[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Proposed Rules]
[Pages 57402-57437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19810]



[[Page 57401]]

Vol. 81

Monday,

No. 162

August 22, 2016

Part V





 Department of Homeland Security





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 Federal Emergency Management Agency





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44 CFR Part 9





 Updates to Floodplain Management and Protection of Wetlands 
Regulations To Implement Executive Order 13690 and the Federal Flood 
Risk Management Standard; Proposed Rule

  Federal Register / Vol. 81 , No. 162 / Monday, August 22, 2016 / 
Proposed Rules  

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 9

[Docket ID: FEMA-2015-0006]
RIN 1660-AA85


Updates to Floodplain Management and Protection of Wetlands 
Regulations To Implement Executive Order 13690 and the Federal Flood 
Risk Management Standard

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Emergency Management Agency (FEMA) proposes to 
amend its regulations on ``Floodplain Management and Protection of 
Wetlands'' to implement Executive Order 13690, which establishes the 
Federal Flood Risk Management Standard (FFRMS). FEMA also proposes a 
supplementary policy (FEMA Policy: 078-3) that would further clarify 
how FEMA applies the FFRMS.

DATES: Comments must be received no later than October 21, 2016.

ADDRESSES: You may submit comments, identified by Docket ID: FEMA-2015-
0006, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of 
Chief Counsel, Federal Emergency Management Agency, 8NE-1604, 500 C 
Street SW., Washington, DC 20472-3100.
    To avoid duplication, please use only one of these methods. All 
comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For 
instructions on submitting comments, see the Public Participation 
portion of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Kristin Fontenot, Director, Office of 
Environmental Planning and Historic Preservation, Federal Insurance and 
Mitigation Administration, DHS/FEMA, 400 C Street SW., Suite 313, 
Washington, DC 20472-3020. Phone: 202-646-2741; Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
II. Executive Summary
III. Background
    A. Executive Order 11988, ``Floodplain Management''
    B. 44 CFR Part 9, ``Floodplain Management and Protection of 
Wetlands''
    C. Reevaluation of the 1 Percent Chance or 100-Year Flood 
Standard
    D. Issuance of Executive Order 13690 and the Federal Flood Risk 
Management Standard (FFRMS), and Revision of the 1978 Guidelines
    E. Substantive Components of the FFRMS
    F. FEMA's Implementation of Executive Order 13690 and FFRMS
IV. Discussion of the Proposed Rule
    A. Authority Citation
    B. Section 9.1--Purpose of Part
    C. Section 9.2--Policy
    D. Section 9.3--Authority
    E. Section 9.4--Definitions
    F. Section 9.5--Scope
    G. Section 9.6--Decision-Making Process
    H. Section 9.7--Determination of Proposed Action's Location
    I. Section 9.8--Public Notice Requirements
    J. Section 9.9--Analysis and Reevaluation of Practicable 
Alternatives
    K. Section 9.11--Mitigation
    L. Section 9.13--Particular Types of Temporary Housing
    M. Section 9.17--Instructions to Applicants
    N. Section 9.18--Responsibilities
    O. Appendix A to Part 9--Decision-Making Process for E.O. 11988
V. Response to Leadership Intent Comments
VI. FFRMS FY 2016 Appropriations Language
VII. Regulatory Analyses
    A. Executive Order 12866, Regulatory Planning and Review & 
Executive Order 13563, Improving Regulation and Regulatory Review
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. National Environmental Policy Act (NEPA) of 1969
    E. Paperwork Reduction Act (PRA) of 1995
    F. Privacy Act
    G. Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13132, Federalism
    I. Executive Order 12898, Environmental Justice
    J. Executive Order 12630, Taking of Private Property
    K. Executive Order 12988, Civil Justice Reform
    L. Executive Order 13045, Protection of Children From 
Environmental Health Risks and Safety Risks
    M. Federal Participation in the Development and Use of Voluntary 
Consensus Standards and in Conformity Assessment Activities, OMB 
Circular A-119

Table of Abbreviations

0.2PFA--0.2 Percent Annual Chance Flood Approach
ABA--Architectural Barriers Act
ADA--Americans With Disabilities Act
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CISA--Climate-Informed Science Approach
CRS--Community Rating System
EA--Environmental Assessment
EIS--Environmental Impact Statement
FBFM--Flood Boundary Floodway Map
FEMA--Federal Emergency Management Agency
FFRMS--Federal Flood Risk Management Standard
FHBM--Flood Hazard Boundary Map
FIMA--Federal Insurance & Mitigation Administration
FIRM--Flood Insurance Rate Map
FIS--Flood Insurance Study
FMA--Flood Mitigation Assistance
FVA--Freeboard Value Approach
GPD--Grant Programs Directorate
HMA--Hazard Mitigation Assistance
HUD--Department of Housing and Urban Development
IA--Individual Assistance
IPAWS--Integrated Public Alert Warning System
IRFA--Initial Regulatory Flexibility Analysis
MHU--Manufactured Housing Unit
MitFLG--Mitigation Framework Leadership Group
NEPA--National Environmental Policy Act of 1969
NFIA--National Flood Insurance Act, as Amended
NFIP--National Flood Insurance Program
NMF--National Mitigation Framework
NOAA--National Oceanic and Atmospheric Administration
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PA--Public Assistance
PDM--Pre-Disaster Mitigation
PHC--Permanent Housing Construction
PIA--Privacy Impact Assessment
PRA--Paperwork Reduction Act of 1995
PV--Present Value
RFA--Regulatory Flexibility Act
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
SORN--System of Records Notice
Stafford Act--Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, as Amended
USGS--United States Geological Survey
WRC--Water Resources Council

I. Public Participation

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. We will consider all comments and 
materials received during the comment period.
    If you submit a comment, identify the agency name and the Docket ID 
for this rulemaking, indicate the specific section of this document to 
which each comment applies, and give the reason for each comment. You 
may submit your comments and materials by electronic means, mail, or 
delivery to the address under the ADDRESSES section. Please submit your 
comments and materials by only one means.
    Regardless of the method used for submitting comments or material, 
all submissions will be posted, without change, to the Federal e-
Rulemaking Portal at www.regulations.gov, and will

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include any personal information you provide. Therefore, submitting 
this information makes it public. You may wish to read the Privacy Act 
notice that is available via a link on the homepage of 
www.regulations.gov.
    Viewing comments and documents: For access to the docket to read 
background documents or comments received, go to the Federal e-
Rulemaking Portal at http://www.regulations.gov. Background documents 
and submitted comments may also be inspected at the Office of Chief 
Counsel, Federal Emergency Management Agency, 500 C Street SW., 8NE-
1604, Washington, DC 20472-3100.

II. Executive Summary

    The Federal Emergency Management Agency (FEMA) is proposing to 
amend 44 CFR part 9 ``Floodplain Management and Protection of 
Wetlands'' and issue a supplementary policy to implement the Federal 
Flood Risk Management Standard (FFRMS) that was established by 
Executive Order 13690. 44 CFR part 9 describes the 8-step process FEMA 
uses to determine whether a proposed action would be located within or 
affect a floodplain, and if so, whether and how to continue with or 
modify the proposed action. Executive Order 13690 and the FFRMS changed 
the Executive Branch-wide guidance for defining the ``floodplain'' with 
respect to ``federally funded projects'' (i.e., actions involving the 
use of Federal funds for new construction, substantial improvement, or 
to address substantial damage to a structure or facility). For FEMA 
Federally Funded Projects, FEMA proposes to use the updated definition 
of ``floodplain'' contained in the FFRMS. As discussed further below, 
the FFRMS allows the agency to define ``floodplain'' using any of three 
``approaches.'' In many cases, each of these approaches would result in 
a larger floodplain and a requirement to design projects such that they 
are resilient to a higher vertical elevation. For actions that do not 
meet the definition of FEMA Federally Funded Project, FEMA would 
continue to use the historical definition of floodplain, i.e., the area 
subject to a one percent or greater chance of flooding in any given 
year (or the area subject to a 0.2 percent annual chance of flooding in 
any given year for critical actions). Finally, the proposed rule would 
require the use, where possible, of natural systems, ecosystem 
processes, and nature-based approaches in the development of 
alternatives for all actions proposed in a floodplain.
    FEMA estimates that for the 10-year period after the rule goes into 
effect, the benefits would justify the costs. Flooding is the most 
common and costly type of natural disaster in the United States, and 
floods are expected to be more frequent and more severe over the next 
century due in part to the projected effects of climate change. This 
proposed rule would ensure that FEMA Federally Funded Projects are 
designed to be resilient to both current and future flood risks.

III. Background

    Below, FEMA describes in more specific detail the basis for this 
proposed rule. Section III.A. describes Executive Order 11988 and the 
Water Resources Council's 1978 ``Floodplain Management Guidelines'' 
(1978 Guidelines). Executive Order 11988 along with the 1978 Guidelines 
established an 8-step decision-making process by which Federal agencies 
carry out Executive Order 11988's direction to avoid the long- and 
short-term adverse impacts associated with the occupancy and 
modification of the floodplain and avoid the direct or indirect support 
of floodplain development whenever there is a practicable alternative. 
Section III.B. describes FEMA implementing regulations at 44 CFR part 
9, which closely follow the model decision-making process. Section 
III.C. describes how lessons learned from major events, including 
Hurricane Sandy, prompted reevaluation of the prevailing standard for 
determining whether a proposed action was located within a floodplain.
    Section III.D. describes the development of Executive Order 13690 
and the Federal Flood Risk Management Standard. Lessons learned from 
major flood events, including Hurricane Sandy, prompted reevaluation of 
the prevailing standard. Pursuant to direction from the President's 
Climate Action Plan and to build on the work of the Hurricane Sandy 
Rebuilding Task Force, the Mitigation Framework Leadership Group 
developed the Federal Flood Risk Management Standard. Subsequently, the 
President issued Executive Order 13690 to establish the Federal Flood 
Risk Management Standard, and to amend Executive Order 11988. Executive 
Order 13690 directs agencies to issue or amend their existing 
regulations and procedures to comply with the Order. Section III.E. 
describes the substantive components of the Federal Flood Risk 
Management Standard and Section III.F. describes FEMA's proposed 
approach to implement the required changes.

A. Executive Order 11988, ``Floodplain Management''

    The President issued Executive Order 11988, (42 FR 26951, May 25, 
1977) in furtherance of the National Flood Insurance Act of 1968, as 
amended (42 U.S.C. 4001 et seq.); the Flood Disaster Protection Act of 
1973, as amended (Pub. L. 93-234, 87 Stat. 975); and the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.).\1\ 
Executive Order 11988 requires Federal agencies to avoid, to the extent 
possible, the long- and short-term adverse impacts associated with the 
occupancy and modification of floodplains, where there is a practicable 
alternative. It requires each Federal agency to provide leadership and 
take action to reduce the risk of flood loss, to minimize the impact of 
floods on human safety, health, and welfare, and to restore and 
preserve the natural and beneficial values served by floodplains in 
carrying out its responsibilities for: (1) Acquiring, managing, and 
disposing of Federal lands and facilities; (2) providing federally 
undertaken, financed, or assisted construction and improvements; and 
(3) conducting Federal activities and programs affecting land use, 
including but not limited to water and related land resources planning, 
regulating, and licensing activities. It states that each agency has a 
responsibility to evaluate the potential effects of any actions it may 
take in a floodplain; to ensure that its planning, programs, and budget 
requests reflect consideration of flood hazards and floodplain 
management; and to prescribe procedures to implement the policies and 
requirements of the Executive Order.
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    \1\ The National Flood Insurance Act and the Flood Disaster 
Protection Act establish a multi-purpose program to provide flood 
insurance, minimize the damage caused by flood losses, and guide the 
development of proposed construction, where practicable, away from 
floodplains. NEPA requires Federal agencies to analyze the 
environmental impacts of proposed actions and evaluate alternatives 
to those actions, which includes the evaluation of floodplains.
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    In order to meet these requirements, each agency, before taking an 
action, must determine whether the proposed action will occur in a 
floodplain.\2\ Prior to being revised in 2015, Executive Order 11988 
defined the word ``floodplain'' to include, at a minimum, the ``area 
subject to a one percent or

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greater chance of flooding in any given year.'' \3\ The Executive Order 
defines agency ``action'' to include actions that the agency takes 
directly (such as when a Federal agency builds a new facility for its 
own operations) as well as actions that a non-Federal entity takes 
using Federal funding (such as a State or local government building a 
new facility using Federal grant funding).
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    \2\ Any action FEMA takes, including its provision of grants for 
disaster assistance, first undergoes an analysis pursuant to 
Executive Order 11988 (unless the action is specifically exempted 
from the requirements of the Order). The grant recipient, therefore, 
generally provides information to FEMA about the practicability of 
alternatives outside the floodplain and other information to assist 
in the analysis.
    \3\ This is also referred to as the 100-year floodplain or the 
base floodplain.
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    If the action will occur in a floodplain, the agency must consider 
alternatives to avoid adverse effects and incompatible development in 
the floodplain. If the agency finds that the only practicable 
alternative requires the action to occur in the floodplain, the agency 
must, prior to taking the action, design or modify the action in order 
to minimize potential harm to or within the floodplain. Additionally, 
the agency must prepare and circulate a notice containing an 
explanation of why the action is proposed to be located in the 
floodplain. Particularly relevant to FEMA, the Executive Order also 
requires agencies to provide appropriate guidance to applicants for 
grant funding to encourage them to evaluate the effects of their 
proposals in floodplains prior to submitting grant applications.
    Executive Order 11988 requires agencies to prepare implementing 
procedures in consultation with the Water Resources Council (WRC),\4\ 
FEMA, and the Council on Environmental Quality (CEQ). As noted, in 
1978, the WRC issued ``Floodplain Management Guidelines,'' (1978 
Guidelines), the authoritative interpretation of Executive Order 
11988.\5\ The 1978 Guidelines provided a section-by-section analysis, 
defined key terms, and outlined an 8-step decision-making process for 
carrying out the directives of Executive Order 11988.
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    \4\ The Water Resources Council, established by statute (42 
U.S.C. 1962a-1), is charged with maintaining a continuing study and 
preparing an assessment biennially, or at such less frequent 
intervals as the Council may determine, of the adequacy of supplies 
of water necessary to meet the water requirements in each water 
resource region in the United States and the national interest 
therein; and maintaining a continuing study of the relation of 
regional or river basin plans and programs to the requirements of 
larger regions of the Nation and of the adequacy of administrative 
and statutory means for the coordination of the water and related 
land resources policies and programs of the several Federal 
agencies. It is responsible for appraising the adequacy of existing 
and proposed policies and programs to meet such requirements, and 
making recommendations to the President with respect to Federal 
policies and programs.
    \5\ 43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines 
can be found at this link: http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_14216.pdf.
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B. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''

    FEMA promulgated regulations implementing Executive Order 11988 at 
44 CFR part 9, ``Floodplain Management and Protection of Wetlands.'' 
\6\ Part 9 closely follows the 1978 Guidelines in setting forth FEMA's 
policy and procedures for floodplain management relating to disaster 
planning, response and recovery, and hazard mitigation. Part 9 applies 
to FEMA disaster and non-disaster assistance programs, including Public 
Assistance (PA), Individual Assistance (IA), Hazard Mitigation 
Assistance (HMA), and grants processed by FEMA's Grant Programs 
Directorate (GPD) (involving grants for preparedness activities). 
Pursuant to section 8 of Executive Order 11988, Part 9 does not apply 
to assistance provided for emergency work essential to save lives and 
protect property and public health and safety, performed pursuant to 
sections 403 and 502 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In 
addition, FEMA does not apply Part 9 to non-grant, site-specific 
actions under the National Flood Insurance Program (NFIP),\7\ such as 
the issuance of individual flood insurance policies, the adjustment of 
claims, or the issuance of individual flood insurance maps. FEMA does 
not apply Part 9 to site-specific actions under the NFIP because the 
establishment of programmatic criteria, rather than the application of 
the programmatic criteria to individual situations, is the action with 
the potential to influence/affect floodplains.\8\
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    \6\ FEMA published an interim final rule on December 27, 1979 
(44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520). 
Note that this part also implements a related Executive Order 11990, 
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
    \7\ A complete list of FEMA programs to which part 9 does not 
apply appears at 44 CFR 9.5. The exemption for actions under the 
NFIP is located at 44 CFR 9.5(f).
    \8\ For example, part 9 requires FEMA to apply the 8-step 
process to a programmatic determination of categories of structures 
to be insured, but does not require FEMA to apply an 8-step review 
to a determination of whether to insure each individual structure. 
See 45 FR 59520, Sept. 9, 1980 (59523).
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    As noted, Part 9 outlines the 8-step decision-making process FEMA 
follows in applying Executive Order 11988 to its actions:
    Step (1) Floodplain determination (44 CFR 9.7). Under Step 1, FEMA 
must determine if a proposed agency action is located in or affects the 
base floodplain (or, for critical actions, the 500-year floodplain). 
The base floodplain is the area subject to inundation by the base 
flood, which is that flood which has a 1 percent chance of occurrence 
in any given year (also known as the 1 percent annual chance flood or 
100-year flood). A ``critical action'' is any activity for which even a 
slight chance of flooding would be too great.\9\ The minimum floodplain 
of concern for critical actions is 500-year floodplain, which is the 
area subject to inundation from a flood having a 0.2 percent chance of 
occurring in any given year. The 500-year floodplain generally covers a 
larger area than the base floodplain. FEMA's regulations state that in 
each instance where the 8-step process refers to the base floodplain, 
an agency should substitute the 500-year floodplain for the base 
floodplain if the proposed action is a critical action.
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    \9\ The concept of critical actions evolved during the drafting 
of the 1978 Guidelines and reflects a concern that the impacts of 
floods on human safety, health, and welfare for many activities 
could not be minimized unless a higher degree of protection than the 
base flood was provided. See Interagency Task Force on Floodplain 
Management, Further Advice on Executive Order 11988 Floodplain 
Management (1980) available at http://www.gsa.gov/graphics/pbs/FEDERAL_EMERGENCY_MANAGEMENT_AGENCY_R2F-a8-k_0Z5RDZ-i34K-pR.pdf.
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    FEMA follows a specific regulatory sequence in order to make its 
floodplain determination. First, FEMA must consult the Flood Insurance 
Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood 
Insurance Study (FIS) for the area. A FIRM is an official, detailed map 
issued by the NFIP, showing elevations and boundaries of the 1 percent 
annual chance floodplain and the 0.2 percent annual chance 
floodplain.\10\ The FBFM is a version of a flood map that shows only 
the floodway \11\ and flood boundaries. An FIS report is an 
examination, evaluation and determination of flood hazards and, if 
appropriate, corresponding water surface elevations. If a FIRM is not 
available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is 
a less detailed map than a FIRM and shows the approximate areas of the 
base floodplain. 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, FEMA must 
seek detailed information from a list of sources included in the

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regulations. See 44 CFR 9.7(c)(1)(ii). If the sources listed do not 
have or know of detailed information and are unable to assist in 
determining whether or not the proposed site is in the base floodplain, 
FEMA must seek the services of a licensed consulting engineer 
experienced in this type of work. If, however, a decision involves an 
area or location within extensive Federal or State holdings or a 
headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA will 
seek information from the land administering agency before seeking 
information and/or assistance from the list of sources included in the 
regulations. Then, if none of the sources listed has information or can 
provide assistance, FEMA will seek the services of an experienced 
Federal or other engineer.
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    \10\ FEMA estimates that only 18 percent of mapped flood zones 
have detailed floodplain boundaries of the 0.2 percent annual chance 
floodplain.
    \11\ The 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. See 44 CFR 59.1.
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    Step (2) Early public review (44 CFR 9.8). FEMA must make public 
its intent to locate a proposed action in the base floodplain. FEMA 
must provide adequate information to enable the public to have an 
impact on the decision outcome for all proposed actions having 
potential to affect, adversely, or be affected by floodplains. For each 
action having national significance for which notice is provided, FEMA 
uses the Federal Register as the minimum means for notice, and will 
provide notice by mail to national organizations reasonably expected to 
be interested in the action. 44 CFR 9.8(c)(5) describes the contents of 
the public notice, such as a description of the action, the degree of 
hazard involved, a map of the area, or other identification of the 
floodplain, and identification of the responsible agency official.
    Step (3) Practicable alternatives (44 CFR 9.9). If the action is in 
the floodplain, FEMA will identify and evaluate practicable 
alternatives to carrying out a proposed action in floodplains, 
including the following: Alternative sites outside the floodplain; 
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; and ``no action.'' The floodplain site itself must 
be a practicable location in light of the other factors. Under 44 CFR 
9.9(c), FEMA will analyze several factors in determining the 
practicability of the alternatives described in 44 CFR 9.9(b), namely 
natural environment, social concerns, economic aspects, and legal 
constraints. 44 CFR 9.9(d) states that FEMA will not locate the 
proposed action in the floodplain, if a practicable alternative exists 
outside the floodplain or wetland. For critical actions, FEMA will not 
locate the proposed action in the 500-year floodplain, if a practicable 
alternative exists outside the 500-year floodplain. Even if no 
practicable alternative exists outside the floodplain, in order to 
carry out the action the floodplain or wetland must itself be a 
practicable location in light of the review required under Step 3.
    Step (4) Impact of chosen alternative (44 CFR 9.10). FEMA must 
identify if the action has impacts in the floodplain or directly or 
indirectly supports floodplain development that has additional impacts 
in the floodplain. If the proposed action is outside the floodplain and 
has no identifiable impacts or support, the action can be implemented 
(Step 8). 44 CFR 9.10(b) provides that FEMA will identify the potential 
direct and indirect adverse impacts associated with the occupancy and 
modification of floodplains and the potential direct and indirect 
support of floodplain development that could result from the proposed 
action. FEMA's identification of such impacts shall be to the extent 
necessary to comply with the requirements of Executive Order 11988 to 
avoid floodplain locations unless they are the only practicable 
alternatives and to minimize harm to and within floodplains and 
wetlands.
    Step (5) Minimize impacts (44 CFR 9.11). If the proposed action has 
identifiable impacts in the base floodplain or directly or indirectly 
supports development in the floodplain, FEMA must minimize these 
effects and restore and preserve the natural and beneficial floodplain 
values served by floodplains. 44 CFR 9.11(b) states generally that FEMA 
will design or modify its actions so as to minimize harm to or within 
the floodplain; will minimize destruction, loss, or degradation of 
wetlands; will restore and preserve natural and beneficial floodplain 
values; and will preserve and enhance natural and beneficial wetland 
values. Pursuant to 44 CFR 9.11(c), FEMA will more specifically 
minimize 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; potential adverse impacts the action may have on others; and 
potential adverse impacts the action may have on floodplain values. 
Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or 
substantial improvement in a floodway, and will not allow new 
construction in a coastal high hazard area, except for a functionally 
dependent use \12\ or a structure or facility which facilitates an open 
space use. For a structure which is a functionally dependent use, or 
which facilitates an open space use, FEMA will not allow 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). 
Regarding elevation of structures, 44 CFR 9.11(d)(3) states that there 
will 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, and there will 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.
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    \12\ A 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). See 44 CFR 9.4.
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    Step (6) Reevaluate alternatives (44 CFR 9.9). FEMA must reevaluate 
the proposed action. Pursuant to 44 CFR 9.9(e), upon determination of 
the impact of the proposed action to or within the floodplain and of 
what measures are necessary to comply with the requirement to minimize 
harm to and within the floodplains, FEMA will determine whether: the 
action is still practicable at a floodplain site in light of the 
exposure to flood risk and the ensuing disruption of natural values, 
the floodplain site is the only practicable alternative, there is a 
potential for limiting the action to increase the practicability of 
previously rejected non-floodplain sites and alternative actions, and 
minimization of harm to or within the floodplain can be achieved using 
all practicable means. Pursuant to 44 CFR 9.9(e)(2), FEMA will take no 
action in a floodplain unless the importance of the floodplain site 
clearly outweighs the requirement of Executive Order 11988 to avoid 
direct or indirect support of floodplain development; reduce the risk 
of flood loss; minimize the impact of floods on human safety, health, 
and welfare; and restore and preserve floodplain values.
    Step (7) Findings and public explanation (44 CFR 9.12). If FEMA 
finds that the only practicable alternative is to take the action in 
the floodplain, it must give public notice of the reasons for this 
finding. 44 CFR

[[Page 57406]]

9.12(e) describes the requirements for the content of such notice, such 
as a statement of why the proposed action must be located in an area 
affecting or affected by a floodplain or wetland, a description of all 
significant facts considered in making this determination, 
identification of the responsible official, and a map of the relevant 
area.
    Step (8) Implementation (Multiple sections of 44 CFR and applicable 
program guidance). FEMA may implement the proposed action after it 
allows a reasonable period for public response and reviews the 
implementation and post-implementation to ensure compliance with the 
minimization standards in 44 CFR 9.11. Implementation of the 
requirements of Executive Order 11988 is integrated into the specific 
regulations and procedures of the grant program under which the action 
is proposed to take place. After the proposed action is implemented, 
the FEMA program providing the funding determines, under its applicable 
regulations and procedures, whether the grant recipient has completed 
the prescribed mitigation.

