[Federal Register Volume 67, Number 46 (Friday, March 8, 2002)]
[Rules and Regulations]
[Pages 10631-10634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5559]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Parts 59 and 61

RIN 3067-AD16


National Flood Insurance Program (NFIP); Inspection of Insured 
Structures by Communities

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Interim final rule.

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SUMMARY: This interim final rule would amend the NFIP regulations to 
clarify that areas of Monroe County, Florida that incorporate on or 
after January 1, 1999, and become eligible for the sale of flood 
insurance must participate in the inspection procedure as a condition 
of joining the NFIP. We established the inspection procedure to help 
the communities of Monroe County and the Village of Islamorada verify 
that structures comply with the community's floodplain management 
ordinance, and to ensure that property owners pay flood insurance 
premiums to the NFIP commensurate with their flood risk.

DATES: 44 CFR 59.30(a) is effective March 8, 2002. The amendments to 
Appendices (A)(4), (A)(5), and (A)(6) of 44 CFR part 61 are effective 
on June 6, 2002. Please submit comments on or before June 6, 2002.

ADDRESSES: Please send your comments to the Rules Docket Clerk, Office 
of the General Counsel, Federal Emergency Management Agency, 500 C 
Street, SW., room 840, Washington, DC 20472, (facsimile) 202-646-4536, 
or (email) [email protected].

FOR FURTHER INFORMATION CONTACT: Donald Beaton, Federal Emergency 
Management Agency, Federal Insurance and Mitigation Administration, 500 
C Street, SW., Washington, DC 20472, 202-646-3442, (facsimile) 202-646-
4327 or (email) [email protected], or Lois Forster, Federal 
Emergency Management Agency, Federal Insurance and Mitigation 
Administration, 202-646-2720, (facsimile) 202-646-2577, or (email) 
[email protected].

SUPPLEMENTARY INFORMATION: We established a pilot inspection procedure 
and the criteria to implement it under 44 CFR 59.30 in a final rule 
published in the Federal Register on June 27, 2000, 65 FR 39726. The 
inspection procedure is to help the communities of Monroe County, 
Florida and the Village of Islamorada, also located within Monroe 
County, verify that structures comply with the community's floodplain 
management ordinance, and to ensure that property owners pay flood 
insurance premiums to the NFIP commensurate with their flood risk. The 
inspection procedure requires owners of insured buildings to obtain an 
inspection from community officials and to submit a Community 
Inspection Report as a condition of renewing the Standard Flood 
Insurance Policy on the building. Specifically, the inspection 
procedure is designed to help the communities determine whether 
buildings with an enclosure comply with the community's floodplain 
management ordinance.
    The community inspection procedure applies only to insured post-
FIRM (Flood Insurance Rate Map) buildings located in the Special Flood 
Hazard Areas of the communities participating in the inspection 
procedure.
    On November 2, 1999, the City of Marathon incorporated and on 
October 16, 2000 the City became an NFIP participating community. We 
notified the City of Marathon of the inspection procedure before it 
applied to join the NFIP. The community agreed to participate in the 
pilot inspection procedure in a resolution titled, ``A Resolution of 
the City Council of the City of marathon, Florida, Providing for 
Approval of the City's Participation in the National Flood Insurance 
Program's Pilot Inspection Program and Providing for an Effective 
Date'', which was passed and adopted on September 13, 2000.
    In the SUPPLEMENTARY INFORMATION in both the proposed rule 
(published in the Federal Register on May 5, 1999, 64 FR 24256) and the 
final rule (published in the Federal Register on June 27, 2000, 65 FR 
39726), we stated that as a condition of joining the NFIP the 
inspection procedure would be undertaken in areas within Monroe County 
that incorporate and become a separate community on or after January 1, 
1999.
    We established the following requirement in 44 CFR 59.30(a), 
Purpose, which requires areas within Monroe County that incorporate 
after January 1, 1999, to implement the inspection procedure: ``(a) 
This section sets forth the criteria for implementing a pilot 
inspection procedure in Monroe County and the Village of Islamorada, 
Florida. These criteria will also be used to implement the pilot 
inspection procedure in any area within Monroe County, Florida that 
incorporates on or after January 1, 1999, and is eligible for the sale 
of flood insurance.'' The City of Marathon is the only community in 
Monroe County that has incorporated after January 1, 1999.
    This interim final rule would amend 44 CFR 59.30 and Appendices 
(A)(4), (A)(5), and (A)(6) of 44 CFR part 61 to clarify that areas in 
Monroe County that become communities by incorporating

