[Senate Report 115-347]
[From the U.S. Government Publishing Office]
Calendar No. 637
115th Congress } { Report
SENATE
2d Session } { 115-347
_______________________________________________________________________
COASTAL IMPLEMENTATION ACT OF 2017
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2242
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 13, 2018.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2018
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fifteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada TOM UDALL, New Mexico
JAMES M. INHOFE, Oklahoma GARY C. PETERS, Michigan
MIKE LEE, Utah TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin TAMMY DUCKWORTH, Illinois
SHELLEY MOORE CAPITO, West Virginia MARGARET WOOD HASSAN, New Hampshire
CORY GARDNER, Colorado CATHERINE CORTEZ MASTO, Nevada
TODD C. YOUNG, Indiana JON TESTER, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Calendar No. 637
115th Congress } { Report
SENATE
2d Session } { 115-347
======================================================================
COASTAL IMPLEMENTATION ACT OF 2017
_______
November 13, 2018.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 2242]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2242) to amend the Omnibus
Public Land Management Act of 2009 to clarify the authority of
the Administrator of the National Oceanic and Atmospheric
Administration with respect to post-storm assessments, and for
other purposes, having considered the same, reports favorably
thereon with an amendment (in the nature of a substitute) and
recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 2242 is to update the Consumer Option for
an Alternative System to Allocate Losses Act of 2012 (COASTAL
Act of 2012)\1\ with technical edits so that the National
Oceanic and Atmospheric Administration (NOAA) can continue to
develop an assessment model for determining the magnitude and
variations of coastal storm surges and wind speeds associated
with hurricanes.
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\1\P.L. 112-141; 126 Stat. 969.
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Background and Needs
The National Flood Insurance Program (NFIP) was first
authorized by the National Flood Insurance Act of 1968,\2\ and
was reauthorized until the end of fiscal year 2017 by division
F of the Biggert-Waters Flood Insurance Reform Act of 2012.\3\
The NFIP is administered by the Federal Emergency Management
Association (FEMA), and it was recently reauthorized until
November 30, 2018.\4\ The general purpose of the NFIP is both
to offer primary flood insurance to properties with significant
flood risk and to reduce flood risk through the adoption of
floodplain management standards.\5\ The NFIP is the primary
source of flood insurance coverage for residential properties
in the United States.\6\ As of January 2018, the NFIP had more
than 5 million flood insurance policies providing nearly $1.28
trillion in coverage, with approximately 23,000 participating
communities nationwide (including territories and tribal
organizations).\7\ The program currently collects about $3.6
billion in annual premium revenue.
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\2\42 U.S.C. 4001 et seq.
\3\P.L. 112-141; 126 Stat. 916.
\4\P.L. 115-225; 132 Stat. 1624.
\5\Congressional Research Service, Introduction to the National
Flood Insurance Program (http://www.crs.gov/reports/pdf/R44593)
(accessed 7.20.18).
\6\Congressional Research Service, What Happens If the National
Flood Insurance Program (NFIP) Lapses? (http://www.crs.gov/Reports/
IN10835?source=search&guid=
32dc3cb49a574eab920199dfaa0f88c6&index=1) (accessed 7.23.18).
\7\Ibid.
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After Hurricane Katrina struck the Gulf Coast in 2005, a
lack of clear property loss determinations in the NFIP program
created a legal backlog and slowed assistance to hurricane-
impacted Americans. Following a hurricane, it can be difficult
to assess whether damages were caused by wind or water,
particularly when only a structure's foundation, or slab, is
left (Figure 1). For these ``slab'' properties, there may not
be enough physical evidence to determine whether the damages
were caused by wind, and thus covered by private home insurers,
or by water, and thus covered by the NFIP. These so-called
``indeterminate loss'' properties, where the cause of the
destruction is not identifiable, created many legal disputes
post-Katrina between private home insurance providers and their
policyholders over the loss-allocation between flood as a cause
of loss, covered by the NFIP, and wind peril, covered by
private home insurance.\8\
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\8\U.S. Government Accountability Office, NOAA: Initial Response to
Post-Storm Assessment Requirements (https://www.gao.gov/assets/660/
655843.pdf) (accessed 20.18).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 1. Only the foundation remains of a home in Waveland,
Mississippi, after Hurricane Katrina.\9\
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\9\Los Angeles Times, ``A Sobering Look Back Five Years After
Hurricane Katrina'' (http://
framework.latimes.com/2010/08/27/hurricane-katrina/#/22) (accessed
7.24.18).