C. Reevaluation of the 1 Percent Chance or 100-Year Flood Standard

    In the aftermath of Hurricane Sandy, the President issued Executive 
Order 13632,\13\ which created the Federal Interagency Hurricane Sandy 
Rebuilding Task Force (Sandy Task Force). The Sandy Task Force was 
chaired by the Secretary of the Department of Housing and Urban 
Development (HUD), which led the effort in coordination with multiple 
Federal partners. The Sandy Task Force was supported by an advisory 
group composed of State, local, and Tribal elected leaders. Pursuant to 
direction from Executive Order 13632 to remove obstacles to resilient 
rebuilding, the Sandy Task Force reevaluated the 1 percent chance/100-
year standard. In April 2013, the Sandy Task Force announced a new 
Federal flood risk reduction standard which required elevation or other 
flood-proofing to 1 foot above \14\ the best available and most recent 
base flood elevation and applied that standard to all Federal disaster 
recovery investments in Sandy-affected communities.\15\ The Sandy Task 
Force called for all major Sandy rebuilding projects in Sandy-affected 
communities using Federal funding to be elevated or otherwise flood-
proofed according to this new flood risk reduction standard.
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    \13\ 77 FR 74341, Dec. 14, 2012.
    \14\ This is also known as ``freeboard.'' ``Freeboard'' is a 
factor of safety usually expressed in feet above a flood level for 
purposes of floodplain 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 
hydrologic effect of urbanization of the watershed. See 
www.fema.gov/freeboard.
    \15\ HUD release entitled, ``Federal Government Sets Uniform 
Flood Risk Reduction Standard for Sandy Rebuilding Projects,'' April 
4, 2013.
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    In May 2013, DHS issued the National Mitigation Framework (NMF) to 
establish a common platform and forum for coordinating and addressing 
how the Nation manages risk through mitigation capabilities.\16\ The 
NMF established the Mitigation Framework Leadership Group (MitFLG) to 
promote coordination of mitigation efforts across the Federal 
Government. Its goal is broader than the goal of the Sandy Task Force, 
as it focuses on enabling achievement of a secure and resilient Nation 
by developing, employing and coordinating core mitigation capabilities 
to reduce the loss of life and property. The MitFLG is responsible for 
assessing the effectiveness of mitigation core capabilities as they are 
developed and deployed across the Nation. The MitFLG facilitates 
information exchange, coordinates policy implementation recommendations 
on national-level issues, and oversees the successful implementation of 
the NMF. The MitFLG is composed of representatives from the Department 
of Agriculture, the Department of Commerce, the Department of Defense, 
the Department of Energy, the Environmental Protection Agency, the 
General Services Administration, the Department of Health and Human 
Services, DHS, HUD, the Department of the Interior, the Department of 
Justice, the Small Business Administration, and the Department of 
Transportation. FEMA also chairs the MitFLG.\17\
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    \16\ Department of Homeland Security, National Mitigation 
Framework (2013), available at http://www.fema.gov/media-library-data/20130726-1914-25045-9956/final_national_mitigation_framework_20130501.pdf. Mitigation reduces 
the impact of disasters by supporting protection and prevention 
activities, easing response, and speeding recovery to create better 
prepared and more resilient communities. This Framework describes 
mitigation roles across the whole community.
    \17\ See National Mitigation Framework, p. 30.
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    In June 2013, the President issued a Climate Action Plan \18\ that 
directs agencies to take appropriate actions to reduce risk to Federal 
investments, specifically directing agencies to build on the work done 
by the Sandy Task Force and to update their flood risk reduction 
standards for ``federally-funded . . . projects'' to ensure that 
``projects funded with taxpayer dollars last as long as intended.'' 
\19\ In November 2013, the President's State, Local, and Tribal Leaders 
Task Force on Climate Preparedness and Resilience (Climate Task Force) 
convened, with 26 Governors, mayors, and local and Tribal leaders 
serving as members. After a year-long process of receiving input from 
State, local, Tribal, and territorial governments; private businesses; 
trade associations; academic organizations; civil society; and other 
stakeholders, the Task Force provided a recommendation to the President 
in November 2014. In order to ensure resiliency, Federal agencies, when 
taking actions in and around floodplains, should include considerations 
of the effects of climate change, including sea level rise, more 
frequent and severe storms, and increasing river flood risks. The 
Climate Task Force also recommended that the best available climate 
data should be used in siting and designing projects receiving Federal 
funding, and that margins of safety, such as freeboard and setbacks, 
should be included.\20\
---------------------------------------------------------------------------

    \18\ Executive Office of the President, The President's Climate 
Action Plan (2013), available at https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf.
    \19\ See The President's Climate Action Plan at 15.
    \20\ President's State, Local, and Tribal Leaders Task Force on 
Climate Preparedness and Resilience, Recommendations to the 
President, (2014), available at http://www.whitehouse.gov/sites/default/files/docs/task_force_report_0.pdf at 7.
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D. Issuance of Executive Order 13690 and the Federal Flood Risk 
Management Standard, and Revision of the 1978 Guidelines

    The MitFLG developed the FFRMS reflecting the best available 
science, lessons learned, and input and recommendations gathered from 
the Sandy Task Force, the Climate Action Plan, and the Climate Task 
Force. As a result of MitFLG's efforts, on January 30, 2015, the 
President issued Executive Order 13690, ``Establishing a Federal Flood 
Risk Management Standard (FFRMS) and a Process for Further Soliciting 
and Considering Stakeholder Input.'' \21\ Executive Order 13690 amended 
Executive Order 11988 and established the FFRMS. It also set forth a 
process by which additional input from stakeholders is solicited and 
considered before agencies implement the FFRMS. It required FEMA to 
publish, on behalf of the MitFLG, an updated version of the 
Implementing Guidelines (revised to incorporate the changes required by 
Executive Order 13690 and the FFRMS) in the Federal Register for notice 
and comment. After receipt and adjudication of comments, Executive 
Order 13690 required the MitFLG to submit to the WRC

[[Page 57407]]

recommendations for finalizing the draft Guidelines. Finally, Executive 
Order 13690 required the WRC to issue final Guidelines to provide 
guidance to agencies on the implementation of Executive Order 11988, as 
amended, consistent with the FFRMS. After the completion of this 
process, Executive Order 13690 directs agencies to issue or amend their 
existing regulations and procedures to comply with the Order. The 
MitFLG is required to reassess the FFRMS annually, after seeking 
stakeholder input, and provide recommendations to the WRC to update the 
FFRMS if warranted. The WRC is required to update the FFRMS at least 
every 5 years.
---------------------------------------------------------------------------

    \21\ 80 FR 6425 Feb. 4, 2015.
---------------------------------------------------------------------------

    FEMA, on behalf of MitFLG, published a Federal Register notice for 
a 60-day notice and comment period seeking comments on a draft of the 
Revised Guidelines on February 5, 2015.\22\ In response to multiple 
requests, the MitFLG later extended the comment period for an 
additional 30 days to end on May 6, 2015.\23\ Periodically during the 
public comment period, the Administration (through FEMA and CEQ) sent 
advisories to representatives from Governors' offices nationwide 
announcing the issuance of Executive Order 13690 and inviting comments 
on the draft Revised Guidelines. The Administration also attended or 
hosted over 25 meetings across the country with State, local, and 
Tribal officials (including 26 mayors) and interested stakeholders to 
discuss Executive Order 13690 and the draft Revised Guidelines. The 
MitFLG held 9 public listening sessions across the country \24\ that 
were attended by over 700 participants from State, local, and Tribal 
governments and other stakeholder organizations to facilitate feedback 
on the draft Revised Guidelines. The MitFLG published notice of these 
public listening sessions in the Federal Register.\25\
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    \22\ 80 FR 6530, Feb. 5, 2015.
    \23\ 80 FR 16018, Mar. 26, 2015.
    \24\ The meetings were held in Iowa, Mississippi, California, 
Virginia (Hampton Roads), Virginia (Fairfax), New York, Texas, 
Washington, and via webinar.
    \25\ 80 FR 19090, Apr. 9, 2015.
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    The public comment period closed on May 6, 2015. The MitFLG 
received over 2700 \26\ comments. The MitFLG adjudicated the comments 
and presented its recommendations to the WRC, as required by Executive 
Order 13690. The WRC issued the final Revised Guidelines on October 8, 
2015.\27\ The Revised Guidelines contain an updated version of the 
FFRMS (located at Appendix G of the Revised Guidelines), reiterate key 
concepts from the 1978 Guidelines, and explain the new concepts 
resulting from the Executive Order 13690 and the FFRMS. In response to 
public comments, the FFRMS was updated to clarify the distinction 
between actions and Federally Funded Projects.
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    \26\ The MitFLG received approximately 556 separate submissions, 
which raised over 2700 separate issues and positions. Written 
comments were received at a series of 8 in-person listening sessions 
across the country (135 submissions); verbal comments were shared 
during the public comment periods of these same listening sessions 
(74 commenters); comments were submitted through the FFRMS email 
address (20 submissions); comments were submitted through 
regulations.gov (326 submissions); and comments were submitted as 
part of a petition of support (1 submission).
    \27\ Available in the docket for this rulemaking at 
www.regulations.gov under Docket ID FEMA-2015-0006.
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E. Substantive Components of the FFRMS

    The FFRMS is a flexible framework to increase resilience against 
flooding and help preserve the natural values of floodplains. 
Incorporating this standard into existing agency processes will ensure 
that agencies expand management from the current base flood level to a 
higher vertical elevation and corresponding horizontal floodplain so 
that Federally Funded Projects will last as long as intended. In 
addition, the FFRMS encourages the use of natural features and nature-
based approaches in the development of alternatives for all Federal 
actions.
    Under the FFRMS, an agency may establish the floodplain for 
Federally Funded Projects using any of the following approaches: (1) 
Climate-Informed Science Approach (CISA): Utilizing the best-available, 
actionable hydrologic and hydraulic data and methods that integrate 
current and future changes in flooding based on climate science; (2) 
Freeboard Value Approach (FVA): Freeboard (base flood elevation + X, 
where X is 3 feet for critical actions and 2 feet for other actions); 
(3) 0.2 percent annual chance Flood Approach (0.2PFA): 0.2 percent 
annual chance flood (also known as the 500-year flood); or (4) the 
elevation and flood hazard area that result from using any other method 
identified in an update to the FFRMS.\28\ Each of the approaches is 
described in further detail below.
---------------------------------------------------------------------------

    \28\ See Executive Order 13690 Section 2(i), 80 FR 6425, Feb. 4, 
2015 (6426).
---------------------------------------------------------------------------

FFRMS Approach 1: CISA
    The FFRMS states that the CISA is the preferred approach, and that 
Federal agencies should use this approach when data to support such an 
analysis are available. For areas vulnerable to coastal flood hazards, 
the CISA includes the regional sea-level rise variability and lifecycle 
of the Federal action. This includes use of the Department of 
Commerce's National Oceanic and Atmospheric Administration's (NOAA's) 
or similar global mean sea-level-rise scenarios. These scenarios would 
be adjusted to the local relative sea-level conditions and would be 
combined with surge, tide, and wave data using state-of-the-art science 
in a manner appropriate to policies, practices, criticality, and 
consequences (risk).\29\ For areas vulnerable to riverine flood hazards 
(i.e., flood hazards stemming from a river source), the CISA would 
account for changes in riverine conditions due to current and future 
changes in climate and other factors such as land use, by applying 
state-of-the-art science in a manner appropriate to policies, 
practices, criticality, and consequences (risk).
---------------------------------------------------------------------------

    \29\ The Revised Guidelines expand further upon the methods for 
calculating sea-level rise for areas vulnerable to coastal flood 
hazards in Section II (C) of Appendix H, ``Climate-Informed Science 
Approach and Resources.''
---------------------------------------------------------------------------

    The CISA for critical actions would utilize the same methodology as 
used for non-critical actions that are subject to Executive Order 
11988, but with an emphasis on criticality as one of the factors for 
agencies to consider when conducting the analysis.
FFRMS Approach 2: FVA
    The FFRMS defines freeboard values as an additional 2 feet added to 
the base flood elevation, or, for critical actions, an additional 3 
feet added to the base flood elevation. In other words, the floodplain 
established by the FFRMS-FVA is the equivalent of the 1 percent annual 
chance floodplain, plus either 2 or 3 feet of vertical elevation, as 
applicable based on criticality, as well as a corresponding increase in 
the horizontal extent of the floodplain. The increased horizontal 
extent will not be the same in every case. As shown in the next two 
illustrations, when the same vertical increase is applied in multiple 
Federally Funded Projects in different areas, the amount of the 
increase in the horizontal extent of the respective floodplains will 
depend upon the topography of the area surrounding the proposed 
location of the Federally Funded Project. FFRMS-FVA Illustration A 
reflects an area with relatively flat topography on either side of the 
flooding source (i.e., river or stream) channel. This is generally 
representative of coastal plains, portions of the Midwest, and other 
areas with less variation in topography. FFRMS-FVA Illustration B 
reflects an area with steep topography on either side of the

[[Page 57408]]

flooding source channel. This is representative of mountainous areas or 
areas with changes in elevation near the flooding source. With the same 
addition of 2 feet to the base flood elevation applied to both example 
locations, the increase to the horizontal extent of the floodplain in 
FFRMS-FVA Illustration A is comparatively larger than the increase to 
the horizontal extent of the floodplain in FFRMS-FVA Illustration B. 
These illustrations visually depict the fact that the horizontal 
increase to the floodplain will not be uniform when applying the same 
increase to establish the FVA and will vary depending on local 
topography.
BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.011


[[Page 57409]]


[GRAPHIC] [TIFF OMITTED] TP22AU16.012

BILLING CODE 9111-66-C
FFRMS Approach 3: 0.2PFA
    Agencies may use available 0.2 percent annual chance (or ``500-
year'') flood data as the basis of the FFRMS elevation and 
corresponding floodplain extent. The FFRMS notes that the 0.2 percent 
annual chance flood hazard data produced by FEMA in coastal areas only 
considers storm-surge hazards; these data do not include local wave 
action or storm-induced erosion that are considered in the computation 
of base flood elevations. The FFRMS encourages agencies to obtain or 
develop the necessary data, including wave heights, to ensure that any 
0.2 percent annual chance flood data applied will achieve an 
appropriate level of flood resilience for the proposed investment.
FFRMS Approach 4: Update to FFRMS
    Executive Order 13690 requires the MitFLG to reassess the FFRMS 
annually, after seeking stakeholder input, and provide recommendations 
to the WRC to update the FFRMS if

[[Page 57410]]

warranted. It requires the WRC to update the FFRMS at least every 5 
years.
Further Guidance on Application of the FFRMS Approaches To Establishing 
the Floodplain
    The FFRMS states that when an agency does not use CISA in a coastal 
flood hazard area, the agency must use, at a minimum, the applicable 
FVA (i.e., the base flood elevation plus 3 feet for critical actions, 
or the base flood elevation plus 2 feet for other actions). In cases 
where the FEMA 0.2 percent annual chance flood elevation does not 
include wave height, or a wave height has not been determined, the 
FFRMS notes that the result will likely either be lower than the 
current base flood elevation or the base flood elevation plus 
applicable freeboard. The FFRMS states that the 0.2 percent annual 
chance elevation should not be used in these cases.
    When actionable science is not available and an agency opts not to 
follow the CISA for riverine flood hazard areas, the FFRMS states that 
an agency may also select either the FVA, or 0.2 percent annual chance 
flood elevation approach, or a combination of approaches, as 
appropriate. It states that the agency is not required to use the 
higher of the elevations, but may opt to do so.

F. FEMA's Implementation of Executive Order 13690 and FFRMS

    When Executive Order 13690 was issued, FEMA evaluated the 
application of Executive Order 13690 and the FFRMS with respect to its 
existing authorities and programs. The FFRMS establishes a flexible 
standard to improve resilience against the impact of flooding--to 
design for the intended life of the Federal investment. FEMA supports 
this principle. With more than $260 billion in flood damages across the 
Nation since 1980, it is necessary to take action to responsibly use 
Federal funds, and FEMA must ensure it does not needlessly make 
repeated Federal investments in the same structures after flooding 
events. In addition, the FFRMS will help support the thousands of 
communities across the Country that have strengthened their State and 
local floodplain management codes and standards to ensure that 
infrastructure and other community assets are resilient to flood risk. 
FEMA recognizes that the need to make structures resilient also 
requires a flexible approach to adapt for the needs of the Federal 
agency, local community, and the circumstances surrounding each project 
or action.
    FEMA intends to implement Executive Order 13690, the FFRMS, and the 
Revised Guidelines through this proposed rule and supplementary policy, 
which would (1) add or revise definitions to be consistent with those 
included in Executive Order 13690 and the Revised Guidelines; (2) 
incorporate the use of the FFRMS approaches for establishing the 
floodplain into FEMA's existing 8-step process; and (3) include the 
requirement to consider the use of nature-based approaches where 
possible when developing alternatives for developing in the floodplain.
Making the Initial Floodplain Determination
    As stated above, Executive Order 13690 and the FFRMS changed the 
definition of ``floodplain'' with respect to ``Federally Funded 
Projects'' (i.e., actions involving the use of Federal funds for new 
construction, substantial improvement, or to address substantial damage 
to a structure or facility). The FFRMS allows the agency to define 
``floodplain'' using any of three approaches. For actions which do not 
meet the definition of a Federally Funded Project, an agency should 
continue to use the historical definition of floodplain, i.e. the area 
subject to a 1 percent or greater chance of flooding in any given year 
(or the area subject to a 0.2 percent annual chance of flooding in any 
given year for critical actions). This means that one of the first 
steps an agency must take is to determine whether to use the FFRMS 
definition of the floodplain or the historical definition of the 
floodplain. Figure 1 illustrates the process by which FEMA would decide 
which floodplain would apply to an action or FEMA Federally Funded 
Project.
[GRAPHIC] [TIFF OMITTED] TP22AU16.013


[[Page 57411]]


Selection Between the FFRMS Approaches
    Executive Order 13690 requires the MitFLG to reassess the FFRMS 
annually, after seeking stakeholder input, and provide recommendations 
to the WRC to update the standard if warranted based on accurate and 
actionable science that takes into account changes to climate and other 
changes in flood risk. At a minimum, Executive Order 13690 requires an 
update to the FFRMS at least every 5 years.\30\ This requires a 
balancing approach in selecting between the FFRMS approaches: Agencies 
must be flexible enough to account for updates to the FFRMS and yet 
also implement a framework that is standardized enough to be easily 
understood by and consistently applied to stakeholders.
---------------------------------------------------------------------------

    \30\ See Executive Order 13690 Section 4(b), 80 FR 6425, Feb. 4, 
2015 (6426).
---------------------------------------------------------------------------

    Consistent with the flexibility built into Executive Order 13690, 
FEMA proposes to implement the FFRMS by adopting the flexible framework 
proposed in Executive Order 13690 in its entirety instead of mandating 
a particular approach in its regulations. Under this proposal, FEMA 
would provide additional guidance (more readily capable of revisions 
and updates) that addresses which approach FEMA would use for different 
types of actions and how FEMA would tailor its application of the 
various approaches depending on the type and criticality of the action. 
Specifically, FEMA's supplementary policy selects the use of the FFRMS-
FVA to establish the floodplain for non-critical actions. For critical 
actions, FEMA would allow the use of the FFRMS-FVA floodplain or the 
FFRMS-CISA, but only if the elevation established under the FFRMS-CISA 
is higher than the elevation established under the FFRMS-FVA.
    FEMA proposes to use the FFRMS-FVA as the baseline approach for 
both critical and non-critical FEMA Federally Funded Projects for 
several reasons. First, a choice to use the FFRMS-FVA would reflect the 
practical need for standardization at this stage of implementation. The 
FFRMS-FVA elevation is computed using the 1 percent annual chance 
elevation, and FEMA may use the same historical sequence it has 
followed to determine the 1 percent annual chance elevation for the 
purposes of establishing the FFRMS-FVA elevation. This would still 
allow for the use of widely available FEMA products such as FIRMs, 
FBFMs, and FISs. By following the same historical sequence and 
utilizing known mapping products, FEMA staff would need relatively 
minimal additional training to be able to use these products to 
determine the horizontal extent of the FFRMS-FVA floodplain. In 
addition, the familiarity of the process and products to be used in 
most projects would benefit stakeholders by providing a consistent 
methodology which stakeholders would similarly be able to use to 
determine where FEMA will require application of the FFRMS. Second, 
requiring the use of the FFRMS-FVA as the minimum elevation for 
critical actions would be consistent with FEMA's policy to encourage 
communities to adopt higher standards, including freeboard standards, 
than the minimum floodplain management criteria under the NFIP.\31\ 
Generally, adoption of a 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.\32\ Consistent with FEMA's policy, 22 
States and an additional 596 localities have adopted freeboard 
requirements ranging from 1 to 3 feet.\33\ FEMA supports that adoption 
by requiring that all of its projects are consistent with more 
restrictive Federal, State, or local floodplain management 
standards.\34\
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    \31\ See 44 CFR 60.1(d).
    \32\ See 44 CFR 59.1.
    \33\ Association of State Floodplain Managers, States and Other 
Communities in FEMA CRS with Building Freeboard Requirements, 
(2015), available at http://www.floods.org/ace-files/documentlibrary/FloodRiskMngmtStandard/States_with_freeboard_and_CRS_Communities_with_Freeboard_in_Other_states_2-27-15.pdf.
    \34\ See 44 CFR 9.11(d)(6).
---------------------------------------------------------------------------

