorate.
    (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, unless impracticable, 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 Special 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, ordinances, 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 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.

[[Page 480]]

    (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.
    (5) Estimated disaster-related expense. Unreimbursed disaster-
related expenses of a municipal operating character should be estimated.
    (c) Federal review. (1) The Assistant Administrator for the Disaster
Assistance Directorate or designee shall approve a Special 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 as the result of the
disaster to provide essential municipal services.
    (2) Resubmission of application. If a loan application is
disapproved, in whole or in part, by the Assistant Administrator for the
Disaster Assistance Directorate because of inadequacy of information, a
revised application may be submitted by the local government within
sixty days of the date of the disapproval. Decision by the Assistant
Administrator for the Disaster Assistance Directorate on the
resubmission is final.
    (d) Special 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 Assistant
Administrator for the Disaster Assistance Directorate 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 paragraph
(d)(2)(ii) of this section). 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
Assistant Administrator for the Disaster Assistance Directorate, 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.
    (e) Waiver of requirements. Notwithstanding any other provision of
this or other sections promulgated pursuant to Public Law 109-88, the
Assistant Administrator for the Disaster Assistance Directorate may,
upon the request of an applicant or loan recipient, waive any specific
application requirement or financial reporting requirement (see, e.g.,
Sec. 206.375(a)(2)) upon a finding by the Assistant Administrator for
the Disaster Assistance Directorate that the effects of the major
disaster prevent the applicant from fulfilling the application
requirement and that waiving the requirements would be consistent with
the purposes of the Community Disaster Loan Act of 2005.

[70 FR 60446, Oct. 18, 2005, as amended at 75 FR 2818, Jan. 19, 2010]



Sec. 206.375  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.

[[Page 481]]

    (b) Financial management. (1) Each local government with an approved
Special 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.
    (2) FEMA auditors, State auditors, the GAR, the Regional
Administrator, the Assistant Administrator for the Disaster Assistance
Directorate, the Department of Homeland Security Inspector General, 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 Sec. Sec.
206.370 through 206.377.
    (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) FEMA 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) FEMA 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 loan
program, 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.

[70 FR 60446, Oct. 18, 2005]



Sec. 206.376  Loan cancellation.

    (a) FEMA shall cancel repayment of all or part of a Special
Community Disaster Loan to the extent that the Director of the Public
Assistance Division determines that revenues of the local government
during the three-full-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 of a municipal operating character.
    (b) Definitions. For loan cancellation purposes,
    (1) ``Operating budget'' means actual revenues and expenditures of
the local government as published in the official financial statements
of the local government.
    (2) ``Revenue'' means any source of income from taxes, fees, fines,
and other sources of income, and will be recognized only as they become
susceptible to accrual (measurable and available).
    (3) ``Three-full-fiscal-year period following the disaster'' means
either a 36-month period beginning on September 1, 2005, or the 36
months of the applicant's fiscal year as established before the
disaster, at the applicant's discretion.
    (4) ``Operating expenses'' means those expenses and expenditures
incurred as a result of performing services, including salaries and
benefits, contractual services, and commodities. Capital expenditures
and debt service payments and capital leases are not considered
operating expenses. Under accrual accounting, expenses are recognized as
soon as a liability is incurred, regardless of the timing of related
cash flows.
    (c) Revenue Calculation procedures. (1) If the tax rates and other
revenues or the tax assessment valuation of property which was not
damaged or destroyed by the disaster are reduced during the three full
fiscal years subsequent to the major disaster, the tax rates and other
revenues 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.
    (2) At the applicant's discretion, the three-full-fiscal-year period
following the disaster is either a 36-month period beginning on
September 1, 2005 or the 36 months of the applicant's fiscal year as
established before the disaster. If the applicant's fiscal year is
changed

[[Page 482]]

within the 36 months immediately following the disaster, the actual
period will be modified so that the required financial data submitted
covers an inclusive 36-month period. Should the applicant elect the 36-
month period beginning September 1, 2005, FEMA will prorate the revenues
and expenses for the partial years based on the applicant's annual
financial statements.
    (3) 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.
    (4) Notwithstanding paragraph (c)(3) of this section, the amount of
property taxes that are transferred to other funds for Debt Service or
Pension Obligations funding will not be excluded from the calculation of
the operating budget or from expenditures in calculation of the
operating deficit, to the extent that the property tax revenues in the
General Fund are less than they were pre-disaster. FEMA will consider
the impact of the loss of property tax revenue in Debt Service or
Pension Funds (non-operating funds) if all of the following conditions
are met:
    (i) The entity experienced a loss of property tax revenue as a
result of the disaster and the assessed value during the three years
following the disaster, in the aggregate, is less than the pre-disaster
assessed value;
    (ii) the entity has a property tax cap limitation on the ability to
raise property taxes post-disaster; and
    (iii) the property taxes are levied through the General Operating
Fund and transfers for obligations mandated by law are made to fund Debt
Service or Pension Obligations which result in the entity experiencing a
reduction of property tax revenues in the General Fund.
    (5) It is not the purpose of this loan program to underwrite pre-
disaster budget or actual deficits of the local government.
Consequently, such deficits carried forward will reduce any amounts
otherwise eligible for loan cancellation.
    (6) The provisions of this section apply to all Special Community
Disaster loans issued from the dates of enactment of Public Law 109-88
and Public Law 109-234.
    (d) Disaster-related expenses of a municipal operation character.
(1) For purposes of this loan, unreimbursed expenses of a municipal
operating character are those incurred for general government purposes,
including but not limited to police and fire protection, trash
collection, collection of revenues, maintenance of public facilities,
flood and other hazard insurance.
    (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

[[Page 483]]

Special Community Disaster Loan purposes:
    (i) The local government's share for assistance provided under the
Stafford Act including flexible funding under section 406(c)(1) of the
Act (42 U.S.C. 5172).
    (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.
    (e) Cancellation application. A local government which has drawn
loan funds from the U.S. 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 Administrator 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 three 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 and 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.
    (v) Other financial information specified in the Application for
Loan Cancellation.
    (2) Narrative justification. The application may include a narrative
presentation to supplement the financial material accompanying the
application and to present any extenuating circumstances which the local
government wants the Director of the Public Assistance Division to
consider in rendering a decision on the cancellation request.
    (f) Determination. (1) The Director of the Public Assistance
Division will make a cancellation determination within 60 days of the
date the applicant submits all required and requested information,
including documentation in support of un-reimbursed disaster related
expenses.
    (2) If, based on a review of the Application for Loan Cancellation
and FEMA audit, the Director of the Public Assistance Division
determines that all or part of the Special Community Disaster Loan funds
should be canceled, the amount of principal canceled and the related
interest will be forgiven. The Director of the Public Assistance
Division's determination concerning loan cancellation will specify that
any uncancelled principal and related interest must be repaid in
accordance with the terms and conditions of the Promissory Note, and
that, if repayment will constitute a financial hardship, the local
government must submit for FEMA review and approval, a repayment
schedule for settling the indebtedness on a timely basis. Such
repayments must be made to the Treasurer of the United States and be
sent to FEMA, Attention: Office of the Chief Financial Officer.

[[Page 484]]

    (3) 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.
    (4) The uncancelled portion of the loan must be repaid in accordance
with Sec. 206.377.
    (5) Appeals. If an Application for Loan Cancellation is disapproved,
in whole or in part, by the Director of the Public Assistance Division,
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 Assistant Administrator for the Disaster Assistance Directorate
on the additional information is final.

[75 FR 2818, Jan. 19, 2010]



Sec. 206.377  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, loan funds
become due 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 Assistant Administrator for the Disaster Assistance
Directorate. Interest will accrue on outstanding cash from the actual
date of its disbursement by FEMA or FEMA's designated Disbursing Agency.
    (2) The interest amount due will be computed separately for each
Treasury disbursement as follows: I = P X R X T, 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 Assistant Administrator for the Disaster Assistance
Directorate 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
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 Assistant Administrator for the Disaster
Assistance Directorate 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 less any payments made.
    (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. A reduced rate may not be applied if was it was
not previously applied to the loan.
    (4) The term of the new Promissory Note shall be for the settlement
period

[[Page 485]]

requested by the local government but not greater than 10 years from the
date the new note is executed.

[70 FR 60446, Oct. 18, 2005, as amended at 75 FR 2820, Jan. 19, 2010]



Sec. Sec. 206.378-206.389  [Reserved]



                  Subpart L_Fire Suppression Assistance

    Source: 55 FR 2318, Jan. 23, 1990, unless otherwise noted.



Sec. 206.390  General.

    When the Assistant Administrator for the Disaster Assistance
Directorate 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
Administrator. The Agreement contains the necessary terms and
conditions, consistent with the provisions of applicable laws, Executive
Orders, and regulations, as the Assistant Administrator for the Disaster
Assistance Directorate 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 Administrator, promptly followed by a confirming telegram or
letter.

[55 FR 2318, Jan. 23, 1990, as amended at 74 FR 15352, Apr. 3, 2009]



Sec. 206.393  Providing assistance.

    Following the Assistant Administrator for the Disaster Assistance
Directorate's decision on the State request, the Regional Administrator
will notify the Governor and the Federal firefighting agency involved.
The Regional Administrator 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 Administrator 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.
    (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

[[Page 486]]

the Assistant Administrator for the Disaster Assistance Directorate.
    (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 Administrator 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 Administrator 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 Administrator
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 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 Administrator determines that
otherwise applicable codes, specifications, and standards are
inadequate, then the Regional Administrator 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

[[Page 487]]

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(d).

[74 FR 47482, Sept. 16, 2009]



Sec. 206.402  Compliance.

    A recipient of disaster assistance under the Stafford Act must
document for the Regional Administrator 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 for which
the major disaster is declared 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 Indian 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 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.

[[Page 488]]

    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.
    Tribal Mitigation Plan is the hazard mitigation plan required of an
Indian Tribal government acting as a grantee or subgrantee as a
condition of receiving a project grant or subgrant under the HMGP as
outlined in 44 CFR 201.7.

[67 FR 8852, Feb. 26, 2002, as amended at 74 FR 47482, Sept. 16, 2009;
74 FR 60214, Nov. 20, 2009]



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 Federal contribution of funds
is based on the estimated aggregate grant amount to be made under 42
U.S.C. 5170b, 5172, 5173, 5174, 5177, and 5183 of the Stafford Act for
the major disaster (less associated administrative costs), and shall be
as follows:
    (1) Standard percentages. Not to exceed 15 percent for the first
$2,000,000,000 or less of such amounts; not to exceed 10 percent of the
portion of such amounts over $2,000,000,000 and not more than
$10,000,000,000; and not to exceed 7.5 percent of the portion of such
amounts over $10,000,000,000 and not more than $35,333,000,000.
    (2) Twenty (20) percent. A State with an approved Enhanced State
Mitigation Plan, in effect before the disaster declaration, which meets
the requirements outlined in Sec. 201.5 of this subchapter shall be
eligible for assistance under the HMGP not to exceed 20 percent of such
amounts, for amounts not more than $35.333 billion.
    (3) The estimates of Federal assistance under this paragraph (b)
shall be based on the Regional Administrator'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; 72 FR 61750, Oct. 31, 2007; 74 FR 47482, Sept. 16, 2009]



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 who serves as the responsible individual for all
matters 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.

[55 FR 35537, Aug. 30, 1990, as amended at 72 FR 61750, Oct. 31, 2007]



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 nonprofit organizations that own or operate a private
nonprofit facility as defined in Sec. 206.221(e). A qualified
conservation organization as defined at Sec. 80.3(h) of this chapter is
the

[[Page 489]]

only private nonprofit organization eligible to apply for acquisition or
relocation for open space projects;
    (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) Local and Indian Tribal government
applicants for project subgrants must have an approved local or Tribal
Mitigation Plan in accordance with 44 CFR part 201 before receipt of
HMGP subgrant funding for projects.
    (2) Regional Administrators 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 or
Tribal Mitigation Plan approved under 44 CFR part 201; or for Indian
Tribal governments acting as grantees, be in conformance with the Tribal
Mitigation Plan approved under 44 CFR 201.7;
    (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,
    (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. Activities for which
implementation has already been initiated or completed are not eligible
for funding. 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;
    (vii) Development or improvement of warning systems.
    (e) Property acquisitions and relocation requirements. Property
acquisitions and relocation projects for open space proposed for funding
pursuant to a major disaster declared on or after December 3, 2007 must
be implemented in accordance with part 80 of this chapter. For major
disasters declared before December 3, 2007, a project involving property

[[Page 490]]

acquisition or the relocation of structures and individuals is eligible
for assistance only if the applicant enters into an agreement with the
FEMA Regional Administrator 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 Administrator 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) 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.
    (g) 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; 72 FR 61750, Oct. 31, 2007; 74 FR 47483, Sept. 16, 2009]



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 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]

[[Page 491]]



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
Administrator. 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 a 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 Administrator within 12 months of the date of
disaster declaration.
    (e) Extensions. The State may request the Regional Administrator 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 the FEMA Regional Administrator 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 Administrator.

[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;

[[Page 492]]

    (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 and audit requirements of 44 CFR
parts 13 and 206;
    (xii) Provide quarterly progress reports to the Regional
Administrator on approved projects.
    (xiii) Determine the percentage or amount of pass-through funds for
management costs provided under 44 CFR part 207 that the grantee will
make available to subgrantees, and the basis, criteria, or formula for
determining the subgrantee percentage or amount.
    (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 Administrator 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 Administrator.

[55 FR 35537, Aug. 30, 1990, as amended at 55 FR 52172, Dec. 20, 1990;
72 FR 57875, Oct. 11, 2007; 74 FR 15352, Apr. 3, 2009]



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 Administrator 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 Administrator for a determination. The
applicant's justification for additional costs and other pertinent
material shall accompany the request. The Regional Administrator shall
notify the Governor's Authorized Representative in 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 Administrator 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

[[Page 493]]

that the mitigation measure is in compliance with the provisions of the
FEMA-State Agreement. The Regional Administrator 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 13 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.

[55 FR 35537, Aug. 30, 1990, as amended at 74 FR 15352, Apr. 3, 2009]



Sec. 206.439  Allowable costs.

    (a) General requirements for determining allowable costs are
established in 44 CFR 13.22. Exceptions to those requirements as allowed
in 44 CFR 13.4 and 13.6 are explained in paragraph (b) of this section.
    (b) Administrative and management costs for major disasters will be
paid in accordance with 44 CFR part 207.
    (c) Pre-award costs. FEMA may fund eligible pre-award planning or
project costs at its discretion and as funds are available. Grantees and
subgrantees may be reimbursed for eligible pre-award costs for
activities directly related to the development of the project or
planning proposal. These costs can only be incurred during the open
application period of the grant program. Costs associated with
implementation of the activity but incurred prior to grant award are not
eligible. Therefore, activities where implementation is initiated or
completed prior to award are not eligible and will not be reimbursed.

[72 FR 57875, Oct. 11, 2007, as amended at 72 FR 61750, Oct. 31, 2007]



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 Administrator. The
grantee shall review and evaluate all subgrantee appeals before
submission to the Regional Administrator. The grantee may make grantee-
related appeals to the Regional Administrator. 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 Administrator will consider
first appeals for hazard mitigation grant program-related decisions
under subparts M and N of this part.
    (2) The Assistant Administrator for the Mitigation Directorate will
consider appeals of the Regional Administrator'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 Administrator
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional
Administrator (for first appeals) or Assistant Administrator for the
Mitigation Directorate (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 Administrator or Assistant
Administrator for the Mitigation Directorate 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 Administrator or Assistant Administrator for the Mitigation
Directorate will notify the grantee in writing of the disposition of the
appeal. If the decision is to grant the appeal, the Regional
Administrator will take appropriate implementing action.

[[Page 494]]

    (d) Technical Advice. In appeals involving highly technical issues,
the Regional Administrator or Assistant Administrator for the Mitigation
Directorate may, at his or her discretion, submit the appeal to an
independent scientific or technical person or group having expertise in
the subject matter of the appeal for advice or recommendation. The
period for this technical review may be in addition to other allotted
time periods. Within 90 days of receipt of the report, the Regional
Administrator or Assistant Administrator for the Mitigation Directorate
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 Assistant Administrator
for the Mitigation Directorate before May 8, 1998 may be appealed to the
Administrator in accordance with 44 CFR 206.440 as it existed before May
8, 1998.
    (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]



PART 207_MANAGEMENT COSTS--Table of Contents



Sec.
207.1 Purpose.
207.2 Definitions.
207.3 Applicability and eligibility.
207.4 Responsibilities.
207.5 Determination of management cost funding.
207.6 Use of funds.
207.7 Procedures for requesting management cost funding.
207.8 Management cost funding oversight.
207.9 Declarations before November 13, 2007.
207.10 Review of management cost rates.

    Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No. 3
of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act
of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p.
376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68
FR 10619, 3 CFR, 2003 Comp., p. 166.

    Source: 72 FR 57875, Oct. 11, 2007, unless otherwise noted.



Sec. 207.1  Purpose.

    The purpose of this part is to implement section 324 of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act),
42 U.S.C. 5165b.



Sec. 207.2  Definitions.

