[Federal Register Volume 76, Number 228 (Monday, November 28, 2011)]
[Notices]
[Pages 72961-72964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30545]


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

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2011-0030]


Flood Hazard Determinations (Including Flood Elevation 
Determinations)--Change in Notification and Appeal Procedures

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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

SUMMARY: Pursuant to the Flood Disaster Protection Act of 1973, the 
Federal Emergency Management Agency (FEMA), via the Federal Insurance 
Administrator, must publish flood

[[Page 72962]]

elevation determinations for comment in the Federal Register. 
Currently, FEMA publishes base flood elevation (BFE) determinations for 
Flood Insurance Studies (FISs, also referred to as flood studies) as 
proposed and final rules, and Letters of Map Revision (LOMRs) that 
include changes to the technical content of a Flood Insurance Rate Map 
(FIRM) or FIS as interim and final rules. FEMA now plans to publish 
these determinations as notices rather than as rules. This new 
procedure will not affect the notice or appeals process for these 
determinations. FEMA also plans to publish other types of flood hazard 
determinations in the Federal Register with the opportunity for comment 
and appeal. These other types of flood hazard determinations include 
new and modified Special Flood Hazard Areas (SFHAs) and new or modified 
regulatory floodways.

DATES: The changes in procedure announced in this notice are effective 
December 1, 2011. The new procedure applies to all proposed flood 
hazard determinations including proposed flood elevation determinations 
published in the Federal Register on or after December 1, 2011.

ADDRESSES: The docket for this notice is available at http://www.regulations.gov under Docket ID FEMA-2011-0030. You may also view a 
hard copy of the docket at the Office of Chief Counsel, Federal 
Emergency Management Agency, Room 835, 500 C Street SW., Washington, DC 
20472.

FOR FURTHER INFORMATION CONTACT: Lora Eskandary, Program Specialist, 
FEMA, 1800 South Bell Street, Mail Stop 3030, Arlington, VA 20598, at 
[email protected] or (202) 646-2717. You may also contact the FEMA 
Map Information exchange (FMIX) toll free at 1 (877) 336-2627 (877-FEMA 
MAP) for information.

SUPPLEMENTARY INFORMATION:

Change in Procedure for Base Flood Elevation (BFE) Determinations and 
Letters of Map Revision (LOMRs)

    The Federal Insurance Administrator must propose flood elevation 
determinations by publication of the proposed flood elevation 
determination for comment in the Federal Register, as well as via 
notification by certified mail to the Chief Executive Officer (CEO) of 
the community, and publication in a prominent local newspaper at least 
twice during the ten-day period immediately following the notification 
of the CEO. See 44 CFR 67.4(a). The proposed determination is 
appealable pursuant to 44 CFR 67.8. The Federal Insurance Administrator 
must provide final notice of the flood elevation determination as 
follows: ``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.'' See 
44 CFR 67.11. A ``flood elevation determination'' is ``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.'' See 44 CFR 59.1. 
These elevations are used to determine floodplain management 
ordinances, set flood insurance rates, and to determine whether 
mandatory purchase of flood insurance is required in order to obtain a 
federally-backed mortgage on a home.
    Currently FEMA publishes base flood elevation (BFE) determinations 
for Flood Insurance Studies pursuant to 44 CFR 67.4 and 67.11 as 
proposed and final rules. However, there is no legal requirement to 
publish them as rules, and FEMA now plans to publish them as notices, 
which are administratively less burdensome. The background and legal 
authority for this change in procedure is explained below.
    Sections 67.4 and 67.11 of Title 44 of the Code of Regulations 
(CFR) were initially promulgated in 1974, pursuant to section 110 of 
the Flood Disaster Protection Act of 1973, Public Law 93-234, which 
amended the National Flood Insurance Act of 1968. Section 110 states 
``In establishing projected flood elevations * * * [the agency] shall 
first propose such determinations by publication for comment in the 
Federal Register, by direct notification to the chief executive officer 
of the community, and by publication in a prominent local newspaper.'' 
See 42 U.S.C. 4104. The rule implementing section 110 was promulgated 
by the Department of Housing and Urban Development (HUD), as HUD was 
the agency responsible for the National Flood Insurance Program (NFIP) 
before the NFIP was transferred to FEMA in 1979. The original rules 
appeared in HUD's regulations at 24 CFR 1917.4 and 1917.11. The 
preambles to the proposed and final rules which added sections 1917.4 
and 1971.11 to Title 24 CFR did not indicate whether the proposed and 
final flood elevation determinations would be published as notices or 
rules. The preamble to the proposed rule simply stated ``[t]he proposed 
new Part 1917 would establish an administrative procedure for reviewing 
appeals of flood elevation determinations made in the National Flood 
Insurance Program.'' See 39 FR 12031 (Apr. 2, 1974). No further 
explanation was given.
    Sections 1917.4 and 1971.11 were finalized as proposed on July 24, 
1974. The preamble to the final rule noted that one commenter had 
requested that the notification by newspaper could be more effective by 
increasing the number of days of publication. HUD did not alter the 
proposed regulatory text, however, because the publication standard had 
been set by the Flood Disaster Protection Act and could not be altered 
by regulation. Other commenters requested that communities who entered 
the flood insurance program prior to the passage of the Flood Disaster 
Protection Act of 1973 be allowed to appeal past flood elevation 
determinations. Again HUD declined to alter the proposed regulatory 
text because the Act did not apply retroactively. Further, HUD noted 
``an attempt to include such regular flood insurance program 
communities in this [sic] new appeals procedures could curtail the 
right of judicial review available to them under the National Flood 
Insurance Act of 1968 and Title 5 of the United States Code.'' See 39 
FR 26904 (July 24, 1974). There were no other comments addressing part 
1917, and the preamble did not mention whether the flood elevation 
determinations would be published as notices or as rules in the Federal 
Register.
    The text of sections 1917.4 and 1917.11 has not changed since they 
were finalized in 1974.\1\ In 1979 these sections were transferred to 
44 CFR 67.4 and 67.11, respectively, when the NFIP was transferred to 
FEMA. In 1981, an editorial note was added at the end of 44 CFR 67.11, 
stating ``Note: For the list of communities issued under this section, 
and not carried in the CFR, see the List of CFR Sections Affected and 
appearing in the Finding Aids section of