    FEMA considered proposing the use of the FFRMS-CISA instead of 
FFRMS-FVA to reflect the FFRMS's designation of the FFRMS-CISA as the 
preferred approach and to reflect that the FFRMS-FVA sets a general 
level of protection, whereas FFRMS-CISA uses a more site-specific 
approach to predict flood risk based on future conditions.
    However, there are several reasons why that course of action is not 
appropriate at this time. First, actionable climate data are not 
currently available for all locations. For coastal floodplains, one of 
the primary considerations associated with the FFRMS-CISA is 
determining what the projected future sea level rise will be for the 
area in which the project will be completed. There are multiple 
interagency reports, published scientific journals, and agency tools 
that provide scenario-based projections of sea level rise for coastal 
floodplains. However, FEMA is not aware of an analogous approach for 
riverine floodplains that accounts for uncertainties due to climate 
change with respect to projected future precipitation and associated 
flooding.\35\ Instead, the Revised Guidelines suggest the agency would 
need to conduct a hydrology study that is informed by expected changes 
in climate and land use factors and incorporate this analysis into its 
current method for determining the floodplain.\36\ FEMA expects that 
more data will be developed supporting broader-based inland and 
riverine application of the FFRMS-CISA as agencies implement the FFRMS 
and that this data will be considered and incorporated into future 
updates of the FFRMS. FEMA requests comment on the availability of 
actionable, planning, and project-scale climate data with respect to 
coastal and riverine floodplains.
---------------------------------------------------------------------------

    \35\ See Revised Guidelines at Appendix H, 15.
    \36\ See Revised Guidelines at 55.
---------------------------------------------------------------------------

    Second, in addition to the data challenges, there are a number of 
factors to be considered in deciding how to apply the FFRMS-CISA that 
might result in a decision-making process that could unnecessarily 
delay recovery in the wake of a disaster event for non-critical 
actions. The Revised Guidelines recommend that the FFRMS-CISA 
methodology account for project-specific factors such as the risk to 
which the action will be exposed, the anticipated level of investment, 
and the lifecycle of the action.\37\ For example, an applicant might 
consider a construction project that is in a coastal floodplain and 
find that there are multiple projections for what the sea level rise 
may be in 100 years. The most aggressive projection might indicate that 
the project should be elevated 10 feet above the 1 percent annual 
chance flood elevation. However, the applicant might decide that this 
project is not intended to be functional for 100 years or that the 
applicant's budget might justify using a lesser projection now and plan 
for future upgrades to the structure or facility. There may be a way to 
standardize this type of decision-making process as the FFRMS-CISA is 
more broadly used; however, the current lack of a standardized 
methodology for making these decisions and the need to engage in such 
project-specific considerations in conjunction with stakeholders could 
result in uncertainty and delay. In light of the above concerns, FEMA 
requests comment regarding how FEMA could implement

[[Page 57412]]

the FFRMS-CISA for non-critical actions using a publicly-accessible, 
standardized, predictable, flexible, and cost-effective methodology.
---------------------------------------------------------------------------

    \37\ See Revised Guidelines at 55.
---------------------------------------------------------------------------

    FEMA also considered whether it should alter its proposal for use 
of the FFRMS-CISA in relation to the FFRMS-FVA (or FFRMS-0.2PFA). FEMA 
specifically welcomes comment on each of the potential alternatives 
outlined below. FEMA could choose a more protective approach in which 
it would determine the elevations established under FFRMS-CISA, FFRMS-
FVA and the FFRMS-0.2PFA for critical actions and only allow the 
applicant to use the highest of the three elevations. This approach 
would ensure that applicants were building to the most protective 
level, would avoid potential inconsistencies with FEMA's policy to 
encourage adoption of freeboard standards by local communities, and 
would prevent a scenario where an applicant was allowed to build to a 
lower elevation than previously required for critical actions under 
FEMA's implementation of Executive Order 11988.\38\ FEMA believes that 
its proposed policy is sufficiently protective and would be less 
expensive to administer and implement than the alternative approach 
described above, but nonetheless welcomes comment on this alternative 
approach.
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    \38\ There may be some areas of the country where application of 
the FFRMS-CISA and the FFRMS-FVA could result in a lower elevation 
than the FFRMS-0.2PFA which under existing regulations is the 
elevation requirement for critical actions.
---------------------------------------------------------------------------

    Also alternatively, FEMA could choose to allow use of the FFRMS-
CISA, even if the resulting elevation is lower than the application of 
the FFRMS-FVA. This approach would give FEMA and its grantees more 
flexibility in implementing the standard, would enable FEMA and its 
grantees to build to an elevation based on the best available science 
taking criticality into account, and would provide a pathway to relief 
for those areas that experience declining flood risks.\39\ FEMA 
believes that the need for standardization, administrability, and 
adequate protection all counsel in favor of its policy, but welcomes 
comments on this alternative approach as well.
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    \39\ While FEMA believes that the average flood risk will 
generally continue to increase nationwide due to climate change, 
there is considerable uncertainty in projecting flood risk at more 
granular levels. Some areas may experience declines in flood risk 
due to reduced rainfall or other unpredictable changes to the 
floodplain.
---------------------------------------------------------------------------

    FEMA is not proposing to use the FFRMS-0.2PFA because of the 
limited national availability of information on the 0.2 percent annual 
chance flood elevation and the additional costs associated with 
producing this information when not available. The FFRMS-0.2PFA 
floodplain, like the FFRMS-FVA floodplain, would have a greater 
horizontal extent and require higher elevation standards when compared 
to the 1 percent annual chance floodplain. However, while most areas of 
the country have 1 percent annual chance floodplain information and the 
necessary topographical information to determine the horizontal extent 
under the FVA, far fewer are mapped with 0.2 percent annual chance 
floodplain information. This is because although all FEMA-mapped flood 
zones have either detailed or approximate 1 percent annual chance 
floodplain boundaries, FEMA estimates that only 18 percent of mapped 
flood zones have detailed floodplain boundaries of the 0.2 percent 
annual chance floodplain.\40\ Finally, in coastal areas, the FFRMS 
requires Federal agencies to use the FFRMS-FVA as the minimum 
elevation, when not using the FFRMS-CISA, because the 0.2 percent 
annual chance flood information depicted on FEMA FIRMs and in the FISs 
in coastal areas consider storm-surge hazards, but not wave action.\41\ 
FEMA recognizes that the FFRMS-0.2PFA may result in a higher elevation 
than the FFRMS-FVA in some circumstances. However, based on the 
foregoing reasons, FEMA expects it will be clearer, less costly, and 
provide more certainty to stakeholders, if FEMA selects the FFRMS-FVA 
as the primary approach.
---------------------------------------------------------------------------

    \40\ FEMA riverine flood hazard data inventory information comes 
from the Coordinated Needs Management Strategy dataset.
    \41\ See Revised Guidelines at 57.
---------------------------------------------------------------------------

    Based on the foregoing reasons, FEMA proposes to combine approaches 
and use the FFRMS-FVA to establish the floodplain for non-critical 
actions and allow the use of the FFRMS-FVA floodplain or the FFRMS-CISA 
for critical actions, but only if the elevation established under the 
FFRMS-CISA is higher than the elevation established under the FFRMS-
FVA. This proposal balances flexibility with standardization, is 
consistent with FEMA's encouragement to communities to adopt higher 
floodplain management standards, reflects the priority that FEMA places 
on ensuring adequate planning for critical actions, and may yield 
important lessons with respect to potential future applications of the 
FFRMS-CISA.
    In addition to seeking comments on FEMA's proposed approach to 
implementation generally, FEMA specifically seeks public comments on 
the impact of the proposed elevation requirement on the accessibility 
of covered facilities under the Fair Housing Act, the Americans with 
Disabilities Act (ADA), the Architectural Barriers Act (ABA), and 
Section 504 of the Rehabilitation Act of 1973. Elevating buildings as a 
flood damage mitigation strategy will likely have a negative impact on 
affected communities' disabled and elderly populations, unless those 
buildings are made accessible. Although all ADA title II and III 
facilities, ABA facilities, and Section 504 covered facilities are 
subject to accessibility requirements, single-family properties are 
generally not subject to accessibility requirements unless they are 
public housing (ADA title II) or a social service establishment (ADA 
title III). Consequently, even if the homes of people with disabilities 
are made accessible, a community's single- and multi-family housing 
stock may become largely inaccessible through elevation requirements. 
If the only accessible homes in a community are those currently 
occupied by people with disabilities, those people will likely be 
isolated. As occupants age or become disabled, they may have no option 
to remain in their homes or to age in place because adding an 
accessible route into an existing single- or multi-family building will 
be costly or impossible. It is therefore crucial for community 
sustainability and integration of people with disabilities that those 
buildings that are subject to accessibility requirements be made to 
comply.
    In light of the substantial community impact of elevating housing 
and other buildings, along with the challenges associated with the 
traditional options for making elevated buildings accessible (i.e., 
elevators, lifts, and ramps), FEMA invites comments on strategies it 
could employ to increase the accessibility of properties so affected in 
the event the proposed increase in elevation is adopted. Additionally, 
FEMA invites comments on the cost and benefits of such strategies, 
including data that supports the costs and benefits.
Determining the Corresponding Horizontal Extent of the FFRMS Floodplain
    Once an agency has made the determination that an action is a 
Federally Funded Project that requires use of the FFRMS floodplain, and 
then made a determination which of the FFRMS approaches to apply, the 
agency must then decide where the FFRMS floodplain lies. There are no 
federally produced maps depicting the boundary of the FFRMS-floodplain 
established by the FVA or CISA, and FEMA maps depicting the 0.2 percent 
annual

[[Page 57413]]

floodplain are only available in some areas. However, a map of the 
FFRMS floodplain is not required to determine if the location of a 
proposed Federally Funded Project is within the FFRMS floodplain. The 
floodplain determination can generally be made by comparing the ground 
elevation at the proposed site to the elevation established using the 
applicable FFRMS approach. If the ground elevation is less than the 
FFRMS elevation, than the site is in the FFRMS floodplain. Therefore, 
in order to complete the floodplain determination, FEMA intends to rely 
on two-dimensional information on a map to determine the location of 
the proposed site relative to the FFRMS floodplain. To do so, FEMA will 
need point information on (1) the FFRMS elevation and (2) the ground 
elevation of the proposed site. Once FEMA establishes the FFRMS 
elevation and the ground elevation based on available information, FEMA 
would compare the two values to determine if the proposed FEMA 
Federally Funded Project location is in the FFRMS floodplain.
Establishing the FFRMS Elevation Under Each of the Approaches
    In order to make the floodplain determination and establish the 
proper elevation under each approach, FEMA intends to leverage its 
existing processes in each of its grant programs for ensuring 
compliance with Executive Order 11988. Although the specifics of the 
processes may vary somewhat from program to program, FEMA generally 
uses the following steps. During the initial stages of project 
development, FEMA informs applicants of all applicable Federal, State 
and local requirements which might apply to their projects to include 
Executive Order 11988 and the 8-step process. Once applicants have 
identified potential projects, FEMA works with them to assess the 
proposed project location and determine whether it is in the floodplain 
and therefore whether it is necessary to apply the 8-step process. FEMA 
is available to assist applicants with the 8-step process and FEMA 
reviews the project application to ensure that the project scope of 
work is in compliance with Executive Order 11988 requirements. FEMA 
will continue to perform these steps in its implementation of Executive 
Order 13690 and the FFRMS. When making the floodplain determination 
under the FFRMS, FEMA intends to investigate what flood information is 
available in order to select the best available information.\42\ FEMA 
would rely on a range of available data to establish the FFRMS 
elevation for each of the approaches.
---------------------------------------------------------------------------

    \42\ See Sec.  9.7(c)(1)(iii) of this proposed rule.
---------------------------------------------------------------------------

    The FFRMS-CISA elevation is established using the best available, 
actionable climate-informed science. The Revised Guidelines provide 
guidance to agencies on the application of the CISA approach in coastal 
and riverine areas.\43\ In particular, FEMA will use Appendix H of the 
Revised Guidelines titled ``Climate-Informed Science Approach and 
Resources'' to guide its decision-making. Appendix H outlines guidance 
on risk-based framing (i.e., how agencies may consider current and 
future flood risks over the lifetime of the investment/project) 
followed by specific considerations and methods to consider climate 
change. Because the CISA uses a scenario-based analysis to establish an 
elevation by assessing a range of possible future conditions and 
considering the nature of the affected action, the anticipated 
lifecycle of the action, and the tolerance for risk associated with the 
action, use of the CISA would be based on project-specific decisions. 
FEMA may consider information presented by the applicant or any other 
Federal agency in this evaluation and will ultimately determine whether 
the methodology is appropriate for the action being considered and 
meets the relevant criteria.
---------------------------------------------------------------------------

    \43\ See the Revised Guidelines at Appendix H ``Climate-Informed 
Science Approach and Resources.''
---------------------------------------------------------------------------

    FEMA recognizes that the FFRMS-CISA is a new and developing process 
and that there is uncertainty in the considerations and factors that 
will come up during an FFRMS-CISA analysis. As such, FEMA is not able 
to develop an exhaustive set of regulatory criteria for determining 
whether a given methodology or elevation is appropriate. However, FEMA 
recognizes that regulatory transparency reduces uncertainty for its 
grantees, and it will consider providing further guidance and 
information in the future as the agency's experience in implementing 
FFRMS-CISA grows.
    Appendix H of the Revised Guidelines provides the following 
criteria to define the CISA, which FEMA will consider when developing 
further guidance and information: (1) Uses existing sound science and 
engineering methods (e.g., hydrologic and hydraulic analysis and 
methodologies) as have historically been used to implement Executive 
Order 11988, but supplemented with best available climate-related 
scientific information when appropriate (depending on the agency-
specific procedures and type of federal action); (2) is consistent with 
the climate science and related information found in the latest 
National Climate Assessment report or other best-available, actionable 
science; (3) combines information from different disciplines (e.g., new 
perspectives from the atmospheric sciences, oceanographic sciences, 
coastal sciences, and hydrologic sciences in the context of climate 
change) in addition to traditional science and engineering approaches; 
and, (4) includes impacts from projected land cover and land use 
changes (which may alter hydrology due to increased impervious 
surface), long-term coastal and/or riverine erosion, and vertical land 
movement (for determining local changes to sea level) expected over the 
lifecycle of the action.
    The FFRMS describes the FFRMS-FVA elevation as the addition of 2 or 
3 feet to the 1 percent annual chance flood elevation. FEMA would 
leverage the process described in 44 CFR 9.7(c)(1)(iii) to search for 
the best available flood hazard information to establish the 1 percent 
annual chance flood elevation. This process recognizes that information 
on flood hazards at proposed sites may range from detailed data 
obtained from FEMA flood studies, to information which approximates the 
geographic area of the floodplain, to areas with no information. Where 
FEMA has issued a detailed study, FEMA could obtain the 1 percent 
annual chance flood elevation from the FIRM or FIS. In areas where FEMA 
has issued a limited study, FEMA would then seek detailed information 
from the list of sources in 44 CFR 9.7(c)(1)(iii)(B)(1)-(8).
    For example, where an effective FIRM displays a 1 percent annual 
floodplain with limited detail, local sources such as a Floodplain 
Administrator, Flood Control Districts, or Transportation departments 
may have detailed information on file which was produced for 
development within the floodplain, for watershed plans, or for 
infrastructure designs. Where detailed information is not available 
from FEMA studies or other sources, but approximate flood information 
is available from a FEMA FIRM, FEMA may use simplified methods to 
develop a 1 percent annual chance flood elevation as presented in FEMA 
publication 265, entitled ``Managing Floodplain Development in 
Approximate A zones: A Guide for Obtaining and Developing Base (100-
Year) Flood Elevations.'' \44\ A 1 percent

[[Page 57414]]

annual chance flood elevation developed using a simplified approach may 
yield an acceptable level of accuracy for the purpose of establishing 
whether a proposed FEMA Federally Funded Project is within the FFRMS-
FVA floodplain. Where no flood hazard information is available, or 
where more accurate information on the 1 percent annual chance 
elevation is necessary for the purposes of complying with other 
sections of Part 9, such as Sec.  9.11, FEMA publication 265 also 
provides guidance on detailed engineering methodologies to develop a 1 
percent annual chance flood elevation. FEMA may rely on staff engineers 
to complete the engineering analysis, or FEMA may rely on information 
submitted as part of an application, where the applicant has obtained 
design and engineering services to develop the project scope of work.
---------------------------------------------------------------------------

    \44\ FEMA, Managing Floodplain Development in Approximate Zone 
A: A Guide for Obtaining and Developing Base (100-Year) Flood 
Elevations (1995), available at https://www.fema.gov/media-library/assets/documents/1911.
---------------------------------------------------------------------------

    The FFRMS-0.2PFA elevation is the elevation of the 0.2 percent 
annual chance flood. If FEMA were to use this approach in the future, 
FEMA could follow the same process to establish the 0.2 percent annual 
chance flood elevation as it would to establish the 1 percent annual 
chance flood elevation. FEMA would first rely on the 0.2 percent annual 
chance flood elevation reported in a FEMA FIS, then seek information 
from additional sources, before finally seeking the assistance of an 
engineer.
Establishing the Ground Elevation
    FEMA may use available topographic information from the USGS to 
establish the ground elevation for a proposed location of a FEMA 
Federally Funded Project. Additionally, FEMA may also rely on 
information on the ground elevation submitted by an applicant as part 
of their project application.

IV. Discussion of the Proposed Rule

    As noted above, this proposed rule would implement Executive Order 
13690, the FFRMS, and the Revised Guidelines as part of FEMA's 
floodplain management regulations. Below, we provide a brief summary of 
a number of the major provisions of the proposed rule, followed by a 
section-by-section description of these and other changes.
Major Provisions
Conforming Changes to Definitions
    FEMA proposes to amend Sec.  9.4 to reflect the new definitions 
required by Executive Order 13690 and the FFRMS. As noted above, the 
most significant definitional change introduced by Executive Order 
13690 and the FFRMS is the change to the meaning of ``floodplain.'' As 
discussed in more detail below, in order to harmonize this change in 
Sec.  9.4 FEMA proposes to revise a number of existing definitions, and 
remove other definitions. In addition, FEMA proposes to revise the 
remaining sections of 44 CFR part 9 that refer generally to the 
floodplain, or refer specifically to the base (or 100-year) floodplain 
or the 500-year floodplain, for clarity.
Distinction Between ``FEMA Federally Funded Projects'' and Other FEMA 
Actions
    As noted above, the first Step in the 8-step process is to 
determine whether the proposed action is in the floodplain. Because 
Executive Order 13690 and the October 8, 2015 version of FFRMS revise 
the definition of the ``floodplain'' that must be used for ``Federally 
Funded Projects,'' FEMA proposes to revise the first Step to require 
FEMA to first determine whether the proposed action falls within the 
definition of ``FEMA Federally Funded Project.'' Under the proposed 
rule, if FEMA determines that the action is a FEMA Federally Funded 
Project, i.e., if FEMA determines that the action uses FEMA funds for 
new construction, substantial improvement, or to address substantial 
damage to a structure or facility, the FFRMS floodplain applies. If, on 
the other hand, FEMA determines that the action does not fall under the 
definition of a FEMA Federally Funded Project, the 1 percent annual 
chance floodplain (or the 0.2 percent annual chance floodplain for 
critical actions) applies.
Emphasis on Nature-Based Approaches
    Executive Order 13690 requires that agencies use, where possible, 
natural systems, ecosystem processes, and nature-based approaches in 
the development of alternatives for Federal actions in the floodplain. 
FEMA proposes to incorporate this requirement into Sec.  9.9, which 
addresses the requirement to consider practicable alternatives when 
determining whether to locate an action in the floodplain. This 
requirement applies regardless of whether the proposed action is a FEMA 
Federally Funded Project. To further explain this requirement, FEMA 
proposes to add a definition of ``nature-based approaches,'' meaning 
features designed to mimic natural processes and provide specific 
services such as reducing flood risk and/or improving water quality.
Section-by-Section Analysis

A. Authority Citation

    FEMA proposes to add a reference to Executive Order 13690.

B. Section 9.1--Purpose of Part

    FEMA proposes to add ``as amended'' to reflect Executive Order 
13690's amendment of Executive Order 11988.

C. Section 9.2--Policy

    FEMA proposes to add language to paragraph 9.2(b)(3) to reflect the 
policy statement from Executive Order 13690 that the United States must 
improve the resilience of communities and Federal assets against the 
impacts of flooding based on the best-available and actionable science. 
This statement of policy is complementary to the longstanding goals of 
Executive Order 11988 to reduce the risk of flood loss, but reflects an 
updated Federal policy of resilience and risk reduction that takes the 
effects of climate change and other threats into account.

D. Section 9.3--Authority

    FEMA proposes to add reference to Executive Order 13690, which 
amended Executive Order 11988.