[[Page 10632]]

on or after January 1, 1999, are required to participate in the 
inspection procedure as a condition of joining the NFIP. We will 
publish notices in the Federal Register when communities in Monroe 
County incorporate, agree to implement the pilot insurance procedure, 
and become eligible for the sale of flood insurance.
    The same factors that make the conditions unique in Monroe County 
and the Village of Islamorada for implementation of the inspection 
procedure also apply to the City of Marathon and to other areas in 
Monroe County that incorporate. They include:
     The nature of the flood hazard,
     The number of possible violations (an estimated 2,000-
4,000 illegally built enclosures in the entire County, the Village of 
Islamorada, and any areas in Monroe County that become communities by 
incorporating after January 1, 1999).
     The potential for loss of life in the event of a flood, 
and
     Several factors that have limited the community's ability 
to determine whether a building with an enclosures complies with the 
local floodplain management ordinance.
    We will give the City of Marathon and other areas of Monroe County 
that incorporate after January 1, 1999, the same assistance that we are 
providing the Monroe County and the Village of Islamorada to address 
these violations.

National Environmental Policy Act

    When we conducted the environmental review for the proposed rule on 
the inspection procedure (published in the Federal Register on May 5, 
1999, 64 FR 24256), the City of Marathon was not a participating NFIP 
community. However, we covered the City of Marathon's incorporated 
areas in the environmental review as if Marathon was a part of Monroe 
County. That environmental review also covers any additional area 
within Monroe County that may incorporate in the future. Therefore, the 
determination that the action in the may 5, 1999 proposed rule 
qualifies for the exclusion on rulemaking relating to actions that 
themselves are excludable applies to this interim final rule.
    We reviewed the May 5, 1999 proposed rule on the inspection 
procedure under the requirements of 44 CFR 10, Environmental 
Considerations, and under the mandates of the National Environmental 
Policy Act. We determined that the action in that proposed rule 
qualifies for the exclusion on rulemaking relating to actions that 
themselves are excludable. The exclusions are in 44 CFR 10.8(d)(2) (ii) 
and (iv) regarding inspections, monitoring activities, and actions to 
enforce local regulations.
    We determined that the proposed rule does not establish any new 
requirements that Monroe County and the Village of Islamorada must 
adopt and enforce under the NFIP. Rather, it provides the communities 
with an additional tool to enforce existing requirements in their 
floodplain management ordinance. This existing ordinance requires that 
all new and substantially improved structures must be elevated to or 
above the Base Flood Elevation (BFE), and must be anchored adequately 
to prevent flotation, collapse, or lateral movement of the structure 
resulting from hydrodynamic and hydrostatic loads.
    We also determined that no extraordinary circumstances existed 
regarding the May 5, 1999 proposed rule, as defined in 44 CFR 
10.8(d)(3). We considered these potential extraordinary circumstances: 
Greater scope or size than normally experienced for a particular 
category action; high level of public controversy; presence of 
endangered or threatened species and their critical habitat; presence 
of hazardous substances; and actions with the potential to affect 
special status areas adversely or other critical resources.
    You may obtain a copy of the Record of Environmental Review 
documenting the findings through our Web site at www.FEMA.gov, or by 
writing to the Federal Emergency Management Agency at 500 C Street, 
SW., Washington, DC 20472, Attention: Lois Forster.

