[Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
[Proposed Rules]
[Pages 53474-53514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16004]
[[Page 53473]]
Vol. 85
Friday,
No. 168
August 28, 2020
Part III
Department of Homeland Security
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Federal Emergency Management Agency
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44 CFR Parts 77, 78, 79, et al.
FEMA's Hazard Mitigation Assistance and Planning Regulations; Proposed
Rule
Federal Register / Vol. 85, No. 168 / Friday, August 28, 2020 /
Proposed Rules
[[Page 53474]]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Parts 77, 78, 79, 80, 201, and 206
[Docket ID: FEMA-2019-0011]
RIN 1660-AA96
FEMA's Hazard Mitigation Assistance and Planning Regulations
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 Hazard Mitigation Assistance (HMA) program regulations to
reflect current statutory authority and agency practice. FEMA's HMA
program regulations consist of the Flood Mitigation Assistance (FMA)
grant program, the Hazard Mitigation Grant Program (HMGP), financial
assistance for property acquisition and relocation of open space, and
mitigation planning program regulations. FEMA proposes to revise the
FMA grant program regulations to incorporate changes made by amendments
to the National Flood Insurance Act of 1968 (NFIA). Finally, FEMA
proposes to update terms and definitions throughout the HMA and
Mitigation Planning program regulations to better align with uniform
administrative requirements that apply to all Federal assistance.
DATES: Comments are due on or before October 27, 2020.
ADDRESSES: You may submit comments, identified by Docket ID: FEMA-2019-
0011, 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, Room 8NE, 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: Katherine Fox, Assistant Administrator
for Mitigation, Federal Emergency Management Agency, 202-646-1046,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation
We encourage you to participate in this rulemaking by submitting
comments and related materials. We will consider all comments and
material 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 material by electronic means, mail, or
delivery to the address under the ADDRESSES section. Please submit your
comments and material 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 http://www.regulations.gov, and will include any
personal information you provide. Therefore, submitting this
information makes it public. You may wish to read the Privacy and
Security Notice that is available via a link on the homepage of http://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 FEMA, Office of Chief
Counsel, Room 8NE, 500 C Street SW, Washington, DC 20472-3100.
Public Meeting: We do not plan to hold a public meeting, but you
may submit a request for one at the address under the ADDRESSES section
explaining why one would be beneficial. If FEMA determines that a
public meeting would aid this rulemaking, it will hold one at a time
and place announced by a notice in the Federal Register.
II. Background
A. Overview of Hazard Mitigation Assistance Programs
FEMA's Hazard Mitigation Assistance (HMA) grant programs provide
funding for eligible mitigation activities that reduce disaster losses
and protect life and property from future disaster damages. FEMA
currently administers three hazard mitigation assistance programs under
the HMA umbrella: (1) The Flood Mitigation Assistance (FMA) program (a
grant program, described in 44 CFR parts 78 and 79); (2) the Hazard
Mitigation Grant Program (HMGP) (44 CFR part 206, subpart N); and (3)
the Pre-Disaster Mitigation (PDM) program (implemented via guidance and
the annual grants process without corresponding regulations).
Mitigation planning requirements (44 CFR part 201) and requirements for
property acquisition and relocation for open space (44 CFR part 80)
apply to all three HMA programs. The Hazard Mitigation Assistance
Guidance (hereinafter ``HMA Guidance'') provides comprehensive guidance
for all three HMA programs and supplements the FMA program and HMGP
program regulations.\1\
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\1\ Federal Emergency Management Agency, Hazard Mitigation
Assistance Guidance (hereinafter ``HMA Guidance''), Feb. 27, 2015,
available at https://www.fema.gov/media-library-data/1424983165449-38f5dfc69c0bd4ea8a161e8bb7b79553/HMA_Guidance_022715_508.pdf (last
accessed Feb. 13, 2020). As noted in this preamble, the PDM program
does not have implementing regulations, but rather is implemented
through the annual grants process, including the Notice of Funding
Opportunity, and other policy and guidance statements, including the
HMA Guidance.
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The majority of the revisions FEMA proposes in this rulemaking
apply to the FMA regulations. FEMA proposes a few changes to the HMGP
regulations as well. Below, FEMA provides a general description of the
FMA and HMGP programs, and then a more detailed discussion of how FEMA
administers the FMA program.
1. Flood Mitigation Assistance Program (FMA)
Section 1366 of the National Flood Insurance Act of 1968 (NFIA), 42
U.S.C. 4104c, as amended, authorized the FMA program to reduce or
eliminate claims under the National Flood Insurance Program (NFIP). The
FMA program provides funds on an annual basis for projects to reduce or
eliminate risk of flood damage to buildings, manufactured homes, and
other structures insured under the NFIP. See 42 U.S.C. 4104c(a); 44 CFR
79.1(c). Currently, 44 CFR parts 78 and 79 prescribe actions,
procedures, and requirements for the administration of the FMA program.
The requirements in part 78 applied only to those FMA grants for which
the application period opened prior to December 3, 2007. See 44 CFR
78.1(a). The requirements in part 79 apply to all FMA funds awarded on
or after December 3, 2007. See 44 CFR 79.1(a).
In accordance with 44 CFR part 201, ``Mitigation Planning,'' all
State and Tribal applicants must have a FEMA-approved State or Tribal
mitigation plan as a condition of receiving any FEMA mitigation grant,
including FMA grants. See 44 CFR 201.4(a), 201.7(a)(1). Subapplicants
consisting of local governments and Tribal governments
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must have a FEMA-approved mitigation plan in order apply for and
receive mitigation project grants under FMA and PDM. See 44 CFR
201.6(a), 201.7(a)(3).
2. Hazard Mitigation Grant Program (HMGP)
Section 404 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (Stafford Act), 42 U.S.C. 5170c, authorized HMGP.
Implementing regulations for HMGP are found at 44 CFR part 206, subpart
N. The key purpose of HMGP is to substantially reduce the risk of
future damage, hardship, loss, or suffering in any area affected by a
major disaster. See 42 U.S.C. 5170c(a). HMGP funding is available, when
authorized under a Presidential major disaster declaration,\2\ in the
areas requested by the Governor or chief executive of the Tribe. See
id.; HMA Guidance Part 1.B(1), p. 4. State agencies, local governments,
private nonprofit organizations, and Indian Tribal governments are
eligible to apply for HMGP assistance.\3\ The level of HMGP funding
available for a given disaster is based on a percentage of the
estimated total Federal assistance available under the Stafford Act,
excluding administrative costs, for each Presidential major disaster
declaration. See 44 CFR 206.432(b). States and Indian Tribal
governments applying for HMGP funding must have a FEMA-approved State
or Tribal mitigation plan at the time of the Presidential major
disaster declaration and at the time FEMA obligates HMGP funding. See
42 U.S.C. 5165; 44 CFR 201.4. Subapplicants, including local
governments and Indian Tribal governments, must have a FEMA-approved
mitigation plan in order to receive HMGP subawards. See 42 U.S.C.
5165(a), (b); 44 CFR 201.6(a), 201.7(a), 206.434(b).
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\2\ Note that there is an exception to the requirement that
there be a Presidential major disaster declaration to receive HMGP
funding. This exception is HMGP Post Fire, which provides mitigation
assistance under HMGP generally for wildfire. It is triggered not by
a Presidential major disaster declaration, but by a Fire Management
Assistance Grant declaration under section 420 of the Stafford Act.
See 42 U.S.C. 5170c(a).
\3\ 44 CFR 206.434(a). Eligible subapplicants apply to the
recipient (also known as the ``grantee'') for HMGP subawards. The
recipient may be the State for which the major disaster is declared,
or an Indian Tribal government choosing to act as a recipient
instead of a subrecipient. See 44 CFR 206.431, definition of
``grantee.''
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3. Property Acquisition and Relocation for Open Space
Part 80 provides guidance on the administration of FEMA mitigation
assistance for projects to acquire property for open space purposes
under all FEMA HMA programs. See 44 CFR 80.1.
B. FMA Program Administration
FMA is a non-disaster program allowing communities to complete
mitigation activities so that structures insured under the NFIP are
protected from future damages and the need for future insurance claims
is lessened. FMA grants are subject to availability of annual Federal
appropriations, as well as to any program-specific directive or
restrictions with respect to such funds.
The FMA is a competitive grant program, meaning FEMA reviews the
applications submitted and selects the most qualified for an award.
Each year, FEMA publishes a Notice of Funding Opportunity (NOFO)
announcing the availability of funding and program requirements.\4\ In
addition, projects must meet the minimum eligibility criteria
identified in 44 CFR 79.6. The criteria ensure that FEMA selects cost-
effective and beneficial mitigation projects for FMA funding.
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\4\ The most recent NOFO was posted on www.grants.gov and can be
viewed at this link: https://www.grants.gov/web/grants/search-grants.html.
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Applicants for the FMA program can be States and/or Indian Tribal
governments.\5\ See 44 CFR 79.2(b). Subapplicants can be a State
agency, community,\6\ or Indian Tribal government.\7\ See 44 CFR
79.2(i). Subapplicants must participate in the NFIP. See 44 CFR
79.6(a)(1). Subapplicants that have withdrawn from the NFIP, or those
that FEMA has suspended for failure to comply with floodplain
management requirements, are not eligible. See 44 CFR 79.6(a)(3).
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\5\ An Indian Tribal government is any Federally recognized
governing body of an Indian or Alaska Native Tribe, band, nation,
pueblo, village, or community that the Secretary of Interior
acknowledges to exist as an Indian Tribe under the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a. This does
not include Alaska Native corporations, the ownership of which is
vested in private individuals. 44 CFR 79.2(e).
\6\ Community means a political subdivision, including any
Indian Tribe, authorized Tribal organization, Alaska Native village
or authorized native organization, that has zoning and building code
jurisdiction over a particular area having special flood hazards,
and is participating in the NFIP, or a political subdivision of a
State, or other authority that is designated by a political
subdivision to develop and administer a mitigation plan. 44 CFR
79.2(c).
\7\ See supra note 5.
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Subapplicants submit their applications to the applicant during the
open application cycle as noted in the NOFO. Applicants then select,
prioritize, and forward subapplications to FEMA by the deadline
established in the NOFO. FEMA awards FMA funds to the applicant, who
becomes the recipient. The recipient then disburses funding for the
approved subawards to the subapplicants, who become subrecipients.
Recipients and subrecipients must comply with all program requirements
and other applicable Federal, State, territorial, and Tribal laws and
regulations. See 44 CFR 79.3(b)(6) and (d)(4).
A grant recipient/subrecipient must use FMA funds for mitigation
planning and mitigation projects that will reduce or eliminate the risk
of flood damages to properties insured under the NFIP. See 44 CFR
79.6(c). An example of a hazard mitigation project is the elevation of
a home to reduce risk of flood damage. Eligible mitigation projects
must be cost-effective or able to eliminate future payments from the
National Flood Insurance Fund (NFIF) for severe repetitive loss
structures through an acquisition or relocation activity. See 42 U.S.C.
4104c(c)(2)(A). To demonstrate cost-effectiveness, a project's
anticipated benefits must be equal to or more than the cost of
implementing the project, which is demonstrated through a benefit-cost
analysis that compares the cost of the project to the benefits
anticipated to occur over the lifetime of the project.\8\
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\8\ See HMA Guidance, Part III.E.3, Cost-Effectiveness, p. 44.
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FMA applicants must have a FEMA-approved State or Tribal mitigation
plan as a condition of receiving an FMA award. See 44 CFR 79.6(b)(1),
201.4(a), 201.7(a)(1). FMA subapplicants must have a FEMA-approved
mitigation plan in order to apply for and receive mitigation project
grants. See 44 CFR 79.6(b)(2), 201.6(a), 201.7(a)(3). Applicants/
subapplicants must propose projects for FMA grants that are consistent
with the goals and objectives of the State or Tribal Mitigation Plan,
and, for subawards, the Local or Tribal Mitigation Plan.\9\
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\9\ 42 U.S.C. 4104c(c)(1); see HMA Guidance, Part III.E.5,
Hazard Mitigation Plan Requirement, p. 44.