E. Section 9.4--Definitions

    In Section 9.4, FEMA proposes to add terms for ``0.2 Percent Annual 
Chance Flood,'' ``0.2 Percent Annual Chance Floodplain,'' ``1 Percent 
Annual Chance Flood or Base Flood,'' ``1 Percent Annual Chance Flood 
Elevation or Base Flood Elevation,'' ``1 Percent Annual Chance 
Floodplain or Base Floodplain,'' ``Associate Administrator,'' 
``Emergency Work,'' ``Federal Flood Risk Management Standard (FFRMS),'' 
``Federal Flood Risk Management Standard Floodplain,'' ``FEMA Federally 
Funded Project,'' FIMA, and ``Nature-Based Approaches;'' to remove the 
definitions of ``Base Flood,'' ``Base Floodplain,'' ``Emergency 
Actions,'' ``Five Hundred Year Floodplain,'' and ``Mitigation 
Directorate;'' and to revise the definitions of ``Critical Action,'' 
``Floodplain,'' ``New Construction,'' ``Orders,'' and ``Substantial 
Improvement.''
    0.2 Percent Annual Chance Flood. FEMA proposes to define the term 
``0.2 percent annual chance flood'' to mean the flood which has a 0.2 
percent chance of being equaled or exceeded in any given year. This was 
previously known as the ``500-year flood.'' FEMA proposes to use the 
term ``0.2 percent annual chance flood'' and discontinue using that 
term interchangeably with the term ``500-year flood.'' The term ``500-
year flood'' can cause confusion as it

[[Page 57415]]

could be interpreted to mean that the area will only flood once every 
500 years, instead of reflecting its true meaning, which is the annual 
risk of flooding in the area.
    0.2 Percent Annual Chance Floodplain. FEMA proposes to define the 
term ``0.2 percent annual chance floodplain'' to mean the area subject 
to flooding by the 0.2 percent annual chance flood.
    1 Percent Annual Chance Flood or Base Flood. FEMA proposes to 
retitle the current definition of ``base flood'' as ``1 percent annual 
chance flood or base flood.'' This reflects the fact that Executive 
Order 13690 uses the term ``base flood'' and the Revised Guidelines use 
the term ``1 percent annual chance flood.'' There is no substantive 
difference between the two terms and they may be used interchangeably. 
The ``1 percent annual chance flood'' means the flood that has a 1 
percent chance of being equaled or exceeded in any given year. In the 
current definition of ``base flood,'' the term is also equated with the 
``100-year flood;'' however, FEMA proposes to discontinue use of the 
term ``100-year flood'' because this term can cause confusion. It can 
be interpreted to mean that the area will only flood once every 100 
years instead of reflecting its true meaning, which is the annual risk 
of flood in the area.
    1 Percent Annual Chance Flood Elevation or Base Flood Elevation. 
FEMA proposes to define the term ``1 percent annual chance flood 
elevation or base flood elevation'' to mean the computed elevation to 
which floodwater is anticipated to rise during the 1 percent annual 
chance flood or base flood. FEMA also proposes to incorporate the 
explanation from the current definition of ``base flood'' about how the 
term is used in the NFIP to indicate the minimum level of flooding to 
be used by a community in the community's floodplain management 
regulations. The elevation indicates how high to elevate a structure in 
order to protect it from the risk of flooding in a base flood.
    1 Percent Annual Chance Floodplain or Base Floodplain. FEMA 
proposes to define the term ``1 percent annual chance floodplain or 
base floodplain'' to mean the area subject to flooding by the 1 percent 
annual chance flood or base flood. A floodplain is generally a lowland 
or flat area near water that has a greater chance of flooding than 
higher areas and areas farther from water. This definition would 
describe the minimum area that FEMA looks at when it determines whether 
an action will take place in a floodplain.
    Associate Administrator. FEMA proposes to define ``Associate 
Administrator'' as the Associate Administrator of the Federal Insurance 
and Mitigation Administration. This reflects the current title of this 
position, and adding it to the definitions section allows for ease of 
use throughout Part 9, rather than having to reprint the entire title 
each time it is used.
    Base Flood and Base Floodplain. FEMA proposes to remove the 
definitions of the ``base flood'' and ``base floodplain'' as FEMA 
proposes to incorporate them in the definitions of the ``1 percent 
annual chance flood or base flood'' and ``1 percent annual chance 
floodplain or base floodplain.''
    Critical Action. FEMA proposes to revise the definition of 
``critical action'' to remove the requirement that the minimum 
floodplain of concern in the event of a critical action is the 500-year 
floodplain. There would no longer be a set requirement that an 
applicant use a particular approach to establishing the floodplain when 
the project is a critical action. Instead, FEMA and the applicant would 
follow the sequence described in Sec.  9.7 when making the floodplain 
determination. FEMA would be required to determine whether the project 
meets the new definition of ``FEMA Federally Funded Project'' in Sec.  
9.4. If the project is a Federally Funded Project, then FEMA would 
establish the floodplain by using one of the FFRMS approaches (which 
require the applicant to consider whether an action is a critical 
action). If the project is not a Federally Funded Project, then FEMA 
would use, at a minimum, the 1 percent annual chance floodplain for 
non-critical actions and the 0.2 percent annual chance floodplain for 
critical actions.
    Emergency Work. The current definition of ``emergency actions'' is 
emergency work essential to save lives and protect property and public 
health and safety performed under certain sections of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) 
and corresponding FEMA regulations. FEMA proposes to change the term to 
``emergency work'' to clearly differentiate between the work under the 
specific sections of the Stafford Act that was exempted entirely from 
the requirements of Executive Order 11988 and the new exceptions to the 
application of the FFRMS (which include non-specific references to 
emergency actions) created by Executive Order 13690. FEMA also proposes 
to update the citations to the specific sections of the Stafford Act 
and FEMA regulations, as the citations are outdated in the current 
definition.
    Federal Flood Risk Management Standard (FFRMS). FEMA proposes to 
add a definition of ``FFRMS,'' which is the Federal flood risk 
management standard established by Executive Order 13690 to be 
incorporated into existing processes used to implement Executive Order 
11988. FEMA proposes to add a definition for FFRMS because this rule 
proposes to implement it and therefore refers to it throughout the 
proposed changes to Part 9.
    Federal Flood Risk Management Standard (FFRMS) Floodplain. FEMA 
proposes to define the ``FFRMS floodplain'' consistent with the 
definition in Executive Order 13690, which is the floodplain that is 
established using one of four approaches: CISA, FVA, 0.2PFA, and the 
elevation and flood hazard area that result from using any other method 
identified in an update to the FFRMS.
    FEMA proposes to define the ``CISA'' as the elevation and flood 
hazard area that result from using the best-available, actionable 
hydrologic and hydraulic data and methods that integrate current and 
future changes in flooding based on climate science. This approach will 
also include an emphasis on whether the action is a critical action as 
one of the factors to be considered when conducting the analysis.
    FEMA proposes to define the ``FVA'' as the elevation and flood 
hazard area (the horizontal extent of the floodplain) that result from 
using the freeboard value, reached by adding an additional 2 feet to 
the base flood elevation for non-critical actions and by adding an 
additional 3 feet to the base flood elevation for critical actions.
    FEMA proposes to define the ``0.2PFA'' as the area subject to 
flooding by the 0.2 percent annual chance flood. The 0.2 percent annual 
chance flood is a flood that has a 0.2 percent chance of happening in 
any given year. It is a flood that covers greater area that is less 
frequent than the 1 percent chance floodplain.
    Finally, FEMA proposes to add a fourth approach, the elevation and 
flood hazard area that result from using any other method identified in 
an update to the FFRMS.
    FEMA Federally Funded Project. FEMA proposes to add a definition of 
``FEMA Federally Funded Project'' to mean actions where FEMA funds are 
used for new construction, substantial improvement, or to address 
substantial damage to a structure or facility. FEMA's proposed 
definition mirrors the language in the FFRMS and the Revised 
Guidelines.

[[Page 57416]]

    FIMA. FEMA proposes to revise the definition of the Federal 
Insurance Administration to mean the Federal Insurance and Mitigation 
Administration to reflect the current title of the organization.
    Five Hundred Year Floodplain. FEMA proposes to remove the 
definition of the five hundred year floodplain as a standalone term and 
designated floodplain and to instead substitute the term to 0.2 percent 
annual chance floodplain. The 0.2 percent annual chance floodplain is 
the floodplain covering an area where the chance of flood is 0.2 
percent in any given year.
    Floodplain. FEMA currently defines ``floodplain'' as the lowland 
and relatively flat areas adjoining inland and coastal waters 
including, at a minimum, that area subject to a 1 percent or greater 
chance of flooding in any given year. FEMA proposes to revise the 
definition to remove the phrase ``including, at a minimum, the area 
subject to a one percent or greater chance of flooding in any given 
year.'' This is because the FFRMS expands the consideration from the 1 
percent annual chance (base) floodplain.
    The current definition also states that wherever the term 
``floodplain'' appears in Part 9, if a critical action is involved, 
``floodplain'' means the area subject to inundation from a flood having 
a 0.2 percent chance of occurring in any given year (500-year 
floodplain). FEMA proposes to remove this provision from the definition 
of floodplain because there is no longer a set requirement that an 
applicant use a particular approach to establishing the floodplain when 
there is a critical action. Instead, FEMA and the applicant must follow 
the sequence described in Sec.  9.7 when making the floodplain 
determination. FEMA must determine whether the project meets the new 
definition of ``FEMA Federally Funded Project'' in Sec.  9.4. If the 
project is a FEMA Federally Funded Project, then FEMA must establish 
the floodplain by using one of the FFRMS approaches (which require the 
applicant to consider whether an action is a critical action). If the 
project does not meet the definition of FEMA Federally Funded Project 
(i.e. the project is not ``new construction, substantial improvement, 
or repairs to address substantial damage to a structure or facility''), 
then FEMA must use, at a minimum, the 1 percent annual chance 
floodplain for non-critical actions and the 0.2 percent annual chance 
floodplain for critical actions.
    FEMA proposes to add that the floodplain may be more specifically 
categorized as the 1 percent annual chance (base) floodplain, the 0.2 
percent annual chance floodplain, or the FFRMS floodplain (as defined 
above). ``Floodplain'' is a flexible, general term, but in establishing 
the correct floodplain to use, it will be necessary to determine 
whether the action is a Federally Funded Project and whether it is a 
critical action.
    Mitigation Directorate. FEMA proposes to remove the definition of 
the ``Mitigation Directorate'' as it is now included in the definition 
of ``FIMA.''
    Nature-Based Approaches. FEMA proposes to add a definition of 
``nature-based approaches.'' Executive Order 13690 added a provision 
requiring agencies to use nature-based approaches where possible and 
this term has not previously been defined. FEMA proposes to define 
nature-based approaches as the features (sometimes referred to as 
``green infrastructure'') designed to mimic natural processes and 
provide specific services such as reducing flood risk and/or improving 
water quality. Nature-based approaches are created by human design (in 
concert with and to accommodate natural processes) and generally, but 
not always, must be maintained in order to reliably provide the 
intended level of service. Nature-based approaches are sometimes 
referred to as green infrastructure and may include, for example, green 
roofs, or downspout disconnection that reroutes drainage pipes to rain 
barrels, cisterns, or permeable areas instead of the storm sewer. The 
proposed definition mirrors the language of the WRC Revised Guidelines.
    New Construction. FEMA proposes to remove the parenthetical 
``including the placement of a mobile home'' from the definition of new 
construction because retaining the clause would have unintended 
effects, given the new definition of FEMA Federally Funded Projects. 
The application of the FFRMS is required for any action which meets the 
definition of ``Federally Funded Project.'' ``FEMA Federally Funded 
Project'' is defined as an action where FEMA funds are used for new 
construction, substantial improvement, or to address substantial damage 
to a structure or facility. If FEMA continued to define the placement 
of a mobile home as ``new construction,'' it would be required to apply 
the FFRMS to any placement of a mobile home. As described further in 
the discussion of Sec.  9.13, FEMA does not intend to require the 
application of the FFRMS in the placement of mobile homes for the 
purpose of temporary housing.
    Orders. FEMA proposes to revise the definition of ``orders'' to 
include Executive Order 13690.
    Substantial Improvement. FEMA proposes to update the reference to 
the Stafford Act, because the citation is outdated in the current 
definition.

F. Section 9.5--Scope

    FEMA proposes to add an effective date provision to this section, 
indicating that the revisions proposed to Part 9, which implement the 
changes required by Executive Order 13690 and the FFRMS, would apply to 
new actions that are commenced on or after the effective date of the 
final rule. This is to clarify that current Part 9, including use of 
the base floodplain (or 500-year floodplain for critical actions), 
would still apply to actions that are in the planning or development 
stage or undergoing implementation as of the effective date of the 
final rule revising Part 9. Only new actions would be subject to 
revised Part 9 so that the changes would not be applied retroactively 
to projects which have already been reviewed for compliance with 
Executive Order 11988 and may have incurred designed expenses to meet 
the current floodplain management standards. Any new actions would be 
subject to revised Part 9, including the changes required under 
Executive Order 13690 and the FFRMS, such as determining whether to use 
the base floodplain or FFRMS floodplain for the action and using 
nature-based approaches to mitigate harm when development in the 
floodplain is not avoidable.
    FEMA proposes to update the citations to the Stafford Act sections 
and references to organizations and titles in paragraphs (c)-(g) as 
they are not current. FEMA also proposes to update paragraph (c)(8) as 
it refers to a defunct title for the Individuals and Households program 
and includes programs that no longer exist.
    FEMA also proposes to eliminate the cross references in the last 
sentence of paragraph 9.5(f)(1), because they relate to regulatory 
provisions (44 CFR 9.9(e)(6) and 9.11(e)(4)) that FEMA proposes to 
remove in this rule. FEMA describes its rationale for eliminating the 
cited text later in this preamble.

G. Section 9.6--Decision-Making Process

    Section 9.6 sets out the floodplain management and wetlands 
protection decision-making process to be followed by FEMA in applying 
Executive Orders 11988 and 11990 to its actions. There are eight Steps 
the agency must follow. Step 1 states that FEMA will determine whether 
the proposed action is located in the 100-year floodplain or, for 
critical actions, the 500-year floodplain. FEMA

[[Page 57417]]

proposes to remove the specific requirement to use the 100-year (1 
percent annual chance) floodplain or 500-year (0.2 percent annual 
chance) floodplain for critical actions and instead use the general 
term ``floodplain.'' Instead, FEMA proposes to refer the reader to 
section 9.7(c) of the regulations, which describes (1) the flexible 
framework that FEMA would apply to FEMA Federally Funded Project under 
Executive Order 13690 and the FFRMS, as well as (2) the historical 
framework that FEMA would continue to apply to actions that do not 
qualify as FEMA Federally Funded Projects.

H. Section 9.7--Determination of Proposed Action's Location

    Paragraph (a) of section 9.7 states that the purpose of the section 
is to establish FEMA's procedures for determining whether any action as 
proposed is located in or affects the base floodplain (or the 500-year 
floodplain for a critical action) or a wetland (i.e., Step 1 of the 8-
step decision-making process described in section 9.6). As in section 
9.6, FEMA proposes to simply refer to ``floodplain'' rather than base 
floodplain or 500-year floodplain, because Executive Order 13690 and 
the FFRMS's flexible framework to determining which floodplain is 
appropriate depending on the type and criticality of the action means 
the floodplain must be established using the process set forth in 
paragraph 9.7(c) and may be something other than the floodplain 
established using the 1 percent annual chance flood or 0.2 percent 
annual chance flood.
    Paragraph (b) of Sec.  9.7 states that information about the 100-
year and 500-year floods may be needed to comply with the regulations 
in Part 9. FEMA proposes to update this statement to reflect that 
information about the 1 percent annual chance (base) floodplain, 0.2 
percent annual chance floodplain, and the FFRMS floodplain may be 
needed.
    Paragraph (c) of Sec.  9.7 outlines the sequence FEMA must follow 
in making the floodplain determination. FEMA proposes to implement the 
change to the definition of floodplain required by Executive Order 
13690 and the FFRMS in Sec.  9.7(c), ``Floodplain determination.'' As 
an initial step, FEMA would determine whether the project is a FEMA 
Federally Funded Project as defined in Sec.  9.4. If the project is a 
FEMA Federally Funded Project, FEMA would establish the FFRMS 
floodplain and associated flood elevation using one of the four 
approaches outlined in the proposed section. For example, FEMA would 
likely be required to apply the FFRMS floodplain to construction 
projects under FEMA's Public Assistance program authorized under 
Section 406 of the Stafford Act, Hazard Mitigation Grant Program 
authorized under Section 404 of the Stafford Act, and Flood Mitigation 
Assistance Program authorized under Section 1366 of the National Flood 
Insurance Act. However, it is likely that certain other grant programs 
or actions would not be required to apply the FFRMS floodplain, because 
the actions funded do not involve construction activities. This may 
include grants provided for disaster planning through FEMA's Pre-
Disaster Mitigation Program authorized under Section 203 of the 
Stafford Act and grants for planning and training awarded through 
programs administered by FEMA's Protection and National Preparedness 
Office. Each grant program FEMA funds would be required to determine 
whether the 1 percent annual chance, 0.2 percent annual chance, or 
FFRMS floodplain applies to the particular action.
    FEMA proposes to implement the FFRMS in its regulations by adopting 
the flexible framework proposed in Executive Order 13690 in its 
entirety, instead of mandating a particular approach. Under this 
proposal, FEMA would provide additional guidance (more readily capable 
of revisions and updates) that addresses which approach FEMA would use 
for different types of actions and how FEMA would tailor its 
application of the various approaches depending on the type and 
criticality of the action. Executive Order 13690 makes clear that the 
intent of providing a flexible framework is to acknowledge that the 
impacts of flooding are anticipated to increase over time due to the 
effects of climate change and other threats. In order to determine what 
those impacts may be, there is value in using the best-available, 
actionable hydrologic and hydraulic data and methods that integrate 
current and future changes in flooding based on climate science, rather 
than relying solely upon the 1 percent annual chance flood standard, 
which does not account for or provide any factor of safety to mitigate 
against the possibility that flood risk may increase over time.
    Executive Order 13690 provides an exception to use of the FFRMS 
when the action is in the interest of national security, where the 
action is an emergency action, where application to a Federal facility 
or structure is demonstrably inappropriate, or where the action is a 
mission-critical requirement related to a national security interest or 
an emergency action. FEMA proposes to adopt these exceptions in their 
entirety. It is important to note that an exception to using the FFRMS 
under any of the reasons listed in this section does not exempt the 
action from the requirements of Executive Order 11988 altogether. 
Instead, if one of FEMA's actions were excepted under this provision, 
FEMA would still be required to apply the 1 percent annual chance 
floodplain for non-critical actions and the 0.2 percent annual chance 
floodplain for critical actions. FEMA does have the authority to exempt 
certain actions from any application of the requirements of Executive 
Order 11988 and those actions which are exempted are enumerated in 
Section 9.5(c).
    FEMA proposes that if it determines that the action is not a FEMA 
Federally Funded Project, i.e., that the action does not involve the 
use of FEMA funds for new construction, substantial improvement, or to 
address substantial damage to a structure or facility, the proposed 
action may be evaluated using the 1 percent annual chance floodplain 
for non-critical actions and the 0.2 percent annual chance floodplain 
for critical actions. The sequence for making that determination 
remains relatively unchanged. The Regional Administrator (RA) first 
consults the FEMA FIRM, the FBFM and the FIS. If neither a FIRM nor a 
FBFM is available, the RA consults the FHBM. The regulation provides a 
list of sources to consult in the event the FHBM is not available. FEMA 
proposes to update this list of sources to those suggested in the 
Revised Guidelines, which were updated to reflect current titles and 
new available resources.\45\ Finally, if none of these sources have the 
information necessary to comply with the Orders, the RA seeks the 
services of an engineer experienced in this type of work. If a decision 
involves an area or location within extensive Federal or State holdings 
or a headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA 
seeks information from the land administering agency before seeking 
information and/or assistance from the list of sources or an engineer.
---------------------------------------------------------------------------

    \45\ FEMA proposes to update this list of sources to reflect the 
WRC's Revised Guidelines.
---------------------------------------------------------------------------

    Additionally, FEMA is proposing to change the paragraph structure 
of Sec.  9.7 for clarity.

I. Section 9.8--Public Notice Requirements

    The only proposed change is to paragraph 9.8(c)(5)(ii), to correct 
a typographical error.

[[Page 57418]]

J. Section 9.9--Analysis and Reevaluation of Practicable Alternatives

    FEMA proposes to add the requirement to use natural systems, 
ecosystem processes, and nature-based approaches in the development of 
alternatives for Federal actions in the floodplain to Sec.  9.9(b). 
Under Sec.  9.9, FEMA must make a preliminary determination (Step 3 of 
the 8-step process) as to whether the floodplain is the only 
practicable location for the action. Part of that analysis involves 
considering whether there are alternative actions that serve 
essentially the same purpose as the proposed action but which have less 
potential to affect or be affected by a floodplain. Under this proposed 
rule, during the course of the aforementioned analysis, FEMA would 
consider whether using natural systems, ecosystem processes and nature-
based approaches might have less of an effect on the floodplain.
    FEMA proposes to remove paragraph (d)(2) of Sec.  9.9, which 
prohibits FEMA from locating a proposed critical action in the 500-year 
floodplain. This is because under this proposed rule, critical actions 
would no longer be subject to a specific requirement related to the 
500-year floodplain. Instead, FEMA would follow the sequence described 
in Sec.  9.7 when making the floodplain determination. As noted above, 
FEMA would determine whether the project meets the new definition of 
``FEMA Federally Funded Project'' in Sec.  9.4. If FEMA determined that 
the project is a FEMA Federally Funded Project, then FEMA would 
establish the floodplain by using one of the FFRMS approaches (which 
require the applicant to consider whether an action is a critical 
action). If FEMA determined that the project is not a FEMA Federally 
Funded Project, then FEMA would use, at a minimum, the 1 percent annual 
chance floodplain for non-critical actions and the 0.2 percent annual 
chance floodplain for critical actions. After FEMA completed that 
process, it would apply the appropriate floodplain to the remainder of 
the 8-step process. Therefore, FEMA proposes to revise paragraph (d)(1) 
to specify that the ``floodplain'' is the floodplain established in 
Sec.  9.7(c).
    FEMA proposes to eliminate paragraph 9.9(e)(6). Section 9.9(e)(6) 
prohibits FEMA from providing a new or renewed contract for flood 
insurance for a structure if the Regional Director has chosen the ``no 
action'' option provided for in Sec.  9.9(e)(5). This provision was 
temporarily suspended via a November 28, 1980 Federal Register Notice 
of intent not to enforce certain regulation concerning denial of flood 
insurance coverage. (45 FR 79069) FEMA ultimately did not ever 
implement this provision and does not intend to do so now; therefore, 
FEMA is proposing to remove it from the regulation.