Executive Order 12898, Environmental Justice

    When we conducted the environmental review for the May 5, 1999 
proposed rule, the City of Marathon was not a participating NFIP 
community. We covered the City of Marathon's incorporated areas in the 
environmental review, however, as if Marathon were a part of Monroe 
County. The environmental review covers any additional area within 
Monroe County that incorporates. Therefore, the determination that the 
inspection procedure would not have a disproportionate adverse impact 
on low-income populations and minority populations applies to this 
interim final rule since the areas are already covered under the 
previous environmental review.
    We reviewed the May 5, 1999 proposed rule under E.O. 12898, 
Environmental Justice, and determined that the inspection procedure 
would not have a disproportionate adverse impact on low-income 
populations and minority populations. We also determined that this 
action would have some adverse effects on low-income populations 
because some of the illegal enclosures are used as full-living units 
and the residents would have to find replacement housing. The effect 
would be caused by the illegal activity, not by this regulatory action. 
We determined, further, that there would be a greater adverse health 
and safety impact on the affected low-income populations if they stayed 
in these illegally built ground level enclosures. The enclosures are 
located in flood hazard areas below the Base Flood Elevation where 
there is a significant risk of flooding.
    You may obtain a copy of the Record of Environmental Review 
documenting the findings through our Web site at www.FEMA.gov, or by 
writing to the Federal Emergency Management Agency at 500 C Street, 
SW., Washington, DC 20472, Attention: Lois Forster.

Executive Order 12866, Regulatory Planning and Review

    We prepared and reviewed the final rule (published in the Federal 
Register on June 27, 2000, 65 FR 39726) under the provisions of E.O. 
12866, Regulatory Planning and Review. For the reasons that follow we 
concluded that the June 27, 2000 rule is neither an economically 
significant nor significant regulatory action under the executive 
order. Therefore, since this interim final rule does not change the 
requirements of the June 27, 2000 final rule, this rule is neither an 
economically significant nor a significant regulatory action under the 
executive order and the following reasons also apply:
    The June 27, 2000 final rule and this interim final rule apply to a 
pilot program that applies to Monroe County and the Village of 
Islamorada. The rules would apply to the City of Marathon and to other 
communities in Monroe County that incorporate after January 1, 1999, 
and become eligible for the sale of flood insurance. The rules address 
flood insurance and floodplain management issues that the law requires 
for communities to remain eligible for flood insurance and to avoid 
probation and potential suspension from the NFIP;
    We estimate that the costs to these communities to enforce the rule 
would be in the range of $48,000 to $250,000 per year, over a few 
years;
    This rule raises no novel legal or policy issues arising out of 
legal mandates of the NFIP, presidential priorities, or principles of 
E.O. 12866. It creates no new requirements that the two communities 
must adopt and enforce under the NFIP, but assists them

[[Page 10633]]

in carrying out their responsibilities under the NFIP and enforcing the 
existing requirements in their floodplain management ordinance;
    This rule would provide these communities with a tool to protect 
the health, safety, and welfare of their citizens and property exposed 
to a significant flood risk, a tool not otherwise available to the 
communities under the current regulations of the NFIP;
    We do not expect that this rule would adversely or materially 
affect the public directly affected by the rule. The inspection 
procedure would be implemented over a period of several years, would 
give property owners time to remedy the violations, and would give 
tenants living in illegal enclosures time to find appropriate 
alternative housing. The rule also accommodates the State-mandated Rate 
of Growth Ordinance (ROGO), the memorandum of agreement between the 
County and the State on ROGO allocations in order to deal with 
replacement units for illegal enclosures removed as a result of the 
inspection procedure;
    The inspection procedure adopted in the June 27, 2000 rule arises 
out of work done by a Citizen's Task Force that the Monroe County Board 
of County Commissioners appointed. We have worked closely with County, 
Village and State officials in preparing the rule [see Executive Order 
13132, Federalism, below]; and
    The inspection procedure under this rule is the best available 
method to achieve the NFIP regulatory objective while taking into 
account State statutory constraints on inspections, State rate of 
growth mandates, housing limits within the two communities, and related 
factors.
    The Office of Management and Budget has not reviewed this rule 
under the principles of Executive Order 12866.

Executive Order 13132, Federalism

    Executive Order 13132, Federalism, seeks to ensure that Executive 
agencies consider principles of federalism when developing new 
policies, and requires them to consult with State and local officials 
when their actions may have federalism implications.
    In the May 5, 1999 proposed rule, we stated that that rule had no 
policies that have federalism implications under E.O. 12612, 
Federalism.
    We reviewed the June 27, 2000 final rule federalism implications 
under E.O. 13132. Based on our review, we determined the rule does not 
have federalism implications as defined in E.O. 13132 as it does not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
The June 27, 2000 final rule imposes no mandates on State or local 
governments.
    We reviewed this interim final rule for federalism implications 
under E.O. 13132. Based on our review, we determined that this interim 
final rule also does not have federalism implications as defined in 
E.O. 13132.
    In addition to Monroe County, the Village of Islamorada, and the 
State of Florida, we have consulted with the City of Marathon and will 
continue to consult and coordinate with the city of Marathon and any 
other area in Monroe County that incorporates and becomes eligible for 
the sale of flood insurance after January 1, 1999, that will 
participate in the inspection procedure.