    Cap means the maximum dollar amount that may be provided to a
grantee for management cost funds for a single declaration pursuant to
Sec. 207.5(c) of this part.
    Chief Financial Officer (CFO) is the Chief Financial Officer of
FEMA, or his/her designated representative.
    Cognizant Agency means the Federal agency responsible for reviewing,
negotiating, and approving cost allocation plans or indirect cost
proposals developed on behalf of all Federal agencies. The Office of
Management and Budget (OMB) publishes a listing of cognizant agencies.
    Grant means an award of financial assistance making payment in cash,
property, or in kind for a specified purpose, by the Federal Government
to an eligible grantee.
    Grantee for purposes of this part means the government to which a
Public Assistance (PA) or Hazard Mitigation Grant Program (HMGP) grant
is awarded that 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 for purposes of administering a grant under PA, HMGP, or both.
When an Indian tribal government has chosen to act as grantee, it will
also assume the responsibilities of a ``grantee'' under this part for
the purposes of administering management cost funding.
    Hazard Mitigation Grant Program (HMGP) means the program implemented
at part 206, subpart N of this chapter.
    HMGP lock-in ceiling means the level of HMGP funding available to a
grantee for a particular disaster declaration.
    HMGP project narrative refers to the request submitted for HMGP
funding.

[[Page 495]]

    Indian tribal government is a 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.
    Indirect Costs means costs that are incurred by a grantee for a
common or joint purpose benefiting more than one cost objective that are
not readily assignable to the cost objectives specifically benefited.
    Lock-in means the amount of management cost funds available to a
grantee for PA or HMGP, respectively, for a particular major disaster or
emergency, as FEMA determines at 30 days, 6 months, and 12 months or
upon calculation of the final HMGP lock-in ceiling, whichever is later.
    Management Costs means any indirect costs, administrative expenses,
and any other expenses not directly chargeable to a specific project
that are reasonably incurred by a grantee or subgrantee in administering
and managing a PA or HMGP grant award. For HMGP, management cost funding
is provided outside of Federal assistance limits defined at Sec.
206.432(b) of this chapter.
    Project refers to a project as defined at Sec. 206.201(i) of this
chapter for PA or eligible activities as defined at Sec. 206.434(d) of
this chapter for HMGP.
    Project Worksheet (PW) refers to FEMA Form 90-91, or any successor
form, on which the scope of work and cost estimate for a logical
grouping of work required under the PA program as a result of a declared
major disaster or emergency is documented.
    Public Assistance (PA) means the program implemented at part 206,
subparts G and H of this chapter.
    Regional Administrator is the head of a FEMA regional office, or
his/her designated representative, appointed under section 507 of the
Post-Katrina Emergency Management Reform Act of 2006 (Pub. L. 109-295).
The term also refers to Regional Directors as discussed in part 2 of
this chapter.
    Stafford Act refers to the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 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.
    Subgrantee means the government or other legal entity to which a
grantee awards a subgrant and which is accountable to the grantee for
the use of the funds provided. Subgrantees can be a State agency, local
government, private nonprofit organization, or Indian tribal government.



Sec. 207.3  Applicability and eligibility.

    Only PA and HMGP grantees with PA and HMGP grants awarded pursuant
to major disasters and emergencies declared by the President on or after
November 13, 2007 are eligible to apply to FEMA for management cost
funding under this part.



Sec. 207.4  Responsibilities.

    (a) General. This section identifies key responsibilities of FEMA
and grantees in carrying out section 324 of the Stafford Act, 42 U.S.C.
5165b. These responsibilities are unique to the administration of this
part and are in addition to common Federal Government requirements of
grantees and subgrantees, consistent with OMB circulars and other
applicable requirements, such as part 13 of this chapter.
    (b) FEMA. FEMA is responsible for:
    (1) Determining the lock-in amount for management costs in
accordance with Sec. 207.5.
    (2) Obligating funds for management costs in accordance with Sec.
207.5(b).
    (3) Deobligating funds provided for management costs not disbursed
in accordance with Sec. 207.8(b).
    (4) Reviewing management cost rates not later than 3 years after
this rule is in effect and periodically thereafter.
    (c) Grantee. The grantee must:
    (1) Administer management cost funds to ensure that PA and HMGP, as
applicable, are properly implemented and closed out in accordance with
program timeframes and guidance.

[[Page 496]]

    (2) Determine the reasonable amount or percentage of management cost
funding to be passed through to subgrantees for contributions to their
costs for administering PA and HMGP projects and ensure that it provides
such funds to subgrantees.
    (3) Address procedures for subgrantee management costs amount or
percentage determination, pass through, closeout, and audit in the State
administrative plan required in Sec. 206.207(b) of this chapter for PA
and Sec. 206.437 of this chapter for HMGP.



Sec. 207.5  Determination of management cost funding.

    (a) General. This section describes how FEMA determines the amount
of funds that it will contribute under this part for management costs
for PA and/or HMGP for a particular major disaster or emergency.
    (b) Lock-in. FEMA will determine the amount of funds that it will
make available for management costs by a lock-in, which will act as a
ceiling for funds available to a grantee, including its subgrantees.
    (1) Not earlier than 30 days and not later than 35 days from the
date of declaration, FEMA will provide the grantee preliminary lock-in
amount(s) for management costs based on the projections at that time of
the Federal share for financial assistance for PA and HMGP, as
applicable. In accordance with Sec. 207.7(c), FEMA will obligate 25
percent of the estimated lock-in amount(s) to the grantee.
    (2) For planning purposes, FEMA will revise the lock-in amount(s) at
6 months after the date of the declaration. In accordance with Sec.
207.7(e), FEMA may obligate interim amount(s) to the grantee.
    (3) FEMA will determine the final lock-in amount(s) 12 months after
date of declaration or after determination of the final HMGP lock-in
ceiling, whichever is later. FEMA will obligate the remainder of the
lock-in amount(s) to the grantee in accordance with Sec. 207.7(f).
    (4) Rates. (i) For major disaster declarations, FEMA will determine
the lock-in for PA based on a flat percentage rate of the Federal share
of projected eligible program costs for financial assistance pursuant to
sections 403, 406, and 407 of the Stafford Act, 42 U.S.C. 5170b, 5172,
and 5173, respectively, but not including direct Federal assistance. For
major disaster declarations on or after November 13, 2007, the PA rate
will be 3.34 percent.
    (ii) For major disaster declarations, FEMA will determine the lock-
in for HMGP based on a flat percentage rate of the Federal share of
projected eligible program costs under section 404 of the Stafford Act,
42 U.S.C. 5170c. For major disaster declarations on or after November
13, 2007, the HMGP rate will be 4.89 percent.
    (iii) For emergency declarations, FEMA will determine the lock-in
for PA based on a flat percentage rate of the Federal share of projected
eligible program costs for financial assistance (sections 502 and 503 of
the Stafford Act, 42 U.S.C. 5192 and 5193, respectively), but not
including direct Federal assistance. For emergency declarations on or
after November 13, 2007 the rate will be 3.90 percent.
    (c) The dollar amount provided to a grantee for management cost
funds for a single declaration will not exceed 20,000,000, except as
described in paragraphs (d) and (e) of this section.
    (d) The grantee must justify in writing to the Regional
Administrator any requests to change the amount of the lock-in or the
cap, extend the time period before lock-in, or request an interim
obligation of funding at the time of the 6-month lock-in adjustment. The
Regional Administrator will recommend to the Chief Financial Officer
whether to approve the extension, change, or interim obligation.
Extensions, changes to the lock-in, or interim obligations will not be
made without the approval of the Chief Financial Officer.
    (e) The Chief Financial Officer may change the amount of the lock-in
or the cap, or extend the time before lock-in, if the Chief Financial
Officer determines that the projections used to determine the lock-in
were inaccurate to such a degree that the change to the lock-in would be
material, or for other reasons in his or her discretion that may
reasonably warrant such changes. The Chief Financial Officer will not

[[Page 497]]

make such changes without consultation with the grantee and the Regional
Administrator.



Sec. 207.6  Use of funds.

    (a) The grantee or subgrantee must use management cost funds
provided under this part in accordance with Sec. 13.22 of this chapter
and only for costs related to administration of PA or HMGP,
respectively. All charges must be properly documented in accordance with
Sec. 207.8(f).
    (b) Indirect costs may not be charged directly to a project or
reimbursed separately, but rather are considered to be eligible
management costs under this part.
    (c) Activities and costs that can be directly charged to a project
with proper documentation are not eligible for funding under this part.



Sec. 207.7  Procedures for requesting management cost funding.

    (a) General. This section describes the procedures to be used by the
grantee in requesting management cost funding.
    (b) State Administrative Plan Requirements. State administrative
plans, as required in Sec. 206.207(b) of this chapter for PA and Sec.
206.437 of this chapter for HMGP, must be amended to include procedures
for subgrantee management costs amount or percentage determination, pass
through, closeout, and audit, as required by Sec. 207.4(c)(3) before
management cost funds will be provided under this part.
    (c) Initial Funding Request Submission. Upon notification of the
preliminary lock-in amount(s) for management costs based on the Federal
share of the projected eligible program costs for financial assistance
at that time for PA and HMGP, as applicable, the grantee must submit its
initial management cost funding request to the Regional Administrator.
FEMA must receive the initial funding request before it will provide any
management cost funds under this part.
    (1) For PA management costs, funding requests shall be submitted
using a PW.
    (2) For HMGP management costs, funding requests shall be submitted
using an HMGP project narrative.
    (d) Request Documentation. The grantee is required to submit, no
later than 120 days after the date of declaration, documentation to
support costs and activities for which the projected lock-in for
management cost funding will be used. In extraordinary circumstances,
FEMA may approve a request by a grantee to submit support documentation
after 120 days. FEMA will work with the grantee to approve or reject the
request within 30 days of receipt of the request. If the request is
rejected, the grantee will have 30 days to resubmit it for
reconsideration and approval. FEMA will not obligate the balance of the
management costs lock-in pursuant to a final funding request as
described in paragraph (f) of this section or any interim amounts as
allowed under paragraph (e) of this section unless the grantee's
documentation is approved. The documentation must include:
    (1) A description of activities, personnel requirements, and other
costs for which the grantee will use management cost funding provided
under this part;
    (2) The grantee's plan for expending and monitoring the funds
provided under this part and ensuring sufficient funds are budgeted for
grant closeout; and
    (3) An estimate of the percentage or amount of pass-through funds
for management costs provided under this part that the grantee will make
available to subgrantees, and the basis, criteria, or formula for
determining the subgrantee percentage or amount (e.g., number of
projects, complexity of projects, X percent to any subgrantee).
    (e) Interim Funding Request. If the grantee can justify a bona fide
need for an additional obligation of management cost funds at 6 months,
the grantee may submit a request to the Regional Administrator. Any
interim obligations by FEMA must be approved by the Chief Financial
Officer and will not exceed an amount equal to 10 percent of the 6-month
lock-in amount, except in extraordinary circumstances.
    (f) Final Funding Request. Upon notification of the final lock-in
amount(s), the grantee must submit a final management cost funding
request to the Regional Administrator. Any necessary

[[Page 498]]

revisions to supporting documentation must be attached to the final
funding request.



Sec. 207.8  Management cost funding oversight.

    (a) General. The grantee has primary responsibility for grants
management activities and accountability of funds provided for
management costs as required by part 13 of this chapter, especially
Sec. Sec. 13.20 and 13.36. The grantee is responsible for ensuring that
subgrantees meet all program and administrative requirements.
    (b) Period of availability. (1) For major disaster declarations, the
grantee may expend management cost funds for allowable costs for a
maximum of 8 years from the date of the major disaster declaration or
180 days after the latest performance period date of a non-management
cost PA PW or HMGP project narrative, respectively, whichever is sooner.
    (2) For emergency declarations, the grantee may expend management
cost funds for allowable costs for a maximum of 2 years from the date of
the emergency declaration or 180 days after the latest performance
period of a non-management cost PA PW, whichever is sooner.
    (3) The period of availability may be extended only at the written
request of the grantee, with the recommendation of the Regional
Administrator, and with the approval of the Chief Financial Officer. The
grantee must include a justification in its request for an extension,
and must demonstrate that there is work in progress that can be
completed within the extended period of availability. In no case will an
extended period of availability allow more than 180 days after the
expiration of any performance period extensions granted under PA or HMGP
for project completion. FEMA will deobligate any funds not liquidated by
the grantee in accordance with Sec. 13.23 of this chapter.
    (c) Reporting requirements. The grantee must provide quarterly
progress reports on management cost funds to the Regional Administrator
as required by the FEMA-State Agreement.
    (d) Closeout. The grantee has primary responsibility for the
closeout tasks associated with both the program and subgrantee
requirements. Complying with each program's performance period
requirement, the grantee must conduct final inspections for projects,
reconcile subgrantee expenditures, resolve negative audit findings,
obtain final reports from subgrantees and reconcile the closeout
activities of subgrantees with PA and HMGP grant awards.
    (e) Audit requirements. Uniform audit requirements in Sec. 13.26 of
this chapter apply to all assistance provided under this part.
    (f) Document Retention. In compliance with State law and procedures
and with Sec. 13.42 of this chapter, grantees must retain records,
including source documentation to support expenditures/costs incurred
for management costs, for 3 years from the date of submission of the
final Financial Status Report to FEMA that is required for PA and HMGP.
The grantee is responsible for resolving questioned costs that may
result from audit findings during the 3-year-record-retention period and
returning any disallowed costs from ineligible activities.



Sec. 207.9  Declarations before November 13, 2007.

    (a) General. This section describes how FEMA provides administrative
and management cost funding for PA and HMGP for major disasters or
emergencies declared before November 13, 2007.
    (b) Eligible direct costs. Eligible direct costs to complete
approved activities are governed by part 13 of this chapter. The
eligible direct costs for administration and management of the program
are divided into two categories as follows:
    (1) Grantee. (i) Statutory administrative costs. FEMA may provide
funds to the grantee to cover the extraordinary costs incurred in
preparing project worksheets or applications, final inspection reports,
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. FEMA will base the funds
on the following percentages of the total amount of assistance provided
(Federal share) for all

[[Page 499]]

subgrantees in the State under sections 403, 404, 406, 407, 502, and 503
of the Stafford Act (42 U.S.C. 5170b, 5170c, 5172, 5173, 5192, and 5193,
respectively):
    (A) For the first 100,000 of total assistance provided (Federal
share), 3 percent of such assistance.
    (B) For the next 900,000, 2 percent of such assistance.
    (C) For the next 4,000,000, 1 percent of such assistance.
    (D) For assistance over $5,000,000, one-half of 1 percent of such
assistance.
    (ii) State management administrative costs. Except for the items
listed in paragraph (b)(1)(i) of this section, other administrative
costs will be paid in accordance with Sec. 13.22 of this chapter. The
grantee and FEMA will share such costs under the cost share provisions
of applicable PA and HMGP regulations.
    (2) Subgrantee. The grantee may provide funds to the subgrantee to
cover necessary costs of requesting, obtaining, and administering
Federal disaster assistance subgrants, based on the following
percentages of net eligible costs under sections 403, 404, 406, 407,
502, and 503 of the Stafford Act (42 U.S.C. 5170b, 5170c, 5172, 5173,
5192, and 5193, respectively), for an individual applicant (applicants
in this context include State agencies):
    (i) For the first $100,000 of net eligible costs, 3 percent of such
costs.
    (ii) For the next $900,000, 2 percent of such costs.
    (iii) For the next $4,000,000, 1 percent of such costs.
    (iv) For those costs over $5,000,000, one-half of 1 percent of such
costs.
    (c) Eligible indirect costs: (1) Grantee. Indirect costs of
administering the disaster program are eligible in accordance with the
provisions of part 13 of this chapter and OMB Circular No. A-87, if the
grantee provides FEMA with a current Indirect Cost Rate Agreement
approved by its Cognizant Agency.
    (2) Subgrantee. No indirect costs of a subgrantee are separately
eligible because the percentage allowance in paragraph (b)(2) of this
section covers necessary costs of requesting, obtaining and
administering Federal assistance.
    (d) Availability. (1) For major disaster declarations, FEMA will
reimburse grantee eligible costs as described in this section at
(b)(1)(ii) and (c)(1) for a maximum of 8 years from the date of the
major disaster declaration or 180 days after the latest performance
period date of a non-management cost PA PW or predecessor form or HMGP
project narrative, respectively, whichever is sooner.
    (2) For emergency declarations, FEMA will reimburse grantee eligible
costs as described in this section at (b)(1)(ii) and (c)(1) for a
maximum of 2 years from the date of the emergency declaration or 180
days after the latest performance period of a non-management cost PA PW
or predecessor form, whichever is sooner.
    (3) The reimbursement of grantee eligible costs as described in this
section at (b)(1)(ii) and (c)(1) may be provided by FEMA after the
periods of availability described in this section only at the written
request of the grantee, with the recommendation of the Regional
Administrator, and with the approval of the Chief Financial Officer. The
grantee must include a justification in its request for further
reimbursement, and must demonstrate that there is work in progress that
can be completed within the extended period of reimbursement. In no case
will reimbursement be provided after 180 days after the expiration of
any performance period extensions granted under PA or HMGP for project
completion.



Sec. 207.10  Review of management cost rates.

    (a) FEMA will review management cost rates not later than 3 years
after this rule is in effect and periodically thereafter.
    (b) In order for FEMA to review the management cost rates
established, and in accordance with part 13 of this chapter, the grantee
and subgrantee must document all costs expended for management costs
(including cost overruns). After review of this documentation, FEMA will
determine whether the established management cost rates are adequate for
the administration and closeout of the PA and HMGP programs.