K. Section 9.11--Mitigation

    FEMA proposes to remove the reference to the base flood and the 
500-year flood from paragraph 9.11(c) and instead reference the 
floodplain as established in Sec.  9.7(c) when describing its intent to 
minimize potential harm to lives and the investment at risk. Again, 
this is because there is no longer a set requirement related only to 
the base floodplain or the 500-year floodplain when there is a critical 
action. Instead, FEMA must follow the sequence described in Sec.  9.7 
when making the floodplain determination.
    In paragraph 9.11(d), FEMA proposes to revise the text to reflect 
that the minimization standards are applicable to all of FEMA's grant 
programs. Currently, paragraph 9.11(d) states that the minimization 
standards are applicable to only FEMA's implementation of the Disaster 
Relief Act of 1974. Some of FEMA's grant programs are authorized under 
other legislation.
    In paragraphs 9.11(d)(2) and 9.11(d)(3)(i)-(ii), FEMA proposes to 
specifically require elevation of the lowest floor of a building to the 
FFRMS floodplain during the construction of new or substantially 
improved structures. As described above, FEMA must follow the sequence 
described in Sec.  9.7 when making the floodplain determination. FEMA 
must determine whether the project meets the new definition of ``FEMA 
Federally Funded Project'' in Sec.  9.4. The definition of ``FEMA 
Federally Funded Project'' is an action where FEMA funds are used for 
new construction, substantial improvement, or to address substantial 
damage to a structure or facility. ``Substantial Improvement'' as 
defined in Sec.  9.4 includes all actions taken to address substantial 
damage to a structure or facility. Because paragraphs 9.11(d)(2) and 
9.11(d)(3)(i)-(ii) specifically reference new construction or 
substantial improvement, FEMA must establish the floodplain in these 
circumstances by using one of the FFRMS approaches (which require the 
applicant to consider whether an action is a critical action). FEMA 
multi-hazard mitigation guidance can be consulted for technical 
information on elevation methods for new construction and the 
retrofitting of existing structures with various types of 
foundations.\46\ For example, in the case of structures with basements, 
the structure may be elevated on solid foundation walls by creating a 
new masonry-enclosed area on top of an abandoned and filled-in basement 
or elevated on an open foundation by filling in the old basement.\47\ 
If the structure with a basement is non-residential, the applicant may 
elect to dry floodproof the structure rather than elevate. In this 
case, basements may be dry floodproofed using the same techniques as 
spaces above grade, including the creation of continuous impermeable 
walls, creating flood resistance in core interior areas, adding 
sealants on openings, installing flood shields for openings in exterior 
walls, and installing backflow valves and internal drainage 
systems.\48\
---------------------------------------------------------------------------

    \46\ A catalogue of FEMA Building Science Branch publications 
including descriptions of available publications for natural hazards 
can be accessed at http://www.fema.gov/media-library/assets/documents/12909.
    \47\ See FEMA, FEMA P-259 Engineering Principles and Practices 
of Retrofitting Floodprone Residential Structures (2012), available 
at http://www.fema.gov/media-library/assets/documents/3001, at 5E-8.
    \48\ FEMA, FEMA P-936, Flood Proofing of Non-Residential 
Buildings (2013), available at http://www.fema.gov/media-library/assets/documents/34270, at 3-2.
---------------------------------------------------------------------------

    For the same reasons as stated above, in paragraph 9.11(d)(9), FEMA 
proposes to remove the reference to the base flood or, in the case of 
critical actions, the 500-year flood from paragraph 9.11(d)(9) and 
instead reference the floodplain as established in Sec.  9.7(c) when 
describing the requirements for the replacement of building contents, 
material and equipment.
    FEMA proposes to revise paragraphs 9.11(e)(1) and (e)(2) by adding 
``and Mitigation'' to the title of the ``Federal Insurance 
Administration'' to reflect the current title of the organization, the 
``Federal Insurance and Mitigation Administration.'' FEMA also proposes 
to revise paragraphs 9.11(e)(2)(ii), 9.11(e)(3)(i)(E), and 
9.11(e)(3)(ii) by replacing ``FIA'' with ``FIMA'' to again reflect the 
change in title.
    Finally, FEMA proposes to eliminate paragraph 9.11(e)(4). Paragraph 
9.11(e)(4) provides that where the Regional Director has been precluded 
from providing assistance for a new or substantially improved structure 
in a floodway, FEMA may not provide a new or renewed policy of flood 
insurance for that structure. As noted in the regulation, this 
provision was temporarily suspended via a November 28, 1980 Federal 
Register Notice of intent not to enforce certain regulation concerning 
denial of flood insurance

[[Page 57419]]

coverage. (45 FR 79069) FEMA ultimately did not implement this 
provision and does not intend to do so now; therefore, FEMA is removing 
it from the regulation.

L. Section 9.13--Particular Types of Temporary Housing

    FEMA proposes to specifically designate the use of the 1 percent 
annual chance (base) floodplain when evaluating whether to take a 
temporary housing action. See proposed Sec.  9.13(d)(1). FEMA proposes 
to specifically prohibit housing an individual or family in the 1 
percent annual chance (base) floodplain, unless the Regional 
Administrator has complied with the provisions in proposed Sec.  9.9 to 
determine that the site is the only practicable alternative. See 
proposed Sec.  9.13(d)(3). FEMA proposes to designate the 1 percent 
annual chance (base) floodplain as the floodplain of choice when taking 
temporary housing actions for several reasons: (1) The temporary nature 
of the assistance means there is not an opportunity to improve 
community resilience or floodplain management long term, which is the 
intent of the FFRMS; (2) expansion of the base floodplain to the FFRMS 
floodplain and prohibiting placement of temporary housing in the FFRMS 
floodplain may result in the temporary housing of individuals and 
families many miles from their homes, which is not practicable; and (3) 
it is not always feasible to elevate mobile homes, when they are being 
placed as temporary housing.
    FEMA proposes to add the sentence ``actual elevation levels will be 
based on manufacturer specifications and applicable Agency guidance'' 
to reflect the fact that it is not always feasible to elevate mobile 
homes. See proposed Sec.  9.13(d)(4)(i). Since mobile homes are often 
the last resort for temporary housing and they are being placed 
temporarily, it is not always practicable to elevate mobile homes to a 
given level. However, the proposed rule would require that such homes 
be elevated to the fullest extent practicable.
    In paragraph 9.13(d)(4)(ii), FEMA proposes to substitute ``44 CFR 
parts 59-60'' for ``44 CFR part 59 et seq.'' to be clear what specific 
sections of the regulations the language references.
    FEMA also proposes to require the elevation of a mobile home to at 
least the level of the FFRMS floodplain, if FEMA intends to sell or 
otherwise dispose of mobile homes in the FFRMS floodplain. See proposed 
Sec.  9.13(e)(2). The reason for this requirement is that any sale or 
disposal of a mobile home no longer constitutes temporary housing; FEMA 
believes that any unit intended for permanent placement should be 
protected to the fullest extent practicable, because the probability 
that a flood will occur within the floodplain is greater over the 
anticipated lifespan of a permanent structure than a temporary 
structure, and so the benefit of hazard mitigation is greater to the 
permanent structure than the temporary structure. Further, any sale or 
disposal of a mobile home must meet NFIP requirements of residential 
structures by elevating the lowest floor. Mobile homes placed in the 
floodplain for the purposes of temporary housing must meet the criteria 
of the NFIP or any more restrictive standards unless the community has 
granted a variance. See proposed Sec.  9.13(d)(4)(ii).
    Additionally, FEMA is proposing to change the paragraph structure 
of Sec.  9.13. No substantive changes are intended as a result of this 
restructuring.

M. Section 9.17--Instructions to Applicants

    In paragraph 9.17(a), FEMA proposes to add ``as amended'' to 
reflect Executive Order 13690's amendment of Executive Order 11988.
    In paragraph 9.17(b), FEMA proposes to update the reference to the 
WRC's 1978 Guidelines to the full title for the Revised Guidelines.

N. Section 9.18--Responsibilities

    In paragraph 9.18(b), FEMA proposes to update the references to the 
FIA and the title of Associate Administrator.
    In paragraph 9.18(b)(2), FEMA proposes to add ``as amended'' to 
reflect Executive Order 13690's amendment of Executive Order 11988.

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

    FEMA proposes to remove ``Appendix A to Part 9--Decision-Making 
Process for E.O. 11988'' in its entirety. The graphic is no longer 
accurate. Further, given that Executive Order 13690 deliberately 
created a flexible approach to establishing the FFRMS and also requires 
update of the FFRMS every 5 years, there is no utility to including the 
appendix in regulation. Instead, FEMA would include a revised version 
of the appendix to include the new decision-making process and the 
definition of the FFRMS floodplain in its policy implementing the 
FFRMS.

V. Response to Leadership Intent Comments

    On November 17, 2015, FEMA's Federal Insurance and Mitigation 
Administration released for public comment FEMA's Overview of FEMA's 
Intent to Implement the FFRMS (Intent). Continuing our commitment to an 
open, collaborative, stakeholder-focused process in implementing the 
FFRMS, FEMA shared this framework for public comment on FEMA's Web site 
through December 17, 2015.
    FEMA received 12 comments in response to the Intent. Of the 12 
comments received, 10 comments were supportive, 1 comment was opposed, 
and 1 comment was not germane.\49\
---------------------------------------------------------------------------

    \49\ The comments are available in the docket for this 
rulemaking.
---------------------------------------------------------------------------

    The 10 comments received in support of the Intent came from a 
variety of sources, including local governments, associations, 
environmental action organizations, and commenters that chose to reply 
in their private capacity. Following is a discussion of the comments 
submitted.
    The adverse comment came from a local government official. The 
official stated that the CISA would be ``a means to extort money from 
citizens based on a junk science forecasts/models of which so called 
projections have been outrageously inaccurate.'' The commenter did not 
provide any support for the statement. FEMA disagrees with the 
commenter's assessment that Climate-Informed Science Approach (CISA) is 
based on ``junk science forecasts/models.'' Scientists compare models' 
projections of historical climate trends to the historical records 
climate variables to measure the confidence of the models' abilities to 
accurately predict future climate conditions.\50\ Many peer reviewed 
studies of climate models have found in general that climate model 
simulations of historical global temperature and other climactic 
variables are comparable to the historical recorded observations of 
those variables.\51\ These studies provide confidence in accuracy of 
climate models' projections of future climate conditions.
---------------------------------------------------------------------------

    \50\ Risbey et al. 2014. Well-estimated global surface warming 
in climate projections selected for ENSO phase. ``Nature Climate 
Change'', 4, 835-840.
    \51\ See Covey et al. 2003. An overview of results from the 
coupled model intercomparison project (CIMP). ``Global and Planetary 
Change'', 37, 103-133; and Cubasch et al. 2013. Introduction. In: 
``Climate Change 2013: The Physical Science Basis. Contribution of 
Working Group I to the Fifth Assessment Report of the 
Intergovernmental Panel on Climate Change'' [Stocker et al. (eds)]. 
Cambridge University Press, Cambridge at 131.
---------------------------------------------------------------------------

    The 2014 United States National Climate Assessment (Assessment) 
concluded that ``[g]lobal trends in temperature and many other climate 
variables provide consistent evidence of

[[Page 57420]]

a warming planet.'' \52\ These trends ``are based on a wide range of 
observations, analyzed by many independent research groups around the 
world.'' \53\ The Assessment reported that confidence is very high \54\ 
that global sea level has risen during the past century and that it 
will continue to rise, and there is medium confidence that global sea 
level rise will be in the range of 1-4 feet by 2100.\55\ The Assessment 
further reports that although changes in overall precipitation are 
uncertain in many U.S. areas, there is high degree of certainty that 
the heaviest precipitation events will increase everywhere, and by 
large amounts.\56\ The approaches to establish a higher vertical 
elevation and corresponding floodplain provided in the FFRMS are 
intended to address these future flood risks.
---------------------------------------------------------------------------

    \52\ Walsh et al. 2014: Ch. 2: Our Changing Climate. ``Climate 
Change Impacts in the United States: The Third National Climate 
Assessment,'' J. M. Melillo, Terese (T.C.) Richmond, and G. W. Yohe, 
Eds., U.S. Global Change Research Program, 19-67.
    \53\ Id.
    \54\ ``Very high'' is the highest confidence level used in the 
Assessment. See id. at 61.
    \55\ Id. at 66.
    \56\ Id. at 33.
---------------------------------------------------------------------------

    Within the 10 supportive comments, the commenters provided 
suggestions and asked questions concerning FEMA's proposed framework. 
One local government agreed that the CISA should be used in 
``calculating the [FFRMS] flood level and floodplain,'' but stated 
that:

    [Allowing a different set of standards for FFRMS and NFIP not 
only allows for non-compliance with the NFIP i[t] encourages it. How 
will FEMA discipline a community for not complying with the NFIP 
when they provided the funding for the project under FFRMS. This is 
a double standard and will create legal issues if not revised.

    FEMA disagrees that implementing the FFRMS encourages noncompliance 
with NFIP standards. FEMA acknowledges that it is proposing to provide 
an option to use the CISA for critical facilities, but notes that under 
this proposal, the CISA would only be allowed if the elevation is 
higher than the elevation established using the FVA. This precaution 
would eliminate the possibility that the CISA elevation used for a FEMA 
Federally Funded Project would be less than the base flood elevation 
required as the minimum standard of the NFIP. Additionally, FEMA has 
complied and will continue to comply with local floodplain management 
standards that are more restrictive. FEMA is not proposing to amend 
Sec.  9.11(d)(6), which prohibits FEMA from taking any action that is 
inconsistent with the NFIP standards or any more restrictive Federal, 
State, or local floodplain management standards.
    One commenter was concerned with the issue of coordination between 
Federal agencies, stating:

    The Background [to the Intent document] states that ``Federal 
agencies have the flexibility to select from the approaches of the 
FFRMS to establish the floodplain for a given action.'' While 
flexibility may be warranted, the interagency coordination provision 
must come into play in establishing the ``floodplain'' by various 
agencies. The Framework language needs to be revised from ``. . . 
should coordinate early . . .'' to ``. . . shall coordinate early.'' 
This needs to be a required action whereby the most protective, 
conservative delineation of the floodplain is achieved and applied 
by all [F]ederal agencies for all purposes.

    FEMA agrees with this comment and in the supplementary policy, FEMA 
proposes that when FEMA is funding a FEMA Federally Funded Project 
with, or in the same area as, another Federal agency, FEMA will 
coordinate with the applicable Federal agency early in the planning 
process.
    Multiple commenters stated that the use of the FVA may create a 
disincentive to update flood maps. Their concern was that the use of 
the FFRMS-FVA rather than the FFRMS-CISA might create a sense that 
flood map updates and associated funding are less critical because of 
the safety standard provided by freeboard. Commenters stated that:

[t]he freeboard provision is a positive, protective step, however, 
it should not become a default standard to replace updated flood 
mapping.

    FEMA disagrees with the statement that using the FVA will eliminate 
the desire to update flood maps. FEMA has stated that the FFRMS will 
not affect FEMA's flood mapping standards. While FEMA's FIS and FIRMs 
may be used as sources of best available information to establish the 
FFRMS elevation, the primary function of FIS and FIRMs is not to 
establish the FFRMS. The production of FIS and FIRMs are managed for 
other purposes, such as to serve the mission of the NFIP.
    Two commenters requested that FEMA address how changing flood 
hazard information will be used in establishing the FFRMS elevation. 
One commenter stated:

    [i]n all the talk I hear about flood mitigation and resolution I 
never hear any discussion as how standard measurements, what you 
call base line, do not take into account or even look at how those 
base lines have moved due to erosion.

    Another commenter asked:

    On occasion, FEMA has issued Advisory Base Flood Elevations 
(ABFEs) following a major flooding event, when it has been 
determined that the effective [Base Flood Elevations (BFEs)] 
significantly underestimate the base flood [. . .] What will FEMA 
consider to be the advisory ``BFE'' when adding freeboard under EO 
13690?

    Section 2(a)(1) of the Executive Order directs agencies to use 
approaches based on the best available information and FEMA's effective 
FIRM. Because flood risk can change over time, FEMA's mapping program 
continually updates its inventory of flood hazard information. Flood 
zone designations may be established or revised when new and more 
accurate information becomes available because of a FEMA-contracted 
restudy or because the community makes the information available to 
FEMA. More accurate information may include more accurate or updated 
topographic information which would capture changes in the ground 
elevation due to factors including erosion. Information from a 
preliminary FIRM or ABFE may serve as best available information if the 
information shows that a site previously located outside the floodplain 
is now in the floodplain, or that the existing FEMA Base Flood 
Elevation has increased. In response to the commenter's question, when 
determining what is the appropriate ``BFE'' when adding freeboard under 
Executive Order 13690, FEMA would use the best available information.
    One comment received from a local government stated that the FVA is 
one-size fits-all, and the FVA would not reflect local conditions when 
establishing the FFRMS elevation. FEMA uses the best available 
information to establish the base flood elevation, which reflects local 
flooding conditions. Therefore, FEMA disagrees with the comment that 
the FVA would not reflect local conditions.
    Five commenters stated that FEMA should use the 0.2 percent annual 
chance floodplain approach (500-year floodplain) to establish the 
minimum FFRMS elevation and floodplain for critical actions. One 
commenter stated that:

    In some instances, the 500-year floodplain may provide a higher 
elevation than the other options, and in those instances the 500-
year floodplain should be used. Critical actions are actions for 
which even a slight chance of flooding would be too great. As such, 
an all three FFRMS approaches should be considered to achieve the 
highest level of protection.

    Another commenter stated the FVA may provide too restrictive a 
standard when the FVA elevation is higher than the 0.2 percent annual 
chance floodplain elevation:


[[Page 57421]]


    For example, in areas where the 500-year water surface is less 
than 2 feet above the 100-year water surface, the freeboard value 
approach may be overly conservative and go well above the 500-year 
level protection.

    FEMA recognizes that the FVA may be more or less conservative than 
the 0.2PFA. However, FEMA is proposing in the supplementary policy to 
select to use the FVA but not the 0.2PFA. FEMA feels it is more 
pragmatic to only establish the elevation using one approach to manage 
the level of effort and costs needed to establish the FFRMS elevation. 
Additionally, by establishing only one FFRMS approach as the default 
approach, FEMA believes the supplementary policy would be clearer for 
stakeholders and applicants to identify which FFRMS approach FEMA would 
require for FEMA Federally Funded Projects. When using the CISA, the 
supplementary policy proposes that FEMA would evaluate if the CISA 
methodology is appropriate to the action being considered. In 
accordance with the Revised Guidelines, the CISA methodology should 
consider the criticality of the action. Flood elevations informed by 
the CISA can be adjusted to be higher to account for the increased 
consequences associated with flood damage.\57\ This consideration 
should assist FEMA in making appropriate decisions about data sources 
to use in the CISA analysis to account for the flood risk to the FEMA 
Federally Funded Project.
---------------------------------------------------------------------------

    \57\ Revised Guidelines at 55.
---------------------------------------------------------------------------

    Four commenters generally stated FEMA should require use of the 
CISA for critical and/or non-critical actions. Specifically, one 
commenter stated:

    FEMA has an obligation to protect taxpayer dollars and thus to 
use climate informed science when its experts determine the data is 
adequate to accurately calculate the FFRMS flood level and 
floodplain.

    Another commenter stated:

    Failure to evaluate sea level rise over the next several decades 
would be an egregious oversight when deciding what to build, where 
to build, and how to build in coastal environments.

    Executive Order 13690 and the FFRMS do not prescribe a particular 
approach regardless of the individual circumstance. Instead, they 
intentionally provide for flexibility in application to allow Federal 
agencies to develop an implementation approach that meets the needs and 
mission of the particular agency. FEMA had to take into account many 
considerations when making its determination, such as: (1) Consistency: 
The need to create an approach which would allow stakeholders and 
applicants to consistently determine which standard FEMA would apply to 
FEMA Federally Funded Projects; (2) disaster considerations: the 
ability to implement the approaches in both a non-disaster and post-
disaster environment. In a post-disaster environment, FEMA needs to be 
able to make decisions quickly to assist communities in their recovery. 
Other considerations included cost as well as resilience. FEMA balanced 
consideration of the preference in the FFRMS for the CISA against these 
implementation considerations when making the decision to propose 
optional use of the CISA. FEMA is not proposing to require the CISA for 
non-critical projects; however, as the FFRMS is reevaluated annually 
and updated in 5 years as required by Executive Order 13690, this may 
change.
    Four commenters stated that FEMA should comply with State, Tribal, 
territorial, or local government flood risk standards, when those 
standards are more restrictive than the FFRMS. One comment stated:

    Any critical or non-critical FEMA actions or FEMA-funded 
projects should thus comply with all applicable [S]tate and local 
floodplain protection standards.

    FEMA has and will continue to comply with more restrictive local 
floodplain management standards. FEMA is not proposing to amend Sec.  
9.11(d)(6), which prohibits FEMA from taking an action if it is 
inconsistent with any more restrictive Federal, State, local, Tribal, 
and territorial, floodplain management standards.
    One comment received from an environmental action organization 
stated that:

    The threshold for what constitutes substantial improvement/
damage should be a maximum of 50%. A cumulative approach to 
calculate substantial improvement/damage over projects' lifetimes 
should be utilized.

    FEMA is not proposing to amend the definition of substantial 
improvement in Sec.  9.4. Substantial improvement is defined as 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 percent of the market value of the structure or replacement 
cost of the facility. FEMA is not proposing to adopt a cumulative 
approach to calculate substantial improvement because FEMA does not 
track improvements made by applicants, without FEMA funding, to their 
own public facilities. If a local community has adopted a cumulative 
approach to calculating substantial improvement or substantial damage, 
FEMA will comply with the more restrictive local standard in accordance 
with Sec.  9.11(d)(6).
    Another commenter addressed use of the emergency action exception 
of the FFRMS:

    While we support the provision in EO 13690 that exempts 
emergency action from the Federal Flood Risk Management Standard, we 
urge the agency to narrowly define what constitutes an emergency 
action [. . .] [P]ermanent work under the PA Program (PA) [. . .] 
should not be classified as emergency work for the purposes of 
exemption.

    FEMA is not proposing to exempt permanent work (Categories C-G) 
funded by the Public Assistance program under the emergency action 
exception of the FFRMS.
    Two commenters encouraged FEMA to address how structural flood risk 
management systems will affect the FFRMS floodplain. One commenter 
stated:

    Structural flood risk management systems are intended to reduce 
flood risk--not eliminate flood risk. As such, the agency should 
evaluate flood risks if building behind such structures, including 
the risk of flooding should the structure fail or be breached.

    FEMA will consider the factors described in section 1.B.6 of the 
Revised Guidelines, Structural Flood Risk Management Systems, when 
considering whether an action which is landward of a structural flood 
risk management system is in the FFRMS floodplain. Per the direction in 
the Revised Guidelines, flood control structures' status on effective 
FIRMs will not be the sole resource used to determine if a project is 
within the FFRMS floodplain. FEMA determinations of accreditation 
status, Zone AR,\58\ and Zone A99 \59\ may not convey the full hazard 
to projects landward of a flood control structure.\60\ Additional 
information, as fully listed in the Revised Guidelines, would need to 
be gathered to inform the determination of if the project is within the 
FFRMS floodplain.
---------------------------------------------------------------------------

    \58\ Zone AR is defined as the 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. Mandatory flood insurance 
purchase requirements and floodplain management standards apply. See 
44 CFR 64.3(a)(1).
    \59\ Zone A99 is defined as the 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. See 44 CFR 64.3(a)(1).
    \60\ See Revised Guidelines at 58.
---------------------------------------------------------------------------

    One commenter suggested FEMA should adopt a comprehensive 
definition of resilience, stating:


[[Page 57422]]


    The more comprehensive definition laid out in [the Water 
Resources, Reform and Development Act of 2014] provides guidelines 
that FEMA can incorporate into its guidance [and][. . .] gives more 
detail and guidance to regulators and the regulated community, 
thereby increasing certainty.
    FEMA is not proposing to define resilience in Part 9. There is no 
universal definition of resilience, nor is one associated with FEMA's 
implementation of Executive Order 13690. Section 9.11 requires FEMA to 
minimize potential harm to the investment at risk from flooding. With 
the exception of specific minimization standards in Sec.  9.11(d), FEMA 
does not specify the techniques which must be used to achieve 
minimization of harm and improve the resilience of actions within the 
floodplain.
    The same commenter also supported the inclusion of structures and 
facilities in the Revised Guidelines, stating:

    FEMA has expanded the scope of the guidelines by including their 
application to [F]ederal ``facilities,'' in addition to structures 
[. . .] By expanding the scope of the guidelines to include roads 
and bridges, FEMA has made an important step toward establishing 
more resilient and disaster-resistant communities located within 
[F]ederal floodplains.

    However, FEMA disagrees with the comment that FEMA has expanded the 
scope of the guidelines. Executive Order 11988 applies to Federal 
actions, meaning (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. The definition of action encompasses providing 
federally assisted construction to both structures and facilities.
    Finally, one commenter suggested FEMA should incorporate the FFRMS 
into agency regulations and procedures within 18 months, requesting:

[p]lease identify which regulations, and guidance, documents will 
require amendment.