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The COASTAL Act of 2012 was designed to mitigate future
legal issues by requiring NOAA to produce detailed ``post-storm
assessments'' in the aftermath of a damaging tropical cyclone
that strikes the United States or its territories.\10\ The
purpose of the COASTAL Act of 2012 is to reduce conflict over
which party is responsible in ``indeterminate loss'' properties
by better discerning wind versus water damage.\11\ Using output
from a hindcast model, NOAA's assessments will indicate the
strength of timing of damaging winds and water at a given
location in the area impacted by the storm. If the assessment
results for the location of a specific ``slab'' property can be
certified by NOAA as being greater than 90 percent accurate,
those results will be put into a FEMA-managed formula that
considers a variety of factors that may have contributed to
structural damage. Based on this Named Storm Event Model
formula, FEMA determines the appropriate loss allocation
between wind and water.\12\
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\10\United States Department of Commerce, Report to Congress Status
of the National Oceanic and Atmospheric Administration's Implementation
of the Consumer Option for an Alternative System to Allocate Losses Act
of 2012 (https://www.weather.gov/media/sti/coastalact/
COASTALActAppropriationsReportFY14.pdf) (accessed 7.23.18).
\11\National Water Service, COASTAL Act Overview (https://
www.weather.gov/sti/coastalact) (accessed 7.23.18).
\12\Ibid.
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After the COASTAL Act of 2012 was enacted, NOAA began to
implement the policy changes and interagency coordination
required by that Act, but did not receive appropriated funding
for the work until 2016. Since receiving dedicated funding,
NOAA has been building the modeling and data collection
components necessary to implement the post-storm assessments.
The COASTAL Implementation Act of 2018 would provide additional
technical edits to the COASTAL Act of 2012 so that NOAA can
successfully collect the required data to perform the post-
storm assessments and provide it to FEMA for the loss-
allocation. The Act also would give the NOAA Administrator the
authority to deploy additional sensors before storms hit a
coastal area that is likely to be severely damaged, in order to
gather additional data for ``indeterminate'' property
determinations by FEMA. It also would direct the NOAA
Administrator to seek input and suggestions from the public
before the Named Storm Event Model is implemented.
Summary of Provisions
If enacted, S. 2242, the COASTAL Implementation Act of 2018
would do the following:
Amend the Omnibus Public Land Management Act of
2009\13\ to align the definitions in that Act so they match
NOAA's definitions for specific technical terminology.
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\13\P.L. 111-11; 123 Stat. 991.
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Extend NOAA's deadline for the implementation of the
COASTAL Act of 2012 to December 31, 2019.
Direct the NOAA Administrator to seek input and
suggestions from the public before the Named Storm Event Model
takes effect.
Direct the NOAA Administrator to deploy additional
sensors to enhance data collection in coastal areas that may be
at high risk of experiencing indeterminate losses.
Direct the NOAA Administrator to conduct separate
post-storm assessments for each coastal State in which
``indeterminate'' losses are identified after a storm.
Legislative History
S. 2242 was introduced on December 12, 2017, by Senator
Wicker and was referred to the Committee on Commerce, Science,
and Transportation of the Senate. A previous version of the
bill,
S. 2093, the COASTAL Implementation Act of 2017, was introduced
on November 7, 2017, and was referred to the Homeland Security
and Government Affairs Committee of the Senate. On August 1,
2018, the Committee met in open Executive Session and by voice
vote ordered S. 2242 reported favorably with an amendment (in
the nature of a substitute).
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 2242--COASTAL Implementation Act of 2018
S. 2242 would amend the Omnibus Public Land Management Act
of 2009 to clarify the authority of the National Oceanic and
Atmospheric Administration (NOAA) to conduct scientific
assessments to determine the magnitude, timing, and spatial
variations of winds, rainfall, and storm surges associated with
hurricanes and tropical storms. The bill would largely codify
current NOAA practices related to such work. In 2018, NOAA
allocated $5 million to those activities.
Using information from NOAA, CBO estimates that
implementing S. 2242 would have no significant cost.
Enacting S. 2242 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 2242 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 2242 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Robert Reese.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
S. 2242, as reported, would not create any new programs or
impose any new regulatory requirements, and therefore would not
subject any individuals or businesses to new regulations.
economic impact
Enactment of this legislation is not expected to have a
negative impact on the Nation's economy.
privacy
The reported bill is not expected to impact the personal
privacy of individuals.
paperwork
S. 2242 would not create increases in paperwork burdens if
enacted.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide that the bill may be cited as
the ``COASTAL Implementation Act of 2018''.