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C. Statutory Changes to FMA
The Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12),
Public Law112-141, 126 Stat. 916, reformed and streamlined the NFIA's
hazard mitigation grant programs. Before BW-12, the NFIA authorized
three distinct grant programs: (1) The FMA program (44 CFR part 79);
(2) the Repetitive Flood Claims (RFC) program (implemented through
guidance); and (3) the Severe Repetitive Loss (SRL) program (44 CFR
part 79). BW-12 eliminated the RFC and SRL programs and consolidated
aspects of those
[[Page 53476]]
programs into a reformed FMA program.\10\
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\10\ The RFC and SRL programs were authorized by the Bunning-
Bereuter-Blumenauer Flood Insurance Reform Act of 2004, Public Law
108-264, 118 Stat. 712. The RFC program was designed to reduce the
long-term risk of flood damage to structures insured under the NFIP
that have had one or more claim payments for flood damage. RFC funds
were used to mitigate structures located within a State or community
that were not eligible to receive funding under the FMA program at
the time. Under the RFC program, funds could only be awarded if the
State and community could not meet the FMA's cost share requirement,
or if the State or community lacked the capacity to manage the
activity under the FMA program. The SRL program was a voluntary
pilot program designed to reduce or eliminate the long-term risk of
flood damage to severe repetitive loss residential structures
insured under the NFIP. Under the SRL program, an SRL property was
defined as a residential property that is covered under an NFIP
flood insurance policy and: (a) That has at least four NFIP claim
payments (including building and contents) over $5,000 each, and the
cumulative amount of such claims payments exceeds $20,000; or (b)
For which at least two separate claims payments (building payments
only) have been made with the cumulative amount of the building
portion of such claims exceeding the market value of the building.
At least two of the referenced claims must have occurred within any
10-year period, and must be greater than 10 days apart.
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1. Changes to Method of Program Funding
Before BW-12, FEMA allocated FMA program funding to States each
fiscal year based upon the number of NFIP policies within the State,
the number of repetitive loss structures within the State, and other
criteria the Administrator determined to be in the best interests of
the NFIF.\11\ FEMA allocated funding under the SRL program to States
each fiscal year based upon the percentage of the total number of
severe repetitive loss properties located within that State.\12\ Funds
allocated to States that chose not to participate in either the FMA or
SRL program in any given year were reallocated to participating States
and Indian Tribal applicants.\13\ BW-12 replaced this process with a
fully competitive program under which, as described above, FEMA selects
subapplications against agency priorities identified in annual
appropriations and the NOFO. In addition to involving a simpler formula
that is easier to implement, this allows FEMA to better prioritize
funding awards to the most at-risk (i.e., severe repetitive loss)
properties.
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\11\ Public Law 108-264, 118 Stat. 721; 44 CFR 79.4(a)(2).
\12\ Public Law 108-264, 118 Stat. 716; 44 CFR 79.4(a)(1).
\13\ 44 CFR 79.4(b).
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2. Changes to Cost Share
Before BW-12, FEMA generally contributed up to 75 percent of the
eligible activity costs for mitigation projects under the FMA and SRL
programs.\14\ However, FEMA made available an increased Federal cost
share of up to 90 percent for the mitigation of severe repetitive loss
properties if the applicant had a repetitive loss strategy in its
approved State or Tribal mitigation plan.\15\ If neither the applicant
nor the subapplicant could meet the FMA non-Federal share requirement,
FEMA made available up to 100 percent of the project cost under the RFC
program.\16\
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\14\ 44 CFR 79.4(c)(1).
\15\ 44 CFR 79.4(c)(2).
\16\ Public Law 108-264, 118 Stat. 722.
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Under the FMA program, as amended by BW-12, FEMA may contribute up
to 90 percent of the eligible costs of projects that mitigate
repetitive loss structures, and up to 100 percent of the eligible costs
of projects that mitigate severe repetitive loss structures.\17\ For
all other mitigation activities, including activities to properties
that are NFIP-insured but do not meet the repetitive loss or severe
repetitive loss definitions, FEMA may contribute up to 75 percent of
the eligible costs.\18\ These changes to the FMA program resulted in
increased funding to the most vulnerable properties (severe-repetitive
loss properties) and decreased funding to less vulnerable (repetitive
loss) properties.
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\17\ 42 U.S.C. 4104c(d). The term ``repetitive loss structure''
is defined at 42 U.S.C. 4104c(h)(2) (cross-reference to 42 U.S.C.
4121(a)(7)). The term ``severe repetitive loss structure'' is
defined at 42 U.S.C. 4104c(h)(2)(3).
\18\ 42 U.S.C. 4104c(d).
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3. Other Changes
BW-12 made a number of other changes to the FMA program, including
eliminating the cap on FMA funding for States and communities (but not
changing the overall amount of grant funding available); eliminating
the limit on in-kind contributions for the non-Federal cost share;
limiting funds for the development or update of mitigation plans to
$50,000 Federal share to any applicant or $25,000 Federal share to any
subapplicant; and removing the restriction on awarding State or
community planning grants more than once every 5 years.
III. Proposed Rule and Section-by-Section Analysis
FEMA implemented the provisions of BW-12 that affected the HMA
grant programs through the HMA Guidance.\19\ FEMA now proposes to
update the FMA program regulations (44 CFR parts 78 and 79) to reflect
the revisions made by BW-12. This rule proposes to remove part 78 in
its entirety, redesignate part 79 as part 77, and revise the FMA
regulations which would be located in the new part 77.
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\19\ While the current HMA Guidance, supra note 1, reflects the
changes required by BW-12, these changes were first implemented in
the Fiscal Year 2013 version of the HMA Guidance. See Fiscal Year
2013 Hazard Mitigation Assistance Unified Guidance, July 12, 2013,
Part I.B.1, Programmatic Changes, pp. 4-5, available at https://www.fema.gov/media-library-data/15463cb34a2267a900bde4774c3f42e4/FINAL_Guidance_081213_508.pdf (last accessed Jan 8, 2020).
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FEMA proposes to make the following revisions pursuant to BW-12:
Remove regulations pertaining to the SRL program;
revise the cost share provisions to reflect the matching
requirements established by BW-12;
eliminate the cap on FMA funding for States and
communities;
eliminate the limit on in-kind contributions for the non-
Federal cost share;
specify that elevation, relocation or floodproofing of
utilities are eligible activities;
clarify that the required flood mitigation plan may be
part of a community's multi-hazard mitigation plan;
limit funds for the development or update of mitigation
plans to $50,000 Federal share to any applicant or $25,000 Federal
share to any subapplicant; and
remove the restriction on awarding State or community
planning grants only once every 5 years.
FEMA also proposes revisions to streamline the FMA regulations and
clarify current practice. FEMA describes these revisions in detail in
this section. FEMA proposes to update terms and references throughout
the various HMA-related regulations, including the hazard mitigation
assistance and planning regulations in 44 CFR parts 80 (Property
Acquisition and Relocation for Open Space), 201 (Mitigation Planning),
and 206 subpart N (HMGP).
On December 26, 2013, the Office of Management and Budget (OMB)
finalized government-wide guidance entitled Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards.\20\ These standard requirements for Federal awards are codified
at 2 CFR part 200. The regulations at 2 CFR part 200 apply to FEMA
awards made on or after December 26, 2014, and to awards made under
major disaster declarations on or after that date.\21\ In this proposed
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rule, FEMA proposes to replace outdated terms and definitions with
substantively similar terms and definitions that align with 2 CFR part
200 and the HMA Guidance. These are nonsubstantive revisions intended
to simplify definitions and improve consistency among FEMA's HMA
programs.
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\20\ 78 FR 78589.
\21\ As part of a joint interim final rule effective December
26, 2014, the Department of Homeland Security (of which FEMA is a
component) adopted the requirements of 2 CFR part 200 at 2 CFR part
3002. 79 FR 75871 (Dec. 19, 2014).
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A. 44 CFR Part 78, Flood Mitigation Assistance
Part 78 applies to the administration of funds under the FMA
program for which the application period opened on or before December
3, 2007. Because all funds appropriated for FMA before December 3,
2007, have been expended, it is unnecessary to retain part 78 and
therefore, FEMA proposes to remove part 78 in its entirety.
B. 44 CFR Part 79, Flood Mitigation Grants
The regulations governing the current FMA program are at 44 CFR
part 79. FEMA proposes to redesignate part 79 as part 77, which is
currently reserved, to establish the revised FMA program regulations.
FEMA proposes to reserve part 79. Following is a detailed discussion of
the proposed revisions to part 79 (proposed to be redesignated as part
77).
1. Part 79 (Proposed Part 77) Authority
FEMA proposes to revise the authority citation for part 79
(proposed part 77) to remove historical authorities relating to FEMA's
organization. FEMA proposes to remove the references to the
Reorganization Plan No. 3 of 1978, Executive Order 12127, Executive
Order 12148, and Executive Order 13286. The Reorganization Plan and
Executive Orders 12127 and 12148 established FEMA as an agency in 1979
and established its functions. Executive Order 13286 revised Executive
Order 12148 and transferred some of FEMA's authorities to the
Department of Homeland Security (DHS). FEMA proposes to remove these
cites but retain the citation to the Homeland Security Act of 2002, 6
U.S.C. 101 et seq., which provided organic authority for FEMA and made
it a component agency of DHS. FEMA proposes to retain the citations to
the NFIA (42 U.S.C. 4001 et seq.; 42 U.S.C. 4104c, 4104d) as they are
the main authorities for this part.
2. Section 79.1 (Proposed Sec. 77.1) Purpose
FEMA proposes to change the title from ``Purpose'' to ``Purpose and
applicability'' to reflect the content of the section. FEMA proposes to
revise paragraph (a), addressing the purpose of the part, to
incorporate language from current paragraph (c) addressing the purpose
of the FMA program. Paragraph (c) states that the FMA program is to
provide financial assistance to ``State and local governments'' to
reduce the risk of flood damage to NFIP-insured structures. FEMA
proposes to replace ``local governments'' with ``communities'' because
the term ``community'' is more inclusive of the entities eligible for
assistance.\22\ FEMA's definition of ``community'' at 44 CFR 79.2(c)
includes Tribes as well as local governments. In addition to States and
communities, FEMA proposes to also include Indian Tribal governments in
revised paragraph (a). Indian Tribal governments have a unique and
direct relationship with the Federal Government and are recognized as
distinct sovereign entities.\23\ While Indian Tribal governments can
assume the responsibilities of the community (as subapplicant or
subrecipient, when applying through the State), they can also be direct
recipients of FMA funding. See 44 CFR 79.2(c), 79.2(d), 79.3(c)(2), and
79.3(c)(3). That an Indian Tribal government is eligible to apply
directly to FEMA for FMA funding is already established in the current
program regulations in part 79. See 44 CFR 79.2(d) and 79.3(c)(2).
Including Indian Tribal governments in the purpose statement is
consistent with the rest of the substantive FMA program regulations in
part 79 and gives Indian Tribal governments the level of recognition
commensurate with States. FEMA also proposes to remove references to
the SRL program in paragraph (a), because BW-12 eliminated the SRL
program. FEMA stopped issuing SRL grants in Fiscal Year 2013. FEMA also
proposes to remove current paragraph (b), which describes the purpose
of the SRL program.
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\22\ See 42 U.S.C. 4104c(a) ``The Administrator shall carry out
a program to provide financial assistance to States and
communities.'' FEMA defines ``community'' in the current regulations
at 44 CFR 79.2(c); the definition includes local governments and
Tribes.
\23\ See FEMA Tribal Policy, FEMA Policy #305-111-1, Dec. 27,
2016, available at https://www.fema.gov/media-library-data/1483536222523-e549608aa77ec6cb623fae5d5de82930/FEMA_Tribal_Policy.pdf (last accessed Feb. 13, 2020).
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FEMA proposes to add a new paragraph (b) to address the
applicability of the part to the administration of funds under the FMA
program for which the application period opens on or after the
effective date of the rule.
Finally, FEMA proposes to remove paragraph (c), as FEMA has
incorporated the language describing the purpose of the FMA program
into revised paragraph (a).
3. Section 79.2 (Proposed Sec. 77.2) Definitions
FEMA proposes to revise the definitions section to reflect changes
required by BW-12. FEMA proposes to revise the definition of
``community'' to reflect the definition provided in BW-12.\24\ This
change is intended to mirror the statutory definition and is not a
substantive change to the current definition at 44 CFR 79.2(c).
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\24\ See 42 U.S.C. 4104c(h)(1).
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FEMA proposes to replace the definition of ``severe repetitive loss
properties'' with the definition of ``severe repetitive loss
structure'' from BW-12. The definition of ``severe repetitive loss
properties'' at current 44 CFR 79.2(h) reflects the pre-BW-12
definition that was included in the statutory section authorizing the
SRL pilot program.\25\ BW-12 removed the statutory section for the SRL
pilot program, including the definition of ``severe repetitive loss
property,'' and established a definition for ``severe repetitive loss
structure'' that is applicable to the FMA program.\26\ The BW-12
definition states that a severe repetitive loss structure is one for
which four or more separate claims payments have been made with the
amount of each claim exceeding $5,000, and with the cumulative amount
of such claims payments exceeding $20,000. FEMA proposes to retain the
provision providing that the amount of each claim includes building and
contents payments. This is consistent with FEMA's prior interpretation
of the definition of ``severe repetitive loss property'' as well as the
HMA Guidance.\27\ The BW-12 definition also states that in the
alternative, a severe repetitive loss structure is one for which at
least two separate flood insurance claims payments have been made, with
the cumulative amount of such claims exceeding the value of the insured
structure. FEMA proposes to retain the statement that that the claims
payments include building payments only because weighing the value of
the insured
[[Page 53478]]
structure against the amount of building payments is a more direct
comparison than weighing the value of the insured structure against the
amount of both building and contents payments. This is consistent with
FEMA's prior interpretation of the definition of ``severe repetitive
loss property'' as well as the HMA Guidance.\28\
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\25\ See Public Law 108-264, 118 Stat. 714.