[[Page 500]]



PART 208_NATIONAL URBAN SEARCH AND RESCUE RESPONSE SYSTEM--Table of
Contents



                            Subpart A_General

Sec.
208.1 Purpose and scope of this part.
208.2 Definitions of terms used in this part.
208.3 Authority for the National US&R Response System.
208.4 Purpose for System.
208.5 Authority of the Assistant Administrator for the Disaster
          Operations Directorate.
208.6 System resource reports.
208.7 Enforcement.
208.8 Code of conduct.
208.9 Agreements between Sponsoring Agencies and Participating Agencies.
208.10 Other regulations.
208.11 Federal status of System Members.
208.12 Maximum Pay Rate Table.
208.13-208.20 [Reserved]

              Subpart B_Preparedness Cooperative Agreements

208.21 Purpose.
208.22 Preparedness Cooperative Agreement process.
208.23 Allowable costs under Preparedness Cooperative Agreements.
208.24 Purchase and maintenance of items not listed on Equipment Cache
          List.
208.25 Obsolete equipment.
208.26 Accountability for use of funds.
208.27 Title to equipment.
208.28-208.30 [Reserved]

                Subpart C_Response Cooperative Agreements

208.31 Purpose.
208.32 Definitions of terms used in this subpart.
208.33 Allowable costs.
208.34 Agreements between Sponsoring Agencies and others.
208.35 Reimbursement for Advisory.
208.36 Reimbursement for Alert.
208.37 Reimbursement for equipment and supply costs incurred during
          Activation.
208.38 Reimbursement for re-supply and logistics costs incurred during
          Activation.
208.39 Reimbursement for personnel costs incurred during Activation.
208.40 Reimbursement of fringe benefit costs during Activation.
208.41 Administrative allowance.
208.42 Reimbursement for other administrative costs.
208.43 Rehabilitation.
208.44 Reimbursement for other costs.
208.45 Advance of funds.
208.46 Title to equipment.
208.47-208.50 [Reserved]

               Subpart D_Reimbursement Claims and Appeals

208.51 General.
208.52 Reimbursement procedures.
208.53-208.59 [Reserved]
208.60 Determination of claims.
208.61 Payment of claims.
208.62 Appeals.
208.63 Request by DHS for supplemental information.
208.64 Administrative and audit requirements.
208.65 Mode of transmission.
208.66 Reopening of claims for retrospective or retroactive adjustment
          of costs.
208.67-208.70 [Reserved]

    Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No. 3
of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act
of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p.
376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68
FR 10619, 3 CFR, 2003 Comp., p. 166.

    Source: 70 FR 9194, Feb. 24, 2005, unless otherwise noted.



                            Subpart A_General



Sec. 208.1  Purpose and scope of this part.

    (a) Purpose. The purpose of this part is to prescribe policies and
procedures pertaining to the Department of Homeland Security's (DHS)
National Urban Search and Rescue Response System.
    (b) Scope. This part applies to Sponsoring Agencies and other
participants in the National Urban Search and Rescue Response System
that have executed agreements governed by this part. Part 206 of this
chapter does not apply to activities undertaken under this part, except
as provided in Sec. Sec. 208.5 and 208.10 of this part. This part does
not apply to reimbursement under part 206, subpart H, of this chapter.



Sec. 208.2  Definitions of terms used in this part.

    (a) General. Any capitalized word in this part is a defined term
unless such capitalization results from the application of standard
capitalization or style rules for Federal regulations. The following
definitions have general applicability throughout this part:
    Activated or Activation means the status of a System resource placed
at the

[[Page 501]]

direction, control and funding of DHS in response to, or in anticipation
of, a presidential declaration of a major disaster or emergency under
the Stafford Act.
    Activation Order means the DHS communication placing a System
resource under the direction, control, and funding of DHS.
    Advisory means a DHS communication to System resources indicating
that an event has occurred or DHS anticipates will occur that may
require Alert or Activation of System resources.
    Alert means the status of a System resource's readiness when
triggered by an Alert Order indicating that DHS may Activate the System
resource.
    Alert Order means the DHS communication that places a System
resource on Alert status.
    Assistant Administrator means the Assistant Administrator for the
Disaster Operations Directorate.
    Assistance Officer means the DHS employee who has legal authority to
bind DHS by awarding and amending Cooperative Agreements.
    Backfill means the personnel practice of temporarily replacing a
person in his or her usual position with another person.
    Cooperating Agency means a State or Local Government that has
executed a Cooperative Agreement to provide Technical Specialists.
    Cooperative Agreement means a legal instrument between DHS and a
Sponsoring Agency or Cooperating Agency that provides funds to
accomplish a public purpose and anticipates substantial Federal
involvement during the performance of the contemplated activity.
    Daily Cost Estimate means a Sponsoring Agency's estimate of Task
Force personnel compensation, itemized fringe benefit rates and amounts
including calculations, and Backfill expenditures for a 24-hour period
of Activation.
    Deputy Assistant Administrator means the Deputy Assistant
Administrator for the Disaster Operations Directorate, or other person
the Assistant Administrator designates.
    DHS means the Department of Homeland Security.
    Disaster Search Canine Team means a disaster search canine and
handler who have successfully completed the written examination and
demonstrated the performance skills required by the Disaster Search
Canine Readiness Evaluation Process. A disaster search canine is a dog
that has successfully completed the DHS Disaster Search Canine Readiness
Evaluation criteria for Type II or both Type II and Type I.
    Emergency means 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.
    Equipment Cache List means the DHS-issued list that defines:
    (1) The equipment and supplies that US & R will furnish to
Sponsoring Agencies; and
    (2) The maximum quantities and types of equipment and supplies that
a Sponsoring Agency may purchase and maintain with DHS funds.
    Federal Excess Property means any Federal personal property under
the control of a Federal agency that the agency head or a designee
determines is not required for its needs or for the discharge of its
responsibilities.
    Federal Response Plan means the signed agreement among various
Federal departments and agencies that provides a mechanism for
coordinating delivery of Federal assistance and resources to augment
efforts of State and Local Governments overwhelmed by a Major Disaster
or Emergency, supports implementation of the Stafford Act, as well as
individual agency statutory authorities, and supplements other Federal
emergency operations plans developed to address specific hazards.
    Joint Management Team or JMT means a multi-disciplinary group of
National Disaster Medical System (NDMS), Urban Search and Rescue (US&R),
and other specialists combined to provide operations, planning,
logistics, finance and administrative support for US&R and NDMS
resources, and to provide technical advice and assistance to States and
Local Governments.

[[Page 502]]

    Local Government means any county, city, village, town, district, or
other political subdivision of any State; any federally recognized
Indian tribe or authorized tribal organization; and any Alaska Native
village or organization.
    Major Disaster means any natural catastrophe (including any
hurricane, tornado, storm, high water, wind driven 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, that in the determination of the
President, causes damage of sufficient severity and magnitude to warrant
major disaster assistance under the Stafford 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.
    Memorandum of Agreement (MOA) means the document signed by DHS, a
Sponsoring Agency and its State that describes the relationship of the
parties with respect to the National Urban Search & Rescue Response
System.
    Participating Agency means a State or Local Government, non-profit
organization, or private organization that has executed an agreement
with a Sponsoring Agency to participate in the National US&R Response
System.
    Personnel Rehabilitation Period means the period allowed by DHS for
a person's rehabilitation to normal conditions of living following an
Activation.
    Preparedness Cooperative Agreement means the agreement between DHS
and a Sponsoring Agency for reimbursement of allowable expenditures
incurred by the Sponsoring Agency to develop and maintain System
capabilities and operational readiness.
    Program Directive means guidance and direction for action to ensure
consistency and standardization across the National US&R Response
System.
    Program Manager means the individual, or his or her designee, within
DHS who is responsible for day-to-day administration of the National
US&R Response System.
    Program Office means the organizational entity within DHS that is
responsible for day-to-day administration of the National US&R Response
System.
    Response Cooperative Agreement means an agreement between DHS and a
Sponsoring Agency for reimbursement of allowable expenditures incurred
by the Sponsoring Agency as a result of an Alert or Activation.
    Sponsoring Agency means a State or Local Government that has
executed an MOA with DHS to organize and administer a Task Force.
    Stafford Act means the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121 through 5206.
    State means any State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, the Federated States of
Micronesia or the Republic of the Marshall Islands.
    Support Specialist means a person participating in the System who
assists the Task Force with administrative or other support during
mobilization, ground transportation and demobilization as directed.
    System or National US&R Response System means the national US&R
response capability administered by DHS.
    System Member means any Task Force Member, JMT Member, Technical
Specialist, Support Specialist or Disaster Search Canine Team.
    Task Force means an integrated US&R organization of multi-
disciplinary resources with common communications and a leader,
organized and administered by a Sponsoring Agency and meeting DHS
standards.
    Task Force Member means a person occupying a position on a Task
Force.
    Technical Specialist means a person participating in the System
contributing technical knowledge and skill who may be placed on Alert or
Activated as a single resource and not as a part of a JMT or a Task
Force.
    US&R means urban search and rescue, the process of searching for,
extricating, and providing for the immediate medical stabilization of
victims who are entrapped in collapsed structures.

[[Page 503]]

    (b) Additional definitions. Definitions for certain terms that apply
only to individual subparts of this part are located in those subparts.

[70 FR 9194, Feb. 24, 2005, as amended at 74 FR 15353, Apr. 3, 2009]



Sec. 208.3  Authority for the National US&R Response System.

    (a) Enabling legislation. The Federal Emergency Management Agency
established and operated the System under the authority of Sec. Sec.
303, 306(a), 306(b), 403(a)(3)(B) and 621(c) of the Stafford Act, 42
U.S.C. 5144, 5149(a), 5149(b), 5170b(a)(3)(B) and 5197(c), respectively.
Section 503 of the Homeland Security Act of 2002, 6 U.S.C. 313,
transferred the functions of the Administrator of FEMA to the Secretary
of Homeland Security. The President redelegated to the Secretary of
Homeland Security in Executive Order 13286 those authorities of the
President under the Stafford Act that had been delegated previously to
the Administrator of FEMA under Executive Order 12148.
    (b) Implementing plan. The National Response Plan identifies DHS as
the primary Federal agency with responsibility for Emergency Support
Function 9, Urban Search and Rescue.



Sec. 208.4  Purpose for System.

    It is DHS policy to develop and provide a national system of
standardized US&R resources to respond to Emergencies and Major
Disasters that are beyond the capabilities of affected State and Local
Governments.



Sec. 208.5  Authority of the Assistant Administrator for the Disaster
Operations Directorate.

    (a) Participation in activities of the System. The Assistant
Administrator is responsible for determining participation in the System
and any activity thereof, including but not limited to whether a System
resource is operationally ready for Activation.
    (b) Standards for and measurement of System efficiency and
effectiveness. In addition to the authority provided in Sec. 206.13 of
this chapter, the Assistant Administrator may establish performance
standards and assess the efficiency and effectiveness of System
resources.



Sec. 208.6  System resource reports.

    (a) Reports to Assistant Administrator. The Assistant Administrator
may request reports from any System resource relating to its activities
as part of the System.
    (b) Reports to FEMA Regional Administrators. Any FEMA Regional
Administrator may request through the Assistant Administrator reports
from any System resource used within or based within the Regional
Administrator's jurisdiction.
    (c) Audits, investigations, studies and evaluations. DHS and the
General Accounting Office may conduct audits, investigations, studies,
and evaluations as necessary. Sponsoring Agencies, Participating
Agencies and System Members are expected to cooperate fully in such
audits, investigations, studies and evaluations.



Sec. 208.7  Enforcement.

    (a) Remedies for noncompliance. In accordance with the provisions of
44 CFR 13.43, if a Sponsoring Agency, Participating Agency, Affiliated
Personnel or other System Member materially fails to comply with a term
of a Cooperative Agreement, Memorandum of Agreement, System directive or
other Program Directive, the Assistant Administrator may take one or
more of the actions provided in 44 CFR 13.43(a)(1) through (5). Any such
enforcement action taken by the Assistant Administrator will be subject
to the hearings, appeals, and effects of suspension and termination
provisions of 44 CFR 13.43(b) and (c).
    (b) The enforcement remedies identified in this section, including
suspension and termination, do not preclude a Sponsoring Agency,
Participating Agency, Affiliated Personnel or other System Member from
being subject to ``Debarment and Suspension'' under E.O. 12549, as
amended, in accordance with 44 CFR 13.43(d).
    (c) Other authority for sanctions. Nothing in this section limits or
precludes the application of other authority to impose civil or criminal
sanctions, including 42 U.S.C. 5156.



Sec. 208.8  Code of conduct.

    The Assistant Administrator will develop and implement a code of
conduct

[[Page 504]]

for System Members acting under DHS's direction and control. Nothing in
this section or the DHS code of conduct will limit the authority of a
Sponsoring Agency, Participating Agency or Cooperating Agency to apply
its own code of conduct to its System Members or employees. If the DHS
code is more restrictive, it controls.



Sec. 208.9  Agreements between Sponsoring Agencies and Participating
Agencies.

    Every agreement between a Sponsoring Agency and a Participating
Agency regarding the System must include a provision making this part
applicable to the Participating Agency and its employees who engage in
System activities.



Sec. 208.10  Other regulations.

    The following provisions of title 44 CFR, Chapter I also apply to
the program in this part:
    (a) Section 206.9, which deals with the non-liability of DHS in
certain circumstances.
    (b) Section 206.11, which prescribes nondiscrimination in the
provision of disaster assistance.
    (c) Section 206.14, which deals with criminal and civil penalties.
    (d) Section 206.15, which permits recovery of assistance by DHS.



Sec. 208.11  Federal status of System Members.

    The Assistant Administrator will appoint all Activated System
Members as temporary excepted Federal volunteers. The Assistant
Administrator may appoint a System Member who participates in Alert
activities as such a Federal volunteer. The Assistant Administrator may
also appoint each System Member who participates in DHS-sanctioned
preparedness activities as a temporary excepted Federal volunteer. DHS
intends these appointments to secure protection for such volunteers
under the Federal Employees Compensation Act and the Federal Tort Claims
Act and do not intend to interfere with any preexisting employment
relationship between a System Member and a Sponsoring Agency,
Cooperating Agency or Participating Agency. System Members whom DHS
appoints as temporary excepted Federal volunteers will not receive any
compensation or employee benefit directly from the United States of
America for their service, but will be compensated through their
Sponsoring Agency.



Sec. 208.12  Maximum Pay Rate Table.

    (a) Purpose. This section establishes the process for creating and
updating the Maximum Pay Rate Table (Table), and the Table's use to
reimburse Affiliated Personnel (Task Force Physicians, Task Force
Engineers, and Canine Handlers) and Backfill for Activated System
Members employed by or otherwise associated with a for-profit
Participating Agency. Section 208.32 defines the ``Maximum Pay Rate
Table'' as ``the DHS-issued table that identifies the maximum pay rates
for selected System positions that may be used for reimbursement of
Affiliated Personnel compensation and Backfill for Activated System
Members employed by or otherwise associated with a for-profit
Participating Agency.'' In that same section, the term ``Affiliated
Personnel'' is defined as ``individuals not normally employed by a
Sponsoring Agency or Participating Agency and individuals normally
affiliated with a Sponsoring Agency or Participating Agency as
volunteers.''
    (b) Scope of this section. (1) The Maximum Pay Rate Table applies to
those individuals who are not normally employed by a Sponsoring Agency
or Participating Agency, or whose affiliation with a Sponsoring Agency
or Participating Agency is as a volunteer; that is, an individual whom
the Sponsoring Agency or Participating Agency does not normally
compensate in any way, at any rate.
    (2) The Table also applies to Backfill for Activated System Members
employed by or otherwise associated with a for-profit Participating
Agency.
    (c) Method for determining maximum pay rates. (1) DHS uses the
United States Office of Personnel Management's salary rates, computed
under 5 U.S.C. 5504, as the basis for the maximum pay rate schedule. DHS
considers System members' experience and sets maximum pay rates at the
maximum grade, middle step for each position,

[[Page 505]]

which demonstrates an experience level of five years.
    (2) The Office of Personnel Management (OPM) publishes salary and
locality pay schedules each calendar year.
    (i) Physicians. DHS uses the latest Special Salary Rate Table Number
0290 for Medical Officers (Clinical) Worldwide for physicians. The rates
used in the initial Table can be found at http://www.opm.gov/oca/03
tables/SSR/HTML/0290.asp.
    (ii) Engineers and Canine Handlers. DHS uses the latest General
Schedule pay scale for both positions. Both specialties are compared to
the General Schedule pay scale to ensure parity with like specialties on
a task force (canine handlers are equated with rescue specialists). The
rates used in the initial Table can be found at http://www.opm.gov/oca/
03tables/html/gs.asp.
    (iii) Locality Pay. To determine adjustments for locality pay DHS
uses the latest locality pay areas (including the ``Rest of U.S.'' area)
established by OPM. The rates used in the initial Table can be found at
http://www.opm.gov/oca/03tables/locdef.asp.
    (3) Review and update. DHS will review and update the Table
periodically, at least annually. The comments of Sponsoring and
Participating Agencies and their experience with the Table will be
considered and evaluated in the course of the reviews.
    (4) Initial rates and subsequent revisions. DHS will publish the
initial maximum pay rate table in the Federal Register as a notice with
request for comments. Subsequent revisions will be made to the pay rate
table as OPM changes salary rates as described in this section. When
subsequent revisions are made to the maximum pay rate table DHS will
publish the new maximum pay rate table in the Federal Register. The
rates will be effective for the latest year indicated by OPM. \1\
---------------------------------------------------------------------------