Section 2. Named storm event model and post-storm assessments.
This section would amend section 12312 of the Omnibus
Public Land Management Act of 2009\14\ by amending certain
definitions to conform to NOAA definitions for specific
terminology and fix ambiguity over the identification of
indeterminate losses in coastal States. This section also would
direct the NOAA Administrator to seek public review before the
Named Storm Event Model takes effect, deploy additional sensors
as needed to collect data before large storms, and to conduct
separate post-storm assessments for multiple coastal States
impacted by a single storm if necessary.
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\14\33 U.S.C. 3611.
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Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
NATIONAL FLOOD INSURANCE ACT OF 1968
[42 U.S.C. 4001 et seq.]
SEC. 1337. ALTERNATIVE LOSS ALLOCATION SYSTEM FOR INDETERMINATE CLAIMS.
[42 U.S.C. 4057]
(a) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means
the Administrator of the Federal Emergency Management
Agency.
(2) COASTAL formula.--The term ``COASTAL Formula''
means the formula established under subsection (b).
(3) Coastal state.--The term ``coastal State'' has
the meaning given the term ``coastal state'' in section
304 of the Coastal Zone Management Act of 1972 (16
U.S.C. 1453)[.], except that the term shall not apply
with respect to a State or territory that has an
operational wind and flood loss allocation system.
(4) Indeterminate loss.--
(A) In general.--The term ``indeterminate
loss'' means, as determined by an insurance
claims adjuster certified under the national
flood insurance program and in consultation
with an engineer as appropriate, a loss
resulting from physical damage to, or loss of,
property located in any coastal State arising
from the combined perils of flood and wind
associated with a named storm.
(B) Requirements.--An insurance claims
adjuster certified under the national flood
insurance program shall only determine that a
loss is an indeterminate loss if the claims
adjuster determines that--
(i) no material remnant of physical
buildings or man-made structures remain
except building foundations for the
specific property for which the claim
is made; and
(ii) there is insufficient or no
tangible evidence created, yielded, or
otherwise left behind of the specific
property for which the claim is made as
a result of the named storm.
(5) Named storm.--The term ``named storm'' means any
organized weather system with a defined surface
circulation and maximum sustained winds of not less
than 39 miles per hour which the National Hurricane
Center of the United States National Weather Service
names as a tropical storm or a hurricane.
(6) Post-storm assessment.--The term ``post-storm
assessment'' means the post-storm assessment developed
under section 12312(b) of the Omnibus Public Land
Management Act of 2009.
(7) State.--The term ``State'' means a State of the
United States, the District of Columbia, the
Commonwealth of Puerto Rico, and any other territory or
possession of the United States.
(8) Secretary.--The term ``Secretary'' means the
Secretary of Homeland Security.
(9) Standard insurance policy.--The term ``standard
insurance policy'' means any insurance policy issued
under the national flood insurance program that covers
loss or damage to property resulting from water peril.
(10) Property.--The term ``property'' means real or
personal property that is insured under a standard
insurance policy for loss or damage to structure or
contents.
(11) Under secretary.--The term ``Under Secretary''
means the Under Secretary of Commerce for Oceans and
Atmosphere, in the Under Secretary's capacity as
Administrator of the National Oceanic and Atmospheric
Administration.
* * * * * * *
(h) Rule of Construction.--Nothing in this subsection shall
be construed to require the Administrator to make any payment
under the national flood insurance program, or an insurance
company that issues a standard flood insurance policy under the
national flood insurance program to make any payment, for an
indeterminate loss based upon post-storm assessment [or the
COASTAL Formula], the COASTAL Formula, or any other loss
allocation or post-storm assessment arising under the laws or
ordinances of any State.
(i) Applicability.--Subsection (c) shall apply with respect
to an indeterminate loss associated with a named storm that
occurs after the date on which the Administrator issues the
rule establishing the COASTAL Formula under subsection (b).
(j) Rule of Construction.--Nothing in this subsection shall
be construed to negate, set aside, or void any policy limit,
including any loss limitation, set forth in a standard
insurance policy.
OMNIBUS PUBLIC LAND MANAGEMENT ACT OF 2009
[Public Law 111-11; 123 Stat. 991]
SEC. 12312. ASSESSING AND MODELING NAMED STORMS OVER COASTAL STATES.