\26\ 42 U.S.C. 4104c(h)(3).
\27\ See 44 CFR 79.2(h)(1); HMA Guidance, Part VIII.C.1,
Eligible Properties, p. 116.
\28\ See 44 CFR 79.2(h)(2); HMA Guidance, Part VIII.C.1,
Eligible Properties, p. 116.
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FEMA proposes to add a definition for ``repetitive loss structure''
to reflect the definition provided in BW-12. BW-12 established a
distinction between repetitive loss structures and severe repetitive
loss structures for purposes of the FMA program (which allows FEMA to
better target funding based on a property's risk of damage). BW-12
defined the term ``repetitive loss structure'' to mean ``a structure
covered by a contract for flood insurance that--(A) has incurred flood-
related damage on 2 occasions, in which the cost of repair, on the
average, equaled or exceeded 25 percent of the value of the structure
at the time of each such flood event; and (B) at the time of the second
incidence of flood-related damage, the contract for flood insurance
contains increased cost of compliance coverage.'' FEMA's proposed
definition of ``repetitive loss structure'' parrots the statutory
definition. See 42 U.S.C. 4121(a)(7) (cross referenced in 42 U.S.C.
4104c(h)(2)).
FEMA proposes to remove the definitions of ``market value'' and
``multifamily property,'' currently found at 44 CFR 79.2(f) and (g),
respectively, because the statutory definitions of ``severe repetitive
loss structure'' and ``repetitive loss structure'' no longer include
these terms and it is therefore not necessary to use or define these
terms in the regulations.
In addition to the revisions to the definitions made pursuant to
BW-12, FEMA proposes to add terms and to replace outdated terms and
definitions with substantively similar terms and definitions that
better align with 2 CFR part 200 and the HMA Guidance. These are
nonsubstantive revisions intended to simplify definitions and improve
consistency among FEMA's HMA programs. FEMA proposes to add definitions
for ``closeout,'' ``Federal award,'' ``management costs,'' ``pass-
through Entity,'' and ``State.''
FEMA proposes to add a definition for ``closeout'' which is nearly
identical to the definition in 2 CFR 200.16. FEMA proposes to add this
definition for ease of the reader because the term is used in proposed
part 77, and also to establish that it has the same meaning as in the
grants management regulations at 2 CFR part 200. This is a
nonsubstantive change that reflects current practice.
FEMA proposes to add a definition for ``Federal award'' to reflect
the definition in 2 CFR 200.38(a)(1),\29\ with two exceptions. First,
FEMA proposes to use the terms ``recipient'' and ``subrecipient''
instead of the term ``non-Federal entity.'' The term ``non-Federal
entity,'' as defined at 2 CFR 200.69, includes entities that are not
eligible recipients or subrecipients under the FMA program. While FMA
recipients and subrecipients are ``non-Federal entities'' under 2 CFR
part 200, FEMA proposes to tailor the definitions in the FMA
regulations so that they are program-specific. Second, FEMA proposes to
clarify that the terms ``award'' and ``grant'' may also be used to
describe a ``Federal award'' under the FMA program regulations. This is
a nonsubstantive change to clarify that the terms used throughout
proposed part 77 are interchangeable.
---------------------------------------------------------------------------
\29\ In 2 CFR 200.38(a)(1), ``Federal award'' means the Federal
financial assistance that a non-Federal entity receives directly
from a Federal awarding agency or indirectly from a pass-through
entity.
---------------------------------------------------------------------------
FEMA proposes to add a definition for ``management costs.''
``Management costs'' are referenced throughout the FMA program
regulations, but this term is not currently defined in part 79. FEMA
proposes to define ``management costs'' consistent with existing FEMA
regulations \30\ and the HMA Guidance.\31\
---------------------------------------------------------------------------
\30\ See 44 CFR 207.2.
\31\ See HMA Guidance, Part III, E.1.5, Management Costs, p. 41.
---------------------------------------------------------------------------
FEMA proposes to add a definition for ``pass-through entity'' which
is substantively the same as the definition in 2 CFR 200.74, with one
exception. FEMA proposes to use the terms ``recipient'' and
``subrecipient'' instead of the term ``non-Federal entity.'' The term
``non-Federal entity,'' as defined at 2 CFR 200.69, includes entities
that are not eligible recipients or subrecipients under the FMA
program. While FMA recipients and subrecipients are ``non-Federal
entities'' under 2 CFR part 200, FEMA proposes to tailor the
definitions in the FMA regulations so that they are program-specific.
The addition of this definition is for ease of the reader since the
term is used in other definitions in proposed part 77.
FEMA proposes to add a definition for ``State,'' which is
consistent with 2 CFR 200.90 as well as FEMA's regulations for
mitigation planning and HMGP.\32\ Although not defined in the
authorizing statute for the HMA programs, for purposes of these
programs, and consistent with 2 CFR 200.90, FEMA considers a State to
be any State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
---------------------------------------------------------------------------
\32\ See the definition for ``State'' in the mitigation planning
regulations at 44 CFR 201.2 and the definitions section of part 206
(Sec. 206.2(a)(22)) which applies to the HMGP program regulations
at part 206 subpart N. See also, HMA Guidance, Part III.A, Eligible
Applicants, p. 25.
---------------------------------------------------------------------------
FEMA proposes to replace the definitions ``grantee,'' ``subgrant,''
and ``subgrantee,'' with definitions for ``recipient,'' ``subaward,''
and ``subrecipient,'' respectively, to better align with the terms and
definitions used in 2 CFR part 200 and the HMA Guidance. The proposed
definition of ``recipient'' is similar to the definition at 2 CFR
200.86; however, FEMA proposes to use the terms ``State or Indian
Tribal government'' instead of the term ``non-Federal entity'' to
reflect the terms and definitions in this proposed rule, which are
tailored to the FMA program. FEMA also proposes to add that the
recipient may be a pass-through entity to clarify the relationship
between the terms ``recipient'' and ``pass-through entity.''
The proposed definition of ``subaward'' is the same as the
definition at 2 CFR 200.92.
The proposed definition of ``subrecipient'' is similar to the
definition at 2 CFR 200.93; however, FEMA proposes to use the terms
``State agency, community, or Indian Tribal government'' instead of the
term ``non-Federal entity'' to reflect the terms and definitions in
this proposed rule, which are tailored to the FMA program.
FEMA proposes to revise the definitions of ``applicant'' and
``subapplicant.'' In the definition of ``applicant,'' FEMA proposes to
replace the term ``grant'' with the term ``Federal award,'' which FEMA
proposes to define in proposed Sec. 77.2(e). This is a nonsubstantive
change to use the newly defined term ``Federal award'' throughout the
definitions. FEMA proposes to remove the provision stating that the
applicant will be accountable for the use of the funds because it only
serves as a vague reference to other applicable substantive
requirements and is not necessary to include in the definition of
``applicant.'' \33\ FEMA also proposes to add that once funds have been
awarded, the applicant becomes the recipient and may also be a pass-
through entity. This is a nonsubstantive addition to clarify the
relationship
[[Page 53479]]
between the terms ``applicant,'' ``recipient,'' and ``pass-through
entity'' for the ease of the reader. FEMA proposes to revise the
definition of ``subapplicant'' by removing the reference to the SRL
program which is no longer authorized pursuant to BW-12. FEMA proposes
to clarify that applications submitted by subapplicants are
subapplications. These are nonsubstantive revisions intended to reflect
FEMA's current use of these terms.
---------------------------------------------------------------------------
\33\ See, e.g., 44 CFR 79.9, Grant administration, and 2 CFR
200.300-200.309, Standards for Financial and Program Management.
---------------------------------------------------------------------------
Finally, FEMA makes no changes to the definitions of ``Indian
Tribal government,'' ``Administrator,'' and ``Regional Administrator.''
4. Section 79.3 (Proposed Sec. 77.3) Responsibilities
In proposed Sec. 77.3, which covers responsibilities of FEMA, the
recipient, and subrecipients, FEMA proposes to remove references to the
SRL program, to replace terms to conform to the revised definitions in
proposed Sec. 77.2, to remove the paragraphs addressing Indian Tribal
government responsibilities (as they are covered under the recipient
responsibilities), and to add monitoring and closeout provisions.
Paragraph (a) addresses FEMA's responsibilities under the FMA
program. FEMA proposes to remove (a)(2), (a)(7), and (a)(8), which
pertain to the former SRL program and are no longer necessary. FEMA
proposes to add two paragraphs, (a)(6) and (7), regarding monitoring
and closeout requirements. Consistent with 2 CFR 200.328 and 200.343,
and the HMA Guidance,\34\ FEMA proposes to add the following FEMA
responsibilities: (1) Monitoring implementation of awards through
quarterly reports; and (2) reviewing all closeout documentation for
compliance and sending the recipient a request for additional
supporting documentation, if needed.\35\ These are nonsubstantive
revisions intended to reflect and clarify existing requirements; they
are already a part of the current grants process.
---------------------------------------------------------------------------
\34\ See HMA Guidance, Part II.M, Project Monitoring, and Part
II.N, Closeout, pp. 23-24.
\35\ These requirements are covered by OMB Information
Collection 1660-0072, ``Mitigation Grant Programs/e-grants''. This
collection is approved by OMB until October 31, 2021.
---------------------------------------------------------------------------
Paragraph (b) addresses the responsibilities of the State. However,
the paragraph actually addresses the responsibilities of all
recipients, including territories and Indian Tribal governments.\36\
Therefore, FEMA proposes to replace ``State'' with ``recipient'' in the
heading and introductory paragraph of (b). As proposed in this
rulemaking, the term ``State'' includes territories (see proposed Sec.
77.2(l)), and the term ``recipient'' includes States and Indian Tribal
governments (see proposed Sec. 77.2(i)). This change is clarifying and
is not substantive.
---------------------------------------------------------------------------
\36\ See HMA Guidance, Part I.C, Roles and Responsibilities, p.
5.
---------------------------------------------------------------------------
The introductory paragraph of (b) states that the State will serve
as the applicant and grantee through a single point of contact for the
FMA and SRL programs. FEMA proposes to remove this sentence because it
relates to the former FMA program and the eliminated SRL program, and
it is no longer necessary to have a single point of contact as there
are no longer two programs being addressed in this part.
Paragraph (b)(2) states the recipient has responsibility to review
and submit local mitigation plans to the FEMA Regional Administrator
for final review and approval. FEMA proposes to remove this paragraph
in its entirety. The requirement to submit plans for review and
approval is now located in 44 CFR part 201 (local mitigation plans are
specifically covered in Sec. 201.6). FEMA prefers to refer to part 201
to avoid confusion. Repeating the same requirement in part 79 (proposed
part 77) is duplicative, can cause confusion as it might appear to be a
separate requirement, and is administratively burdensome if FEMA needs
to make any changes, as it would have to change them in two different
places in the regulations. Finally, submitting plans for review and
approval is not an FMA grant requirement; the FMA requirement is to
have an approved plan, which is already captured in current Sec.
79.3(b)(1) (proposed Sec. 77.3(b)(1)).
FEMA proposes to replace the term ``subgrant(s)'' with
``subaward(s)'' in paragraphs (b)(3) (proposed (b)(2)), (b)(4)
(proposed (b)(3)), and (b)(5) (proposed (b)(4)), to reflect the
terminology used in 2 CFR part 200. This is a nonsubstantive change and
is already used in the HMA Guidance.
FEMA proposes to add two new paragraphs, (b)(5) and (6), regarding
monitoring and closeout requirements. Consistent with 2 CFR 200.328 and
200.343, and the HMA Guidance,\37\ FEMA proposes to add the following
recipient responsibilities: (1) Monitor and evaluate the progress of
the mitigation activity in accordance with the approved original scope
of work and budget through quarterly reports; and (2) closeout the
subaward in accordance with 2 CFR 200.343 and 200.344, and applicable
FEMA guidance. These are nonsubstantive revisions intended to reflect
and clarify existing requirements; they are already a part of the
current grants process.\38\
---------------------------------------------------------------------------
\37\ See HMA Guidance, Part II.M, Project Monitoring, and Part
II.N, Closeout, pp. 23-24.
\38\ These requirements are covered by OMB Information
Collection 1660-0072, ``Mitigation Grant Programs/e-grants''. This
collection is approved by OMB until October 31, 2021.