    \1\ In some years the latest year may not be the current calendar
year. For instance, OPM did not change its pay rates for calendar year
2004, and the 2003 schedules apply.
---------------------------------------------------------------------------

    (d) Application of the maximum pay rate table--(1) Applicability.
The Maximum Pay Rate Table sets forth maximum rates for which DHS will
reimburse the Sponsoring Agency for compensation paid to Activated
Affiliated Personnel and as Backfill for Activated System Members
employed by or otherwise associated with a for-profit Participating
Agency.
    (2) Higher rates. The Sponsoring Agency may choose to pay Affiliated
Personnel at a higher rate, but DHS will not reimburse the increment
above the maximum rate specified in the Maximum Pay Rate Table.
Likewise, the Sponsoring Agency may choose to enter into a Participating
Agency agreement with the individual's employer, rather than use the
individual as an Affiliated Personnel, in which case the Maximum Pay
Rate Table would not apply.
    (3) Compensation for Sponsoring Agency employees serving as
Affiliated Personnel. An employee of a Sponsoring Agency serving on a
Task Force in a capacity other than his or her normal job, e.g., a fire
department dispatcher affiliated with the Task Force as a canine search
specialist, as an Affiliated Personnel, would not necessarily be subject
to the Maximum Pay Rate Table for reimbursement for salary and benefits
for that individual. However, Sponsoring Agencies may use the rates in
the Maximum Pay Rate Table as a guide for establishing compensation
levels for such individuals.
    (4) Backfill expenses for Affiliated Personnel under Sec.
208.39(g). (i) The only way that DHS can reimburse for Backfill costs
incurred for Affiliated Personnel is through Participating Agencies. If
reimbursement for Backfill expenses is needed for Affiliated Personnel,
DHS encourages them to urge their employers or professional association
to seek Participating Agency status.
    (ii) Private, for-profit organizations. Participating Agency status
is available to private, for-profit organizations, e.g., HMOs or medical
or engineering professional associations, under the revised definition
of ``Participating Agency'' set forth in this Interim rule. (See
Definitions, Sec. 208.2, Participating Agency. and Sec. 208.32,
Maximum Pay Rate Tabl.e). When a for-profit Participating Agency must
backfill

[[Page 506]]

an Activated System Member's position we will compensate that
Participating Agency up to the maximum rate provided in the Table.
    (iii) Compensation costs. DHS will reimburse for-profit
organizations, for purposes of reimbursement and Backfill, for the
System Member's actual compensation or the actual compensation of the
individual who Backfills a position (which includes salary and benefits,
as described in Sec. Sec. 208.39 and 208.40), but will not reimburse
for billable or other rates that might be charged for services rendered
to commercial clients or patients.



Sec. Sec. 208.13-208.20  [Reserved]



              Subpart B_Preparedness Cooperative Agreements



Sec. 208.21  Purpose.

    Subpart B of this part provides guidance on the administration of
Preparedness Cooperative Agreements.



Sec. 208.22  Preparedness Cooperative Agreement process.

    (a) Application. To obtain DHS funding for an award or amendment of
a Preparedness Cooperative Agreement, the Sponsoring Agency must submit
an application. Standard form SF-424 ``Application for Federal
Assistance'' generally will be used. However, the application must be in
a form that the Assistance Officer specifies.
    (b) Award. DHS will award a Preparedness Cooperative Agreement to
each Sponsoring Agency to provide Federal funding to develop and
maintain System resource capabilities and operational readiness. For the
purposes of the Preparedness Cooperative Agreement, the Sponsoring
Agency will be considered the ``recipient.''
    (c) Amendment--(1) Procedure. Absent special circumstances, DHS will
fund and amend Preparedness Cooperative Agreements on an annual basis.
Before amendment, the Assistance Officer will issue a call for
Cooperative Agreement amendment applications. The Assistance Officer
will specify required application forms and supporting documentation to
be submitted with the application.
    (2) Period of performance. Absent special circumstances, the period
of performance for Preparedness Cooperative Agreements will be 1 year
from the date of award. The Assistance Officer may allow for an
alternate period of performance with the approval of the Assistant
Administrator.
    (3) Assistance Officer. The Assistance Officer is the only
individual authorized to award or modify a Preparedness Cooperative
Agreement.
    (d) Award amounts. The Assistant Administrator will determine award
amounts on an annual basis. A Task Force is eligible for an annual award
only if the Program Manager receives and approves the Task Force's
current-year Daily Cost Estimate.
    (e) DHS priorities. The Assistant Administrator will establish
overall priorities for the use of Preparedness Cooperative Agreement
funds taking into consideration the results of readiness evaluations and
actual Activations, overall priorities of DHS, and other factors, as
appropriate.
    (f) Cost sharing. The Assistant Administrator may subject
Preparedness Cooperative Agreement awards to cost sharing provisions. In
the call for Preparedness Cooperative Agreement amendment applications,
the Assistance Officer must inform Sponsoring Agencies about any cost
sharing obligations.
    (g) Sponsoring Agency priorities. The Sponsoring Agency should
indicate its spending priorities in the application. The Program Manager
will review these priorities and will make recommendations to the
Assistance Officer for negotiating the final agreement.
    (h) Responsibility to maintain integrity of the equipment cache. The
Sponsoring Agency is responsible to maintain the integrity of the
equipment cache, including but not limited to, maintenance of the cache,
replacement of equipment or supplies expended in training, activations,
or local use of the cache, and timely availability of the cache for Task
Force Activations.



Sec. 208.23  Allowable costs under Preparedness Cooperative Agreements.

    System Members may spend Federal funds that DHS provides under any

[[Page 507]]

Preparedness Cooperative Agreement and any required matching funds under
44 CFR 13.22 and this section to pay reasonable, allowable, necessary
and allocable costs that directly support System activities, including
the following:
    (a) Administration, including:
    (1) Management and administration of day-to-day System activities
such as personnel compensation and benefits relating to System
maintenance and development, record keeping, inventory of equipment, and
correspondence;
    (2) Travel to and from System activities, meetings, conferences,
training, drills and exercises;
    (3) Tests and examinations, including vaccinations, immunizations
and other tests that are not normally required or provided in the course
of a System Member's employment, and that DHS requires to meet its
standards.
    (b) Training:
    (1) Development and delivery of, and participation in, System-
related training courses, exercises, and drills;
    (2) Construction, maintenance, lease or purchase of System-related
training facilities or materials;
    (3) Personnel compensation expenses, including overtime and other
related expenses associated with System-related training, exercises, or
drills;
    (4) System-required evaluations and certifications other than the
certifications that DHS requires System Members to possess at the time
of entry into the System. For instance, DHS will not pay for a medical
school degree, paramedic certification or recertification, civil
engineering license, etc.
    (c) Equipment:
    (1) Procurement of equipment and supplies specifically identified on
the then-current DHS-approved Equipment Cache List;
    (2) Maintenance and repair of equipment included on the current
Equipment Cache List;
    (3) Maintenance and repair of equipment acquired with DHS approval
through the Federal Excess Property program, except as provided in Sec.
208.25 of this part;
    (4) Purchase, construction, maintenance or lease of storage
facilities and associated equipment for System equipment and supplies.
    (d) Disaster search canine expenses limited to:
    (1) Procurement for use as a System resource;
    (2) Training and certification expenses;
    (3) Veterinary care.
    (e) Management and administrative costs, actually incurred but not
otherwise specified in this section that directly support the Sponsoring
Agency's US&R capability, provided that such costs do not exceed 7.5
percent of the award/amendment amount.



Sec. 208.24  Purchase and maintenance of items not listed on Equipment
Cache List.

    (a) Requests for purchase or maintenance of equipment and supplies
not appearing on the Equipment Cache List, or that exceed the number
specified in the Equipment Cache List, must be made in writing to the
Program Manager. No Federal funds provided under any Preparedness
Cooperative Agreement may be expended to purchase or maintain any
equipment or supply item unless:
    (1) The equipment and supplies directly support the Sponsoring
Agency's US&R capability;
    (2) The Program Manager approves the expenditure and gives written
notice of his or her approval to the Sponsoring Agency before the
Sponsoring Agency purchases the equipment or supply item.
    (b) Maintenance of items approved for purchase under this section is
eligible for reimbursement, except as provided in Sec. 208.26 of this
subpart.



Sec. 208.25  Obsolete equipment.

    (a) The Assistant Administrator will periodically identify obsolete
items on the Equipment Cache List and provide such information to
Sponsoring Agencies.
    (b) Neither funds that DHS provides nor matching funds required
under a Preparedness Cooperative Agreement may be used to maintain or
repair items that DHS has identified as obsolete.

[[Page 508]]



Sec. 208.26  Accountability for use of funds.

    The Sponsoring Agency is accountable for the use of funds as
provided under the Preparedness Cooperative Agreement, including
financial reporting and retention and access requirements according to
44 CFR 13.41 and 13.42.



Sec. 208.27  Title to equipment.

    Title to equipment purchased by a Sponsoring Agency with funds
provided under a DHS Preparedness Cooperative Agreement vests in the
Sponsoring Agency, provided that DHS reserves the right to transfer
title to the Federal Government or a third party that DHS may name,
under 44 CFR 13.32(g), for example, when a Sponsoring Agency indicates
or demonstrates that it cannot fulfill its obligations under the
Memorandum of Agreement.



Sec. Sec. 208.28-208.30  [Reserved]



                Subpart C_Response Cooperative Agreements



Sec. 208.31  Purpose.

    Subpart C of this part provides guidance on the administration of
Response Cooperative Agreements.



Sec. 208.32  Definitions of terms used in this subpart.

    Affiliated Personnel means individuals not normally employed by a
Sponsoring Agency or Participating Agency and individuals normally
affiliated with a Sponsoring Agency or Participating Agency as
volunteers.
    Demobilization Order means a DHS communication that terminates an
Alert or Activation and identifies cost and time allowances for
rehabilitation.
    Exempt means any System Member who is exempt from the requirements
of the Fair Labor Standards Act, 29 U.S.C. 201 et seq., pertaining to
overtime compensation and other labor standards.
    Maximum Pay Rate Table means the DHS-issued table that identifies
the maximum pay rates for selected System positions that may be used for
reimbursement of Affiliated Personnel compensation and Backfill for
Activated System Members employed by or otherwise associated with a for-
profit Participating Agency. The Maximum Pay Rate Table does not apply
to a System member whom a Sponsoring Agency or Participating Agency
employs.
    Mobilization means the process of assembling equipment and personnel
in response to an Alert or Activation.
    Non-Exempt means any System Member who is covered by 29 U.S.C. 201
et seq.
    Rehabilitation means the process of returning personnel and
equipment to a pre-incident state of readiness after DHS terminates an
Activation.



Sec. 208.33  Allowable costs.

    (a) Cost neutrality. DHS policy is that an Alert or Activation
should be as cost neutral as possible to Sponsoring Agencies and
Participating Agencies. To make an Alert or Activation cost-neutral, DHS
will reimburse under this subpart all reasonable, allowable, necessary
and allocable costs that a Sponsoring Agency or Participating Agency
incurs during the Alert or Activation.
    (b) Actual costs. Notwithstanding any other provision of this
chapter, DHS will not reimburse a Sponsoring Agency or Participating
Agency for any costs greater than those that the Sponsoring Agency or
Participating Agency actually incurs during an Alert, Activation.
    (c) Normal or predetermined practices. Consistent with Office of
Management and Budget (OMB) Circulars A-21, A-87, A-102 and A-110 (2 CFR
part 215), as applicable, Sponsoring Agencies and Participating Agencies
must adhere to their own normal and predetermined practices and policies
of general application when requesting reimbursement from DHS except as
it sets out in this subpart.
    (d) Indirect costs. Indirect costs beyond the administrative and
management costs allowance established by Sec. 208.41 of this part are
not allowable.



Sec. 208.34  Agreements between Sponsoring Agencies and others.

    Sponsoring Agencies are responsible for executing such agreements
with Participating Agencies and Affiliated

[[Page 509]]

Personnel as may be necessary to implement the Sponsoring Agency's
Response Cooperative Agreement with DHS. Those agreements must identify
established hourly or daily rates of pay for System Members. The hourly
or daily rates of pay for Affiliated Personnel must be in accordance
with, and must not exceed, the maximum pay rates contained in the then-
current Maximum Pay Rate Table.



Sec. 208.35  Reimbursement for Advisory.

    DHS will not reimburse costs incurred during an Advisory.



Sec. 208.36  Reimbursement for Alert.

    (a) Allowable costs. DHS will reimburse costs incurred during an
Alert, up to the dollar limit specified in the Alert Order, for the
following activities:
    (1) Personnel costs, including Backfill, incurred to prepare for
Activation.
    (2) Transportation costs relating to hiring, leasing, or renting
vehicles and drivers.
    (3) The administrative allowance provided in Sec. 208.41 of this
part.
    (4) Food and beverages for Task Force Members and Support
Specialists when DHS does not provide meals during the Alert. DHS will
limit food and beverage reimbursement to the amount of the then-current
Federal meals daily allowance published in the Federal Register for the
locality where such food and beverages were provided, multiplied by the
number of personnel who received them.
    (b) Calculation of Alert Order dollar limit. The Alert Order dollar
limit will equal:
    (1) An allowance of 10 percent of the Task Force's Daily Cost
Estimate; and
    (2) A supplemental allowance of 1 percent of the Task Force's Daily
Cost Estimate for each 24-hour period beyond the first 72 hours of
Alert.
    (c) Non-allowable costs. DHS will not reimburse costs incurred or
relating to the leasing, hiring or chartering of aircraft or the
purchase of any equipment, aircraft, or vehicles.



Sec. 208.37  Reimbursement for equipment and supply costs incurred
during Activation.

    (a) Allowable costs. DHS will reimburse costs incurred for the
emergency procurement of equipment and supplies in the number, type, and
up to the cost specified in the current approved Equipment Cache List,
and up to the aggregate dollar limit specified in the Activation Order.
The Assistant Administrator may determine emergency procurement dollar
limits, taking into account previous Activation history, available
funding, the extent and nature of the incident, and the current state of
Task Force readiness.
    (b) Non-Allowable costs. DHS will not reimburse costs incurred for
items that are not listed on the Equipment Cache List; for items
purchased greater than the cost or quantity identified in the Equipment
Cache List; or for any purchase of non-expendable items that duplicate a
previous purchase under a Preparedness or Response Cooperative
Agreement.



Sec. 208.38  Reimbursement for re-supply and logistics costs incurred
during Activation.

    With the exception of emergency procurement authorized in the
Activation Order, and replacement of consumable items provided for in
Sec. 208.43(a)(2) of this subpart, DHS will not reimburse costs
incurred for re-supply and logistical support during Activation. Re-
supply and logistical support of Task Forces needed during Activation
are the responsibility of the Joint Management Team.



Sec. 208.39  Reimbursement for personnel costs incurred during
Activation.