[33 U.S.C. 3611]
(a) Definitions.--In this section:
(1) COASTAL formula.--The term ``COASTAL Formula''
has the meaning given the term in section 1337(a) of
the National Flood Insurance Act of 1968.
(2) Coastal state.--The term ``coastal State'' has
the meaning given the term ``coastal state'' in section
304 of the Coastal Zone Management Act of 1972 (16
U.S.C. 1453)[.], except that the term shall not apply
with respect to a State or territory that has an
operational wind and flood loss allocation system.
(3) Coastal waters.--The term ``coastal waters'' has
the meaning given the term in such section.
(4) Covered data.--The term ``covered data'' means,
with respect to a named storm identified by the
Administrator under subsection (b)(2)(A), empirical
data that are--
(A) collected before, during, or after such
storm; and
(B) necessary to determine magnitude and
timing of wind speeds, rainfall, the barometric
pressure, river flows, the extent, height, and
timing of storm surge, topographic and
bathymetric data, and other measures required
to accurately model and assess damage from such
storm.
(5) Indeterminate loss.--The term ``indeterminate
loss'' has the meaning given the term in section
1337(a) of the National Flood Insurance Act of 1968.
(6) Named storm.--The term ``named storm'' means any
organized weather system with a defined surface
circulation and maximum sustained winds of at least 39
miles per hour which the National Hurricane Center of
the United States National Weather Service names as a
tropical storm or a hurricane.
(7) Named storm event model.--The term ``Named Storm
Event Model'' means the official meteorological and
oceanographic computerized model, developed by the
Administrator under subsection (b)(1)(A), which
utilizes covered data to replicate the magnitude,
timing, and spatial variations of winds, rainfall, and
storm surges associated with named storms [that
threaten any portion of a coastal State] for which
post-storm assessments are conducted.
(8) Participant.--The term ``participant'' means a
Federal, State, or private entity that chooses to
cooperate with the Administrator in carrying out the
provisions of this section by collecting, contributing,
and maintaining covered data.
(9) Post-storm assessment.--The term ``post-storm
assessment'' means a scientific assessment produced and
certified by the Administrator to determine the
magnitude, timing, and spatial variations of winds,
rainfall, and storm surges associated with a specific
named storm to be used in the COASTAL Formula.
(10) State.--The term ``State'' means a State of the
United States, the District of Columbia, the
Commonwealth of Puerto Rico, and any other territory or
possession of the United States.
(b) Named Storm Event Model and Post-storm Assessment.--
(1) Establishment of named storm event model.--
(A) In general.--Not later than [540 days
after the date of the enactment of the Consumer
Option for an Alternative System to Allocate
Losses Act of 2012] December 31, 2019, the
Administrator shall develop [by regulation] the
Named Storm Event Model.
(B) Accuracy.--The Named Storm Event Model
shall be designed to generate post-storm
assessments, as provided in paragraph (2), that
have a degree of accuracy of not less than 90
percent for [every] an indeterminate loss for
which a post-storm assessment is utilized.
(C) Public review.--The Administrator shall
seek input and suggestions from the public
before the Named Storm Event Model, or any
modification to the Named Storm Event Model,
takes effect.
(2) Post-storm assessment.--
(A) Identification of named storms
threatening coastal states.--After the
establishment of the COASTAL Formula, the
Administrator shall, in consultation with the
Secretary of Homeland Security, identify named
storms that may reasonably constitute a threat
to any portion of a coastal State.
(B) Data collection.--
(i) In general.--Upon identification
of a named storm under subparagraph
(A), and pursuant to the protocol
established under subsection (c), the
Administrator may deploy sensors to
enhance the collection of covered data
in the areas in coastal States that the
Administrator determines are at the
highest risk of experiencing
geophysical events that would cause
indeterminate losses.
(ii) Rule of construction.--If the
Administrator takes action under clause
(i), that action may not be construed
as indicating that a post-storm
assessment will be developed for any
coastal State in which that action is
taken.
(C) Identification of indeterminate losses in
coastal states.--Not later than 30 days after
the first date on which sustained winds of not
less than 39 miles per hour are measured in a
coastal State during a named storm identified
under subparagraph (A), the Secretary of
Homeland Security shall notify the
Administrator with respect to the existence of
any indeterminate losses in that coastal State
resulting from that named storm.