---------------------------------------------------------------------------
Paragraph (c) addresses the responsibilities of Indian Tribal
governments acting as recipients. As these responsibilities would now
be covered under paragraph (b), FEMA proposes to remove paragraph (c).
Current paragraph (c)(1) states that an Indian Tribal government must
have a FEMA approved Tribal mitigation plan in accordance with Sec.
201.7. Proposed paragraph (b)(1) states this requirement generally, to
cover both States and Indian Tribal governments, as proposed paragraph
(b) would now cover all recipients (States or Indian Tribal
governments) instead of just States. Current paragraph (c)(2) states
that a federally-recognized Indian Tribal government as defined by the
Federally Recognized Indian Tribe List Act of 1994, applying directly
to FEMA for mitigation grant funding will assume the responsibilities
of the State as the term is used in part 79, as applicant or grantee,
described in current paragraphs (b)(3) through (b)(6) (i.e., the
responsibilities of the State). This provision is now captured in
proposed paragraph (b), which applies to all recipients, including
Indian Tribal governments, since Indian Tribal governments are included
in the definition of ``recipient'' in proposed Sec. 77.2(i). Current
paragraph (c)(3) states that a federally-recognized Indian Tribal
government as defined by the Federally Recognized Indian Tribe list Act
of 1994, applying through the State, will assume the responsibilities
of the community (as the subapplicant or subgrantee) described in
current paragraphs (d)(2) through (4). This provision would be captured
in proposed paragraph (c), addressing the responsibilities of
subrecipients (which can include Indian Tribal governments), as
described below.
Current paragraph (d) addresses the responsibilities of the
community. FEMA proposes to redesignate paragraph (d) as paragraph (c)
and to change the paragraph heading from ``Community'' to
``Subrecipient.'' The responsibilities in this paragraph apply not just
to communities, but to any entity that qualifies as a subrecipient,
i.e., a State agency, community, or Indian Tribal government (see
proposed definition of ``subrecipient'' in
[[Page 53480]]
Sec. 77.2(o)). This is a nonsubstantive change for clarification
purposes only.
FEMA proposes to replace ``community'' with ``subrecipient'' in the
introductory sentence as well, and to add that this can mean
subapplicant because some of these responsibilities occur before the
award. This is also a nonsubstantive change for clarification purposes
only.
FEMA proposes to remove paragraph (d)(1), stating that the
community must prepare and submit a FEMA approved local mitigation
plan, consistent with 44 CFR part 201. The requirement to prepare and
submit plans for review and approval is now located in 44 CFR part 201
(local mitigation plans are specifically covered in Sec. 201.6). FEMA
prefers to refer to part 201 to avoid confusion. Repeating the same
requirement in part 79 (proposed part 77) is duplicative, can cause
confusion as it might appear to be a separate requirement, and is
administratively burdensome if FEMA needs to make any changes, as it
would have to change them in two different places in the regulations.
Finally, submitting plans for review and approval is not an FMA grant
requirement; the requirement is to have an approved plan in order to be
eligible for FMA project grants, which is already captured in current
Sec. 79.6(b)(2) (proposed Sec. 77.6(b)(2)).
Current paragraph (d)(2) states that the community (proposed:
subrecipient) must complete and submit subgrant applications to the
State POC for FMA planning, project and management cost subgrants, and
for SRL project and management costs subgrants. FEMA proposes to
replace ``subgrant'' with ``subaward,'' consistent with the terminology
in 2 CFR part 200. FEMA proposes to replace ``State POC'' with
``recipient'' as ``recipient'' captures the universe of entities to
which a subrecipient would submit an application (i.e., in addition to
a State, the recipient can be a territory or Indian Tribal government).
FEMA proposes to replace the phrase ``FMA planning, project and
management cost subgrants'' with ``FMA planning and project subawards''
because FEMA proposes to replace the term ``subgrant'' with the term
``subaward,'' and because ``management costs'' are not a separate type
of grant. Rather, ``management costs'' are defined under proposed Sec.
77.2(g) and eligible as described under proposed Sec. 77.7(a)(1). FEMA
proposes to remove the clause pertaining to SRL subgrants, as the SRL
program is no longer authorized under the NFIA. FEMA proposes to
redesignate current paragraph (d)(2) as paragraph (c)(1). The proposed
changes to paragraph (d)(2) are nonsubstantive to clarify and conform
the regulations with the changed definitions described above.
Current paragraph (d)(3) states that the community (proposed:
subrecipient) must implement all approved subgrants; notifying each
holder of a record interest in severe repetitive loss properties when
an offer of mitigation assistance has been made under the SRL program,
and when such offer has been refused. FEMA proposes to revise this
provision to simply state that the subrecipient must ``implement all
approved subawards.'' As the SRL program is no longer authorized under
the NFIA, the clause pertaining to SRL assistance is not necessary.
However, it is a current responsibility of all subrecipients to
implement any approved subawards, so FEMA proposes to retain this
portion of current paragraph (d)(3). FEMA proposes to redesignate
current paragraph (d)(3) as paragraph (c)(2). These are nonsubstantive
clarifying revisions.
FEMA proposes to add two paragraphs to address the monitoring and
closeout requirements that are currently part of the grants process.
Consistent with 2 CFR part 200 and the HMA Guidance, FEMA proposes to
add paragraph (c)(3), stating that the subrecipient must monitor and
evaluate the progress of the mitigation activity in accordance with the
approved original scope of work and budget through quarterly reports,
and paragraph (c)(5), stating that the subrecipient must closeout the
subaward in accordance with 2 CFR 200.343 and 200.344, and the HMA
Guidance.\39\ These are nonsubstantive revisions reflecting existing
requirements.\40\
---------------------------------------------------------------------------
\39\ See 2 CFR 200.328, 200.343; HMA Guidance, Part II. M,
Project Monitoring, and Part II.N, Closeout, pp. 23-24.
\40\ These requirements are covered by OMB Information
Collection 1660-0072, ``Mitigation Grant Programs/e-grants.'' This
collection is approved by OMB until October 31, 2021.
---------------------------------------------------------------------------
Current paragraph (d)(4) states that the community must comply with
program requirements under this part, grant management requirements
under 2 CFR parts 200 and 3002, the grant agreement articles, and other
applicable Federal, State, Tribal and local laws and regulations. FEMA
proposes to retain this language and redesignate current paragraph
(d)(4) as paragraph (c)(4).
5. Section 79.4 (Proposed Sec. 77.4) Availability of Funding
Section 79.4 addresses the method of funding under the SRL and FMA
programs prior to BW-12. As explained in the Background section of this
preamble, prior to BW-12, FMA program funding was allocated to States
each fiscal year based upon the number of NFIP policies within the
State, the number of repetitive loss structures within the State, and
other criteria the Administrator determined to be in the best interests
of the NFIF.
Paragraph (a) addresses automatic allocations. FEMA proposes to
remove paragraph (a)(1), which addresses the SRL program, as that
program is no longer authorized under the NFIA. Paragraph (a)(2)
describes how the automatic allocation process worked for the FMA
program prior to BW-12. Pursuant to the introductory language of
current paragraph (a)(2), for the amount made available for the FMA
program, the Administrator allocates the available funds each fiscal
year. Funds are distributed based upon the number of NFIP policies,
repetitive loss structures, and any other such criteria the
Administrator determines are in the best interest of the NFIF. FEMA
proposes to revise the introductory language of current paragraph
(a)(2) to state that the Administrator will allocate funds based upon
criteria established for each application period rather than ``each
fiscal year,'' because this is more accurate. Although each application
period is usually tied to the specific fiscal year, referring to ``each
application period'' would allow flexibility in the event that a
particular application period did not line up exactly with a particular
fiscal year (for example, if the appropriations process delayed the
announcement of an application period beyond the normal schedule). FEMA
also proposes to add ``severe repetitive loss structures'' to the list
of criteria because under the NFIA, as amended by BW-12, these
structures are defined separately and subject to different cost share
provisions.\41\ FEMA proposes to renumber revised paragraph (a)(2) as
Sec. 77.4(a)(1).
---------------------------------------------------------------------------
\41\ See 42 U.S.C. 4104c(d)(1) and (h)(3).
---------------------------------------------------------------------------
Current paragraph (a)(2)(i) states that a maximum of 7.5 percent of
the amount made available in any fiscal year may be allocated for FMA
planning grants nationally, that a planning grant will not be awarded
to a State or community more than once every 5 years, and an individual
planning grant will not exceed $150,000 to any State agency applicant,
or $50,000 to any community subapplicant. It states that the total
planning grant made in any fiscal year to any State, including all
communities located in the State, will not exceed $300,000. FEMA
proposes to redesignate this paragraph as paragraph (a)(2). FEMA also
proposes to revise this paragraph because BW-12 revised the
[[Page 53481]]
$150,000 and $50,000 caps, and explicitly removed the 7.5 percent cap,
the 5-year limit, and the $300,000 total cap. Under the current
statutory authority, the amount of an individual planning grant under
the FMA program shall not exceed $50,000 for any mitigation plan of a
State (or, a ``recipient'' as defined in this proposed rule) or $25,000
for any mitigation plan of a community (or, a ``subrecipient'' as
defined in this proposed rule).\42\ FEMA proposes to reflect these
revised caps in proposed Sec. 77.4(a)(2). This removal is a
nonsubstantive change to the FMA program as FEMA has already
implemented this provision of BW-12.\43\
---------------------------------------------------------------------------
\42\ 42 U.S.C. 4104c(c)(3)(F).
\43\ See HMA Guidance, Part IV.E.3, FMA Funding Restrictions, p.
54.
---------------------------------------------------------------------------
Current paragraph (a)(2)(ii) states that the total amount of FMA
project grant funds provided during any 5-year period will not exceed
$10,000,000 to any State agency(s) or $3,300,000 to any community. It
states that the total amount of project grant funds provided to any
State, including all communities located in the State will not exceed
$20,000,000 during any 5-year period. The Administrator may waive the
limits of this paragraph for any 5-year period when a major disaster or
emergency is declared pursuant to the Robert T. Stafford Disaster
Relief and Emergency Assistance Act for flood conditions. FEMA proposes
to remove this paragraph because BW-12 removed these caps and time
period restrictions. Under the current statutory authority, FMA project
grants must meet the eligibility requirements in 42 U.S.C. 4104c(c),
are subject to the availability of funds, and may be subject to
additional restrictions as Congress may establish in the annual
appropriation for the FMA program. This removal is a nonsubstantive
change to the FMA program as FEMA has already implemented this
provision of BW-12.\44\
---------------------------------------------------------------------------
\44\ See HMA Guidance, Part VIII.C, Additional Program Guidance:
Flood Mitigation Assistance Program, pp. 116-18.
---------------------------------------------------------------------------
Paragraph (b) addresses redistribution. It states that funds
allocated to States that choose not to participate in either the FMA or
SRL program in any given year will be reallocated to participating
States and Indian Tribal applicants. It states that any funds allocated
to a State, and the communities within the State, which have not been
obligated within the timeframes established by the Administrator shall
be redistributed by the Administrator to other States and communities
to carry out eligible activities in accordance with this part. FEMA
proposes to remove this paragraph because BW-12 eliminated automatic
allocations. As there are no automatic allocations, there is no need
for a provision regarding re-allocations. Under the current program
post-BW-12, FEMA considers all eligible subapplications and selects
subapplications against agency priorities identified in annual
appropriations and the NOFO.\45\
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\45\ See HMA Guidance, Part IV.H.1, Required Components, p. 59.
---------------------------------------------------------------------------
Current paragraph (c) addresses the cost share provisions that were
applicable prior to BW-12. Under current paragraph (c)(1), FEMA may
provide up to 75 percent of the eligible cost of activities for grants
approved for funding. Under current paragraph (c)(2), FEMA may
contribute up to 90 percent of the cost of the eligible activities for
severe repetitive loss properties if the applicant has an approved
mitigation plan meeting the repetitive loss requirements identified in
Sec. 201.4 or Sec. 201.7.
FEMA proposes to redesignate current paragraph (c) as paragraph (b)
and to replace current paragraphs (c)(1) and (2) with proposed
paragraphs (b)(1) through (3) to reflect the new cost share structure
under BW-12. FEMA proposes to add a new paragraph (b)(1) to state that
for each severe repetitive loss structure, FEMA may contribute up to
100 percent of all eligible costs if the activities are technically
feasible and cost-effective, or, up to the amount of the expected
savings to the NFIP for acquisition or relocation activities.\46\ FEMA
is not retaining the requirement that severe repetitive loss properties
have an approved mitigation plan meeting the repetitive loss
requirements identified in part 201 because BW-12 removed this
requirement.\47\ Note that all applicants must still have a FEMA-
approved mitigation plan that addresses flood losses to structures
covered by the NFIP, but the mitigation planning requirements are no
longer tied to specific cost shares.\48\ FEMA proposes to clarify the
mitigation planning requirements in proposed Sec. 77.6(b), discussed
elsewhere in this preamble.