[[Page 72963]]

this volume.'' A similar note was added to section 67.4 in 1989, 
stating ``Note: For references to FR pages showing lists of flood 
elevation determinations, see the List of CFR Sections Affected 
appearing in the Finding Aids section of this volume.'' The notes have 
since been revised to direct the reader to the Finding Aids section 
``of the printed volume and on GPO Access.''
---------------------------------------------------------------------------

    \1\ The text reads as follows:
    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.
    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.
---------------------------------------------------------------------------

    Since the applicable regulations were promulgated in 1974, base 
flood elevation determinations listed in feet or meters for specific 
localities have been published in the Federal Register as proposed and 
final rules. Neither the statute nor the regulations indicate that 
these elevations must be published as rules, however. Both the statute 
(42 U.S.C. 4104) and the regulations (44 CFR 67.4, 67.11) state only 
that the agency must publish a ``notice.'' Section 67.3 also refers to 
a notice, not a rule. It states that the official docket must include 
``[a] copy of the notice of the proposed flood elevation determination 
published in the Federal Register.'' See 44 CFR 67.3(d).
    Nowhere is it mentioned that the flood elevation determinations 
were to be published as rules. The extensive Congressional hearings 
from October 1973 regarding the proposed legislation focus on notice of 
the elevation determinations, and do not mention anything about issuing 
them as regulations. See Flood Disaster Protection Act of 1973 
hearings, Ninety-third Congress, first session, on S. 1495 and H.R. 
8449, October 31, 1973. A major issue at the hearings focused on the 
desire for communities to have notice of the flood elevation 
determinations and an opportunity to contest them--to be part of the 
administrative process, to ensure that communities have the opportunity 
to present their own evidence of flood elevations that may contradict 
the Federal government's findings. There was a concern that if the 
Federal government acted independently, without input from the impacted 
communities, there would be a violation of due process because the 
government would be forcing residents to buy flood insurance without 
any access to the decision process. These concerns were remedied by the 
final legislation, which allowed for notice and appeal, allowing for 
communities to present scientific and technical data regarding the 
proposed flood elevations. But whether the proposed flood elevations 
needed to be issued as regulations was never mentioned in the extensive 
hearings.
    The evidence indicates that publication in the Federal Register, 
which is just one means of the required notice (the other two being 
letter to the CEO and publication in the local newspaper), was being 
used to ensure all stakeholders had notice, since publication of a 
document in the Federal Register is considered constructive notice to 
anyone subject to or affected by the document so published. See 44 
U.S.C. 1507. Viewing this issue in context of the hearings, and within 
the context of the statute (42 U.S.C. 4104) and the regulatory text of 
section 67.4 (both of which list 3 types of notice), the main reason 
for publication in the Federal Register was clearly for notification 
purposes only. Further, the flood elevation determinations are very 
specific to a certain locality; regulations usually apply more broadly.
    FEMA concludes that the statute does not require that the 
determinations must take the form of a regulation; rather, the 
requirement of publication in the Federal Register is for notice 
purposes only. The statute and regulations give FEMA the authority to 
issue flood elevation determinations that are legally binding on the 
affected communities, as long as there is notice and comment afforded 
to those communities. It is not necessary to include specific flood 
elevations for affected flooding sources in feet/meters in the Code of 
Federal Regulations. The flood elevations themselves do not need to be 
codified as regulations for them to have legal effect. Absent a legal 
requirement to publish flood elevations as rules, FEMA now plans to 