    FEMA has identified the regulations which will require amendment to 
implement Executive Order 13690 and the FFRMS in this Notice of 
Proposed Rulemaking.

VI. FFRMS FY 2016 Appropriations Language

    Section 750 of Division E of the Consolidated Appropriations Act, 
2016 (Act) (Pub. L. 114-113, 129 Stat. 2242) provides that none of the 
funds made available under that Act or any other Act could be used to 
(1) implement, administer, carry out, modify, revise or enforce 
Executive Order 13690 other than for (a) acquiring, managing, or 
disposing of Federal lands or facilities; (b) providing federally 
undertaken, financed, or assisted construction or improvements; or (c) 
conducting Federal activities or programs affecting land use, including 
water and related land resources planning, regulating, and licensing 
activities; or (2) implement Executive Order 13690 in a manner that 
modifies the non-grant components of the National Flood Insurance 
Program.
    FEMA does not interpret this prohibition on the use of appropriated 
funds to have any effect on this rulemaking or its policy development. 
Paragraph 750(a)(1) effectively allows for action to be taken to 
implement Executive Order 13690 as long as it is within the original 
scope of responsibilities outlined in Section 1 of Executive Order 
11988. Subsection (a)(2) prohibits FEMA from implementing Executive 
Order 13690 in a way that modifies the non-grant components of the 
NFIP. Neither this rulemaking nor FEMA's policy development goes beyond 
the scope of Section 1 of Executive Order 11988 or modifies the non-
grant components of the NFIP. Although FEMA has always applied the 8-
step decision-making process to program-wide NFIP actions, such actions 
do not qualify as FEMA Federally Funded Projects under this rule. 
Therefore, the prohibition on the use of appropriated funds does not 
apply to this Notice of Proposed Rulemaking.

VII. Regulatory Analyses

A. Executive Order 12866, Regulatory Planning and Review & Executive 
Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.
    As noted, FEMA is proposing to amend 44 CFR part 9, ``Floodplain 
Management and Protection of Wetlands'' and issue a supplementary 
policy to implement the Executive Order 13690 and the FFRMS.
    The FFRMS is a flexible framework to increase resilience against 
flooding and to help preserve the natural values of floodplains. FEMA 
is proposing to incorporate the FFRMS into its existing processes, to 
ensure that the floodplain for FEMA Federally Funded Projects is 
expanded from the current base flood level to a higher vertical 
elevation and corresponding horizontal floodplain and that, where 
possible, natural systems, ecosystem processes, and nature-based 
approaches would be used when developing alternatives to locating 
Federal actions in the floodplain.
    FEMA estimates that for the 10-year period after the rule goes into 
effect, the benefits would justify the costs. Flooding is the most 
common type of natural disaster in the United States, and floods are 
expected to be more frequent and more severe over the next century due 
to the projected effects of climate change.\61\ The ocean has warmed, 
polar ice has melted, and porous landmasses have subsided.\62\ Global 
sea level has risen by about 8 inches since reliable record keeping 
began in 1880 and is projected to rise another 1 to 4 feet by 2100.\63\ 
Floods are costly natural disasters; between 1980 and 2013, the United 
States suffered more than $260 billion in flood-related damages.\64\ 
This proposed rule would help protect Federal investments from future 
floods, and would help minimize harm in floodplains, by changing how 
FEMA defines the floodplain for FEMA-funded new construction and 
substantial improvement (i.e., ``Federally Funded Projects''). The 
expected costs of this proposed rule are primarily due to increased 
elevation or floodproofing requirements of structures in the FFRMS 
floodplain, with the majority of these costs expected to be incurred by 
FEMA itself through several

[[Page 57423]]

grant programs, which will be either passed through to taxpayers or 
result in lower levels of Government services. FEMA grant recipients 
would bear approximately 25 percent of the project costs for those 
grant programs that have a cost-share requirement.
---------------------------------------------------------------------------

    \61\ Walsh, J., D. Wuebbles, K. Hayhoe, J. Kossin, K. Kunkel, G. 
Stephens, P. Thorne, R. Vose, M. Wehner, J. Willis, D. Anderson, S. 
Doney, R. Feely, P. Hennon, V. Kharin, T. Knutson, F. Landerer, T. 
Lenton, J. Kennedy, and R. Somerville, 2014: Ch. 2: Our Changing 
Climate. ``Climate Change Impacts in the United States: The Third 
National Climate Assessment'', J. M. Melillo, Terese (T.C.) 
Richmond, and G. W. Yohe, Eds., U.S. Global Change Research Program, 
19-67. Doi.10.7930/J0KW5CXT. Page 20.
    \62\ Ibid [page 21].
    \63\ Ibid [page 21].
    \64\ NOAA, National Weather Service. ``Hydrologic Information 
Center--Flood Loss Data''. http://www.nws.noaa.gov/hic/.
---------------------------------------------------------------------------

    The cost components of this proposed rule relate to grants under 
FEMA's IA, PA, HMA, and GPD programs, as well as FEMA facilities and 
the Integrated Public Alert Warning System (IPAWS). To estimate the 
cost of the proposed elevation requirements FEMA uses data from the 
NFIP. Table 1 and Table 2 show the costs and benefits by program, that 
FEMA has available, annualized for the first 10 years. Most of the 
estimated costs come from PA Category C, which includes replacements of 
bridges.
BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.014


[[Page 57424]]


BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.015

BILLING CODE 9111-66-P
IA Projects
    IA Permanent Housing Construction (PHC) projects and sales of 
Manufactured Housing Units (MHUs) would be affected by the proposed 
rule. Although floodproofing is a valid option in some instances, FEMA 
regulations prohibit the floodproofing of residential structures. In 
these cases, elevation is the only option. FEMA calculated the cost of 
elevating structures under PHC

[[Page 57425]]

structures by adding the cost of elevating projects between 1 foot and 
3 feet above the BFE, depending on location and type of project. FEMA 
subtracted certain costs that it determined to be part of the baseline. 
Specifically, numerous States and localities have existing freeboard 
requirements that would result in elevation costs and benefits 
regardless of this proposed rule, so costs and benefits for these areas 
were reduced based on existing requirements. The total PHC cost is 
estimated to range between $1,690 and $24,071 per year for FEMA (PHCs 
are funded fully by FEMA). FEMA estimates that an average of 2.22 PHCs 
per year would be subject to FFRMS requirements. IA also includes the 
sale of MHUs. The total MHU cost is estimated to range between $238 and 
$3,383 per year. FEMA estimates that an average of 4.88 MHUs per year 
would be subject to FFRMS requirements. An MHU elevation must be paid 
fully by an IA grant recipient who ultimately purchases the MHU.
PA Projects
    PA Categories C, D, E, F, and G projects would be affected by the 
proposed rule, but FEMA is only able to provide partial estimates of 
costs associated with Categories C (Roads and Bridges) and E (Public 
Buildings).
    FEMA cannot estimate the costs of improving flood resiliency of 
roads because of the highly project-specific nature of road projects, 
and numerous options for making roads resilient. Damage to roads during 
flood events can be caused by erosion and scour, inundation by 
floodwater, or debris blockage, and can be worsened by issues such as 
misaligned culverts, insufficient culvert capacity, embankment erosion, 
road and shoulder damage, and obstructions that reduce culvert 
capacity. A sampling of mitigation actions that can improve the 
resiliency of a road to flooding include installing low water 
crossings, increasing culvert size, installing a relief culvert, adding 
rip rap to a road embankment to provide slope protection, installing 
structures such as aprons and baffle structures that dissipate the 
energy of floodwater, realigning culverts, and installing road shoulder 
subsurface drains.\65\
---------------------------------------------------------------------------

    \65\ See FEMA, ``FEMA B-797 Hazard Mitigation Field Book: 
Roadways'', (2010), available at http://www.fema.gov/media-library/assets/documents/19299.
---------------------------------------------------------------------------

    FEMA considers all PA Category C grants used to replace publicly-
owned bridges to be critical actions for the purposes of this analysis. 
There are a variety of techniques that can be used to floodproof a 
bridge, but the specific techniques depends on the specific bridge, 
location, and circumstances. FEMA estimates that the costs of this 
proposed rule for Category C bridge grants would range from a low of 
$5,645,515 per year to a high of $33,873,085 per year. FEMA estimates 
that an average of 7.10 PA Category C bridge projects per year would be 
subject to FFRMS requirements. The total cost to the PA program is 
estimated to be between $5,904,826 and $37,310,281 per year. With the 
75 percent cost share, the cost to FEMA would be between $4,428,620 and 
$27,982,711 per year, while the cost to grant recipients would be 
between $1,476,207 and $9,327,570 per year.
    FEMA used data from PA grant approvals from 2006-2015 and used a 
multi-step process to estimate the range of costs for elevating 
Category E structures. FEMA estimates that the elevation cost for 
Category E non-critical actions would be a low of $219,301 per year and 
a high of $3,123,171 per year. FEMA estimates that an average of 19.19 
PA Category E projects per year would be subject to FFRMS requirements. 
In addition, FEMA estimates that the total cost for Category E critical 
actions would range from a low of $40,009 per year to a high of 
$314,026 per year.
HMA Projects
    FEMA used data from HMA grant approvals for elevation and 
floodproofing of structures from 2006-2015 and a multi-step process to 
estimate the range of costs for elevating or floodproofing these 
structures. FEMA estimates that the total cost for HMA non-critical 
actions for elevation projects would range from a low of $138,999 per 
year to a high of $1,979,591 per year. In addition, FEMA estimates that 
the total cost for HMA critical actions for elevation projects would 
range from a low of $10,858 per year to a high of $85,229 per year. 
FEMA estimates that an average of 73.69 HMA elevation projects per year 
would be subject to FFRMS requirements. The total cost for HMA non-
critical actions for floodproofing projects would be a low of $2,188 
per year and a high of $31,165 per year. In addition, FEMA estimates 
that the total cost for HMA critical actions for floodproofing projects 
would be a low of $176 per year and a high of $1,397 per year. FEMA 
estimates that an average of 4.70 HMA floodproofing projects per year 
would be subject to FFRMS requirements. FEMA estimates the total cost 
of this rule for the HMA program to be between $152,221 and $2,097,382 
per year. With the 75 percent cost share, the cost to FEMA would be 
between $114,165 and $1,573,037 per year, while the cost to grant 
recipients would be between $38,055 and $524,346 per year.
    HMA also funds various other types of projects, such as minor flood 
control, property acquisition, generators, and mitigation 
reconstruction, but FEMA is unable to estimate the potential costs 
associated with these projects because the manner in which each 
applicant meets the resiliency standards will be fact-specific and 
dependent upon the nature of the design and purpose of the project. 
Additional minor mitigation measures would have to be taken for these 
projects, if located in the expanded FFRMS floodplain. FEMA requests 
public comments.
    The costs of the proposed rule would be from IA, PA, and HMA 
programs, as well as administrative costs. FEMA expects minimal costs 
associated with GPD and IPAWS because these programs do not fund new 
construction or substantial improvement projects. These projects are 
also by nature typically resilient from flooding. FEMA facilities may 
also be subject to additional requirements due to the implementation of 
the proposed rule.
    FEMA estimates that the total additional grants costs as a result 
of the proposed rule would be between $906,696 and $7.8 million per 
year for FEMA and between $301,906 and $2.6 million per year for grant 
recipients due to the increased elevation or floodproofing requirements 
of FEMA Federally Funded Projects.
    In addition, FEMA expects to incur some administrative costs as a 
result of this proposed rule. FEMA estimates initial training costs of 
around $100,000 the first two years after the rule is implemented, and 
administrative and training costs of around $16,000 per year 
thereafter. FEMA estimates that the total annual cost of this rule 
after year two would be between $6.1 million and $39.5 million.
    FEMA estimates the quantified cost of this proposed rule over the 
next 10 years would range between $60.1 million and $394.7 million. The 
present value (PV) of these estimated costs using a 7 percent discount 
rate would range between $42.9 million and $277.3 million. The PV using 
a 3 percent discount rate would range between $52.0 million and $336.7 
million. These costs would be split between FEMA (75 percent) and 
recipients (25 percent) of FEMA grants in the floodplain. The low 
estimates of the 10-year costs of this rule, discounted at 3 percent 
and 7 percent are presented in Table 3. The high estimates of the 10-
year costs of

[[Page 57426]]

this rule, discounted at 3 percent and 7 percent are presented in Table 
4.

                             Table 3--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates (Low Estimate, 2015$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Annual costs    Annual costs
                          Year                              FEMA Admin.     FEMA Grant    Recipient cost   Undiscounted    discounted at   discounted at
                                                               costs           costs           share       annual costs         3%              7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        $135,291      $4,544,475      $1,514,499      $6,194,265      $6,013,850      $5,789,033
2.......................................................         105,336       4,544,475       1,514,499       6,164,310       5,810,454       5,384,147
3.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,559,471       4,958,997
4.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,397,545       4,634,576
5.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,240,335       4,331,380
6.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,087,704       4,048,019
7.......................................................          16,010       4,544,475       1,514,499       6,074,984       4,939,518       3,783,195
8.......................................................          16,010       4,544,475       1,514,499       6,074,984       4,795,649       3,535,696
9.......................................................          16,010       4,544,475       1,514,499       6,074,984       4,655,970       3,304,389
10......................................................          16,010       4,544,475       1,514,499       6,074,984       4,520,359       3,088,214
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................         368,707      45,444,751      15,144,992      60,958,451      52,020,854      42,857,646
                                                         -----------------------------------------------------------------------------------------------
    Annualized..........................................  ..............  ..............  ..............  ..............       6,098,431       6,101,965
--------------------------------------------------------------------------------------------------------------------------------------------------------


                            Table 4--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates (High Estimate, 2015$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Annual costs    Annual costs
                          Year                              FEMA Admin.     FEMA Grant    Recipient cost   Undiscounted    discounted at   discounted at
                                                               costs           costs           share       annual costs         3%              7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        $135,291     $29,579,819      $9,855,299     $39,570,409     $38,417,873     $36,981,691
2.......................................................         105,336      29,579,819       9,855,299      39,540,454      37,270,670      34,536,164
3.......................................................          16,010      29,579,819       9,855,299      39,451,128      36,103,371      32,203,872
4.......................................................          16,010      29,579,819       9,855,299      39,451,128      35,051,817      30,097,077
5.......................................................          16,010      29,579,819       9,855,299      39,451,128      34,030,890      28,128,109
6.......................................................          16,010      29,579,819       9,855,299      39,451,128      33,039,699      26,287,953
7.......................................................          16,010      29,579,819       9,855,299      39,451,128      32,077,378      24,568,180
8.......................................................          16,010      29,579,819       9,855,299      39,451,128      31,143,085      22,960,916
9.......................................................          16,010      29,579,819       9,855,299      39,451,128      30,236,005      21,458,800
10......................................................          16,010      29,579,819       9,855,299      39,451,128      29,355,345      20,054,953
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................         368,707     295,798,190      98,552,993     394,719,890     336,726,132     277,277,715
                                                         -----------------------------------------------------------------------------------------------
    Annualized..........................................  ..............  ..............  ..............  ..............      39,474,575      39,478,109
--------------------------------------------------------------------------------------------------------------------------------------------------------

Benefits
    FEMA anticipates that the benefits of the proposed rule would 
justify the costs. FEMA has provided qualitative benefits, including 
the reduction in damage to properties and contents from future floods, 
potential lives saved, public health and safety benefits, reduced 
recovery time from floods, and increased community resilience to 
flooding.
    FEMA believes this proposed rule would result in savings in time 
and money from a reduced recovery period after a flood and increased 
safety of individuals. Generally, if properties are protected, there 
would be less damage, resulting in less clean-up time. In addition, 
higher elevations help to protect people, leading to increased safety. 
FEMA is unable to quantify these benefits, but improving the resiliency 
of bridges has significant qualitative benefits, including: Protecting 
evacuation and escape routes; limiting blockages of floodwaters passing 
under the bridge that may lead to more severe flooding upstream; and, 
avoiding the cost of replacing the bridge again if it is damaged during 
a subsequent flood. Any estimates of these savings would be dependent 
on the specific circumstances and FEMA is not able to provide a numeric 
value on these savings.
    A 2008 FEMA report analyzes potential savings from damage avoidance 
associated with including freeboard in the construction of new 
residential structures in coastal areas at various freeboard 
levels.\66\ According to this report, in some contexts a dollar spent 
on elevation activities could result in a $1.30 to $8.92 return on 
investment, due to damage avoidance only. This report shows that the 
benefits of incorporating freeboard exceed the costs for certain 
projects located in coastal flood zones. However, the report's scope is 
limited to new construction of houses in coastal areas. Due to the 
relatively narrow scope of the study, FEMA has not used the results of 
this report to estimate monetized benefits of freeboard to the 
nationwide projects that would be affected by this rule. FEMA requests 
information and studies from the public that examine the benefits of 
freeboard for a more diverse set of projects, such as non-residential 
structures, retrofitting substantial improvement projects, projects in 
non-coastal floodplains. If FEMA receives additional information that 
informs an estimate of the monetized benefits of freeboard to a broad 
range of structures, we may provide a monetized estimate of benefits in 
the final rule.
---------------------------------------------------------------------------

    \66\ FEMA, ``2008 Supplement to the 2006 Evaluation of the 
National Flood Insurance Program's Building Standards''. http://www.fema.gov/media-library-data/20130726-1911-25045-9876/2008_freeboard_report.pdf.
---------------------------------------------------------------------------

    For more in-depth review of these costs and benefits, please see 
the Regulatory Evaluation, which can be found in the docket for this 
rulemaking.

[[Page 57427]]

B. Regulatory Flexibility Act

    This section considers the effects that this proposed rule would 
have on small entities as required by the Regulatory Flexibility Act 
(RFA, 5. U.S.C. 601 et seq., Pub. L. 96-354) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have a 
``significant economic impact on a substantial number of small 
entities.'' 5 U.S.C. 605(b). Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    FEMA prepared an Initial Regulatory Flexibility Analysis (IRFA) for 
this proposed rule. This analysis is detailed in this section and 
represents FEMA's assessment of the impacts of this proposed rule on 
small entities. Section 1 outlines FEMA's initial assessment of small 
entities that would be affected by the proposed regulations. Section 2 
presents FEMA's analysis and summarizes the steps taken by FEMA to 
comply with the RFA.
1. Initial Assessment of Small Entities Affected by the Proposed 
Regulations
    The proposed rule would affect FEMA grant recipients that receive 
Federal funds for new construction, substantial improvement to 
structures, or to address substantial damage to structures and 
facilities. Many of these grants are available to local governmental 
jurisdictions and non-profit organizations. FEMA does not provide 
grants to for-profit businesses.
2. Analysis and Steps Taken To Comply With the Regulatory Flexibility 
Act
    The following IRFA addresses the following requirements of the RFA:
    (1) A description of the reasons why action by the agency is being 
considered;
    (2) a succinct statement of the objectives of, and legal basis for, 
the proposed rule;
    (3) a description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply;
    (4) a description of the projected reporting, recordkeeping and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record;
    (5) an identification, to the extent practicable, of all relevant 
Federal rules which may duplicate, overlap or conflict with the 
proposed rule;
    (6) a description of any significant alternatives to the proposed 
rule which accomplish the stated objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rule on 
small entities. Consistent with the stated objectives of applicable 
statutes, the analysis shall discuss significant alternatives such as: 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; the use of performance rather than design standards; and an 
exemption from coverage of the rule, or any part thereof, for such 
small entities.
2.1 Description of the Reasons Why Action by the Agency Is Being 
Considered
    On January 30, 2015, the President issued Executive Order 13690, 
which amended Executive Order 11988 and established a new flood risk 
management standard called the FFRMS. Executive Order 13690 directs 
agencies to issue or amend their existing regulations and procedures to 
comply with the Order; therefore, FEMA is updating its regulations at 
44 CFR part 9 and issuing an FFRMS policy.
    The FFRMS is intended to reduce flood risk by expanding the 
floodplain with respect to Federally Funded Projects, revising the 
definition of the floodplain, adding a definition of ``critical 
action,'' and requiring agencies to use natural systems, ecosystem 
processes, and nature-based approaches in the development of 
alternatives for Federal actions in the floodplain.
2.2 Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    FEMA is responsible for publishing information on floodplain areas 
and identifying special hazards. FEMA is also responsible for several 
grant programs that use Federal funds to assist in construction or 
reconstruction following a disaster, as well as grants for hazard 
mitigation and recovery. These grants can potentially be used for 
locations within a floodplain.
    To meet the requirements of section 2(d) of Executive Order 11988, 
requiring agencies to issue or amend existing regulations and 
procedures to implement the Executive Order, FEMA promulgated 
regulations which are located at 44 CFR part 9. FEMA is revising 44 CFR 
part 9 to reflect the changes to Executive Order 11988 made via 
Executive Order 13690.
    The objective of the proposed rule is to revise the regulations for 
locating FEMA Federally Funded Projects in an expanded floodplain to 
reduce the risk of flooding to those projects. In addition, for actions 
that are determined to be ``critical actions'' as defined by the 
proposed rule, the proposed rule would impose more stringent elevation 
and resiliency requirements. This is necessary to protect actions where 
even a slight chance of flooding is too great.
    The rule would also require the use of nature-based approaches, 
where possible, when considering alternatives for development in the 
floodplain. Nature-based approaches can include both natural and 
engineered features. The objective of requiring the use, where 
possible, of nature-based approaches is to help to restore the 
floodplain's natural processes. The use of nature-based approaches may 
result in reduced flood risks. In addition, nature-based approaches 
have less potential to degrade the natural and beneficial values of 
floodplains. Some examples of nature-based approaches could include 
restoring wetland functions along a coastal or riverine system to 
create a living shoreline or using green infrastructure measures to 
reduce runoff.
2.3 Description Of and Where Feasible, an Estimate of the Number of 
Small Entities To Which the Proposed Rule Will Apply
    This rule would affect certain recipients of FEMA grants. These 
would primarily be PA and HMA grant recipients, which include States, 
Tribal governments, local governments and certain non-profit 
organizations. The PA grant recipients would include Categories C, D, 
E, F, and G projects however, FEMA is only able to provide reasonable 
estimates of the number of entities and costs associated with 
Categories C (roads and bridges) and E (public buildings). IA and GPD 
are not discussed in this analysis. IA provides grants directly to 
individuals and individuals are not small entities as defined in 5 
U.S.C. 601(6). FEMA finds that this rule would likely have no effect on 
GPD grants because GPD projects are not typically substantial 
improvement or new construction.
    PA provides grants to States, Tribal governments, local governments 
and certain non-profit organizations for rebuilding, replacement, or 
repair of public and non-profit facilities damaged