---------------------------------------------------------------------------
\46\ 42 U.S.C. 4104c(c)(2) and (d)(1); implemented via HMA
Guidance at section VIII.C.3, Cost Sharing, p. 117.
\47\ See Public Law 112-141, section 100225(a)(1), (9); 42
U.S.C. 4104c(d).
\48\ See 42 U.S.C. 4104c(b).
---------------------------------------------------------------------------
FEMA proposes to add a new paragraph (b)(2) to state that for
repetitive loss structures, FEMA may contribute up to 90 percent of
eligible costs.\49\ Prior to BW-12, repetitive loss structures received
a 75 percent cost share.
---------------------------------------------------------------------------
\49\ 42 U.S.C. 4104c(d)(2); implemented via HMA Guidance at
section VIII.C.3, Cost Sharing, p. 118.
---------------------------------------------------------------------------
FEMA proposes to add a new paragraph (b)(3) to state that for all
other mitigation activities, FEMA may contribute up to 75 percent of
all eligible costs.\50\ FEMA has implemented this new cost structure in
the HMA Guidance.\51\
---------------------------------------------------------------------------
\50\ 42 U.S.C. 4104c(d)(3); implemented via HMA Guidance at
section VIII.C.3, Cost Sharing, p. 118.
\51\ See HMA Guidance, Part VIII. C.3, Cost Sharing, pp. 117-18.
---------------------------------------------------------------------------
Some projects include different types of structures. FEMA proposes
to add a new paragraph (b)(4) stating that for projects that contain a
combination of severe repetitive loss, repetitive loss, and/or insured
structures, FEMA will calculate the cost share as appropriate for each
type of structure submitted in the project subapplication, meaning that
FEMA will determine the cost share based on the type of structure, even
if the structure is combined with other types in the same project. FEMA
is adding this provision to make clear that a structure is not eligible
to receive an increased Federal cost share just because it is included
in the same project as structures that are eligible to receive an
increased Federal cost share. For example, the cost of mitigating a
repetitive loss structure is still subject to the 90 percent Federal/10
percent non-Federal cost share requirement, even if it is included in a
project that also mitigates severe repetitive loss structures. This is
not a substantive change and reflects FEMA's current practice. FEMA
proposes to add this provision to ensure that potential subrecipients
do not mistakenly expect to receive increased cost shares for which
they are ineligible.
Current paragraph (c)(3) states that for the FMA program only, of
the non-Federal contribution, not more than one half can be provided
from in-kind contributions. FEMA proposes to remove this paragraph
because BW-12 eliminated the limit on the amount of in-kind
contributions that may make up the non-Federal portion of an FMA
award.\52\
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\52\ See Public Law 112-141, section 100225(a); 42 U.S.C.
4104c(d).
---------------------------------------------------------------------------
BW-12 includes a provision stating that for any application for a
grant for which FEMA fails to make a grant award within 5 years of the
date of application, the grant application is considered to be denied
and any funding amounts allocated for such grant application will
remain available
[[Page 53482]]
for other FMA grants.\53\ FEMA proposes to add a new paragraph (c) to
implement this provision. FEMA notes that while the statute uses the
term ``application,'' FEMA is interpreting this to mean subapplications
as well. While FEMA makes awards to the applicant, it is the applicant
who awards funds to the subapplicant. Therefore FEMA is applying the 5-
year requirement to applicants to ensure they in turn are timely in
making the subawards to their subapplicants. Otherwise, the intent of
the statute would not be fully realized if FEMA makes the award within
5 years, but the applicant does not in turn make a timely award to the
subapplicant. FEMA interprets ``date of application'' to mean date of
submission, meaning the date the applicant/subapplicant submits the
application to FEMA. This is to avoid any potential confusion about the
date that marks the beginning of the 5-year period. FEMA has
implemented this provision in the HMA Guidance.\54\
---------------------------------------------------------------------------
\53\ See 42 U.S.C. 4104c(g).
\54\ See HMA Guidance, Part VIII.C.6, Failure to Make Federal
Award within 5 Years, p. 118.
---------------------------------------------------------------------------
6. Section 79.5 (Proposed Sec. 77.5) Application Process
Current Sec. 79.5 addresses the application process. Paragraph (a)
is entitled ``Applicant or grantee.'' FEMA proposes to remove the
reference to grantee so that the title of paragraph (a) would just be
``Applicant.'' While 2 CFR part 200 uses recipient rather than grantee,
this section addresses the point in the grants process where money has
not yet been awarded, so the appropriate term for this paragraph is
applicant rather than recipient. Current paragraph (a)(1) states that
States will be notified of the amount allocated to them for the SRL and
FMA programs each fiscal year, along with the application timeframes.
As discussed above, automatic allocations are no longer used under the
FMA program, and the SRL program is no longer authorized. Further, FEMA
prefers to use ``applicant'' rather than State, as applicant captures
the full universe of entities who may be an applicant (i.e., States
(including territories) and Indian Tribal governments).\55\ Therefore
FEMA proposes to revise paragraph (a)(1) to state that applicants will
be notified of the availability of funding for the FMA program pursuant
to 2 CFR 200.202 and 200.203. Section 200.202 requires agencies to
provide public notice of grant fund availability, and Sec. 200.203
lists the requirements surrounding these notices (including the
information they must contain). As discussed above, FEMA publishes a
NOFO when funds become available. The NOFO includes the application
timeframes, and therefore FEMA did not retain in paragraph (a)(1) the
specific requirement to provide application timeframes.
---------------------------------------------------------------------------
\55\ See proposed Sec. 77.2(b).
---------------------------------------------------------------------------
Paragraph (a)(2) states that the State is responsible for
soliciting applications from eligible communities, or subapplicants,
and for reviewing and prioritizing applications prior to forwarding
them to FEMA for review and award. FEMA proposes to replace ``State''
with ``applicant'' to cover the entire universe of potential applicants
(States (including territories) and Indian Tribal governments).\56\
---------------------------------------------------------------------------
\56\ Id.
---------------------------------------------------------------------------
Paragraph (a)(3) states that participation in these flood
mitigation grant programs is voluntary, and States may elect not to
participate in either the SRL or FMA program in any fiscal year without
compromising their eligibility in future years. FEMA proposes to remove
this paragraph because it was relevant pre-BW-12 when the programs were
allocation based and each eligible State received an annual allocation.
While the current FMA program is voluntary, this is not necessary to
repeat in the regulations relating to the application process because
the voluntary nature of the program is established in the statute and
made clear in Sec. 79.6 (proposed Sec. 77.6), each annual NOFO, and
the HMA Guidance.\57\
---------------------------------------------------------------------------
\57\ See 42 U.S.C. 4104c(a); 44 CFR 79.6; HMA Guidance, Part II,
Frontloading HMA Program Eligibility Requirements, p. 13.
---------------------------------------------------------------------------
Paragraph (a)(4) states that Indian Tribal governments interested
in applying directly to FEMA for either the FMA or SRL program grants
should contact the appropriate FEMA Regional Administrator for
application information. FEMA proposes to remove this paragraph because
proposed paragraphs (a)(1) and (2) would apply to Indian Tribal
government applicants and eliminate the need to address these
applicants in a separate paragraph.
Paragraph (b) is entitled ``Subapplicant or subgrantee.'' FEMA
proposes to remove the term ``subgrantee'' because the paragraph
applies to subapplicants before they become subgrantees (proposed
``subrecipients''), and thus it is only necessary to include
``subapplicant'' in the paragraph title. No substantive change is
intended. The first sentence states that participation in the SRL and
the FMA program is voluntary, and communities may elect not to apply.
FEMA proposes to remove this sentence because it was relevant pre-BW-12
when the programs were allocation based and each eligible State
received an annual allocation. While the current FMA program is
voluntary, this is not necessary to repeat in the regulations relating
to the application process because the voluntary nature of the program
is established in the statute and made clear in Sec. 79.6 (proposed
Sec. 77.6), each annual NOFO, and the HMA Guidance.\58\
---------------------------------------------------------------------------
\58\ Id.
---------------------------------------------------------------------------
The second sentence states that communities or other subapplicants
who choose to apply must develop applications within the timeframes and
requirements established by FEMA and must submit applications to the
State. FEMA proposes to replace ``State'' with ``applicant'' for
reasons discussed above, and proposes to replace ``applications'' with
``subapplications,'' which is the proper terminology. Subapplicants
submit subapplications, while applicants submit applications. This is
not a substantive change.
7. Section 79.6 (Proposed Sec. 77.6) Eligibility
i. Paragraph (a) Eligible Applicants and Subapplicants
FEMA proposes to change the heading of paragraph (a) from
``Eligible applicants and subapplicants'' to ``NFIP requirements'' to
better reflect the provisions of this paragraph.
Paragraph (a)(1) states that States, Indian Tribal governments, and
communities participating in the NFIP may apply for planning and
project grants and associated management costs. FEMA proposes to revise
this paragraph to say that States, Indian Tribal governments, and
communities must be participating in the NFIP and may not be suspended
or withdrawn under the program. FEMA proposes to omit ``planning and
project grants and associated management costs'' from this paragraph
because eligible activities are covered in paragraph (c) and need not
be listed here as well. FEMA also proposes to incorporate into
paragraph (a)(1) the eligibility restriction for communities that are
suspended or withdrawn under the NFIP. This requirement is currently
listed in paragraph (a)(3), which FEMA proposes to remove. This is a
nonsubstantive revision intended to incorporate the relevant NFIP
participation requirements into a simplified paragraph (a)(1).
Paragraph (2) states that States, Indian Tribal governments, and
communities
[[Page 53483]]
participating in the NFIP may apply for SRL project grants and
associated management costs. FEMA proposes to remove this paragraph
because the SRL program is no longer authorized under the NFIA.
Paragraph (3) states that communities withdrawn, suspended, or not
participating under part 60 (Criteria for Land Management and Use) of
the NFIP are not eligible for either the FMA or SRL programs. FEMA
proposes to remove this paragraph because the SRL program was
eliminated by BW-12, and the NFIP participation requirement for the FMA
program is already covered under proposed Sec. 77.6(a)(1). While
paragraph (3) specifically references part 60, FEMA proposes to omit
the reference to part 60 in proposed paragraph (a)(1) because it is
unnecessary. The reference to part 60 effectively means communities
that are participating in the NFIP and who are not suspended or
withdrawn under the program. FEMA intends proposed paragraph (a)(1) to
have the same meaning, but proposes to reference the NFIP generally so
that the meaning remains clear even if the regulations at part 60 are
revised or renumbered.
While current part 79 addresses NFIP requirements in terms of
applicant and subapplicant eligibility, it does not address NFIP
requirements specific to property eligibility. FEMA proposes to add a
new paragraph (a)(2) to clarify that, for projects that impact
individual structures, an NFIP policy for the structure must be in
effect prior to the opening of the application period and be maintained
for the life of the structure. This is consistent with the HMA
Guidance, which explains that properties must be NFIP-insured at the
time of the application submittal and prior to the period of
availability or application start date and be maintained for the life
of the structure.\59\ In the absence of such a requirement, a property
owner could obtain an NFIP policy immediately before receiving an FMA
award and drop the policy after taking advantage of NFIF funds. The
establishment of a clear and measurable eligibility requirement will
help ensure that FMA funding is awarded to policy holders who
consistently maintain coverage for eligible structures. This
requirement is consistent with the NFIA's statutory mandate to use
funds for activities designed to reduce the risk of flood damage to
structures covered under contracts for flood insurance,\60\ and is
intended to support good stewardship of NFIF funds.
---------------------------------------------------------------------------
\59\ See HMA Guidance, Part VIII.C.1, Eligible Properties, p.
116.
\60\ See 42 U.S.C. 4104c(a).
---------------------------------------------------------------------------
ii. Paragraph (b) Plan Requirement
FEMA proposes to revise paragraph (b), Plan requirement, to remove
the reference to the SRL program and to clarify current mitigation
planning requirements consistent with BW-12. To be eligible for FMA
awards, applicants and subapplicants must have a FEMA-approved
mitigation plan that describes the mitigation activities to be carried
out with FMA awards and provides for the reduction of flood losses to
structures covered under the NFIP.\61\
---------------------------------------------------------------------------
\61\ See 42 U.S.C. 4104c(b).