[(B)](D) Post-storm assessment required.--
Upon [identification of a named storm under
subparagraph (A)] confirmation of indeterminate
losses identified under subparagraph (C) with
respect to a named storm, the Administrator
shall develop a post-storm [assessment for such
named storm] assessment for each coastal State
that suffered such indeterminate losses as a
result of the named storm using the Named Storm
Event Model and covered data collected for such
named storm pursuant to the protocol
established under subsection (c)(1).
[(C)](E) Submittal of post-storm
assessment.--Not later than 90 days after [an
identification of a named storm is made under
subparagraph (A)] any indeterminate losses are
identified under subparagraph (C), the
Administrator shall submit to the Secretary of
Homeland Security the post-storm assessment
developed [for such storm under subparagraph
(B)] under subparagraph (D) for any coastal
State that suffered such indeterminate losses.
(F) Separate post-storm assessments for a
single named storm.--
(i) In general.--The Administrator
may conduct a separate post-storm
assessment for each coastal State in
which indeterminate losses are
identified under subparagraph (C).
(ii) Timeline.--If the Administrator
conducts a separate post-storm
assessment under clause (i), the
Administrator shall complete the
assessment based on the dates of
actions that the Administrator takes
under subparagraphs (C) and (D).
(3) Accuracy.--The Administrator shall ensure, to the
greatest extent practicable, that each post-storm
assessment developed under paragraph (2) has a degree
of accuracy of not less than 90 percent.
(4) Certification.--For each post-storm assessment
carried out under paragraph (2), the Administrator
shall--
(A) certify the degree of accuracy for such
assessment, including specific reference to any
segments or geographic areas for which the
assessment is less than 90 percent accurate;
and
(B) report such certification to the
Secretary of Homeland Security for the purposes
of use with indeterminate loss claims under
section 1337 of the National Flood Insurance
Act of 1968.
(5) Finality of determinations.--A certification of
the degree of accuracy of a post-storm assessment under
this subsection by the Administrator shall be final and
shall not be subject to judicial review.
(6) Availability.--The Administrator shall make
available to the public the Named Storm Event Model and
any post-storm assessment developed under this
subsection.
(c) Establishment of a Protocol for Post-storm Assessment.--
(1) In general.--Not later than [540 days after the
date of the enactment of the Consumer Option for an
Alternative System to Allocate Losses Act of 2012]
December 31, 2019, the Administrator shall establish a
protocol, based on the plan submitted under subsection
(d)(3), to collect and assemble all covered data
required by the Administrator to produce post-storm
assessments required by subsection (b), including
assembling data collected by participants and stored in
the database established under subsection (f) and from
such other sources as the Administrator considers
appropriate.
(2) Acquisition of sensors and structures.--If the
Administrator is unable to use a public or private
asset to obtain covered data as part of the protocol
established under paragraph (1), the Administrator may
acquire such sensors and structures for the placement
of sensors as may, in the discretion of the
Administrator, be necessary to obtain such data.
(3) Use of federal assets.--If the protocol requires
placement of a sensor to develop assessments pursuant
to subsection (b), the Administrator shall, to the
extent practicable, use Federal assets for the
placement of such sensors.
(4) Use of acquired structures.--
(A) In general.--If the Administrator
acquires a structure for the placement of a
sensor for purposes of such protocol, the
Administrator shall to the extent practical
permit other public and private entities to
place sensors on such structure to collect--
(i) meteorological data;
(ii) national security-related data;
(iii) navigation-related data;
(iv) hydrographic data; or
(v) such other data as the
Administrator considers appropriate.
(B) Receipt of consideration.--The
Administrator may receive and expend
consideration for the placement of a sensor on
a structure under subparagraph (A).
(C) In-kind consideration.--Consideration
received under subparagraph (B) may be received
in-kind.
(D) Use of consideration.--To the extent
practicable, consideration received under
subparagraph (B) shall be used for the
maintenance of sensors used to collect covered
data.
(5) Coordinated deployments and data collection
practices.--The Administrator shall, in consultation
with the Office of the Federal Coordinator for
Meteorology, coordinate the deployment of sensors as
part of the protocol established under paragraph (1)
and related data collection carried out by Federal,
State, academic, and private entities who choose to
cooperate with the Administrator in carrying out this
subsection.
(6) Priority acquisition and deployment.--The
Administrator shall give priority in the acquisition
for and deployment of sensors under the protocol
required by paragraph (1) to areas of coastal States
that have the highest risk of being harmed by named
storms.
* * * * * * *
[all]