    (a) Compensation. DHS will reimburse the Sponsoring Agency for costs
incurred for the compensation of each Activated System Member during
Activation. Reimbursement of compensation costs for Activated Support
Specialists will be limited to periods of time during which they were
actively supporting the Activation or traveling to or from locations at
which they were actively supporting the Activation. The provisions of
Sec. 208.40 of this

[[Page 510]]

part govern costs incurred for providing fringe benefits to System
Members.
    (b) Public Safety Exemption not applicable. DHS will reimburse
Sponsoring Agencies for costs incurred by Non-Exempt System Members in
accordance with 29 U.S.C. 207(a) of the Fair Labor Standards Act,
without regard to the public safety exemption contained in 29 U.S.C.
207(k). In other words, DHS will reimburse Sponsoring Agencies on an
overtime basis for any hours worked by Non-Exempt System Members greater
than 40 hours during a regular workweek.
    (c) Tour of duty. The tour of duty for all Activated System Members
will be 24 hours. DHS will reimburse the Sponsoring Agency for salary
and overtime costs incurred in compensating System Members for meal
periods and regularly scheduled sleep periods during Activation.
Activated System Members are considered ``on-duty'' and must be
available for immediate response at all times during Activation.
    (d) Regular rate. The regular rate for purposes of calculating
allowable salary and overtime costs is the amount determined in
accordance with Sec. 208.39(e)(1) through (3) of this subpart.
    (e) Procedures for calculating compensation during Activation. A
Sponsoring Agency or Participating Agency must:
    (1) Convert the base hourly wage of any Non-Exempt System Member
regularly paid under 29 U.S.C. 207(k) to its equivalent for a 40-hour
work week;
    (2) Convert the annual salary of any salaried Non-Exempt System
Member to its hourly equivalent for a 40-hour workweek;
    (3) Calculate the daily compensation of Exempt System Members based
on their current annual salary, exclusive of fringe benefits;
    (4) Calculate the total number of hours worked by each System Member
to be included in the Sponsoring Agency's request for reimbursement; and
    (5) Submit a request for reimbursement under Sec. 208.52 of this
part according to the following table:

------------------------------------------------------------------------
                                     And the
  If the Sponsoring Agency or   Sponsoring Agency    Then the following
  Participating Agency * * *     or Participating    compensation costs
                                   Agency * * *        are allowable:
------------------------------------------------------------------------
(i) Customarily and usually     Does not           The daily
 compensates Exempt System       customarily and    compensation
 Members by paying a salary,     usually grant      equivalent
 but not overtime,               compensatory       calculated under
                                 time or other      Sec. 208.39(e)(3)
                                 form of overtime   of this part for
                                 substitute to      each Activated
                                 Exempt System      Exempt System Member
                                 members.           for each full or
                                                    partial day during
                                                    Activation.
(ii) Customarily and usually    Customarily and    The daily
 compensates Exempt System       usually awards     compensation
 Members by paying a salary      compensatory       equivalent
 but not overtime                time or other      calculated under
                                 overtime           Sec. 208.39(e)(3)
                                 substitute for     of this part for
                                 Exempt System      each Activated
                                 Members for        Exempt System Member
                                 hours worked       for each full or
                                 above a            partial day during
                                 predetermined      Activation AND the
                                 hours threshold    dollar value at the
                                 (for example,      time of accrual of
                                 the Sponsoring     the compensatory
                                 Agency             time or other
                                 customarily and    overtime substitute
                                 usually grants     for each Activated
                                 compensatory       Exempt System Member
                                 time for all       based on the
                                 hours worked       duration of the
                                 above 60 in a      Activation.
                                 given week).
(iii) Customarily and usually   Customarily and    The daily
 compensates Exempt System       usually            compensation
 Members by paying a salary      calculates         equivalent
 and overtime,                   overtime for       calculated under
                                 Exempt System      Sec. 208.39(e)(3)
                                 Members by         of this part for
                                 paying a           each Activated
                                 predetermined      Exempt System Member
                                 overtime payment   for each full or
                                 for each hour      partial day during
                                 worked above a     Activation AND the
                                 predetermined      predetermined
                                 hours threshold,.  overtime payment for
                                                    each hour during the
                                                    Activation above the
                                                    previously
                                                    determined hours
                                                    threshold for each
                                                    Activated Exempt
                                                    System Member.
(iv) Customarily and usually    Does not           For each seven-day
 compensates Non-Exempt System   customarily and    period during the
 Members by paying overtime      usually grant      Activation, the
 after 40 hours per week,        compensatory       hourly wage of each
                                 time or other      Activated Non-Exempt
                                 form of overtime   System Member for
                                 substitute to      the first 40 hours
                                 Non-Exempt         AND the overtime
                                 System members,.   payment for each
                                                    Activated Non-Exempt
                                                    System Member for
                                                    every hour over 40.
(v) Customarily and usually     Does not           For each seven-day
 compensates Non-Exempt System   customarily and    period during the
 Members according to a          usually grant      Activation, the
 compensation plan established   compensatory       hourly wage
 under 29 U.S.C. 207(k),         time or other      equivalent of each
                                 form of overtime   Activated Non-Exempt
                                 substitute to      System Member
                                 Non-Exempt         calculated under
                                 System Members,.   Sec. 208.39(e)(1)
                                                    of this part for the
                                                    first 40 hours AND
                                                    the overtime payment
                                                    equivalent for each
                                                    Activated Non-Exempt
                                                    System Member
                                                    calculated under
                                                    Sec. 208.39(e)(1)
                                                    of this part for
                                                    every hour over 40.

[[Page 511]]


(vi) Activates Personnel, who   .................  For each seven-day
 are customarily and usually                        period during the
 paid an hourly wage according                      Affiliated
 to the Maximum Pay Rate                            Activation, the
 Table,                                             hourly wage for each
                                                    Activated Affiliated
                                                    Personnel for the
                                                    first 40 hours and
                                                    one and one-half
                                                    times the hourly
                                                    wage for each
                                                    Activated Affiliated
                                                    Personnel for every
                                                    hour over 40.
(vii) Activates Affiliated      .................  The daily
 Personnel who are customarily                      compensation rate
 and usually paid a daily                           for each Activated
 compensation rate according                        Affiliated Personnel
 to the Maximum Pay Rate                            for each full or
 Table,                                             partial day during
                                                    the Activation.
------------------------------------------------------------------------

    (f) Reimbursement of additional salary and overtime costs. DHS will
reimburse any identified additional salary and overtime cost incurred by
a Sponsoring Agency as a result of the temporary conversion of a Non-
Exempt System Member normally compensated under 29 U.S.C. 207(k) to a
40-hour work week under 29 U.S.C. 207(a).
    (g) Reimbursement for Backfill costs upon Activation. DHS will
reimburse the cost to Backfill System Members. Backfill costs consist of
the expenses generated by filling the position in which the Activated
System Member should have been working. These costs are calculated by
subtracting the non-overtime compensation, including fringe benefits, of
Activated System Members from the total costs (non-overtime and overtime
compensation, including fringe benefits) paid to Backfill the Activated
System Members. Backfill reimbursement is available only for those
positions that are normally Backfilled by the Sponsoring Agency or
Participating Agency during Activation. Employees exempt under the Fair
Labor Standards Act (FLSA) not normally Backfilled by the Sponsoring
Agency or Participating Agency are not eligible for Backfill during
Activation.



Sec. 208.40  Reimbursement of fringe benefit costs during Activation.

    (a) Except as specified in Sec. 208.40 (c) of this subpart, DHS
will reimburse the Sponsoring Agency for fringe benefit costs incurred
during Activation according to the following table:

------------------------------------------------------------------------
                                    Then the
 If the Sponsoring Agency or   Sponsoring Agency
  Participating Agency * * *    or Participating          Example
                               Agency must * * *
------------------------------------------------------------------------
(1) Incurs a fringe benefit    Bill DHS for a     The City Fire
 cost based on the number of    pro-rata share     Department incurs a
 base hours worked by a         of the premium     premium of 3 percent
 System Member,                 based on the       for dental coverage
                                number of base     based on the number
                                hours worked       of base hours worked
                                during             in a week (53 hours).
                                Activation.        The City should bill
                                                   DHS an additional 3
                                                   percent of the
                                                   firefighter's
                                                   converted
                                                   compensation for the
                                                   first 40 hours
                                                   Activation.
(2) Incurs a fringe benefit    Bill DHS for a     The City Fire
 cost based on the number of    pro-rata share     Department pays a
 hours a System Member          of the premium     premium of 12 percent
 actually worked (base hours    based on the       for retirement based
 and overtime),                 number of hours    on the number of
                                each System        hours worked by a
                                Member worked      firefighter. The City
                                during             should bill DHS an
                                Activation.        additional 12 percent
                                                   of the firefighter's
                                                   total compensation
                                                   during Activation.
(3) Incurs a fringe benefit    Bill DHS for a     The City Fire
 cost on a yearly basis based   pro-rata share     Department pays
 on the number of people        of those fringe    workers compensation
 employed full-time during      benefit costs      premiums into the
 the year,                      based on the       City risk fund for
                                number of non-     the following year,
                                overtime hours     based on the number
                                worked during      of full-time
                                Activation by      firefighters employed
                                System Members     during the current
                                employed full      year. The City should
                                time.              bill DHS for workers
                                                   compensation premium
                                                   costs by multiplying
                                                   the hourly fringe
                                                   benefit rate or
                                                   amount by the number
                                                   of non-overtime hours
                                                   worked during
                                                   Activation by full
                                                   time firefighters who
                                                   are System Members.
------------------------------------------------------------------------

    (b) Differential pay. DHS will reimburse the Sponsoring Agency for
direct costs incurred because of any separate differential compensation
paid for work performed during an Activation

[[Page 512]]

including, but not limited to, differentials paid for holidays, night
work, hazardous duty, or other paid fringe benefits, provided such
differentials are not otherwise reimbursed under paragraph (a) of this
section. A detailed explanation of the differential payment for which
the Sponsoring Agency seeks reimbursement must accompany any request for
reimbursement under this section together with identification of every
fringe benefit sought under Sec. 208.40(a) of this part and the method
used to calculate each such payment and the reimbursement sought from
DHS.
    (c) DHS will not reimburse the Sponsoring Agency for fringe benefit
costs for Affiliated Personnel.



Sec. 208.41  Administrative allowance.

    (a) The administrative allowance is intended to defray costs of the
following activities, to the extent provided in paragraph (b) of this
section:
    (1) Collecting expenditure information from Sponsoring Agencies and
Participating Agencies;
    (2) Compiling and summarizing cost records and reimbursement claims;
    (3) Duplicating cost records and reimbursement claims; and
    (4) Submitting reimbursement claims, including mailing, transmittal,
and related costs.
    (b) The administrative allowance will be equal to the following:
    (1) If total allowable costs are less than $100,000, 3 percent of
total allowable costs included in the reimbursement claim;
    (2) If total allowable costs are $100,000 or more but less than
$1,000,000, $3,000 plus 2 percent of costs included in the reimbursement
claim greater than $100,000;
    (3) If total allowable costs are $1,000,000 or more, $21,000 plus 1
percent of costs included in the reimbursement claim greater than
$1,000,000.



Sec. 208.42  Reimbursement for other administrative costs.

    Costs incurred for conducting after-action meetings and preparing
after-action reports must be billed as direct costs in accordance with
DHS administrative policy.



Sec. 208.43  Rehabilitation.

    DHS will reimburse costs incurred to return System equipment and
personnel to a state of readiness following Activation as provided in
this section.
    (a) Costs for Equipment Cache List items--(1) Non-consumable items.
DHS will reimburse costs incurred to repair or replace any non-
consumable item on the Equipment Cache List that was lost, damaged,
destroyed, or donated at DHS direction to another entity, during
Activation. For each such item, the Sponsoring Agency must document, in
writing, the circumstances of the loss, damage, destruction, or
donation.
    (2) Consumable items. DHS will reimburse costs incurred to replace
any consumable item on the Equipment Cache List that was consumed during
Activation.
    (3) Personnel costs associated with equipment cache rehabilitation.
DHS will reimburse costs incurred for the compensation, including
benefits, payable for actual time worked by each person engaged in
rehabilitating the equipment cache following Activation, in accordance
with the standard pay policy of the Sponsoring Agency or Participating
Agency and without regard to the provisions of Sec. 208.39(e)(1) of
this part, up to the number of hours specified in the Demobilization
Order. Fringe benefits are reimbursed under the provisions of Sec.
208.40 of this part.
    (b) Costs for personnel rehabilitation. DHS will reimburse costs
incurred for the compensation, including benefits and Backfill, of each
Activated System Member regularly scheduled to work during the
rehabilitation period specified in the Demobilization Order, in
accordance with the standard pay policy of the Sponsoring Agency or
Participating Agency and without regard to the provisions of Sec.
208.39(e)(1) of this part.
    (c) Other allowable costs--(1) Local transportation. DHS will
reimburse costs incurred for transporting Task Force Members from the
point of assembly to the point of departure and from the point of return
to the location where they are released from duty. DHS will also
reimburse transportation costs incurred for assembling and moving the
equipment cache from its usual

[[Page 513]]

place(s) of storage to the point of departure, and from the point of
return to its usual place(s) of storage. Such reimbursement will include
costs to return the means of transportation to its point of origin.
    (2) Ground transportation. When DHS orders a Sponsoring Agency to
move its Task Force Members and equipment cache by ground
transportation, DHS will reimburse costs incurred for such
transportation, including but not limited to charges for contract
carriers, rented vehicles, contract vehicle operators, fleet vehicles,
fuel and associated transportation expenses. The Assistant Administrator
has authority to issue schedules of maximum hourly or per mile
reimbursement rates for fleet and contract vehicles.
    (3) Food and beverages. DHS will reimburse expenditures for food and
beverages for Activated Task Force Members and Support Specialists when
the Federal government does not provide meals during Activation.
Reimbursement of food and beverage costs for Activated Support
Specialists will be limited to periods of time during which they were
actively supporting the Activation or traveling to or from locations at
which they were actively supporting the Activation. Food and beverage
reimbursement will be limited to the amount of the then-current Federal
meals and incidental expenses daily allowance published in the Federal
Register for the locality where such food and beverages were provided,
multiplied by the number of personnel who received the same.



Sec. 208.44  Reimbursement for other costs.

    (a) Except as allowed under paragraph (b) of this section, DHS will
not reimburse other costs incurred preceding, during or upon the
conclusion of an Activation unless, before making the expenditure, the
Sponsoring Agency has requested, in writing, permission for a specific
expenditure and has received written permission from the Program Manager
or his or her designee to make such expenditure.
    (b) At the discretion of the Program Manager or his or her designee,
a request for approval of costs presented after the costs were incurred
must be in writing and establish that:
    (1) The expenditure was essential to the Activation and was
reasonable;
    (2) Advance written approval by the Program Manager was not
feasible; and
    (3) Advance verbal approval by the Program Manager had been
requested and was given.



Sec. 208.45  Advance of funds.

    At the time of Activation of a Task Force, the Task Force will
develop the documentation necessary to request an advance of funds be
paid to such Task Force's Sponsoring Agency. Upon approval, DHS will
submit the documentation to the Assistance Officer and will request an
advance of funds up to 75 percent of the estimated personnel costs for
the Activation. The estimated personnel costs will include the salaries,
benefits, and Backfill costs for Task Force Members and an estimate of
the salaries, benefits and Backfill costs required for equipment cache
rehabilitation. The advance of funds will not include any costs for
equipment purchase.



Sec. 208.46  Title to equipment.

    Title to equipment purchased by a Sponsoring Agency with funds
provided under a DHS Response Cooperative Agreement vests in the
Sponsoring Agency, provided that DHS reserves the right to transfer
title to the Federal Government or a third party that DHS may name,
under 44 CFR 13.32(g), when a Sponsoring Agency indicates or
demonstrates that it cannot fulfill its obligations under the Memorandum
of Agreement.



Sec. Sec. 208.47-208.50  [Reserved]



               Subpart D_Reimbursement Claims and Appeals



Sec. 208.51  General.

    (a) Purpose. This subpart identifies the procedures that Sponsoring
Agencies must use to request reimbursement from DHS for costs incurred
under Response Cooperative Agreements.

[[Page 514]]

    (b) Policy. It is DHS policy to reimburse Sponsoring Agencies as
expeditiously as possible consistent with Federal laws and regulations.



Sec. 208.52  Reimbursement procedures.

    (a) General. A Sponsoring Agency must present a claim for
reimbursement to DHS in such manner as the Assistant Administrator
specifies .
    (b) Time for submission. (1) Claims for reimbursement must be
submitted within 90 days after the end of the Personnel Rehabilitation
Period specified in the Demobilization Order.
    (2) The Assistant Administrator may extend and specify the time
limitation in paragraph (b)(1) of this section when the Sponsoring
Agency justifies and requests the extension in writing.



Sec. Sec. 208.53-208.59  [Reserved]



Sec. 208.60  Determination of claims.

    When DHS receives a reviewable claim for reimbursement, DHS will
review the claim to determine whether and to what extent reimbursement
is allowable. Except as provided in Sec. 208.63 of this part, DHS will
complete its review and give written notice to the Sponsoring Agency of
its determination within 90 days after the date DHS receives the claim.
If DHS determines that any item of cost is not eligible for
reimbursement, its notice of determination will specify the grounds on
which DHS disallowed reimbursement.



Sec. 208.61  Payment of claims.

    DHS will reimburse all allowable costs for which a Sponsoring Agency
requests reimbursement within 30 days after DHS determines that
reimbursement is allowable, in whole or in part, at any stage of the
reimbursement and appeal processes identified in this subpart.



Sec. 208.62  Appeals.

    (a) Initial appeal. The Sponsoring Agency may appeal to the Program
Manager any determination made under Sec. 208.60 of this part to
disallow reimbursement of an item of cost:
    (1) The appeal must be in writing and submitted within 60 days after
receipt of DHS's written notice of disallowance under Sec. 208.60 of
this part.
    (2) The appeal must contain legal and factual justification for the
Sponsoring Agency's contention that the cost is allowable.
    (3) Within 90 days after DHS receives an appeal, the Program Manager
will review the information submitted, make such additional
investigations as necessary, make a determination on the appeal, and
submit written notice of the determination of the appeal to the
Sponsoring Agency.
    (b) Final appeal. (1) If the Program Manager denies the initial
appeal, in whole or in part, the Sponsoring Agency may submit a final
appeal to the Deputy Assistant Administrator. The appeal must be made in
writing and must be submitted not later than 60 days after receipt of
written notice of DHS's determination of the initial appeal.
    (2) Within 90 days following the receipt of a final appeal, the
Deputy Assistant Administrator will render a determination and notify
the Sponsoring Agency, in writing, of the final disposition of the
appeal.
    (c) Failure to file timely appeal. If the Sponsoring Agency does not
file an appeal within the time periods specified in this section, DHS
will deem that the Sponsoring Agency has waived its right to appeal any
decision that could have been the subject of an appeal.



Sec. 208.63  Request by DHS for supplemental information.

    (a) At any stage of the reimbursement and appeal processes
identified in this subpart, DHS may request the Sponsoring Agency to
provide supplemental information that DHS considers necessary to
determine either a claim for reimbursement or an appeal. The Sponsoring
Agency must exercise its best efforts to provide the supplemental
information and must submit to DHS a written response that includes such
supplemental information as the Sponsoring Agency is able to provide
within 30 days after receiving DHS's request.
    (b) If DHS makes a request for supplemental information at any stage
of the reimbursement and appeal processes, the applicable time within
which its determination of the claim or appeal is to be made will be
extended by

[[Page 515]]

30 days. However, without the consent of the Sponsoring Agency, no more
than one such time extension will be allowed for any stage of the
reimbursement and appeal processes.



Sec. 208.64  Administrative and audit requirements.

    (a) Non-Federal audit. For Sponsoring Agencies and States,
requirements for non-Federal audit are contained in 44 CFR 13.26, in
accordance with OMB Circular A-133, Audits of States, Local Governments,
and Non-Profit Organizations.
    (b) Federal audit. DHS or the Government Accountability Office may
elect to conduct a Federal audit of any payment made to a Sponsoring
Agency or State.