---------------------------------------------------------------------------
Paragraph (1) states that States must have an approved mitigation
plan meeting the requirements of 44 CFR 201.4 or 201.5 in order to
apply for grants through the FMA or SRL programs. FEMA proposes to
remove the reference to 201.5 as this section addresses enhanced State
mitigation plans which are not necessary for eligibility. FEMA also
proposes to revise this sentence to clarify that the plan must be
approved by FEMA. While it is implied in part 201 that the plan must be
approved by FEMA, it is not explicit, so FEMA proposes to add this
clarification to avoid any potential confusion. This is not a
substantive change and is intended only to improve clarity and
consistency with part 201.\62\ FEMA also proposes to add language
specifying that the FEMA-approved mitigation plan ``provides for
reduction of flood losses to structures for which NFIP coverage is
available'' to make the language more consistent with the current
statutory requirement at 42 U.S.C. 4104c(b). FEMA proposes to remove
the language ``in order to apply for grants through the FMA or SRL
programs,'' first because the SRL is no longer authorized, and second,
even though FMA is still an authorized program, it is not necessary
because the regulation already makes it clear that a plan is required.
---------------------------------------------------------------------------
\62\ See 44 CFR 201.3(b).
---------------------------------------------------------------------------
The second sentence of paragraph (1) states that Indian Tribal
governments must have an approved plan meeting the requirements of 44
CFR 201.7 at the time of application. As with States, FEMA proposes to
revise this provision to clarify that the plan must be approved by
FEMA. While it is implied in part 201 that the plan must be approved by
FEMA, it is not explicit, so FEMA proposes to add this clarification to
avoid any potential confusion. FEMA proposes to add ``mitigation''
before ``plan'' for the sake of clarity. As with State mitigation
plans, FEMA proposes to add language specifying that the FEMA-approved
mitigation plan ``provides for reduction of flood losses to structures
for which NFIP coverage is available'' to make the language more
consistent with the current statutory requirement at 42 U.S.C.
4104c(b). Finally, FEMA proposes to remove the language ``at the time
of application'' and address this requirement in a separate sentence as
described below.
Applicants must have a FEMA-approved mitigation plan at the time of
application and award. This comports with the NFIA, which requires
applicants to have a FEMA-approved mitigation plan as a condition of
eligibility for FMA awards.\63\ Currently, the regulation is silent as
to this requirement for States. For Indian Tribal governments, the
current regulation states only ``at the time of application.'' FEMA
proposes to add a sentence stating that both States and Indian Tribal
governments must have a FEMA-approved mitigation plan at the time of
application and award. This is a nonsubstantive change intended for
clarification purposes only.\64\
---------------------------------------------------------------------------
\63\ See 42 U.S.C. 4104c(b).
\64\ See HMA Guidance, Part III.E.5.1, Applicant Mitigation Plan
Requirement, p. 45.
---------------------------------------------------------------------------
Paragraph (2) states that in order to be eligible for FMA and SRL
grants, subapplicants must have an approved mitigation plan at the time
of application in accordance with 44 CFR part 201 that at a minimum
addresses flood hazards. As with applicants, FEMA proposes to revise
this provision to clarify that the plan must be approved by FEMA. While
it is implied in part 201 that the plan must be approved by FEMA, it is
not explicit, so FEMA proposes to add this clarification to avoid any
potential confusion. Also as with applicants, FEMA proposes to add that
the plan must provide for reduction of flood losses to structures for
which NFIP coverage is available. FEMA proposes to remove the language
``at a minimum, addresses flood hazards'' and replace it with the
language ``provides for reduction of flood losses to structures for
which NFIP coverage is available'' to make the language more consistent
with the current statutory requirement at 42 U.S.C. 4104c(b).
FEMA proposes to add a sentence stating that the FEMA-approved
mitigation plan is required at the time of application and award for
reasons described above.\65\
---------------------------------------------------------------------------
\65\ See HMA Guidance, Part III.E.5.2, Subapplicant Mitigation
Plan Requirement, p. 45.
---------------------------------------------------------------------------
[[Page 53484]]
Finally, FEMA proposes to add paragraph headings to aid the reader.
It proposes to add the header ``applicants'' for paragraph (b)(1), and
the header ``subapplicants'' for paragraph (b)(2) to make the paragraph
structure easier to follow.
iii. Paragraph (c) Eligible Activities
FEMA proposes to revise paragraph (c), Eligible activities, to
reflect the changes from BW-12.
Paragraph (1) addresses planning and states that FMA planning
grants are limited to those activities necessary to develop or update
the flood portion of any mitigation plan. FEMA proposes to remove this
sentence because the NFIA, as amended by BW-12, explicitly provides
that a mitigation plan that provides for the reduction of flood losses
to structures for which NFIP coverage is available may be included in a
multi-hazard mitigation plan.\66\ FEMA proposes to remove the ``flood
portion'' language because there may be multi-hazard mitigation plans
that meet the statutory requirements but that do not distinguish and
address all flood-related provisions in a separate ``flood portion'' of
the plan. FEMA proposes to say, instead, that the plans must provide
for reduction of flood losses to structures for which NFIP coverage is
available. This change is intended to reflect the statutory language at
42 U.S.C. 4104c(b).
---------------------------------------------------------------------------
\66\ 42 U.S.C. 4104c(b).
---------------------------------------------------------------------------
FEMA proposes to also remove the following sentence, which states
that planning grants are not eligible for funding under the SRL
program; as the SRL program is no longer authorized, this provision is
no longer necessary.
Paragraph (c)(2) addresses projects. The first sentence of the
introductory text states that projects funded under the SRL program are
limited to those activities that specifically reduce or eliminate flood
damages to severe repetitive loss properties. FEMA proposes to remove
this sentence and make necessary grammatical adjustments to this
paragraph because the SRL program is no longer authorized.
In paragraph (c)(2)(v), FEMA proposes to remove language that
limits the eligibility of demolition and rebuilding of properties to
the SRL program. The demolition and rebuilding of properties to at
least base flood levels or higher, if required by FEMA or by State or
local ordinance, has been an eligible activity under the FMA program
since before BW-12's passage. FEMA implemented this provision in the
HMA Guidance.\67\
---------------------------------------------------------------------------
\67\ See HMA Guidance Addendum, Feb. 27, 2015, Part D,
Mitigation Reconstruction Projects, p. 59, available at https://www.fema.gov/media-library-data/1424983165449-38f5dfc69c0bd4ea8a161e8bb7b79553/HMA_Addendum_022715_508.pdf (last
accessed Feb. 13, 2020).
---------------------------------------------------------------------------
Paragraph (c)(2)(vi) lists as an eligible project ``minor physical
localized flood reduction measures'' that lessen the frequency or
severity of flooding and decrease predicted flood damages. FEMA
proposes to replace ``minor physical localized flood reduction
measures'' with ``localized flood risk reduction projects.'' The
following sentence states that ``major flood control projects'' such as
dikes, levees, floodwalls, seawalls, groins, jetties, dams and large-
scale waterway channelization projects are not eligible. FEMA proposes
to replace ``major flood control projects'' with ``non-localized flood
risk reduction projects.'' Major flood control projects are known as
``non-localized flood risk reduction projects'' for purposes of FMA.
FEMA proposes to replace major flood control projects with non-
localized flood risk reduction projects so that these projects are
known by one common name. These changes are intended to ensure
consistency between program implementation, guidance, and regulation,
and do not impose new requirements. The terms ``localized flood risk
reduction projects'' and ``non-localized flood risk reduction
projects'' are used throughout the HMA Guidance.\68\
---------------------------------------------------------------------------
\68\ See, e.g., HMA Guidance, Part III.E.1.1, Mitigation
Projects, p. 36.
---------------------------------------------------------------------------
BW-12 added elevation, relocation, and floodproofing of utilities
as eligible activities.\69\ FEMA proposes to add these activities to a
new paragraph (c)(2)(vii). These activities were implemented in the HMA
Guidance.\70\
---------------------------------------------------------------------------
\69\ See 42 U.S.C. 4104c(c)(3)(D), Public Law112-141, section
100225(a)(5)(D).
\70\ HMA Guidance, Part III.E.1.1, Mitigation Projects, pp. 34 -
35.
---------------------------------------------------------------------------
BW-12 provides that eligible activities may include mitigation
activities that are described in the mitigation plan of a State or
community but not specified by statute or regulation.\71\ FEMA proposes
to implement this provision in a new paragraph (c)(2)(viii) for
mitigation activities described in a State, Tribal, or local mitigation
plan that are not listed in paragraphs (c)(2)(i) through (vii). This
flexibility is important because it allows FEMA to consider innovative
or novel projects that are consistent with the goals of the FMA program
but are not specifically identified in statute or regulation. This is a
nonsubstantive change; FEMA has already implemented this provision in
the HMA Guidance.\72\
---------------------------------------------------------------------------
\71\ See 42 U.S.C. 4104c(c)(3)(I).
\72\ HMA Guidance, Part III.E.1.1, Mitigation Projects, p. 38.
---------------------------------------------------------------------------
BW-12 provides that if a State applied for and was awarded at least
$1,000,000 in FMA grants in the prior fiscal year, FEMA may provide
funding for technical assistance to communities not to exceed $50,000
per State in any fiscal year to identify eligible activities, to
develop grant applications, and to implement FMA grants.\73\ FEMA
proposes to add new paragraph (c)(3) to implement this provision. The
new paragraph would state that if a recipient applied for and was
awarded at least $1 million in the prior fiscal year, that recipient
may be eligible to receive a technical assistance grant for up to
$50,000. FEMA has already implemented this provision in the HMA
Guidance.\74\ The HMA Guidance lists potential eligible activities
under this grant, such as promoting FMA to communities, visiting sites
with communities/applicants, developing and reviewing project
applications and mitigation plans, participating in planning meetings,
providing planning workshops and materials, performing benefit cost
analyses and providing grants management workshops and materials,
funding (in part) salaries and expenses of staff working to develop,
review, monitor, and close FMA grants.\75\
---------------------------------------------------------------------------
\73\ See 42 U.S.C. 4104c(c)(3)(J).
\74\ HMA Guidance, Part III.E.1.4, Technical Assistance, pp. 40-
41.
\75\ Id.
---------------------------------------------------------------------------
iv. Paragraph (d) Minimum Project Criteria
Paragraph (d) addresses minimum project criteria which lists
specific criteria FMA grant projects must meet in addition to being an
eligible project type as described in paragraph (c). Paragraph (d)(1)
states that projects must be in conformance with mitigation plans
approved under 44 CFR part 201 for the State and community where the
project is located. FEMA proposes to revise this provision for the sake
of clarity, to state that projects must be in conformance with ``State,
Tribal, and/or local'' mitigation plans approved under part 201 for the
``jurisdiction'' where the project is located.
Paragraph (d)(2) states that projects must be in conformance with
part 9 of this chapter, Floodplain Management and Protection of
Wetlands, Sec. 60.3 of this subchapter, Flood plain management
criteria for floodprone areas, and other applicable Federal, State,
Tribal, and local laws and regulations. FEMA proposes to revise
[[Page 53485]]
this provision to state that the project must be in conformance with
applicable environmental and historic preservation laws, regulations,
and agency policy, including parts 9 and 60 of this chapter, and other
applicable Federal, State, Tribal, and local laws and regulations. FEMA
proposes to remove the reference to Sec. 60.3 and replace it with a
more general reference to part 60, which captures additional
requirements that fall under current paragraph (d)(2). FEMA also
proposes to emphasize that projects must be in conformance ``with
applicable environmental and historic preservation laws, regulations,
and agency policy,'' which includes FEMA regulations at parts 9 and 60.
Applicable environmental and historic preservation requirements also
include the requirements in DHS Directive and Instruction 023-01,
``Implementation of the National Environmental Policy Act,'' and FEMA
Directive and Instruction 108-1, ``Environmental Planning and Historic
Preservation Responsibilities and Program Requirements.'' \76\ This is
a nonsubstantive change intended to capture all applicable legal
requirements and to highlight applicable environmental and historic
preservation requirements, which are particularly relevant to the
implementation of mitigation grants.\77\
---------------------------------------------------------------------------
\76\ See 81 FR 56514 and 81 FR 56682.
\77\ See HMA Guidance, Part III.E.6, Environmental Planning and
Historic Preservation Requirements, pp. 47-48.
---------------------------------------------------------------------------
Paragraph (d)(3) states that mitigation grant projects must ``be
technically feasible.'' Under the NFIA, as amended by BW-12, mitigation
projects must be ``technically feasible and cost-effective'' or
``eliminate future payments from the [NFIF] for severe repetitive loss
structures through an acquisition or relocation activity.'' \78\ FEMA
proposes to add to paragraph (d)(3) ``and cost-effective; or, eliminate
future payments from the NFIF for severe repetitive loss structures
through an acquisition or relocation activity.'' FEMA proposes this
revision to capture all of the statutory requirements in 42 U.S.C.
4104c(c)(2)(A) in the same regulatory provision. This is not a
substantive change; FEMA had already implemented this provision prior
to BW-12.\79\
---------------------------------------------------------------------------
\78\ 42 U.S.C. 4104c(c)(2)(A).
\79\ HMA Guidance, Part III.E.3, Cost Effectiveness, and Part
III.E.4, Feasibility and Effectiveness, p.44.