[[Page 57428]]

by disasters. Where such rebuilding, replacement or repair involves new 
construction, substantial improvement, and repair of substantial damage 
of structures in the expanded FFRMS floodplain, PA recipients would 
incur additional costs to comply with proposed elevation and 
floodproofing requirements. Out of a population \67\ of 20,341 
individual PA Category E grant recipients, a random sample of 96 
recipients \68\ shows that 79 projects (approximately 82 percent) would 
meet the definition of small entities under the Regulatory Flexibility 
Act. This was made up of 45 small governments, 33 private non-profits, 
and one Tribal government. According to historical data, there have 
been an average of 44 new construction, substantial improvement, or 
repair of substantial damage PA Category E projects annually over the 
past 10 years with approximately 19 of these located in the 1 percent 
annual chance floodplain or expanded FFRMS floodplain. Therefore, FEMA 
estimates that 16 small entities would be affected each year through PA 
Category E projects (19 x 82 percent). As discussed earlier, FEMA did 
not include Categories D, F, and G projects therefore the total number 
of affected entities could be higher.
---------------------------------------------------------------------------

    \67\ PA Category C grant recipients (Roads & Bridges) were not 
included in this population as the dataset that FEMA used lists the 
project grantees (States and Tribes), and not subgrantees (local 
governments and private non-profits). Therefore FEMA is not able to 
estimate the number of small entities affected by Category C grants. 
Over the past 10 years, PA has funded the replacement of 71 bridges. 
FEMA requests data and/or comments to determine how many bridge 
replacement project grants go to small entities.
    \68\ The population of PA Category E projects includes all 
``Public Buildings'' grants from 2006-2015. Because of the large 
population, a random sample of 96 projects was drawn, using a 
confidence level of 95 percent and a 10 percent confidence interval.
---------------------------------------------------------------------------

    HMA provides mitigation grants to States, Tribal governments, local 
governments and certain non-profit organizations to, among other 
things, relocate property outside of the floodplain, or to elevate or 
floodproof structures to the flood level. As noted in the Regulatory 
Evaluation, HMA has funded an average of 67 projects per year from 
2006-2015. Unlike PA grants, the majority of HMA grants are for 
projects located in the floodplain, so for this analysis FEMA assumes 
that all HMA projects are in the floodplain. FEMA has estimated that 
the freeboard requirements would expand the floodplain by 16.8 percent 
based on studies conducted in 24 U.S. counties with varied topography. 
With the 16.8 percent expansion of the floodplain, HMA would have an 
additional 11 projects per year (67 x 16.8 percent = 11) for a total of 
78 projects located in the 1 percent annual chance floodplain or 
expanded FFRMS floodplain. Assuming 82 percent \69\ of HMA grant 
recipients are small entities, the proposed rule would affect 
approximately 64 small entities per year (78 projects x 82 percent).
---------------------------------------------------------------------------

    \69\ In FEMA's dataset, HMA recipients only included project 
titles and not the name of the grantee. This prevented FEMA from 
determining if a grant recipient was a small entity. Since PA and 
HMA provide funding to similar entities (States, Tribal governments, 
local governments and certain non-profit organizations) for disaster 
related activity, FEMA used the percentages of small entity grant 
recipients found in PA Category E as a proxy for HMA small entities.
---------------------------------------------------------------------------

2.4 Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
    FEMA will not be changing the application process for its grant 
programs. The majority of the costs of this proposed rule would fall on 
FEMA. Small entities, like all entities, would be subject to additional 
costs associated with floodproofing, elevation of structures, and flood 
resiliency measures required by the proposed rule. For the purposes of 
this analysis, and based on historical data, FEMA presents the costs 
such that most projects would choose to elevate because of the 
additional level of safety elevation provides over floodproofing and a 
historically higher number of projects that involved elevation as 
opposed to floodproofing.\70\ FEMA uses an NFIP report to estimate the 
cost of the proposed elevation requirements.\71\ The report provides 
estimates for the cost of elevating structures as a percentage of total 
construction cost.
---------------------------------------------------------------------------

    \70\ According to historical HMA data, there have been an 
average of 63 elevation projects and only 4 floodproofing projects 
per year.
    \71\ FEMA, ``2008 Supplement to the 2006 Evaluation of the 
national Flood Insurance Program's Building Standards'' Table 3. 
http://www.fema.gov/media-library-data/20130726-1911-25045-9876/2008_freeboard_report.pdf.
---------------------------------------------------------------------------

    According to HMA data, the average cost of floodproofing is 50 
percent of the cost of freeboard elevation. Floodproofing involves 
sealing off areas below the flood level so that water cannot enter, or 
altering the use of these areas so that flood waters may pass through 
without causing serious damage. Non-residential structures where 
elevation is not feasible may be floodproofed rather than elevated. 
Additionally, floodproofing preexisting properties may be less costly 
than elevating an existing property. So, where a project may floodproof 
rather than elevate, costs may be lower for some projects than the 
costs presented here. However, for existing properties that choose to 
elevate rather than floodproof, costs may be higher for some projects 
than the costs presented here because the NFIP report cost estimates 
are for when freeboard is included in the design of a structure. FEMA 
requests comments on these assumptions.
    The Federal cost-share of eligible PA work is generally 75 percent, 
so PA recipients would be required to fund 25 percent of the costs to 
comply with the requirements of the proposed rule.\72\ FEMA estimates 
that the average annual cost of the proposed rule for PA Category E 
projects would be between $13,648 and $180,905 \73\ per project. Using 
the Federal cost share, each small entity would have an average 
expected cost between $3,412 ($13,648 x 25 percent cost share) and 
$45,226 ($180,905 x 25 percent).
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    \72\ In extraordinary circumstances the Federal share for PA may 
be 90 percent when actual Federal obligations exceed a qualifying 
threshold. See 44 CFR 206.47.
    \73\ According to the Regulatory Evaluation for this proposed 
rule, FEMA estimates the average annual cost for 19 PA Category E 
projects is between $259,311 and $3,437,197. The estimated cost per 
project is between $13,648 ($259,311/19) and $180,905 ($3,437,197/
19). For information about how FEMA arrived at these estimates, 
please see the Regulatory Evaluation for this proposed rule located 
in the docket.
---------------------------------------------------------------------------

    The cost-sharing arrangement for HMA is 75 percent Federal and 25 
percent recipient, so HMA recipients would be required to fund 25 
percent of the costs to comply with the requirements of the proposed 
rule. FEMA estimates the average cost of the proposed rule for HMA 
projects would be between $1,952 and $26,890 annually.\74\ Using the 
Federal cost share, each small entities would have an average cost 
between $488 ($1,952 x 0.25) and $6,722 ($26,890 x 0.25).
---------------------------------------------------------------------------

    \74\ According to the Regulatory Evaluation for this proposed 
rule, FEMA estimates the annual cost for 78 HMA projects is between 
$152,221 and $2,097,382. The estimated cost per project is between 
$1,952 ($152,221/78 projects) and $26,890 ($2,097,382/78 projects). 
For information about how FEMA arrived at these estimates, please 
see the Regulatory Evaluation for this proposed rule located in the 
docket.
---------------------------------------------------------------------------

    Reporting and recordkeeping is not expected to change with the 
exception of minor changes to FEMA's Mitigation Grant Program/e-Grants 
system. This is an automated grant application and management system 
that would have one question changed as a result of this proposed rule. 
FEMA would still make the determination if a project would take place 
in an FFRMS floodplain. (See

[[Page 57429]]

the Paperwork Reduction Act section of this preamble below for 
information about the proposed revision to this collection of 
information.)
2.5 Identification, to the Extent Practicable, of Relevant Federal 
Rules Which may Duplicate, Overlap, or Conflict With the Proposed Rule
    This rule does not duplicate, overlap, or conflict with other 
Federal rules as the proposed rule only relates for FEMA Federally 
Funded Projects. Existing FEMA rules relating to compliance with 
Executive Order 11988, Floodplain Management are being modified to 
comply with Executive Order 13690, which amends Executive Order 11988.
2.6 Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    The standards proposed in this rule represent FEMA's efforts to 
implement Executive Order 13690, which establishes executive branch-
wide policy in this area. Small entities would have the option to 
relocate outside of the floodplain. This may be preferable in cases 
where property can be obtained and new facilities built for less cost 
than elevating or floodproofing to the freeboard level in the 
floodplain, and the recipient has the ability to relocate.
    Executive Order 13690 allows several approaches to determine the 
FFRMS floodplain, but FEMA is proposing to adopt the FFRMS-FVA in most 
cases. The FFRMS-FVA uses the most easily attainable data for elevation 
and floodproofing standards and is the most consistent with existing 
State and local regulations. As a result, FEMA's proposed approach 
would reduce the burden on small entities by not requiring a separate 
set of Federal requirements that are more likely to be different from 
existing State and local requirements. Section F of this NPRM, FEMA's 
Implementation of Executive Order 13690 and FFRMS, describes the FFRMS 
approaches allowed by Executive Order 13690 and FEMA's considerations 
when selecting between the FFRMS approaches.
    FEMA invites all interested parties to submit data and information 
regarding the potential economic impact that would result from adoption 
of the proposals in this proposed rule. FEMA will consider all comments 
received in the public comment process.

C. Unfunded Mandates Reform Act

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4, 2 U.S.C. 1531), each Federal agency shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and Tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law). Section 202 of the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) further requires 
that before promulgating any general notice of proposed rulemaking that 
is likely to result in the promulgation of any rule that includes any 
Federal mandate that may result in expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any 1 year, and 
before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement detailing the effect on State, local, and Tribal governments 
and the private sector. The proposed rule would not result in such an 
expenditure, and thus preparation of such a statement is not required.

D. National Environmental Policy Act (NEPA) of 1969

    Section 102 of the National Environmental Policy Act of 1969 
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 
et seq.) requires agencies to consider the impacts of their actions on 
the quality of the human environment. The Council on Environmental 
Quality's procedures for implementing NEPA, 40 CFR 1500 through 1508, 
require Federal agencies to prepare Environmental Impact Statements 
(EIS) for major Federal actions significantly affecting the quality of 
the human environment. Each agency can develop categorical exclusions 
to cover actions that have been demonstrated to not typically trigger 
significant impacts to the human environment individually or 
cumulatively. Agencies develop environmental assessments (EA) to 
evaluate those actions that do not fit an agency's categorical 
exclusion and those actions for which a categorical exclusion applies 
but extraordinary circumstances exist. At the end of the EA process the 
agency will determine whether to make a Finding of No Significant 
Impact or whether to initiate the EIS process.
    Rulemaking is a major Federal action subject to NEPA. Categorical 
exclusion A3 included in the list of exclusion categories at Department 
of Homeland Security Instruction Manual 023-01-001-01, Revision 01, 
Implementation of the National Environmental Policy Act, Appendix A, 
issued November 6, 2014, covers the promulgation of rules, issuance of 
rulings or interpretations, and the development and publication of 
policies, orders, directives, notices, procedures, manuals, and 
advisory circulars. The purpose of this proposed rule is to update the 
Floodplain Management and Protection of Wetland requirements to adopt 
the approaches outlined in Executive Order 13690 to establish the 
floodplain and associated flood elevation that must be used in the 
decision-making process to be followed by FEMA in applying Executive 
Orders 11988 and 13690 to its actions. The decision-making process 
requires FEMA to determine whether a proposed action is located in a 
wetland and/or the floodplain. FEMA is required to take mitigative 
measures, if it makes the determination to carry out an action in the 
floodplain. The rule would also add a requirement to use natural 
systems, ecosystem processes, and nature-based approaches in the 
development of alternatives for Federal actions in a floodplain. The 
result of applying the approaches outlined in Executive Order 13690 to 
establish the floodplain and associated flood elevation may be 
additional structures elevated or structures elevated to a higher 
level. Federal assistance for the reconstruction, elevation, 
retrofitting, upgrading to current codes and standards, and 
improvements to pre-existing facilities when the immediate project area 
has already been disturbed and when those actions do not alter basic 
functions, do not exceed the capacity of other system components, or 
modify intended land use are categorically excluded under Department of 
Homeland Security Instruction Manual 023-01-001-01, Revision 01, 
Implementation of the National Environmental Policy Act, Appendix A 
(N7). New construction upon or improvement of land where the proposed 
use is compatible with applicable planning and zoning standards and 
coastal management programs, the site is in a developed or previously-
disturbed site, the proposed use will not substantially increase the 
number of motor vehicles in the area, the site and scale of 
construction are consistent with nearby buildings, and the construction 
or improvement will not result in uses that exceed the existing support 
infrastructure capacities are categorically excluded under Department 
of Homeland

[[Page 57430]]

Security Instruction Manual 023-01-001-01, Revision 01, Implementation 
of the National Environmental Policy Act, Appendix A (E2). No 
extraordinary circumstances exist that will trigger the need to develop 
an EA or EIS. See Department of Homeland Security Instruction Manual 
023-01-001-01, Revision 01, Implementation of the National 
Environmental Policy Act, section (V)(B)(2). An EA will not be prepared 
because a categorical exclusion applies to this rulemaking action and 
no extraordinary circumstances exist.

E. Paperwork Reduction Act (PRA) of 1995

    As required by the Paperwork Reduction Act of 1995 (PRA), Public 
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.), 
FEMA may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless the collection of 
information displays a valid control number.
    In this proposed rule, FEMA is seeking a revision to the already 
existing collection of information, OMB Control Number 1660-0072, 
because FEMA is proposing to replace question E.1. on screenshot #10 in 
order to comply with the proposed FFRMS requirements. Currently, 1660-
0072's screenshot #10, E.1. reads: ``Does a Flood Insurance Rate Map 
(FIRM), Flood Hazard Boundary Map (FHBM), hydrologic study, or some 
other source indicate that the project is located in or will affect a 
100-year floodplain, a 500-year floodplain if a critical facility, an 
identified regulatory floodway, or an area prone to flooding?'' We are 
proposing to change it to: ``Does a Flood Insurance Rate Map (FIRM), 
Flood Hazard Boundary Map (FHBM), hydrologic study, or some other 
source indicate that the project is located in or will affect a 
floodplain (including a base floodplain, 500-year floodplain, or FFRMS 
floodplain), an identified regulatory floodway, or an area prone to 
flooding?'' This proposed rule serves as the 60-day comment period for 
this proposed change pursuant to 5 CFR 1320.11. FEMA invites the 
general public to comment on the proposed collection of information.
Collection of Information
    Title: Mitigation Grant Program/e-Grants.
    Type of Information Collection: Revision of a currently approved 
collection.
    OMB Number: 1660-0072.
    FEMA Forms: FEMA Form 101-0-0-1, Benefit Cost Determination; FEMA 
Form 093-0-0-1, Environmental Review; FEMA Form 080-0-0-12, Project 
Narrative-Sub-grant Application.
    Abstract: The FEMA pre-disaster mitigation grant programs--FMA and 
PDM--both utilize an automated grant application and management system 
known as e-Grants to apply for these grants. These programs provide 
funding to allow for the reduction or elimination of the risks to lives 
and property from hazards. The e-Grants system also provides the 
mechanism to provide quarterly reports of the financial status of the 
project and the final closeout report.
    Affected Public: State, local and Tribal Governments.
    Estimated Number of Respondents: 56.
    Estimated Number of Responses: 5,264.
    Estimated Total Annual Burden Hours: 43,848.
    Estimated Cost: There are no operation and maintenance, or capital 
and start-up costs associated with this collection of information.
Comments
    Comments may be submitted as indicated in the ADDRESSES caption 
above. Comments are solicited to (a) evaluate whether the proposed data 
collection is necessary for the proper performance of the agency, 
including whether the information shall have practical utility; (b) 
evaluate the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (c) enhance the quality, utility, and 
clarity of the information to be collected; and (d) minimize the burden 
of the collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses.

F. Privacy Act

    Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must 
determine whether implementation of a proposed regulation would result 
in a system of records. A ``record'' is any item, collection, or 
grouping of information about an individual that is maintained by an 
agency, including, but not limited to, his/her education, financial 
transactions, medical history, and criminal or employment history and 
that contains his/her name, or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of 
records'' is a group of 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 identifying particular assigned to 
the individual. An agency cannot disclose any record, which is 
contained in a system of records, except by following specific 
procedures.
    In accordance with DHS policy, FEMA has completed a Privacy 
Threshold Analysis for this proposed rule. This proposed rule does not 
affect the 1660-0072 OMB Control Number's current compliance with the 
Privacy Act of 1974, as amended, or the E-Government Act of 2002. OMB 
Control Number 1660-0072 is covered by the DHS/FEMA/PIA-006--FEMA 
National Emergency Management Information System Mitigation Electronic 
Grants Management System Privacy Impact Assessment (PIA). As a result, 
no update to DHS/FEMA/PIA-006 is necessary. OMB Control Number 1660-
0072 is covered under the System of Records Notice (SORN) for DHS/FEMA-
009 Hazard Mitigation, Disaster Public Assistance, and Disaster Loan 
Programs, 79 FR 16015, Mar. 24, 2014. This proposed rule does not 
create a new system of records and no update to this SORN is necessary.

G. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments,'' 65 FR 67249, Nov. 9, 2000, applies to agency 
regulations that have Tribal implications, that is, regulations that 
have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes. 
Under this Executive Order, to the extent practicable and permitted by 
law, no agency shall promulgate any regulation that has Tribal 
implications, that imposes substantial direct compliance costs on 
Indian Tribal governments, and that is not required by statute, unless 
funds necessary to pay the direct costs incurred by the Indian Tribal 
government or the Tribe in complying with the regulations are provided 
by the Federal Government, or the agency consults with Tribal 
officials.
    FEMA has reviewed this proposed rule under Executive Order 13175 
and

[[Page 57431]]

has determined that this rule does not have a substantial direct effect 
on one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.
    Part 9 applies to FEMA disaster and non-disaster assistance 
programs, including PA, Individual Assistance, HMA, and grants 
processed by GPD. Pursuant to section 8 of Executive Order 11988, Part 
9 does not apply to assistance provided for emergency work essential to 
save lives and protect property and public health and safety, performed 
pursuant to sections 403 and 502 of the Stafford Act, as amended (42 
U.S.C. 5170b and 5192).
    Indian Tribes have the same opportunity to participate in FEMA's 
grant programs as other eligible participants, and participation is 
voluntary. The requirements of this rule do not affect Tribes 
differently than other grant recipients. Therefore, FEMA does not 
expect this proposed rule to have a substantial direct effect on one or 
more Indian Tribes or impose substantial direct compliance costs on 
Indian Tribal governments, but will consider any information provided 
in comments to inform its analysis of this issue as part of a final 
rule.
    Notwithstanding FEMA's conclusion that this proposed rule does not 
have tribal implications, FEMA recognizes the importance of engaging 
with Tribes with respect to the FFRMS. FEMA therefore summarizes below 
the extensive engagement process that precedes this rule, including 
significant engagement with Tribal leaders. As noted above, in the 
aftermath of Hurricane Sandy, the President issued Executive Order 
13632,\75\ which created the Federal Interagency Hurricane Sandy 
Rebuilding Task Force (Sandy Task Force). This Task Force was chaired 
by the Secretary of HUD, who led the effort in coordination with 
multiple Federal partners, as well as an advisory group composed of 
State, local, and Tribal elected leaders.
---------------------------------------------------------------------------

    \75\ 77 FR 74341, Dec. 14, 2012.
---------------------------------------------------------------------------

    In June 2013, the President issued a Climate Action Plan which 
directs agencies to take the appropriate actions to reduce risk to 
Federal investments, specifically directing agencies to build on the 
work done by the Sandy Task Force and update their flood risk reduction 
standards for ``federally-funded projects'' to ensure that ``projects 
funded with taxpayer dollars last as long as intended.'' In November 
2013, the Climate Task Force convened, with 26 Governors, mayors, and 
local and Tribal leaders serving as members. After a year-long process 
of receiving input from across State, local, Tribal and territorial 
governments; private businesses; trade associations; academic 
organizations; civil society; and other stakeholders, the Task Force 
provided a recommendation to the President in November 2014 that, in 
order to ensure resiliency, Federal agencies, when taking actions in 
and around floodplains, should include considerations of the effects of 
climate change, including sea level rise, more frequent and severe 
storms, and increasing river flood risks.
    Executive Order 13690 amended Executive Order 11988 and established 
the FFRMS. It also set forth a process by which additional input from 
stakeholders could be solicited and considered before agencies took any 
action to implement the FFRMS. It required FEMA to publish, on behalf 
of the MitFLG, an updated draft version of the 1978 Guidelines \76\ 
revised to incorporate the changes required by Executive Order 13690 
and the FFRMS in the Federal Register for notice and comment. After the 
MitFLG received and adjudicated the comments, Executive Order 13690 
required the MitFLG to submit to the WRC recommendations for finalizing 
the draft Guidelines.
---------------------------------------------------------------------------

    \76\ The 1978 Guidelines were the original interpretation of 
Executive Order 11988.
---------------------------------------------------------------------------

    FEMA, on behalf of MitFLG, published a Federal Register notice for 
a 60-day notice and comment period seeking comments on a draft of the 
Revised Guidelines, 80 FR 6530, Feb. 5, 2015. Additionally, on February 
27, 2015, FEMA wrote to Tribal Leaders specifically asking for their 
comments regarding the Executive Order establishing the FFRMS.
    In response to multiple requests, the MitFLG extended the comment 
period for an additional 30 days to end on May 6, 2015. The 
Administration also attended or hosted over 25 meetings across the 
country with State, local, and Tribal officials (including 26 mayors) 
and interested stakeholders to discuss Executive Order 13690 and the 
Guidelines. The MitFLG held 9 public listening sessions across the 
country that were attended by over 700 participants from State, local, 
and Tribal governments and other stakeholder organizations to discuss 
the Guidelines. There were Tribal representatives at both the Ames, 
Iowa and Sacramento, California listening sessions; however, the 
specific Tribes that they were representing were not identified. The 
MitFLG published notice of these public listening sessions in the 
Federal Register.
    The public comment period closed on May 6, 2015. Two Tribes 
submitted formal comments on the Guidelines during the Federal Register 
comment period. The MitFLG adjudicated all comments and presented its 
adjudication and recommendations to the WRC as required. The WRC issued 
the Revised Guidelines on October 8, 2015 and the corresponding Notice 
published in the October 22, 2015 Federal Register at 80 FR 64008.
    FEMA welcomes Tribal comments on all aspects of this proposed rule.

H. Executive Order 13132, Federalism

    Executive Order 13132, ``Federalism,'' 64 FR 43255, Aug. 10, 1999, 
sets forth principles and criteria that agencies must adhere to in 
formulating and implementing policies that have federalism 
implications, that is, regulations that 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.'' Federal 
agencies must closely examine the statutory authority supporting any 
action that would limit the policymaking discretion of the States, and 
to the extent practicable, must consult with State and local officials 
before implementing any such action.
    FEMA has reviewed this proposed rule under Executive Order 13132 
and has determined that this rule does not have a substantial direct 
effect 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, and therefore 
does not have federalism implications as defined by the Executive 
Order.
    Part 9 applies to FEMA disaster and non-disaster assistance 
programs, including Public Assistance, Individual Assistance, HMA, and 
grants processed from GPD. Pursuant to section 8 of Executive Order 
11988, Part 9 does not apply to assistance provided for emergency work 
essential to save lives and protect property and public health and 
safety, performed pursuant to section 403 and 502 of the Stafford Act, 
as amended (42 U.S.C. 5170b and 5192). The proposed rule does not 
significantly affect the rights, roles, and responsibilities of States, 
and involves no preemption of State law nor does it limit State 
policymaking discretion.