Sec. 208.65  Mode of transmission.

    When sending all submissions, determinations, and requests for
supplemental information under this subpart, all parties must use a
means of delivery that permits both the sender and addressee to verify
the dates of delivery.



Sec. 208.66  Reopening of claims for retrospective or retroactive
adjustment of costs.

    (a) Upon written request by the Sponsoring Agency DHS will reopen
the time period for submission of a request for reimbursement after the
Sponsoring Agency has submitted its request for reimbursement, if:
    (1) The salary or wage rate applicable to the period of an
Activation is retroactively changed due to the execution of a collective
bargaining agreement, or due to the adoption of a generally applicable
State or local law, ordinance or wage order or a cost-of-living
adjustment;
    (2) The Sponsoring Agency or any Participating Agency incurs an
additional cost because of a legally-binding determination; or
    (3) The Deputy Director determines that other extenuating
circumstances existed that prevented the Sponsoring Agency from
including the adjustment of costs in its original submission.
    (c) The Sponsoring Agency must notify DHS as early as practicable
that it anticipates such a request.



Sec. Sec. 208.67-208.70  [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

[[Page 516]]

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 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

[[Page 517]]

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 Administrators 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 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

[[Page 518]]

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 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.

[66 FR 32669, June 15, 2001; 66 FR 49554, Sept. 28, 2001, as amended at
74 FR 15353, Apr. 3, 2009]



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 Administrator. 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
Administrator. The Application will include: a Standard Form (SF) 424,
Application for Federal Assistance; FEMA form 20-15, Budget
Information--Construction

[[Page 519]]

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;
    (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

[[Page 520]]

    (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 Administrator may
extend this timeframe if complicated issues arise. We have final
approval authority for funding of all projects.

[66 FR 32669, June 15, 2001; 66 FR 49554, Sept. 28, 2001; 74 FR 15353,
Apr. 3, 2009]



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 Administrator 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 Administrator within 60 days of receipt. Within 90 days
following the receipt of an appeal, the Regional Administrator 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 Administrator, that provides the
following assurances:
    (a) The subgrantee will administer the grant and implement the
project in accordance with program requirements, 44 CFR part 13, 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''):

[[Page 521]]

    (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 Administrator of FEMA 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; 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 Administrator
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 Administrator 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.

[66 FR 32669, June 15, 2001, as amended at 74 FR 15353, Apr. 3, 2009]



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.

[[Page 522]]

    (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 13 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.

[66 FR 32669, June 15, 2001, as amended at 74 FR 15353, Apr. 3, 2009]



Sec. 209.12  Oversight and results.

    (a) FEMA oversight. Our Regional Administrators are responsible for
overseeing this grant authority and for ensuring that States and
subgrantees meet all program requirements. Regional Administrators will
review program progress quarterly.
    (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 DHS Office of the Inspector
General or the Government Accountability 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 DHS 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 Administrator 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 Administrator 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 Administrator. Reporting shall be by program
quarter unless otherwise agreed to by the Regional Administrator.

[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.
    (h) Administrator. The head of the grantor agency or another
official of the Agency authorized in writing by

[[Page 539]]

the Administrator to act officially on behalf of the Administrator.
    (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 Administrator 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 Administrator. 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. A one-time submission with amendments
as necessary to keep it current, the plan

[[Page 540]]

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 Administrator 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;
74 FR 15354, Apr. 3, 2009]



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 Administrator 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 Administrator, 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 Administrator
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 Administrator 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 Administrator.

[[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
Administrator 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 Administrator 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 project 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
Administrator 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 Administrator and conforming

[[Page 542]]

with 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, submit to
the Regional Administrator 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 Administrator 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
Administrator 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 Administrator
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 Administrator 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 Administrator's disapproval
of a

[[Page 543]]

State 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 Deputy Administrator for the National Preparedness Directorate,
signed by an authorized State official and submitted through the
Regional Administrator. Such appeal letter shall be mailed or otherwise
transmitted so as to reach the Regional Administrator 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 Administrator.
    (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 Administrator.
Upon receipt of such an appeal, the RegionalAdministrator shall forward
the letter, together with all available pertinent documentation from the
Regional Administrator's files and any additional documentation
submitted by the local jurisdiction in support of its appeal, to the
Deputy Administrator for the National Preparedness Directorate, 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 Administrator. The State and local jurisdiction (if applicable)
will be notified in writing of the Administrator's decision, including a
statement of the reasons therefor.

[48 FR 44211 Sept. 28, 1983, as amended at 51 FR 12520, Apr. 11, 1986;
74 FR 15354, Apr. 3, 2009]



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 Administrator 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
Administrator 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 Administrator 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
Administrator 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 Administrator. 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 Administrator, based on the current
situation in each State, the requests of all States, and recommendations
by the Regional Administrators. The Administrator 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 Administrators, the Administrator 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 Administrator a preliminary
annual submission in an amount not to exceed its tentative allocation.
    (h) By September 30 (or as soon thereafter as feasible), the
Administrator 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 shall be in accordance with

[[Page 545]]

the regulations in this part and CPG 1-3.
    (i) Upon the appropriation becoming available, and if requested by a
State, the Regional Administrator 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 Administrator'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 Administrator 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
Administrator 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 Administrator) of the
final annual submission (including a revised statement of work
supporting the additional funding request) the Regional Administrator
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 Administrator 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 Administrator 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 Administrator. 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 Administrator.

[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 Administrator 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 Administrator 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 Administrator 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 Administrator, FEMA,
shall allocate to each participating insular area an amount not less
than the sum of grants for the two programs which the Administrator,
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 Administrator, 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 Administrator, 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 Administrator 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
Administrator.
    (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.

[[Page 553]]



Sec. 321.7  [Reserved]



Sec. 321.8  Reports.

    The Department of Defense, Department of Energy, and Maritime
Administration shall furnish the Administrator of 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

[[Page 554]]

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 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.



      Sec. 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.

[[Page 555]]

    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 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.

[[Page 556]]

Lamps, for surgical lights.
Laryngoscope.
Light, surgical, portable.
Litter.
Mallet, bone surgery.
Needles, hypodermic, reusable.
Needles, suture, eyed.
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.

[[Page 557]]

Nonelectric lighting equipment.
Sleeping bags.

                                 Group B

None.

                      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.


[[Page 558]]


    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:
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

[[Page 559]]

regulations. Classes of equipment may from time to time be added to or
deleted from this list.



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 Administrator, 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
Administrator.

                           PART 328 [RESERVED]

[[Page 560]]



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.

    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 Administrator, 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 Administrator 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 Administrator 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 Administrator 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 Administrator, Federal Emergency Management Agency.
    (d) Procedures to execute the above delegations will be carried out
in accordance with guidance provided by the Administrator, 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 Administrator, 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
Administrator 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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 Administrator 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

[[Page 566]]

Chairman of the Federal Trade Commission, the Administrator of the
Federal Emergency Management Agency, or their delegates.
    (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 Administrator 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, records, 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 Administrator 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
Administrator 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]

[[Page 567]]



PART 334_GRADUATED MOBILIZATION RESPONSE--Table of Contents



Sec.
334.1 Purpose.
334.2 Policy.
334.3 Background.
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
actitivities.
    (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

[[Page 568]]

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 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 period 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

[[Page 569]]

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.
    (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

[[Page 570]]

are pursued, focusing on resource allocation and adjudication with
cognizance of the essential civilian demand.
    (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 Administrator 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 Administrator 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 Administrator.
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) Administrator means the Administrator, FEMA, or designee;
    (b) Regional Administrator means a Regional Administrator of FEMA,
or designee;
    (c) Deputy Administrator means the , National Preparedness
Directorate, 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

[[Page 571]]

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 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 Administrator 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 Administrator 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

[[Page 572]]

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 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

[[Page 573]]

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 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 established 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.

[[Page 574]]



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 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 Administrator of the Region in
which the State is located. The application, in the form of a letter
from the Governor 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

[[Page 575]]

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, 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 Administrator shall acknowledge in writing within
ten days the receipt of the State application.
    (b) FEMA shall publish a notice signed by the Regional Administrator
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 Administrator shall furnish copies of the plan to
members of the RAC for their analysis and evaluation.
    (d) The Regional Administrator 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 Administrator 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 Deputy Administrator for the National Preparedness
Directorate.
    (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 Deputy Administrator for the National
Preparedness Directorate.



Sec. 350.9  Exercises.

    (a) Before a Regional Administrator can forward a State plan to the
Deputy Administrator for the National Preparedness Directorate 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
Administrator 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

[[Page 576]]

demonstrate to the Regional Administrator that identified weaknesses
have been corrected.
---------------------------------------------------------------------------

    \1\ See Sec. 350.2 for definitions of ``full participation'' and
``remedial exercises''.
---------------------------------------------------------------------------

    (b) The Regional Administrator shall be the FEMA official
responsible for certifying to the Deputy Administrator for the National
Preparedness Directorate 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 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 Administrator finds that unusual hardships would result, he may
seek relief from the Deputy Administrator for the National Preparedness
Directorate.
    (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
Administrator 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 Administrator 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 Administrator
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 Administrator that identified weaknesses have been corrected.
The

[[Page 577]]

Regional Administrator shall forward his or her evaluation of the
exercise conducted for continued FEMA approval to the Deputy
Administrator for the National Preparedness Directorate including the
certification that changes and corrective measures have been made.
    (e) Following the exercise conducted for continued FEMA approval,
the Regional Administrator 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 Administrator, written comments from the public and media may
be submitted at or after the meeting. These comments will be taken into
consideration by the Regional Administrator 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 Administrator of the evaluation of the
plan and exercise to the Deputy Administrator for the National
Preparedness Directorate, the FEMA Regional Administrator 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 Administrator, 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 Administrator 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
newspaper with the largest circulation in the area, or other such media
as the Regional Administrator 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 Administrator, the
public meeting or meetings reveal deficiencies in the State plan and/or
the joint exercise, the Regional Administrator 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 Administrator.

    (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 Administrator shall prepare an evaluation
of the State plan, including plans for local governments. Such
evaluation shall be specific with respect to

[[Page 578]]

the plans applicable to each nuclear facility so that findings and
determinations can be made by the Deputy Administrator for the National
Preparedness Directorate on a site-specific basis.
    (b) The Regional Administrator 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 Administrator shall forward the State plan together
with his or her evaluation and other relevant record material to the
Deputy Administrator for the National Preparedness Directorate. 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.



Sec. 350.12  FEMA Headquarters review and approval.

    (a) Upon receipt from a Regional Administrator of a State plan, the
Deputy Administrator for the National Preparedness Directorate shall
conduct such review of the State plan as he or she shall deem necessary.
The Deputy Administrator for the National Preparedness Directorate shall
arrange for copies of the plan, together with the Regional
Administrator'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 Deputy Administrator for the National
Preparedness Directorate 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 Deputy Administrator for the National
Preparedness Directorate shall approve in writing the State plan. The
Deputy Administrator for the National Preparedness Directorate shall
concurrently communicate this FEMA approval to the Governor of the
State(s) in question, the NRC and the pertinent Regional
Administrator(s) and immediately shall publish in the Federal Register a
notice of this effect.
    (c) If, after formal submission of the State plan, the Deputy
Administrator for the National Preparedness Directorate 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
Administrator(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 Administrator(s). The Deputy Administrator for
the National Preparedness Directorate 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

[[Page 579]]

of a State plan, any interested person may appeal the decision of the
Deputy Administrator for the National Preparedness Directorate to the
Administrator; however, such an appeal must be made solely upon the
ground that the Deputy Administrator for the National Preparedness
Directorate'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
Deputy Administrator for the National Preparedness Directorate
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 Administrator 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 Deputy Administrator for the
National Preparedness Directorate shall withdraw approval and shall
immediately inform the NRC and the Governor of the affected State, 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 Deputy Administrator for the National Preparedness Directorate
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 Deputy Administrator for the National
Preparedness Directorate 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 Deputy
Administrator for the National Preparedness Directorate 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 Administrator(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 Deputy Administrator for the National Preparedness
Directorate to the Administrator; however, such an appeal must be made
solely upon the ground that the Deputy Administrator for the National
Preparedness Directorate'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

[[Page 580]]

with the plan, would need to have been considered by the Deputy
Administrator for the National Preparedness Directorate 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 Administrator
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 Administrator.



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
Administrator, 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 Administrator, 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 Administrator or the
Administrator's designee shall review the file, as submitted to the
Deputy Administrator for the National Preparedness Directorate, by the
Regional Administrator of the FEMA Region concerned, based on the
information contained in the file and the appeal letter, with supporting
documentation. The Administrator or the Administrator'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 Administrator or the Administrator'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.

[[Page 581]]



                            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]



 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

[[Page 582]]

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.
    (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.

[[Page 583]]



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 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

[[Page 584]]

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 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.

[[Page 585]]

    (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.
    (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,

[[Page 586]]

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.
    (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.;)

[[Page 587]]

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) Deputy Administrator means the Deputy Administrator, National
Preparedness Directorate, FEMA or designee.
    (b) Administrator means the Administrator, 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 Administrator means the Regional Administrator 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; 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

[[Page 588]]

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 Regional Administrator 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 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.

[54 FR 31925, Aug. 2, 1989, as amended at 74 FR 15357, Apr. 3, 2008]



Sec. 352.5  FEMA action on licensee certification.

    (a) Upon receiving a licensee certification, the host Regional
Administrator shall immediately notify FEMA Headquarters of the licensee
certification. Within 5 days the host Regional Administrator 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 Administrator shall acknowledge in writing the receipt
of the certification to the licensee.
    (b) Within 15 days of receipt of the certification, the Regional
Administrator 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 Administrator 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

[[Page 589]]

State and responsible local officials, a recommended determination on
whether a decline or fail situation exists to the FEMA Deputy
Administrator for the National Preparedness Directorate within 30 days
of receipt of the licensee certification.
    (f) The FEMA Deputy Administrator for the National Preparedness
Directorate 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 Administrator or Deputy
Administrator for the National Preparedness Directorate, 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 Administratorshall make a recommendation to the FEMA
Deputy Administrator for the National Preparedness Directorate on
whether the provision of these facilities and resources is warranted.
The FEMA Deputy Administrator for the National Preparedness Directorate
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.
    (d) The FEMA Deputy Administrator for the National Preparedness
Directorate 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 Executive Order 12657 (E.O. 12657)
has been requested. This subpart:
    (a) Describes the process for providing Federal technical assistance
to

[[Page 590]]

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.



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

[[Page 591]]

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 keep affected State and local governments informed of actions
taken.

[54 FR 31925, Aug. 2, 1989, as amended at 74 FR 15357, Apr. 3, 2009]



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:

[[Page 592]]

    (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.



Sec. 352.29  Appeal process.

    (a) Any interested party may appeal a determination made by the
Deputy Administrator for the National Preparedness Directorate, under
Sec. Sec. 352.5 and 352.6 of this part, by submitting to the
Administrator, FEMA, a written notice of appeal, within 30 days after
issuance. The appeal is to be addressed to the Administrator, 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 Administrator
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

[[Page 593]]

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, Mar. 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 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,

[[Page 594]]

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 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

[[Page 595]]

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.).



Sec. 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 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

[[Page 596]]

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 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

[[Page 597]]

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.
    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.

[[Page 598]]

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.
    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.

[[Page 599]]

    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 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

[[Page 600]]

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.

                           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

[[Page 601]]

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 Administrator 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.
    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.

[[Page 602]]

    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
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

[[Page 603]]

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.
    (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.

[[Page 604]]

    (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 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.

[[Page 605]]



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 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

[[Page 606]]

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.



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 Administrator.
    (2) How to submit: Each State shall submit the completed application
package to the Regional Administrator 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

[[Page 607]]

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 Administrator 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 Administrator 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.
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.

[[Page 608]]

    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 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

[[Page 609]]

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 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

[[Page 610]]

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 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.

[[Page 611]]



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 Administrator 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 Administrator 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 Administrator 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;
    (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.
    (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

[[Page 612]]

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.

(Approved by the Office of Management and Budget under OMB control
number 3067-0170)



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.



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]

[[Page 613]]



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
Administrator 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 Administrator 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 Administrator or his designee.
    (c) The Administrator 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 Chief 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.

                        PARTS 363	399 [RESERVED]

[[Page 615]]



   CHAPTER IV--DEPARTMENT OF COMMERCE AND DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
400

[Reserved]

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 400 [RESERVED]



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, unless otherwise noted. Redesignated at 45 FR
44574, July 1, 1980.



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

[[Page 618]]

alteration of the system of records customarily maintained, provided
such records supply an adequate basis for 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
(T1, 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, unless otherwise noted.
Redesignated at 45 FR 44574, July 1, 1980.



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.