publish proposed and final flood elevation determinations as notices 
rather than as rules, which is administratively less burdensome.
    The information provided in the BFE notices will be less detailed 
than the information FEMA currently provides in the BFE rules. FEMA 
will no longer list in the Federal Register specific location 
descriptions (e.g., Sawmill Creek approximately 400 feet upstream of 
Laurel Fort Meade Road) or specific flood elevations of the base flood 
(e.g., + 613 feet) for each flooding source. Instead, the Federal 
Register notice will indicate which geographical areas are affected 
(county, town, etc.) and provide both a physical address and an 
internet address where the specific flood elevations (as depicted in a 
Flood Insurance Rate Map (FIRM) and/or a Flood Insurance Study (FIS) 
report) can be viewed for that geographical location.
    This new procedure will not apply to any proposed BFE rules that 
are outstanding as of the effective date of this notice (December 1, 
2011). FEMA will close those proposed rules out with final rules, as 
required by the Administrative Procedure Act, 5 U.S.C. 553.
    This new procedure will also apply to certain Letters of Map 
Revision (LOMRs). A LOMR is a type of determination that FEMA issues 
under the authority of 44 CFR part 65. It may include changes to the 
technical content (e.g., additions or modifications to BFEs) or changes 
to the administrative content (e.g., corrections to typographical 
errors) of a published FIRM or FIS report. The flood elevation 
determinations associated with LOMRs that affect the technical content 
of the FIRM or FIS report are published in the Federal Register 
pursuant to 44 CFR part 67. As explained above, the notice required by 
part 67 does not require that the notice take the form of a rule. 
Notice of changes in flood elevation determinations may be published as 
notices rather than rules. Therefore, as with BFE determinations for 
Flood Insurance Studies, FEMA will issue flood elevation determinations 
associated with LOMRs as notices rather than rules as of December 1, 
2011.

Change in Procedure for Other Types of Flood Elevation Determinations 
(Special Flood Hazard Areas and Regulatory Floodways)

    In addition to BFE determinations, FEMA also issues other types of 
flood hazard determinations including new and modified Special Flood 
Hazard Areas (SFHAs) and new and modified regulatory floodways. SFHAs 
are areas subject to inundation by the base flood and include the 
following flood insurance risk zone designations: A, AO, AH, A1-30, AE, 
A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE, and V. The 
various flood insurance risk zones represent different levels of risk 
and the type of flood hazard (e.g., coastal, riverine, ponding areas, 
etc.). The regulatory floodway is 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.
    Under current practice, new or modified SFHAs or regulatory 
floodways not specifically related to changes in BFE determinations are 
not appealable under 44 CFR 67.8. For that reason, FEMA has not 
published notification of new and modified SFHAs and regulatory 
floodways in the Federal Register pursuant to 44 CFR 67.4 and 67.11.
    As of the effective date of this notice (December 1, 2011), FEMA 
will publish notification of new or modified SFHAs

[[Page 72964]]

or regulatory floodways in the Federal Register pursuant to 44 CFR 67.4 
and 67.11, and will allow appeals of those notices pursuant to 44 CFR 
67.8. As with the BFE notices, the Federal Register notices for new or 
modified SFHAs or regulatory floodways will indicate which geographical 
areas are affected (county, town, etc.) and provide both a physical 
address and an internet address where the specific flood hazards (as 
shown in a Flood Insurance Rate Map (FIRM) and/or a Flood Insurance 
Study report) can be viewed for that geographical location.
    As with appeals of BFE determinations, appeals of SFHA and 
regulatory floodway determinations must include supporting scientific 
and technical data certified by a registered professional engineer or 
licensed land surveyor pursuant to 44 CFR 67.6.

    Authority: 42 U.S.C. 4104; 44 CFR parts 65 and 67.

Sandra K. Knight,
Deputy Associate Administrator for Mitigation, Department of Homeland 
Security, Federal Emergency Management Agency.
[FR Doc. 2011-30545 Filed 11-25-11; 8:45 am]
BILLING CODE 9110-12-P