[[Page 57432]]

I. Executive Order 12898, Environmental Justice

    Under Executive Order 12898, ``Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' (59 FR 7629, Feb. 16, 1994), as amended by Executive 
Order 12948, (60 FR 6381, Feb. 1, 1995), FEMA incorporates 
environmental justice into its policies and programs. The Executive 
Order requires each Federal agency to conduct its programs, policies, 
and activities that substantially affect human health or the 
environment, in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons from 
participation in programs, denying persons the benefits of programs, or 
subjecting persons to discrimination because of race, color, national 
origin or income level.
    FEMA does not expect this rule to have a disproportionately high 
and adverse human health or environmental effect on low income or 
minority populations, but will consider any information provided in 
comments to inform its analysis of this issue as part of a final rule.

J. Executive Order 12630, Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, ``Governmental 
Actions and Interference With Constitutionally Protected Property 
Rights'' (53 FR 8859, Mar. 18, 1988).

K. Executive Order 12988, Civil Justice Reform

    This NPRM meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 7, 
1996), to minimize litigation, eliminate ambiguity, and reduce burden.

L. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    This NPRM will not create environmental health risks or safety 
risks for children under Executive Order 13045, ``Protection of 
Children From Environmental Health Risks and Safety Risks'' (62 FR 
19885, Apr. 23, 1997).

M. Federal Participation in the Development and Use of Voluntary 
Consensus Standards and in Conformity Assessment Activities, OMB 
Circular A-119

    ``Voluntary consensus standards'' are standards developed or 
adopted by voluntary consensus standards bodies, both domestic and 
international. These standards include provisions requiring that owners 
of relevant intellectual property have agreed to make that intellectual 
property available on a non-discriminatory, royalty-free or reasonable 
royalty basis to all interested parties. OMB Circular A-119 directs 
agencies to use voluntary consensus standards in their regulatory 
actions in lieu of government-unique standards except where 
inconsistent with law or otherwise impractical. The policies in the 
Circular are intended to reduce to a minimum the reliance by agencies 
on government-unique standards.
    Consistent with President Obama's Climate Action Plan,\77\ the 
National Security Council staff coordinated an interagency effort to 
create a new flood risk reduction standard for Federally Funded 
Projects. The views of Governors, mayors, and other stakeholders were 
solicited and considered as efforts were made to establish a new flood 
risk reduction standard for Federally Funded Projects. The FFRMS is the 
result of these efforts.
---------------------------------------------------------------------------

    \77\ The White House, ``President Obama's Climate Action Plan, 
2nd Anniversary Progress Report--Continuing to cut carbon, 
pollution, protect American communities, and lead internationally.'' 
June 2015. https://www.whitehouse.gov/sites/default/files/docs/cap_progress_report_final_w_cover.pdf.
---------------------------------------------------------------------------

List of Subjects in 44 CFR Part 9

    Flood plains and Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, FEMA proposes to amend 
44 CFR part 9, as follows:

PART 9--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS

0
1. The authority citation for part 9 is revised to read as follows:

    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; 42 U.S.C. 5201; E.O. 13690, 80 FR 6425.

0
2. Revise Sec.  9.1 to read as follows:


Sec.  9.1  Purpose of part.

    This regulation sets forth the policy, procedure, and 
responsibilities to implement and enforce Executive Order 11988, 
Floodplain Management, as amended, and Executive Order 11990, 
Protection of Wetlands.
0
3. Amend Sec.  9.2 by revising paragraph (b)(3) to read as follows:


Sec.  9.2  Policy.

* * * * *
    (b) * * *
    (3) Reduce the risk of flood loss to life and property and improve 
the resilience of communities and Federal assets against the impacts of 
flooding based on the best-available and actionable science;
* * * * *
0
4. In Sec.  9.3:
0
a. Amend paragraph (a) by adding ``and was amended by Executive Order 
13690, January 30, 2015,'' to the end of the phrase; and
0
b. Revise the third sentence of paragraph (d).
    The revision reads as follows:


Sec.  9.3  Authority.

* * * * *
    (d) * * * Section 2(d) of Executive Order 11988 and Section 3(c) of 
Executive Order 13690 require issuance of new or amended regulations 
and procedures to satisfy their substantive and procedural provisions. 
* * *
0
5. In Sec.  9.4:
0
a. Add in alphanumeric order definitions for ``0.2 Percent Annual 
Chance Flood,'' ``0.2 Percent Annual Chance Floodplain,'' ``1 Percent 
Annual Chance Flood or Base Flood,'' ``1 Percent Annual Chance Flood 
Elevation or Base Flood Elevation,'' ``1 Percent Annual Chance 
Floodplain or Base Floodplain,'' and ``Associate Administrator;''
0
b. Remove the definitions of ``Base Flood'' and ``Base Floodplain;''
0
c. Revise the definition of ``Critical Action;''
0
d. Remove the definition of ``Emergency Actions;''
0
e. Add in alphabetical order definitions for ``Emergency Work,'' 
``Federal Flood Risk Management Standard (FFRMS),'' ``Federal Flood 
Risk Management Standard Floodplain,'' ``FEMA Federally Funded 
Project,'' and ``FIMA;''
0
f. Remove the definitions of ``Five Hundred Year Floodplain'' and 
``FIA,''
0
g. Revise the definition of ``Floodplain;''
0
h. Remove the definition of ``Mitigation Directorate;''
0
i. Add in alphabetical order a definition for ``Nature-Based 
Approaches;'' and
0
j. Revise the definitions of ``New Construction,'' ``Orders,'' and 
``Substantial Improvement.''
    The additions and revisions read as follows:


Sec.  9.4  Definitions.

    0.2 Percent Annual Chance Flood means the flood which has a 0.2 
percent

[[Page 57433]]

chance of being equaled or exceeded in any given year.
    0.2 Percent Annual Chance Floodplain means the area subject to 
flooding by the 0.2 percent annual chance flood.
    1 Percent Annual Chance Flood or Base Flood means the flood that 
has a 1 percent chance of being equaled or exceeded in any given year.
    1 Percent Annual Chance Flood Elevation or Base Flood Elevation 
means the computed elevation to which floodwater is anticipated to rise 
during the 1 percent annual chance or base flood. The specific term 
``base flood elevation'' or BFE is used in the National Flood Insurance 
Program (NFIP) and shown on FEMA Flood Insurance Rate Maps (FIRMs) and 
on the flood profiles in the FEMA Flood Insurance Study (FIS) Reports 
to indicate the minimum level of flooding to be used by a community in 
its floodplain management regulations.
    1 Percent Annual Chance Floodplain or Base Floodplain means the 
area subject to flooding by the 1 percent annual chance or base flood.
* * * * *
    Associate Administrator means the Associate Administrator of the 
Federal Insurance and Mitigation Administration.
* * * * *
    Critical Action means an action for which even a slight chance of 
flooding is too great. Critical actions include, but are not limited 
to, those which create or extend the useful life of structures or 
facilities:
    (1) Such as those which produce, use or store highly volatile, 
flammable, explosive, toxic or water-reactive materials;
    (2) 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;
    (3) 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
    (4) Such as generating plants, and other principal points of 
utility lines.
* * * * *
    Emergency Work means work essential to save lives and protect 
property and public health and safety performed under sections 403 and 
502 of the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act of 1988 (42 U.S.C. 5170b and 5192). See 44 CFR part 206, subpart C.
* * * * *
    Federal Flood Risk Management Standard (FFRMS) means the Federal 
flood risk management standard established by Executive Order 13690 to 
be incorporated into existing processes used to implement Executive 
Order 11988.
    Federal Flood Risk Management Standard (FFRMS) Floodplain means the 
floodplain established using one of the following approaches:
    (1) Climate-Informed Science Approach (CISA)--the elevation and 
flood hazard area that result from using a climate-informed science 
approach that uses the best-available, actionable hydrologic and 
hydraulic data and methods that integrate current and future changes in 
flooding based on climate science. This approach will also include an 
emphasis on whether the action is a critical action as one of the 
factors to be considered when conducting the analysis;
    (2) Freeboard Value Approach (FVA)--the elevation and flood hazard 
area that result from using the freeboard value, reached by adding an 
additional 2 feet to the base flood elevation for non-critical actions 
and by adding an additional 3 feet to the base flood elevation for 
critical actions;
    (3) 0.2 Percent Annual Chance Flood Approach (0.2PFA)--the area 
subject to flooding by the 0.2 percent annual chance flood; or
    (4) The elevation and flood hazard area that result from using any 
other method identified in an update to the FFRMS.
    FEMA Federally Funded Project means actions where FEMA funds are 
used for new construction, substantial improvement, or to address 
substantial damage to a structure or facility.
* * * * *
    FIMA means the Federal Insurance and Mitigation Administration.
* * * * *
    Floodplain means the lowland and relatively flat areas adjoining 
inland and coastal waters. The floodplain may be more specifically 
identified as the 1 percent annual chance (base) floodplain, the 0.2 
percent annual chance floodplain, or the FFRMS floodplain. 
``Floodplain'' does not include areas subject only to mudflow until 
FIMA adopts maps identifying ``M'' Zones.
* * * * *
    Nature-Based Approaches means the features (sometimes referred to 
as ``green infrastructure'') designed to mimic natural processes and 
provide specific services such as reducing flood risk and/or improving 
water quality. Nature-based approaches are created by human design (in 
concert with and to accommodate natural processes) and generally, but 
not always, must be maintained in order to reliably provide the 
intended level of service.
    New Construction means the construction of a new structure or 
facility or the replacement of a structure or facility which has been 
totally destroyed.
* * * * *
    Orders means Executive Order 11988, Floodplain Management, as 
amended by Executive Order 13690, and Executive Order 11990, Protection 
of Wetlands.
* * * * *
    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 Robert T. Stafford Disaster 
Relief and Emergency Assistance Act of 1988) before the repair or 
improvement is started, or 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.
* * * * *
0
6. In Sec.  9.5:
0
a. Revise paragraph (a)(3) and the last sentence in paragraph (c) 
introductory text, and paragraphs (c)(1) through (12);
0
b. Remove paragraphs (c)(13) and (14);
0
c. Revise the last sentence of paragraph (d) introductory text, 
paragraphs (d)(1) through (3), paragraph (d)(4) introductory text, the 
second sentence of paragraph (e), paragraph (f)(1), paragraph (f)(2) 
introductory text, and the fourth and fifth sentences of paragraph (g) 
introductory text.
    The revisions read as follows:


Sec.  9.5  Scope.

    (a) * * *
    (3) The amendments to this part incorporating the changes required 
by Executive Order 13690 and the FFRMS apply to new actions commenced 
on or after.
* * * * *
    (c) * * * The provisions of these regulations do not apply to the 
following (all references are to the

[[Page 57434]]

Robert T. Stafford Disaster Relief and Emergency Assistance Act of 
1988, Public Law 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 403 and 502;
    (2) Emergency Support Teams (section 303);
    (3) Unemployment Assistance (section 410);
    (4) Emergency Communications (section 418);
    (5) Emergency Public Transportation (section 419);
    (6) Fire Management Assistance (Section 420);
    (7) Community Disaster Loans (section 417), 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 Federal Assistance to Individuals and Households 
Program (section 408) categories of financial assistance:
    (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) Flood insurance premium;
    (vii) Temporary Housing.
    (9) Use of existing resources in the temporary housing assistance 
program [section 408], except that Step 1 (Sec.  9.7) shall be carried 
out;
    (10) Debris removal (section 407), except those grants involving 
non-emergency disposal of debris within a floodplain or wetland;
    (11) Repairs or replacements under section 406, of less than $5,000 
to damaged structures or facilities;
    (12) 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) * * * The references are to the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act of 1988, Public Law 93-288, as 
amended.
    (1) Actions performed under the Federal Assistance to Individuals 
and Households 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 422), 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 406 and 422).
    (4) Repairs under section 406 to damaged facilities or structures, 
except any such action for which one or more of the following is 
applicable:
* * * * *
    (e) * * * This finding will be made in consultation with the 
Federal Insurance and Mitigation Administration and the Council on 
Environmental Quality as provided in section 2(d) of Executive Order 
11988. * * *
    (f) The National Flood Insurance Program (NFIP). (1) Most of what 
is done by FIMA 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, FIMA 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, FIMA 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 FIMA 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 Sec.  
60.6(b) of this chapter.
    (2) The provisions set forth in this regulation are not applicable 
to the actions enumerated below except that the FIMA Associate 
Administrator shall comply with the spirit of the Orders to the extent 
practicable:
* * * * *
    (g) * * * The references are to the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act of 1988, Public Law 93-288. The 
above requirements apply to repairs, under section 406, between $5,000 
and $25,000 to damaged structures of facilities except for:
* * * * *
0
7. In Sec.  9.6, in paragraph (b), revise Step 1 to read as follows:


Sec.  9.6  Decision-making process.

* * * * *
    (b) * * *
    Step 1. Determine whether the proposed action is located in a 
wetland and/or a floodplain; and whether it has the potential to affect 
or be affected by a floodplain or wetland (see Sec.  9.7);
* * * * *
0
8. In Sec.  9.7, revise paragraphs (a), (b), and (c) to read as 
follows:


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 
a floodplain or a wetland.
    (b) Information needed. (1) The Agency shall obtain enough 
information so that it can fulfill the requirements of the Orders to:
    (i) Avoid floodplain and wetland locations unless they are the only 
practicable alternatives; and
    (ii) Minimize harm to and within floodplains and wetlands. In all 
cases, FEMA shall determine whether the proposed action is located in a 
floodplain or wetland. In the absence of a finding to the contrary, 
FEMA may assume that a proposed action involving a facility or 
structure that has been flooded is in the floodplain. Information about 
the 1 percent annual chance (base) floodplain, 0.2 percent annual 
chance floodplain, and FFRMS floodplain and location of floodways and 
coastal high hazard areas may also be needed to comply with these 
regulations, especially Sec.  9.11.
    (2) 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 making the floodplain 
determination, FEMA shall follow this sequence:
    (i) Determine whether the project is a FEMA Federally Funded 
Project as defined in Sec.  9.4. If the project is a FEMA Federally 
Funded Project, FEMA shall establish the FFRMS floodplain and

[[Page 57435]]

associated flood elevation by using one of the following approaches:
    (A) Climate-Informed Science Approach (CISA): The elevation and 
flood hazard area that result from using a climate-informed science 
approach that uses the best-available, actionable hydrologic and 
hydraulic data and methods that integrate current and future changes in 
flooding based on climate science. This approach will also include an 
emphasis on whether the action is a critical action as one of the 
factors to be considered when conducting the analysis;
    (B) Freeboard Value Approach (FVA): The elevation and flood hazard 
area that result from using the freeboard value, reached by adding an 
additional 2 feet to the base flood elevation as determined using the 
process defined in paragraph (c)(1)(iii) of this section for non-
critical actions and by adding an additional 3 feet to the base flood 
elevation as determined in paragraph (c)(1)(iii) of this section for 
critical actions;
    (C) 0.2 Percent Annual Chance Flood Approach (0.2PFA): The area 
subject to flooding by the 0.2 percent annual chance flood; or
    (D) The elevation and flood hazard area that result from using any 
other method identified in an update to the FFRMS.
    (ii) Notwithstanding any other provision of FEMA regulations, FEMA 
may select among and prioritize the approaches in paragraph (c)(1)(i) 
of this section by separate policy. In addition, FEMA may provide an 
exception to using the FFRMS floodplain for FEMA Federally Funded 
Projects and instead use the 1 percent annual chance (base) floodplain 
for non-critical actions or the 0.2 percent annual chance floodplain 
for critical actions where the action is in the interest of national 
security, where the action is an emergency action, where application to 
a Federal facility or structure is demonstrably inappropriate, or where 
the action is a mission-critical requirement related to a national 
security interest or an emergency action.
    (iii) If the project is not a FEMA Federally Funded Project as 
defined in Sec.  9.4, FEMA shall use, at a minimum, the 1 percent 
annual chance floodplain for non-critical actions and the 0.2 percent 
annual chance floodplain for critical actions. FEMA shall establish the 
floodplain and associated elevation by following this sequence:
    (A) The Regional Administrator shall consult the FEMA Flood 
Insurance Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and 
the Flood Insurance Study (FIS).
    (B) If a detailed map (FIRM or FBFM) is not available, the Regional 
Administrator shall consult a 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 other 
sources, such as the following Sources of Maps and Technical 
Information:
    (1) U.S. Department of Agriculture: Natural Resources Conservation 
Service;
    (2) Department of Defense: U.S. Army Corps of Engineers;
    (3) Department of Commerce: National Oceanic and Atmospheric 
Administration;
    (4) Department of Homeland Security: FEMA;
    (5) Department of the Interior: Bureau of Reclamation; U.S. Fish 
and Wildlife Service; United States Geological Survey;
    (6) Tennessee Valley Authority;
    (7) Department of Transportation;
    (8) Environmental Protection Agency;
    (9) General Services Administration; or
    (10) States and Regional Agencies.
    (C) 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 the determination of the floodplain 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 as described in 
paragraph (c)(1)(iii)(B) of 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 in paragraph 
(c)(1)(iii)(C) of this section.
* * * * *
0
 9. In Sec.  9.8, revise paragraph (c)(5)(ii) to read as follows:


Sec.  9.8  Public notice requirements.

* * * * *
    (c) * * *
    (5) * * *
    (ii) Based on the factors in paragraph (c)(3) of this section, a 
map of the area or other identification 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;
* * * * *
0
10. In Sec.  9.9:
0
a. In paragraph (b)(2), remove ``; and'' and add a period in its place 
and add a sentence to the end of paragraph (b)(2);
0
b. Revise paragraph (d)(1);
0
c. Remove paragraph (d)(2);
0
d. Redesignate paragraph (d)(3) as paragraph (d)(2); and
0
e. Lift the suspension of paragraph (e)(6) and remove the paragraph.
    The addition and revision read as follows:


Sec.  9.9  Analysis and reevaluation of practicable alternatives.

* * * * *
    (b) * * *
    (2) * * * In developing the alternative actions, the Agency shall 
use, where possible, natural systems, ecosystem processes, and nature-
based approaches; and
* * * * *
    (d) * * *
    (1) The Agency shall not locate the proposed action in the 
floodplain as established by Sec.  9.7(c) or in a wetland if a 
practicable alternative exists outside the floodplain or wetland.
0
11. In Sec.  9.11:
0
a. Revise paragraph (c)(1);
0
b. Revise the first sentence of paragraph (d) introductory text, the 
second sentence of paragraph (d)(2), and paragraphs (d)(3) and (d)(9);
0
c. Revise paragraphs (e)(1), (e)(2) introductory text, and (e)(2)(ii) 
introductory text;
0
d. Revise the last sentence in the undesignated paragraph following the 
National Flood Insurance Program address in paragraph (e)(3)(i)(E);
0
e. Revise paragraph (e)(3)(ii); and
0
f. Lift the suspension of paragraph (e)(4) and remove the paragraph.
    The revisions read as follows:


Sec.  9.11  Mitigation.

* * * * *
    (c) * * *
    (1) Potential harm to lives and the investment at risk in the 
floodplain as established in Sec.  9.7(c);
* * * * *
    (d) * * * 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). * * *
* * * * *

[[Page 57436]]

    (2) * * * 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 FFRMS floodplain.* * *
    (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 FFRMS 
floodplain.
    (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 
FFRMS floodplain.
    (iii) If the subject structure is nonresidential, FEMA may, instead 
of elevating the structure, 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 and 
Mitigation Administration has granted an exception under Sec.  60.6(b) 
of this chapter (formerly 24 CFR 1910.6(b)), or the community has 
granted a variance which the Regional Administrator determines is 
consistent with Sec.  60.6(a) of this chapter (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 
Sec.  60.6(a) of this chapter.
* * * * *
    (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 floodplain as established in Sec.  
9.7(c).
    (e) * * *
    (1) The Federal Insurance and Mitigation Administration shall make 
identification of all coastal high hazard areas a priority;
    (2) Beginning October 1, 1981, the Federal Insurance and Mitigation 
Administration of FEMA may only provide flood insurance for new 
construction or substantial improvements in a coastal high hazard area 
if:
* * * * *
    (ii) The structure is rated by FEMA-FIMA 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:
* * * * *
    (3)(i) * * *
    (E) * * * Unless a property owner is seeking an adjustment of the 
rate prescribed by FEMA-FIMA, this information need not be submitted.
    (ii) FIMA 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.
* * * * *
0
 12. In Sec.  9.13,
0
a. Revise paragraph (d)(1) and the first sentence of paragraph (d)(3) 
introductory text;
0
b. Add a sentence to the end of paragraph (d)(4)(i); and
0
c. Revise the first sentence of paragraph (d)(4)(ii), and revise 
paragraph (e).
    The revisions and addition read as follows:


Sec.  9.13  Particular types of temporary housing.

* * * * *
    (d) * * *
    (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 
the 1 percent annual chance (base) floodplain or wetland.
* * * * *
    (3) An individual or family shall not be housed in the 1 percent 
annual chance (base) 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. * * *
* * * * *
    (4) * * *
    (i) * * * Actual elevation levels will be based on manufacturer 
specifications and applicable Agency guidance.
    (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 parts 59-60) or any more restrictive Federal, 
State, or local floodplain management standard. * * *
* * * * *
    (e)(1) 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--
    (i) A compelling need of the family or individual to buy a mobile 
home for permanent housing; and
    (ii) A compelling requirement to locate the unit in a floodplain.
    (2) FEMA shall not sell or otherwise dispose of mobile homes or 
other readily fabricated dwellings in the FFRMS floodplain unless they 
are elevated at least to the level of the FFRMS floodplain.
    (3) 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.
0
 13. In Sec.  9.17, revise the first sentence of paragraph (a) and 
paragraph (b) introductory text to read as follows:


Sec.  9.17  Instructions to applicants.

    (a) * * * In accordance with Executive Orders 11988, as amended, 
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. * * *
    (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 ``Guidelines for Implementing Executive 
Order 11988, Floodplain Management, and Executive Oder 13690, 
Establishing a Federal Flood Risk Management Standard and a Process for 
Further Soliciting and Considering Stakeholder Input,'' and based upon 
the provisions of the Orders and this regulation, applicants for Agency 
assistance shall recognize and reflect in their application:
* * * * *
0
14. In Sec.  9.18, revise the second sentence of paragraph (b)(1) and 
the first

[[Page 57437]]

sentence of paragraph (b)(2) to read as follows:


Sec.  9.18  Responsibilities.

* * * * *
    (b) * * *
    (1) * * * When a decision of a Regional Administrator relating to 
disaster assistance is appealed, the Associate Administrator for FIMA 
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 
Executive Order 11988, as amended, and section 3 of Executive Order 
11990. * * *

Appendix A to Part 9 [Removed]

0
 15. Remove appendix A to part 9.

    Dated: August 15, 2016.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2016-19810 Filed 8-19-16; 8:45 am]
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