[[Page 619]]



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 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, 2014)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)

[[Page 624]]

       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   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 (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        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 (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)

[[Page 625]]

    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)

[[Page 626]]

    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
     XCVII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         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)

[[Page 627]]

       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)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      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 Policy and New Uses, 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  National Institute of Food and 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)

[[Page 628]]

        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)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      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)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      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)

[[Page 629]]

               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 (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (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)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         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)

[[Page 630]]

                    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)

          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  U.S. 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  U.S. 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  Office of Workers' Compensation Programs, 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 Service, Department of 
                Labor (Parts 1000--1099)

[[Page 631]]

                       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)
        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 (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)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       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)

[[Page 632]]

        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]
       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)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       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)

[[Page 633]]

         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 (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           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)

                   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)

[[Page 634]]

         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  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

[[Page 635]]

                      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)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     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)
        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)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)[Reserved]
            Subtitle C--Regulations Relating to Education

[[Page 636]]

        XI  National Institute for Literacy (Parts 1100--1199)
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             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)
        VI  [Reserved]
       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 (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)

[[Page 637]]

        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)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            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)
   62--100  [Reserved]
            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)
  103--104  [Reserved]
       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)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [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 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

[[Page 638]]

                        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--599)
         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 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             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
        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)

[[Page 639]]

       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)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  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  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)

[[Page 640]]

        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)
        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) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (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  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)

[[Page 641]]

        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  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       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)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 643]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2014)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     22, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 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
  National Institute of Food and Agriculture      7, XXXIV
  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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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

[[Page 644]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
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
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
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
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                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       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 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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I

[[Page 645]]

Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 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
Election Assistance Commission                    2, LVIII; 11, II
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                             2, IX; 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                   2, XV; 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                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 646]]

  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
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
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 Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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

[[Page 647]]

Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  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 Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Gulf Coast Ecosystem Restoration Council          40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 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
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I; 8, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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 Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII

[[Page 648]]

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
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
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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
Investment Security, Office of                    31, VIII
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                                2, XXVIII; 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
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V

[[Page 649]]

  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
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  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 Royalty Board                         37, III
  U.S. 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, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
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
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 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   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
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              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI

[[Page 650]]

National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
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
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory 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
Privacy and Civil Liberties Oversight Board       6, X
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
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L

[[Page 651]]

Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
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                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
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
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                     2, XII; 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; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  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                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, 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
[[Page 652]]

United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 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 653]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2009 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2009

44 CFR
                                                                   74 FR
                                                                    Page
Chapter I
Chapter I
1.2 (c) amended....................................................15331
1.3 (b) amended....................................................15331
1.4 (d), (e), (f) and (h) amended..................................15331
1.5 (a) amended....................................................15331
1.10 Amended.......................................................15331
1.13 (a) and (b) amended...........................................15332
1.14 Amended.......................................................15332
1.15 (b) amended...................................................15332
1.16 (b) introductory text and (4) amended.........................15332
1.18 (a) introductory text and (b) amended.........................15332
2 Revised..........................................................15332
4.2 Amended........................................................15332
4.3 Amended........................................................15332
4.5 Amended........................................................15332
4.6 (b), (c) and (d) amended.......................................15332
4.7 Heading, (a) introductory text and (b) introductory text 
        amended....................................................15333
4.8 Heading and (a) amended........................................15333
4.9 Heading, (a) introductory text, (d) and (e) amended............15333
4.10 Heading, (a) introductory text, (3), (b) introductory text 
        and (2) amended............................................15333
4.11 Heading, (a) introductory text, (4) and (b) amended...........15333
4.12 (b) and (c) amended...........................................15333
4.13 Amended.......................................................15333
5.3 (e) amended....................................................15333
5.8 Amended........................................................15333
5.22 Amended.......................................................15333
5.26 (a)(2) revised................................................15333
5.27 Amended.......................................................15333
5.41 Amended.......................................................15333
5.47 Amended.......................................................15333
5.54 (a) revised...................................................15333
5.55 (a), (d), (e) and (h) introductory text amended...............15333
5.59 Amended.......................................................15333
5.60 Amended.......................................................15333
5.72 Amended.......................................................15333
5.82 (b) amended...................................................15334
5.83 Amended.......................................................15334
5.84 (a) through (e) amended.......................................15334
5.85 Revised.......................................................15334
5.87 (b) and (c) amended...........................................15334
5.88 (a) amended...................................................15334
5.89 Amended.......................................................15334
6.2 (m) and (n) amended............................................15334
6.3 (b) amended....................................................15334
6.20 (g) and (j) amended...........................................15334
6.21 (b) amended...................................................15334
6.33 (b) revised; (d) amended......................................15334
6.34 Amended.......................................................15334
6.50 Amended.......................................................15334
6.55 (c) through (f) and (h) amended...............................15334
6.70 (a) and (b) amended...........................................15335
6.71 (b) amended...................................................15335
6.86 (a) amended...................................................15335
6.87 (c) introductory text and (2) amended.........................15335
7.2 (a) amended....................................................15335

[[Page 654]]

7.12 (c) and (d) amended...........................................15335
7.13 (e) amended...................................................15335
7.14 (e) and (f) amended...........................................15335
7.16 (c) amended...................................................15335
7.913 Amended......................................................15335
7.942 (a) introductory text amended................................15335
7.945 (c)(1) and (2) amended.......................................15335
7.948 (a) and (b) introductory text amended........................15335
7.949 (b)(3)(iii) amended..........................................15335
8.2 (d) redesignated as (e); (a) and new (e) amended; undesignated 
        text following (c)(2) designated as new (d); (b) and (c) 
        revised....................................................15335
8.3 Amended........................................................15335
8.4 (b), (c), (e), (g)(1) and (3) amended..........................15335
9.4 Amended........................................................15335
9.5 (c) introductory text, (d) introductory text, (f)(1), (2) and 
        (g) introductory text amended..............................15336
9.7 (b) introductory text, (c)(1)(i), (ii), (iii), (2) and (d)(4) 
        amended....................................................15336
9.10 (d) introductory text amended.................................15336
9.11 (d)(2), (3)(iv), (9) and (3)(2)(i) amended....................15336
9.13 (d)(3) introductory text, (4) introductory text and (e) 
        amended....................................................15336
9.18 (a) heading, introductory text, (1) and (2) amended; (b) 
        revised....................................................15336
10.3 (a) amended; (c) revised......................................15336
10.5 (a) heading, (1), (b)(8), (c) heading and (d) heading amended
                                                                   15336
10.6 Amended.......................................................15337
10.7 (a), (c)(1)(ii), (iii), (2)(i), (v) and (vi) amended..........15337
10.8 (a) introductory text, (b)(1), (3), (d)(4), (5), (6)(iii)(A), 
        (e), (f) and (g) amended...................................15337
10.9 (a), (c) introductory text and (d) through (g) amended........15337
10.10 (a) through (d) amended......................................15337
10.12 (a) introductory text, (b), (c) and (d) amended..............15337
10.13 Amended......................................................15337
11.1 Amended.......................................................15337
11.2 Amended.......................................................15337
11.11 (b) and (c) amended..........................................15337
11.15 (a) and (b) introductory text amended........................15337
11.16 (b) introductory text amended................................15337
11.17 Amended......................................................15337
11.70 (a) amended..................................................15337
11.72 (a) amended..................................................15337
11.74 (b)(13) amended..............................................15337
11.75 (d)(2) and (3) amended.......................................15337
11.76 (a) introductory text amended................................15337
11.77 (a) through (e) amended......................................15337
11.79 OMB number...................................................15337
12.2 Amended.......................................................15337
12.4 Amended.......................................................15338
12.5 (a) introductory text revised.................................15338
12.6 (a)(2) amended................................................15338
12.9 (a) through (d) amended.......................................15338
12.11 (d) amended..................................................15338
12.18 (a) and (b) amended..........................................15338
12.19 (a) amended..................................................15338
13.26 (a) and (b) introductory text amended........................15338
14 Removed.........................................................15338
15.1 Amended.......................................................15338
15.2 Amended.......................................................15338
15.3 Amended.......................................................15338
15.9 (d), (e)(1) and (2) amended...................................15338
15.10 (a) and (b)(1) amended.......................................15338
15.11 Amended......................................................15338
15.12 (a) and (b)(2) amended.......................................15338
15.14 (d) amended..................................................15339
15.15 (a) amended..................................................15339
16.170 (c) amended.................................................15339
17 Heading and authority citation revised; interim.................34498
17.100--17.115 (Subpart A) Removed; interim........................34498
17.200--17.225 (Subpart B) Removed; interim........................34498
17.300--17.325 (Subpart C) Removed; interim........................34498
17.400--17.420 (Subpart D) Removed; interim........................34498
17.500--17.510 (Subpart E) Removed; interim........................34498
17.600--17.635 (Subpart F) Subpart designation and heading removed
                                                                   34498
17.605 (a), (b) introductory text, and (b)(1) through (10) 
        designations removed; amended; interim.....................34498
17.610 (c) amended; interim........................................34499

[[Page 655]]

17.615 (b)(1) and (c)(1) amended; interim..........................34499
17.620 (a)(3) and (b) amended; interim.............................34499
17.630 (a)(1) amended; interim.....................................34499
17.635 OMB number..................................................15339
17 Appendices A and B removed; Appendix C redesignated as Appendix 
        to Part 17; interim........................................34499
59.1 Amended.......................................................15339
    Regulation at 72 FR 61737 confirmed; eff. 10-16-09.............47480
59.2 (a) and (b) amended...........................................15339
59.22 (a)(9)(i) and (b)(2) amended.................................15339
59.24 (a) through (g) amended......................................15339
59.30 (c)(1), (2) and (3) amended; OMB number......................15339
60.1 (a) and (b) amended...........................................15340
60.2 (a), (f) and (h) amended......................................15340
60.3 Introductory text, (a) introductory text, (b) introductory 
        text, (c) introductory text, (d) introductory text, (4), 
        (e) and (f) amended........................................15340
60.4 Introductory text, (a) introductory text, (b) introductory 
        text and (2) introductory text amended.....................15340
60.5 Introductory text, (a) introductory text, (b) introductory 
        text and (2) introductory text amended.....................15340
60.6 Introductory text, (a) introductory text, (6), (b)(1), (2) 
        and (c) introductory text amended..........................15340
60.11 (a) and (b) amended..........................................15340
60.13 Amended......................................................15340
60.25 (b)(8), (c) and (d) introductory text amended................15340
61.1 Amended.......................................................15340
61.4 (b) amended...................................................15340
61.7 (a) and (b) amended...........................................15340
61.9 Regulation at 72 FR 61737 confirmed; eff. 10-16-09............47480
61.11 (f) amended..................................................15340
61.12 (a), (b) introductory text, (4) and (c) through (f) amended 
                                                                   15340
61.13 (d) and (e) amended..........................................15340
61.14 (a) and (b) amended..........................................15340
61.16 Amended......................................................15340
61 Appendices A(1), A(2) and A(3) amended..........................15340
62 Regulation at 73 FR 18187 and 18188 confirmed...................36614
62.1 Amended.......................................................15340
62.3 (a) amended...................................................15340
62.4 (a) amended...................................................15340
62.20 (a), (e)(1), (f)(2) and (3) amended..........................15340
    (e)(1) amended.................................................56123
62.22 (b) amended..................................................15341
62.23 (a), (e), (f), (g), (h)(3), (i)(8), (11), (j)(4) and (7) 
        amended; OMB number........................................15341
62 Appendices A and B amended......................................15341
63.1 Amended.......................................................15341
63.2 (c) amended...................................................15341
63.13 Amended......................................................15341
63.16 Heading, (a), (b) and (c) amended............................15341
63.17 Introductory text amended....................................15341
63.18 Heading and introductory text amended........................15341
64.1 (a) and (b) amended...........................................15341
64.3 (a) introductory text and (c)(1) amended......................15341
64.4 (c) and (d) amended...........................................15341
64.6 Tables amended.........642, 774, 12629, 12635, 12637, 17095, 18150, 
         21268, 23115, 26570, 28624, 31858, 35810, 38359, 41057, 45123, 
         46700, 48157, 51083, 53180, 55152, 55789, 61556, 61562, 66581, 
                                                                   68697
65.1 Amended.......................................................15341
65.4 Flood elevation determinations; interim...776, 12641, 12646, 12652, 
         12653, 16784, 18152, 21271, 26577, 28628, 33365, 55154, 55156, 
                                                                   57922
    Flood elevation determinations....12643, 12649, 12655, 12657, 18154, 
                                                     26573, 30962, 61564
65.6 (a)(12) amended...............................................15341
65.9 Introductory text amended.....................................15341
65.10 (a) amended..................................................15341
65.12 (a) introductory text, (b) and (c) amended...................15341
65.13 Introductory text and (f) amended............................15342
65.14 (a)(1), (2), (e) introductory text, (1)(ii), (f), (g) and 
        (i) amended................................................15342
66.1 (c) introductory text and (3) amended.........................15342
66.3 (a) and (b) amended...........................................15342
66.4 Amended.......................................................15342
66.5 (b) and (f) amended...........................................15342
67.3 Introductory text, (e) and (f) amended........................15342

[[Page 656]]

67.4 Introductory text amended.....................................15342
67.5 (a) amended...................................................15342
67.7 (a), (b) and (d) amended......................................15342
67.8 (a), (b), (c) and (e) amended.................................15342
67.9 (a) amended...................................................15342
67.11 Flood elevation determinations......401, 778, 12660, 12666, 12674, 
         12695, 12721, 16785, 23117, 28166, 28629, 33368, 34697, 57923, 
                                              57929, 57945, 61567, 61573
    Amended........................................................15342
67.12 (a) and (b) amended..........................................15342
68.1 Amended.......................................................15342
68.2 Amended.......................................................15342
68.4 (a) and (c) amended...........................................15342
68.5 Amended.......................................................15342
68.6 (a) amended...................................................15342
68.7 (b) and (c) amended...........................................15342
68.8 Amended.......................................................15342
68.11 Amended......................................................15342
70.1 Amended.......................................................15343
70.3 (a) amended...................................................15343
70.4 Heading and introductory text amended.........................15343
70.6 (a) amended...................................................15343
70.7 (a) amended...................................................15343
71.4 (h) amended...................................................15343
73.3 (a), (b) and (c) amended......................................15343
73.4 (a) and (b) amended...........................................15343
75.1 Amended.......................................................15343
75.10 Amended......................................................15343
75.11 (a)(4) and (b) amended.......................................15343
75.13 Heading and (a) through (d) amended..........................15343
75.14 Amended......................................................15343
78 Regulation at 72 FR 61738 confirmed; eff. 10-16-09..............47480
78.1 Regulation at 72 FR 61738 confirmed; eff. 10-16-09............47480
78.3 (a) introductory text, (b)(3), (4), and (c)(4) amended........15343
78.4 (b) amended...................................................15343
78.6 Amended.......................................................15343
78.8 (a) amended...................................................15343
78.10 Amended......................................................15343
78.13 (b) amended..................................................15343
78.14 Amended......................................................15343
79 Regulation at 72 FR 61738 confirmed; eff. 10-16-09..............47480
79.2 (e) through (l) redesignated as (f) through (m); new (e) 
        added; (c)(1), new (l) and new (m) revised; eff. 10-16-09 
                                                                   47481
79.4 (c) introductory text and (2) revised; eff. 10-16-09..........47481
79.6 (b)(1) and (c)(2)(i) revised; (c)(2)(ii) removed; (c)(2)(iii) 
        through (vii) redesignated as new (c)(2)(ii) through (vi); 
        eff. 10-16-09..............................................47481
80 Regulation at 72 FR 61743 confirmed; eff. 10-16-09..............47480
    Authority citation revised.....................................47481
80.3 (l) and (m) revised; eff. 10-16-09............................47481
80.11 (d) revised; eff. 10-16-09...................................47481
80.13 (a)(6) revised; eff. 10-16-09................................47481
80.17 (c)(4) revised; eff. 10-16-09................................47481
150.1 Amended......................................................15343
150.2 Amended......................................................15343
150.3 (e) amended..................................................15344
150.4 (a) introductory text amended................................15344
150.5 (a) and (d) amended..........................................15344
150.7 (b) and (d) amended..........................................15344
150.8 (b) amended..................................................15344
151.01 Amended.....................................................15344
151.03 (c) amended.................................................15344
151.11 introductory text, (g) and (h) amended......................15344
151.12 (a) introductory text, (b) introductory text, (2) and (c) 
        through (f) amended........................................15344
151.13 (a) and (b) amended.........................................15344
151.14 Amended.....................................................15344
151.22 Amended.....................................................15344
152.4 (b)(8) amended...............................................15344
152.7 (g) amended..................................................15344
152.9 (d) amended..................................................15344
201 Authority citation revised..............................15344, 47481
    Regulation at 72 FR 61747 confirmed; eff. 10-16-09.............47480
201.2 Amended......................................................15344
    Regulation at 72 FR 61747 confirmed; eff. 10-16-09.............47480
    Amended; eff. 10-16-09.........................................47481
201.3 (b) introductory text and (c)(7) amended.....................15344
    Regulation at 72 FR 61748 confirmed; eff. 10-16-09.............47480
    (c)(7) removed; (e)(1) amended; eff. 10-16-09..................47482
201.4 (d) amended..................................................15344
    Regulation at 72 FR 61748 confirmed; eff. 10-16-09.............47480
201.5 (c) amended..................................................15344
201.6 (a)(3) amended...............................................15344
    Regulation at 72 FR 61748 confirmed; eff. 10-16-09.............47480

[[Page 657]]