---------------------------------------------------------------------------
Paragraph (d)(5) states that the project must be cost effective and
reduce the risk of future flood damage. FEMA proposes to remove this
paragraph because cost-effectiveness is addressed in the proposed
revisions to paragraph (d)(3). Proposed paragraph (d)(3) does not
include the language ``reduce the risk for future flood damage''
because FEMA is proposing language that mirrors the statutory provision
at 42 U.S.C. 4104c(c)(2)(A)(ii), as explained above.
Finally, FEMA proposes to replace ``subgrantee'' with
``subrecipient'' in current paragraph (d)(6) to reflect the terminology
in 2 CFR part 200, and to redesignate current paragraph (d)(6) as
paragraph (d)(5), and current paragraph (d)(7) as paragraph (d)(6).
8. Section 79.7 Offers and Appeals Under the SRL Program
Section 79.7 deals solely with the SRL program, which is no longer
authorized under the NFIA. Accordingly, FEMA proposes to remove this
section in its entirety.
9. Section 79.8 (Proposed Sec. 77.8) Allowable Costs
This section addresses allowable costs under the FMA program.
Paragraph (a)'s introductory text states that general policies for
allowable costs are addressed in 2 CFR 200.101, 200.102, 200.400-
200.475. FEMA proposes to revise this provision to clarify that the
allowable costs are ``for implementing awards and subawards.'' This is
a nonsubstantive change.
Paragraph (a)(1) is entitled ``Eligible management costs.''
Paragraph (a)(1)(i) is entitled ``grantee.'' FEMA proposes to replace
``grantee'' with ``recipient'' to reflect the updated terminology in 2
CFR part 200. The first sentence of paragraph (a)(1)(i) states that
States are eligible to receive management costs consisting of a maximum
of 10 percent of the planning and project activities awarded to the
State, each fiscal year under FMA and SRL, respectively. FEMA proposes
to replace ``State(s)'' with ``recipient(s)'' to reflect the
terminology in 2 CFR part 200 and to capture all possible applicants
(States (including territories) and Indian Tribal governments).\80\
FEMA proposes to remove the reference to the SRL program, which is no
longer authorized under the NFIA. The last sentence states that an
Indian Tribal government applying directly to FEMA is eligible for
management costs consisting of a maximum of 10 percent of grants
awarded for planning and project activities under the SRL and FMA
programs respectively. FEMA proposes to remove this sentence as it
would no longer be necessary under the proposed revisions to this
paragraph, which replaces ``States'' with ``recipients.'' The term
``recipients'' includes Indian Tribal governments.
---------------------------------------------------------------------------
\80\ See proposed 77.2(i).
---------------------------------------------------------------------------
FEMA proposes to replace the header of paragraph (a)(1)(ii),
``subgrantee,'' with ``subrecipient'' to reflect the terminology in 2
CFR part 200. FEMA proposes to replace the term ``State'' with
``recipient'' to capture the full universe of entities to which a
subapplicant may apply (States (including territories) and Indian
Tribal governments).
Paragraph (a)(2) is entitled ``Indirect Costs.'' FEMA proposes to
remove the reference to the SRL program, as the program is no longer
authorized under the NFIA. FEMA proposes to replace ``grantee'' with
``recipient'' and ``subgrantee'' with ``subrecipient'' to reflect the
terminology in 2 CFR part 200.
Paragraph (b) is entitled ``Pre-award costs.'' The first sentence
states that FEMA may fund eligible pre-award planning or project costs
at its discretion and as funds are available. FEMA proposes to revise
this sentence to state that FEMA may fund eligible pre-award costs
related to developing the application or subapplication at its
discretion and as funds are available. FEMA interprets ``pre-award
planning or project costs'' to mean pre-award costs related to
developing an application or subapplication. This revision is intended
to clarify the regulatory language, consistent with FEMA's
interpretation established in the HMA Guidance, and is not a
substantive change.\81\ FEMA proposes to replace ``grantees'' with
``recipients'' and ``subgrantees'' with ``subrecipients'' to reflect
the terminology in 2 CFR part 200. Finally, FEMA proposes to make
nonsubstantive grammatical changes to reflect that this section applies
just to FMA grants, and proposes to replace the phrase ``incurred prior
to grant award'' with ``incurred prior to award'' as the word ``grant''
is not necessary.
---------------------------------------------------------------------------
\81\ See HMA Guidance, Part IV.F.2, Pre-award costs, p. 55.
---------------------------------------------------------------------------
Paragraph (c) is entitled ``Duplication of Benefits.'' FEMA
proposes to replace ``grantee'' with ``recipient'' and ``subgrant
award'' with ``subaward'' to reflect the terminology in 2 CFR part 200.
10. Section 79.9 (Proposed Sec. 77.9) Grant Administration
Paragraph (a) states that the grantee must follow FEMA grant
requirements, including submission of performance and financial status
reports, and shall follow adequate competitive procurement procedures,
and that grantees are responsible for ensuring
[[Page 53486]]
that all subgrantees are aware of and follow the requirements of 2 CFR
parts 200 and 3002. Finally, it states that the grantee must follow
FEMA grant requirements, including submission of performance and
financial status reports. FEMA proposes to revise this paragraph for a
more streamlined approach and to eliminate some of the repetition in
the current paragraph. Accordingly, FEMA proposes to revise paragraph
(a) to state that recipients must comply with the requirements of 2 CFR
parts 200 and 3002, and FEMA award requirements, including submission
of performance and financial status reports, and that recipients must
also ensure that subrecipients are aware of and comply with 2 CFR parts
200 and 3002. Finally, FEMA proposes to add a header to paragraph (a),
entitled ``General,'' to distinguish it from the other paragraphs and
for the ease of the reader. These are nonsubstantive changes.
FEMA proposes to add a header to paragraph (b), ``Cost overruns,''
for the ease of the reader. In paragraph (b)'s introductory text, FEMA
proposes to replace ``State POC'' with ``recipient'' to capture the
universe of all possible recipients (States (including territories) and
Indian Tribal governments). FEMA proposes to redesignate the
introductory text of paragraph (b) as paragraph (b)(1), and to
redesignate paragraph (b)(1) as (b)(1)(i), and paragraph (b)(2) as
(b)(1)(ii). Current paragraph (b)(2) (proposed paragraph (b)(1)(ii)),
which lists one of the requirements for reimbursement of an overrun,
states that the amended grant award must meet the cost share
requirements identified in this section. FEMA proposes to revise this
to state that the amended grant award must meet the eligibility
requirements, including cost share requirements, identified in this
section. FEMA proposes this change to capture all eligibility
requirements, including but not limited to cost share requirements.
This is a nonsubstantive change, because all FMA eligibility
requirements apply to amended grant awards, and is consistent with the
HMA Guidance.\82\
---------------------------------------------------------------------------
\82\ See HMA Guidance, Part IV.D.3.3, Cost overruns and
Underruns, p. 85.
---------------------------------------------------------------------------
Paragraph (b)(3) limits cost overrun reimbursements so that the
total amount obligated to the State does not exceed the maximum funding
amounts set in Sec. 79.4(a)(2). FEMA proposes to remove this provision
because BW-12 eliminated automatic allocations under the FMA program
and the NFIA no longer establishes maximum funding amounts for project
awards.\83\
---------------------------------------------------------------------------
\83\ See discussion supra regarding the proposed revisions to
Sec. 79.4 (proposed Sec. 77.4).
---------------------------------------------------------------------------
Current paragraph (c) addresses the ability of grantees to use cost
underruns to offset overruns in other awards. FEMA proposes to
redesignate paragraph (c) as paragraph (b)(2), since it more
appropriately belongs in the paragraph on cost overruns rather than as
a stand-alone paragraph. The first sentence of current paragraph (c)
(proposed paragraph (b)(2)) states that grantees may use cost underruns
from ongoing subawards to offset overruns incurred by another
subgrant(s) awarded under the same grant. FEMA proposes to replace
``grantees'' with ``recipients'' and ``subgrants'' with ``subawards''
to reflect the terminology in 2 CFR part 200, and to replace the final
word of the sentence (``grant'') with ``award.'' These are
nonsubstantive changes. The second sentence of current paragraph (c)
(proposed paragraph (b)(2)) states that all costs for which funding is
requested must have been included in the original application's cost
estimate. FEMA proposes to replace ``application'' with
``subapplication'' because the need for an overrun is at the subaward
level. This is a nonsubstantive change for clarification purposes--the
program currently applies this to the subapplication amount for a
specific project, not the application amount which encompasses all
projects under the recipient's award. FEMA proposes to add that in
cases where an underrun is not available to cover an overrun, the
Administrator may, with justification from the recipient or
subrecipient, use other available FMA funds to cover the cost overrun.
FEMA implements this practice pursuant to 42 U.S.C. 4104c(c)(1), which
requires FEMA to provide FMA assistance to the extent amounts are
available in the NFIF pursuant to appropriation Acts, subject only to
the absence of approvable mitigation plans. This practice is consistent
with the HMA Guidance which provides that ``[t]he pass-through entity
may request additional Federal funds for identified overruns, which
FEMA may approve if program funds are available.'' \84\ This
flexibility allows FEMA and recipients to address unanticipated needs.
---------------------------------------------------------------------------
\84\ See HMA Guidance, Part VI.D.3.3, Cost overruns and
Underruns, p. 85.
---------------------------------------------------------------------------
Current paragraph (d) addresses the requirement that the request
for an overrun be in writing to the FEMA Regional Administrator. FEMA
proposes to redesignate this paragraph as paragraph (b)(3), as it
appropriately belongs in the paragraph that addresses overruns rather
than as a stand-alone paragraph. FEMA proposes to replace ``grant''
with ``award'' for the sake of clarity, and to replace ``State POC''
with ``recipient'' to capture the universe of potential recipients
(States (including territories) and Indian Tribal governments). FEMA
proposes to replace ``shall'' with ``must'' and ``will'' pursuant to
the Office of the Federal Register's Principles of Clear Writing.\85\
---------------------------------------------------------------------------
\85\ https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html.
---------------------------------------------------------------------------
Current paragraph (e) addresses the circumstances under which FEMA
recaptures funds. FEMA proposes to redesignate this paragraph as
paragraph (c) and to add a paragraph heading ``Recapture'' for the ease
of the reader. FEMA proposes to replace ``these programs'' with ``this
part'' for the sake of clarity.
FEMA proposes to add a new paragraph (d) to address remedies for
noncompliance, consistent with 2 CFR part 200. FEMA proposes to add
that FEMA may terminate an award or take other remedies for
noncompliance in accordance with 2 CFR 200.338 through 200.342.
Finally, FEMA proposes to add a new paragraph (e) to address the
reconsideration process under the FMA program. FEMA proposes to state
that it will reconsider determinations of noncompliance, additional
award conditions, or its decision to terminate a Federal award.
Requests for reconsideration must be made in writing within 60 calendar
days after receipt of a notice of the action, and in accordance with
submission procedures set out in guidance. FEMA will notify the
requester of the disposition of the request for reconsideration. If the
decision is to grant the request for reconsideration, FEMA will take
appropriate implementing action. FEMA proposes to add these provisions
to reflect the existing opportunity to request reconsideration \86\ and
the procedures for when a recipient/subrecipient challenges a remedy
for noncompliance, as required by 2 CFR 200.341.\87\ FEMA believes that
a 60 calendar day deadline for submitting requests for reconsideration
is appropriate and consistent with the
[[Page 53487]]
amount of time provided to submit appeals or requests for
reconsideration in other FEMA programs.\88\ This is a nonsubstantive
change that codifies current practice.
---------------------------------------------------------------------------
\86\ See HMA Guidance, Part V.B.3, Reconsideration Process, p.
77.
\87\ See 2 CFR 200.341, Opportunities to object, hearings and
appeals, providing that ``[U]pon taking any remedy for non-
compliance, the Federal awarding agency must provide the non-Federal
entity an opportunity to object and provide information and
documentation challenging the suspension or termination action, in
accordance with written processes and procedures published by the
Federal awarding agency.''
\88\ See, e.g., 44 CFR 206.101(m), 206.115(a), 206.171(f)(5),
206.204(e)(2), 206.206(c), and 206.366(d)(4).
---------------------------------------------------------------------------
C. 44 CFR part 80, Property Acquisition and Relocation for Open Space
Throughout part 80,\89\ FEMA proposes to replace outdated terms and
definitions with substantively similar terms and definitions that
better align with 2 CFR part 200 and the HMA Guidance. These are
nonsubstantive revisions intended to simplify definitions and improve
consistency among FEMA's HMA programs. FEMA also proposes to replace
the word ``shall'' with the word ``will'' or ``must,'' as appropriate,
and to remove references to the SRL program.
---------------------------------------------------------------------------
\89\ See, e.g., Sec. Sec. 80.5 (Roles and responsibilities),
80.9 (Eligible and ineligible costs), 80.11 (Project eligibility),
80.13 (Application information), 80.17 (Project implementation),
80.19 (Land use and oversight), and 80.21 (Closeout requirements).