Paperwork Reduction Act

    We submitted the information collection requirements in the May 5, 
1999 proposed rule to the Office of Management and Budget (OMB) for 
approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
information collection requirements were approved by the OMB under 
Control Number 3067-0275. Under this interim final rule, the number and 
type of respondents would remain substantially the same. This interim 
final rule would not likely revise the number and types of responses, 
frequency, and burden hours. The number and types of responses, 
frequency, and burden hours for the City of marathon or any other area 
in Monroe County that incorporates after January 1, 1999, and is 
eligible for the sale of flood insurance will offset the number and 
types of responses, frequency, and burden hours in Monroe County.

Executive Order 12778, Civil Justice Reform

    This final rule meets the applicable standards of subsections 2(a) 
and 2(b)(2) of Executive Order 12778.

Justification for Interim Final Rule.

    In general, FEMA publishes a rule for public comment before issuing 
a final rule, in accordance with the Administrative Procedure Act, 5 
U.S.C. 533, and 44 CFR 1.12. The Administrative Procedure Act, however, 
does provide an exception from that general rule where the agency for 
good cause finds the procedures for comment and response contrary to 
public interest. This interim final rule provides for a clarification 
in the final rule (published in the Federal Register on June 27, 2000, 
65 FR 39726) that areas in Monroe County that become communities by 
incorporating on or after January 1, 1999, are required to participate 
in the inspection procedure as a condition of joining the NFIP. This 
requirement was specifically stated in the supplementary of the 
proposed rule (published in the Federal Register on May 5, 1999) and 
the final rule. We also established the following requirement in 44 CFR 
59.30(a), Purpose which requires areas within Monroe County that 
incorporate after January 1, 1999 to implement the inspection 
procedure: ``(a) This section sets forth the criteria for implementing 
a pilot inspection procedure in Monroe County and the Village of 
Islamorada, Florida. These criteria will also be used to implement the 
pilot inspection procedure in any area within Monroe County, Florida 
that incorporated on or after January 1, 1999, and is eligible for the 
sale of flood insurance.'' However, this requirement was not clearly 
stated in the Appendices (A)(4), (A)(5), and (A)(6) of 44 CFR part 61, 
the endorsements to the standard Flood Insurance Policy. This interim 
final rule would amend 44 CFR 59.30 and the Appendices to make clearer 
that participation in the inspection procedure is a requirement for any 
area within Monroe County that incorporates on or after January 1, 
1999. Because this is a clarification to the final rule and not a new 
or modified requirement, we believe it is in the public interest to 
publish this amendment as an interim final rule.

List of Subjects in 44 CFR Parts 59 and 61

    Flood Insurance, Reporting and recordkeeping requirements.

    Accordingly, amend 44 CFR parts 59 and 61 as follows:

PART 59--GENERAL PROVISIONS

    1. The authority citation for part 59 continues to read as follows:

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

    2. Revise section 59.30(a) to read as follows:


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

[[Page 10634]]

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.
* * * * *

PART 61--INSURANCE COVERAGE AND RATES

    3. The authority citation for part 61 continues to read as follows;

    Authority 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.


    4. Revise the heading and first paragraph in Appendix (A)(4) to 
part 61 to read as follows;

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.
* * * * *


    5. Revise the heading and first paragraph in Appendix (A)(5) to 
part 61 to read as follows:

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.
* * * * *


    6. Revise the heading and first paragraph in Appendix (A)(6) to 
part 61 to read as follows:

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.
* * * * *

    Dated: February 28, 2002.
Michael D. Brown,
General Counsel.
[FR Doc. 02-5559 Filed 3-7-02; 8:45 am]
BILLING CODE 6718-05-M