    (c)(2)(ii)(B) and (3)(iii) revised; eff. 10-16-09..............47482
201.7 Regulation at 72 FR 61749 confirmed; eff. 10-16-09...........47480
    (a)(2), (3), (c)(2)(ii)(B), (3)(iii) and (vi) revised; eff. 
10-16-09...........................................................47482
204.3 Amended......................................................15345
204.21 (a) amended.................................................15345
204.22 Amended.....................................................15345
204.23 (a), (b) introductory text, (1) and (2) amended.............15345
204.24 Amended.....................................................15345
204.25 (a) amended.................................................15345
204.26 (a) and (b) amended.........................................15345
204.42 (a)(2), (e)(2), (i), (ii), (iv) and (3) amended.............15345
204.51 (a)(1), (2), (c), (d) introductory text and (1)(ii) amended
                                                                   15345
204.52 (a)(2), (3), (4), (b)(1), (2), (c)(1) and (3) amended.......15345
204.54 (a), (b)(1), (2), (c)(2), (3), (d) and (e) amended..........15345
206 Authority citation revised.....................................15345
206.1 (a) amended..................................................15346
206.2 (a)(3) removed; (a)(7), (8), (11), (18) and (21) amended.....15346
206.5 (a) through (f) amended......................................15346
206.6 (a) amended..................................................15346
206.8 (a), (b), (c) introductory text, (2), (3), (4), (7) and 
        (d)(4) amended.............................................15346
206.12 (a) and (b) amended.........................................15346
206.13 (a) and (b) amended.........................................15346
206.14 (a) through (d) amended.....................................15346
    (d) revised....................................................58850
206.16 (a) and (b) amended.........................................15346
206.33 (a) and (d) amended.........................................15346
206.34 (a), (b), (c), (e) and (g) amended..........................15346
206.35 (a) and (d) amended.........................................15346
206.36 (a) and (d) amended.........................................15346
206.37 (a), (b) and (c) introductory text amended..................15347
206.39 (a), (b) and (c) amended....................................15347
206.40 (a) through (d) amended.....................................15347
    (b) amended....................................................60213
206.41 (a) and (b) amended.........................................15347
206.44 (a) and (c) amended.........................................15347
206.45 (a) introductory text and (b)(1) amended....................15347
206.46 (a) through (d) amended.....................................15347
206.62 Introductory text and (f) amended...........................15347
206.66 Introductory text amended...................................15347
206.67 Amended.....................................................15347
206.101 (c)(5), (e)(1), (2), (f)(1)(i)(A), (E), (2)(vi), 
        (g)(1)(ii), (2)(i), (ii), (iii), (3), (4)(i)(A), (C), 
        (ii)(B), (C), (iii)(C), (N), (i), (k)(2), (m)(1), (2), (3) 
        introductory text, (ii)(E)(1), (F)(2), (n)(1), (2)(i) 
        introductory text, (C), (2)(ii), (iii)(B), (C), (iv)(B), 
        (3) introductory text, (ii), (o), (p), (s) introductory 
        text, (1)(ii), (iii), (2), (iv), (3) introductory text, 
        (i) and (5) through (8) amended; OMB number................15347
206.110 (e) amended................................................15348
206.111 Amended....................................................15348
206.112 (b) amended................................................15348
206.115 (c) and (f) amended........................................15348
206.117 (b)(1)(i)(A), (D), (ii)(B), (E)(1) through (4) and (H) 
        amended....................................................15348
206.120 (b), (c)(1), (3), (i), (d)(3)(ix), (x), (e)(1) and (f)(1) 
        amended....................................................15348
206.131 (d)(1)(iii)(B), (iv), (2)(viii), (4), (e)(1)(ii)(J), (M), 
        (vii), (2), (3), (f) introductory text, (5), (6), (g)(1) 
        introductory text, (iii), (2), (3), (h), (i), (j)(1)(iii), 
        (iv), (2), (k)(1), (2), (3) and (m) amended................15348
206.151 (a) and (b) amended........................................15348
206.164 (a), (b), (c) introductory text, (3), (4) and (d) amended 
                                                                   15348
206.171 (b)(1), (4), (6), (9), (c)(2), (3), (e), (f) introductory 
        text, (1) introductory text, (ii), (iii), (3), (4)(iii), 
        (5)(i), (ii), (g)(1), (ii), (iii), (3) introductory text, 
        (i), (iv), (4)(i), (5), (i)(1) introductory text, (ii)(C), 
        (2)(i), (ii), (v), (vii), (ix), (3) introductory text, 
        (i), (iv) and (k) amended..................................15349
206.181 (c)(1), (2), (6), (d)(1) through (5) and (e) amended.......15349
206.191 (e)(1)(i), (2) introductory text, (iii), (3), (4) 
        introductory text, (i), (ii), (5) and (f) amended..........15350
206.201 (j) amended................................................15350
    (e) revised; (g) through (l) redesignated as (j) through (o); 
new (g), (h) and (i) added.........................................60213
206.202 (a), (c), (e)(1). (f)(1) and (2) amended...................15350

[[Page 658]]

    (f) introductory text and (1) revised..........................60213
206.203 (d)(2) introductory text and (v) amended...................15350
206.204 (d) introductory text, (2), (e)(2) and (f) amended.........15350
206.205 (b)(1) and (2) amended.....................................15350
206.206 (a), (b)(1), (2), (c)(2), (3), (d) and (e)(2) amended......15350
206.207 (b)(1)(iii)(H), (2), (3), (c)(1) and (2) amended...........15350
206.208 (b) introductory text, (c)(1), (2), (d) and (e)(1) amended
                                                                   15350
    (a) amended; (c)(3) added......................................60214
206.209 Added......................................................44767
206.223 (a)(1) and (2) revised.....................................60214
206.224 (a) introductory text and (4) amended......................15350
206.225 (a)(2) amended.............................................15350
206.226 (c)(2), (d)(3)(ii), (e) introductory text, (g)(1) 
        introductory text and (2) through (5) amended..............15350
    (b) revised; eff. 10-16-09.....................................47482
206.252 (a), (c) and (d) amended...................................15350
206.253 (a), (b)(1), (c) and (d) amended...........................15350
206.345 (a) introductory text and (b) introductory text amended....15350
206.346 (a) introductory text and (b) introductory text amended....15350
206.347 (a) introductory text, (b) introductory text, (2) and (c) 
        amended....................................................15350
206.348 Introductory text, (b) and (c) amended.....................15351
206.349 Introductory text and (d) amended..........................15351
206.361 (a), (d), (e) and (g) amended..............................15351
206.362 (a) and (c) through (f) amended............................15351
206.363 (a)(1) amended.............................................15351
206.364 (a)(2), (c)(1), (2), (d)(2)(i) and (ii) amended; OMB 
        number.....................................................15351
206.365 (b)(2), (c)(2) and (3) amended.............................15351
206.366 (a)(1), (c) introductory text, (2), (d)(1) and (4) 
        amended; OMB number........................................15351
206.367 (b)(1), (4) and (c) introductory text amended..............15351
206.371 (a), (c), (d) and (e) amended..............................15351
206.372 (a), (c), (d) and (e) amended..............................15351
206.374 (a)(2), (b)(1) introductory text, (c)(1), (2), (d)(2)(i), 
        (ii) and (e) amended.......................................15352
206.375 (b)(2) amended.............................................15352
206.377 (b)(1), (4) and (c) introductory text amended..............15352
206.390 Amended....................................................15352
206.391 Amended....................................................15352
206.392 Amended....................................................15352
206.393 Amended....................................................15352
206.394 (b)(7) and (c)(2) amended..................................15352
206.395 (b) and (d) amended........................................15352
206.400 (c) amended................................................15352
206.401 Revised; eff. 10-16-09.....................................47482
206.402 Amended....................................................15352
206.431 Amended; eff. 10-16-09.....................................47482
    Amended........................................................60214
206.432 (b)(3) amended.............................................15352
    Regulation at 72 FR 61750 confirmed; eff. 10-16-09.............47480
    (b) introductory text and (2) revised; eff. 10-16-09...........47482
206.433 Regulation at 72 FR 61750 confirmed; eff. 10-16-09.........47480
206.434 (b)(2), (e) introductory text and (1)(ii)(C) amended.......15352
    Regulation at 72 FR 61750 confirmed; eff. 10-16-09.............47480
    (b)(1), (c)(1) and (e) introductory text revised; eff. 10-16-
09.................................................................47483
206.436 (c) introductory text and (d) through (g) amended..........15352
206.437 (b)(4)(xii) removed; (b)(4)(xiii) and (xiv) redesignated 
        as new (b)(4)(xii) and (xiii); (b)(4)(xi), new (xii) and 
        (d) amended; OMB number....................................15352
206.438 (b), (d) and (e) amended...................................15352
206.439 Regulation at 72 FR 61750 confirmed; eff. 10-16-09.........47480
206.440 (a), (b)(1), (2), (c)(2), (3), (d) and (e)(2) amended......15352
208.2 (a) amended..................................................15353
208.3 (a) amended..................................................15353
208.5 Heading revised; (a) and (b) amended.........................15353
208.6 (a), (b) and (c) amended.....................................15353
208.7 Amended......................................................15353
208.8 Amended......................................................15353
208.11 Amended.....................................................15353

[[Page 659]]

208.22 (c)(2), (d), (e) and (f) amended............................15353
208.25 (a) amended.................................................15353
208.37 (a) amended.................................................15353
208.43 (c)(2) amended..............................................15353
208.52 (a) and (b)(2) amended......................................15353
208.62 (b)(1) and (2) amended......................................15353
208.64 (b) amended.................................................15353
208.66 (a)(3) amended..............................................15353
209.3 (a) amended..................................................15353
209.7 OMB number...................................................15353
209.8 (b), (c) introductory text and (c)(10) amended; OMB number 
                                                                   15353
209.9 Amended......................................................15353
209.10 Introductory text, (a), (i)(2)(C) and (5) amended...........15353
209.11 (f) amended.................................................15353
209.12 (a) amended.................................................15353
295.30 (a) amended.................................................15354
295.35 Amended.....................................................15354
295.41 (h) amended.................................................15354
300.3 (a) and (c) amended..........................................15354
302.2 (h), (m), (s), (u) and (v) amended...........................15354
302.3 Introductory text, (a) introductory text, (1), (3), (7), 
        (8), (16), (b)(1), (c) introductory text, (d), (f), 
        (g)(1), (2) and (3) amended; OMB number....................15354
302.5 (a), (b)(4), (c), (e) introductory text, (f) through (l) and 
        (o) amended................................................15354
302.7 (a) amended..................................................15354
302.8 Amended......................................................15354
304.4 Amended......................................................15354
304.5 (b) amended..................................................15354
312.4 (a) amended..................................................15355
312.5 (c) amended..................................................15355
321.8 Amended......................................................15355
327.4 Amended......................................................15355
327.5 Amended......................................................15355
330.2 (b) amended..................................................15355
330.3 (a) introductory text, (b), (c) and (d) amended..............15355
331.4 Amended......................................................15355
332.1 (b)(2) and (3) amended.......................................15355
332.2 (b)(1), (c)(1), (d)(1) and (e)(2) amended....................15355
332.3 (c)(2), (4), (5) and (d)(1) amended..........................15355
332.4 Amended......................................................15355
334.7 Amended......................................................15355
350.2 (a), (b) and (c) amended.....................................15355
350.3 (a) and (b) amended..........................................15355
350.7 (a) amended..................................................15355
350.8 (a) through (f) amended......................................15355
350.9 (a), (b), (c) introductory text, (3), (5), (d) and (e) 
        amended....................................................15356
350.10 (a) introductory text and (b) amended.......................15356
350.11 Heading, (a), (b) and (c) amended...........................15356
350.12 (a), (b) introductory text, (2), (c) and (e) amended........15356
350.13 (a) introductory text, (1), (b) and (c) amended.............15356
350.14 (b) introductory text, (c) and (d) amended..................15356
350.15 (a), (b) and (c) amended....................................15356
352.1 (a), (b) and (f) amended.....................................15357
352.4 (a) amended; OMB number......................................15357
352.5 (a), (b) and (d) through (g) amended.........................15357
352.6 (b) and (d) amended..........................................15357
352.24 OMB number..................................................15357
352.29 (a) and (b) amended.........................................15357
354.1 Amended......................................................15357
360.4 (c)(1), (2) and (d) amended..................................15357
361.5 (a)(3)(i), (ii) and (iii) amended............................15357
362.1 Amended......................................................15357
362.3 Introductory text, (b), (c) and (e) amended..................15357

                                  2010

44 CFR
                                                                   75 FR
                                                                    Page
Chapter I
64 Technical correction............................................15613
64.6 Tables amended......60, 4001, 5891, 5894, 6121, 9112, 14356, 18409, 
         19891, 24821, 28493, 32302, 35667, 38750, 44153, 49418, 52862, 
           52866, 55281, 55684, 57689, 63400, 68705, 71358, 71364, 80351
    Table corrected................................................22263
65.4 Flood elevation determinations; interim...7955, 7957, 18071, 18074, 
         18075, 18080, 18082, 18085, 18089, 18091, 23593, 29195, 29198, 
         29199, 29206, 29208, 29211, 35670, 35673, 78606, 78608, 78610, 
                                78613, 78615, 81890, 82273, 82274, 82276
    Flood elevation determinations....11745, 18072, 18077, 18087, 29202, 
                         29212, 35675, 35683, 81485, 81888, 81891, 81893

[[Page 660]]

67.11 Flood elevation determinations.....3171, 5894, 8814, 11469, 14091, 
         18092, 19895, 22700, 23595, 23600, 23608, 28497, 34381, 43419, 
         44156, 52869, 55481, 59096, 59634, 59989, 61358, 64165, 68710, 
                                       68715, 69893, 77762, 78617, 78927
204 Authority citation revised.....................................50715
204.3 Amended......................................................50715
204.21 (a) amended.................................................50715
204.23 Revised.....................................................50715
204.24 Revised.....................................................50715
204.26 Revised.....................................................50715
206.370 (a) and (b) revised.........................................2817
206.371 (f) amended; (g) revised; (h) added.........................2817
206.372 (a), (c), (d) and (e) revised...............................2818
206.374 (b)(2) amended..............................................2818
206.376 Added.......................................................2818
206.377 (b) introductory text and (2) amended; (b)(4) and (c)(2) 
        revised.....................................................2820

                                  2011

44 CFR
                                                                   76 FR
                                                                    Page
Chapter I
17 Removed.........................................................10208
61 Appendix A(2) amended............................................7510
64.6 Tables amended.........2597, 5081, 5285, 9667, 12597, 14294, 18935, 
         23499, 26939, 30838, 34612, 36370, 39783, 45201, 49330, 54709, 
                                                     56118, 58406, 59267
65.4 Flood elevation determinations.......18, 8901, 18938, 20555, 22055, 
                  26942, 39010, 40815, 43603, 50420, 50916, 58412, 59268
    Flood elevation determinations; interim.......23, 2837, 8905, 20551, 
         20553, 20557, 21661, 21662, 26943, 35754, 43195, 43602, 44277, 
                                       49675, 50423, 50914, 58410, 60749
    Flood elevation determinations corrected................52879, 52880
67.11 Flood elevation determinations........273, 1093, 1536, 3524, 3531, 
           8907, 9669, 10254, 21664, 29657, 35111, 35120, 36373, 39012, 
                                39306, 43924, 49677, 50919, 50921, 54134

                                  2012

44 CFR
                                                                   77 FR
                                                                    Page
Chapter I
64.6 Tables amended.....59763, 59765, 61519, 63754, 66734, 68698, 69565, 
                                                            74608, 75892
65.4 Flood elevation determinations.........................59767, 76915
67.11 Flood elevation determinations.........66556, 66738, 71703, 73325, 
                                              74611, 76421, 76916, 76930
206 Authority citation revised.....................................67290
206.228 (a)(2) revised; interim....................................67290

                                  2013

44 CFR
                                                                   78 FR
                                                                    Page
Chapter I
64.6 Tables amended.........2623, 2625, 5734, 5737, 12966, 14695, 17131, 
         17134, 25583, 25586, 25589, 33989, 37979, 45461, 45462, 51077, 
         54767, 54771, 57524, 57526, 65213, 65883, 69000, 69001, 70236, 
                                                            75486, 79325
65.4 Flood elevation determinations.................................8417
67.11 Flood elevation determinations...28, 5739, 6744, 6746, 9598, 9601, 
          9832, 10067, 10073, 14698, 14700, 21273, 21274, 29653, 29654, 
           33991, 36098, 36100, 43822, 43825, 45878, 45879, 48813, 49122
206 Authority citation revised.....................................49961
206.117 (a), (b)(2), (3) and (4) revised; (c) removed..............66856
206.210 Added......................................................49961

                                  2014

  (Regulations published from January 1, 2014, through October 1, 2014)

44 CFR
                                                                   79 FR
                                                                    Page
Chapter I
8 Removed..........................................................44101
12 Removed.........................................................14182
    Technical correction...........................................16206
64.6 Tables amended........4086, 6834, 7088, 10014, 15543, 21397, 25519, 
         32877, 37651, 37653, 37658, 43668, 46188, 50557, 50562, 53619, 
                                                            59124, 59128
67.11 Flood elevation determinations.......2104, 3518, 4089, 4092, 4094, 
           4098, 4100, 15545, 15549, 25523, 25531, 44704, 44706, 44708, 
                                       45125, 45126, 45127, 54914, 54916
    Regulation at 79 FR 4098 withdrawn.............................33868

[[Page 661]]

201.3 (b)(5), (c)(2) and (3) revised; (e)(3) amended...............22882
201.4 (d) amended..................................................22883
201.5 (a) and (c)(1) amended; (c)(2) revised.......................22883
206 Regulation at 77 FR 67290 confirmed............................46194
206.202 (d)(2) amended.............................................10686
206.203 (c)(1) and (2) amended.....................................10686
206.228 Regulation at 77 FR 67290 confirmed........................46194


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