---------------------------------------------------------------------------
1. Part 80 Authority
FEMA proposes to revise the authority citation for part 80 to
remove historical authorities relating to FEMA's organization. FEMA
proposes to remove the references to the Reorganization Plan No. 3 of
1978, Executive Order 12127, Executive Order 12148, and Executive Order
13286. The Reorganization Plan and Executive Orders 12127 and 12148
established FEMA as an agency in 1979 and established its functions.
Executive Order 13286 revised Executive Order 12148 and transferred
some of FEMA's authorities to DHS. The Homeland Security Act of 2002, 6
U.S.C. 101 et seq., superseded previous organizational authorities and
provided organic authority for FEMA as a component agency of DHS. FEMA
proposes to remove the superseded authorities and retain the citation
to the Homeland Security Act of 2002.
2. Section 80.3 Definitions
FEMA proposes nonsubstantive revisions to simplify definitions and
improve consistency among FEMA's HMA programs. FEMA proposes to
simplify the definition of ``market value'' to provide clearer meaning
and reflect the definition found in widely recognized resources.\90\
---------------------------------------------------------------------------
\90\ See, e.g, The Law Dictionary, Black's Law Dictionary Free
Online Legal Dictionary, 2nd ed.; West's Encyclopedia of American
Law, 2nd ed.
---------------------------------------------------------------------------
FEMA proposes to add a definition for ``Federal award'' to reflect
the definition in 2 CFR part 200. FEMA's proposed definition is similar
to the definition in 2 CFR 200.38(a)(1),\91\ with two exceptions.
First, FEMA's proposed definition uses the terms ``recipients'' and
``subrecipients'' instead of the term ``non-Federal entities.'' The
term ``non-Federal entity,'' as defined at 2 CFR 200.69, includes
entities that are not eligible recipients or subrecipients under all of
FEMA's HMA programs. While all HMA recipients and subrecipients are
``non-Federal entities'' under 2 CFR part 200, FEMA proposes to tailor
the definitions in part 80 so that they are program-specific and work
when read in conjunction with the regulations for the FMA Program and
HMGP. Second, FEMA proposes to add a sentence to the definition to
clarify that the terms ``award'' and ``grant'' may also be used to
describe a ``Federal award.'' This is a nonsubstantive change to make
it clear that the terms are interchangeable.
---------------------------------------------------------------------------
\91\ 2 CFR 200.38(a)(1) (the Federal financial assistance that a
non-Federal entity receives directly from a Federal awarding agency
or indirectly from a pass-through entity).
---------------------------------------------------------------------------
FEMA proposes to add a definition for ``pass-through entity'' to
reflect the definition in 2 CFR part 200. FEMA's proposed definition of
``pass-through entity'' is substantively the same as the definition in
2 CFR 200.74, with one exception. FEMA's proposed definition uses the
terms ``recipients'' and ``subrecipients'' instead of the term ``non-
Federal entities.'' The term ``non-Federal entity,'' as defined at 2
CFR 200.69, includes entities that are not eligible recipients or
subrecipients under all of FEMA's HMA programs. While all HMA
recipients and subrecipients are ``non-Federal entities'' under 2 CFR
part 200, FEMA proposes to tailor the definitions in part 80 so that
they are program-specific and work when read in conjunction with the
regulations for the FMA Program and HMGP.
FEMA proposes to replace the definitions ``grantee,'' ``subgrant,''
and ``subgrantee,'' with definitions for ``recipient,'' ``subaward,''
and ``subrecipient,'' respectively, to better align with the terms and
definitions used in 2 CFR part 200 and the HMA Guidance. The proposed
definition of ``recipient'' is similar to the definition at 2 CFR
200.86; however, FEMA proposes to use the terms ``State or Indian
Tribal government'' instead of the term ``non-Federal entity'' to
reflect the terms and definitions in this proposed rule, which are
tailored to part 80 and reflect which entities are eligible recipients
for purposes of part 80. The proposed definition of ``subaward'' is
similar to the definition at 2 CFR 200.92; however, FEMA proposes to
use the terms ``recipient'' and ``subrecipient'' instead of the term
``non-Federal entity'' to reflect the terms and definitions in this
proposed rule, which are tailored to part 80. The proposed definition
of ``subrecipient'' is similar to the definition at 2 CFR 200.93;
however, FEMA proposes to use the terms ``State agency, community, or
Indian Tribal government'' instead of the term ``non-Federal entity''
to reflect which entities are eligible subrecipients for purposes of
part 80.
Finally, FEMA proposes to revise the definitions of ``applicant''
and ``subapplicant.'' FEMA proposes to replace the term ``grant'' in
the current definition of ``applicant'' with the term ``Federal
award.'' This is a nonsubstantive change to use the newly defined term
``Federal award'' (proposed Sec. 80.3(c)) throughout the definitions.
FEMA also proposes to add that once funds have been awarded, the
applicant becomes the recipient and may also be a pass-through entity.
This is a nonsubstantive addition to clarify the relationship between
the terms ``applicant,'' ``recipient,'' and ``pass-through entity'' for
the ease of the reader. FEMA proposes to revise the definition of
``subapplicant'' to replace ``grantee'' with ``recipient'' and
``subgrantee'' with ``subrecipient'' to reflect the terms and
definitions in this proposed rule, which are tailored to part 80. FEMA
proposes to make conforming amendments to these terms throughout part
80.
3. Section 80.13 Application Information
In paragraph (a)(3), FEMA proposes to replace ``FEMA's Office of
General Counsel'' with ``FEMA's Office of Chief Counsel.'' This is a
nonsubstantive change intended to reflect FEMA's current organizational
structure (FEMA's Office of General Counsel became the Office of Chief
Counsel when FEMA became a component of DHS).
4. Section 80.19 Land Use and Oversight
In addition to replacing outdated terms with substantively similar
terms that better align with 2 CFR part 200 and the HMA Guidance (i.e.,
replacing ``grantee'' with ``recipient,'' etc.), FEMA proposes in
paragraph (e) to move the sentence in (e)(1)(i) to paragraph (e)(1),
and redesignate paragraphs (e)(1)(ii), and (e)(1)(ii)(A) through (C) as
(e)(2), and (e)(2)(i) through (iii), respectively. This nonsubstantive
redesignation is intended to conform this section to the
[[Page 53488]]
regulatory drafting principle of proper subordination (e.g., it is
improper to have an (e)(1) where there is not an (e)(2)).
5. Section 80.21 Closeout Requirements
In paragraph (d), FEMA proposes to replace the word ``property''
with the word ``structure'' to conform to the definition of
``repetitive loss structure'' provided in BW-12 and proposed Sec.
77.2, discussed above.
D. 44 CFR Part 201, Mitigation Planning
FEMA proposes to replace outdated terms and definitions throughout
part 201 with substantively similar terms and definitions that better
align with 2 CFR part 200 and the HMA and Mitigation Planning programs
guidance documents. These are nonsubstantive revisions intended to
simplify definitions and improve consistency among FEMA's HMA and
Mitigation Planning programs. FEMA also proposes to replace the word
``shall'' with the word ``will'' or ``must,'' as appropriate.
1. Part 201 Authority
FEMA proposes to revise the authority citation for part 201 to
remove historical authorities relating to FEMA's organization. FEMA
proposes to remove the references to the Reorganization Plan No. 3 of
1978, Executive Order 12127, Executive Order 12148, and Executive Order
13286. The Reorganization Plan and Executive Orders 12127 and 12148
established FEMA as an agency in 1979 and established its functions.
Executive Order 13286 revised Executive Order 12148 and transferred
some of FEMA's authorities to DHS. The Homeland Security Act of 2002, 6
U.S.C. 101 et seq., superseded previous organizational authorities and
provided organic authority for FEMA as a component agency of DHS. FEMA
proposes to remove the superseded authorities and retain the citation
to the Homeland Security Act of 2002.
2. Section 201.1 Purpose
FEMA proposes to replace the word ``polices'' with ``policies'' in
paragraph 201.1(a) as the word ``polices'' is a typographical error.
3. Section 201.2 Definitions
FEMA proposes to revise the definition of ``severe repetitive
loss'' properties and to add a new definition for ``repetitive loss
structure'' to reflect the definitions provided in BW-12 and proposed
in this rulemaking.\92\ FEMA proposes to remove the definitions of the
``repetitive flood claims'' and ``severe repetitive loss'' programs as
BW-12 eliminated the RFC and SRL programs.
---------------------------------------------------------------------------
\92\ 42 U.S.C. 4104c(h), 4121(a)(7); proposed 44 CFR 77.2.
---------------------------------------------------------------------------
FEMA proposes to add definitions for the terms ``applicant'' and
``subapplicant'' to reflect the terms and definitions in proposed Sec.
77.2. FEMA also proposes to add new definitions for ``Federal award''
and ``pass-through Entity'' to reflect the definitions in 2 CFR part
200. FEMA's proposed definition of ``Federal award'' is similar to the
definition in 2 CFR 200.38(a)(1),\93\ with two exceptions. First,
FEMA's proposed definition uses the terms ``recipients'' and
``subrecipients'' instead of the term ``non-Federal entities.'' The
term ``non-Federal entity,'' as defined at 2 CFR 200.69, includes
entities that are not eligible recipients or subrecipients under FEMA's
HMA programs. While FMA recipients and subrecipients are ``non-Federal
entities'' under 2 CFR part 200, FEMA proposes to tailor the
definitions so that they work in conjunction with the regulations for
the FMA program and HMGP. Second, FEMA proposes to add a sentence to
the definition to clarify that the terms ``award'' and ``grant'' may
also be used to describe a ``Federal award'' under the FMA program
regulations. This is a nonsubstantive change to make it clear that the
terms are interchangeable. FEMA proposes to add a definition for
``pass-through entity'' to reflect the definition in 2 CFR part 200.
FEMA's proposed definition of ``pass-through entity'' is substantively
the same as the definition in 2 CFR 200.74, with one exception. FEMA's
proposed definition uses the terms ``recipients'' and ``subrecipients''
instead of the term ``non-Federal entities.'' The term ``non-Federal
entity,'' as defined at 2 CFR 200.69, includes entities that are not
eligible recipients or subrecipients under FEMA's HMA programs. While
all HMA recipients and subrecipients are ``non-Federal entities'' under
2 CFR part 200, FEMA proposes to tailor the definitions so that they
work in conjunction with regulations for the FMA program and HMGP.
---------------------------------------------------------------------------
\93\ 2 CFR 200.38(a)(1) (the Federal financial assistance that a
non-Federal entity receives directly from a Federal awarding agency
or indirectly from a pass-through entity).
---------------------------------------------------------------------------
FEMA proposes to replace the definitions of ``grantee'' and
``subgrantee'' with definitions for ``recipient'' and ``subrecipient,''
respectively, to better align with the terms and definitions used in 2
CFR part 200 and the HMA Guidance. The proposed definition of
``recipient'' is similar to the definition at 2 CFR 200.86; however,
FEMA proposes to use the terms ``State or Indian Tribal government''
instead of the term ``non-Federal entity'' to reflect the terms and
definitions in this proposed rule, which are tailored to part 201 and
reflect which entities are eligible recipients for purposes of part
201. The proposed definition of ``subrecipient'' is similar to the
definition at 2 CFR 200.93; however, FEMA proposes to specify which
entities are eligible subrecipients for purposes of part 201. Depending
on the program, subrecipients of hazard mitigation assistance subawards
can be a State agency, local government, private nonprofit
organization, or Indian Tribal government. Subrecipients of FMA
subawards can be a State agency, community, or Indian Tribal
government, as described in 44 CFR part 77. Finally, FEMA proposes to
add a definition of ``subaward'' similar to the definition at 2 CFR
200.92; however, FEMA proposes to use the terms ``recipient'' and
``subrecipient'' instead of the term ``non-Federal entity'' to reflect
the terms and definitions tailored to part 201 in this proposed rule.
4. Section 201.3 Responsibilities
FEMA proposes to revise paragraph (c)(1) to reflect the elimination
of the SRL program and to conform to the mitigation planning
requirements proposed in this rulemaking. See proposed 44 CFR 77.6. The
last sentence of paragraph (c)(1) would be removed and replaced with a
sentence describing the mitigation plan requirement in proposed Sec.
77.6(b). See proposed 44 CFR 201.3(c)(1). FEMA proposes similar
revisions to paragraph (e)(1). The last two sentences of paragraph
(e)(1) would be removed and replaced with a sentence describing the
mitigation plan requirement in proposed Sec. 77.6(b). See proposed 44
CFR 201.3(e)(1).
5. Section 201.4 Standard State Mitigation Plans
FEMA proposes to revise paragraph (c)(3)(v) to reflect the
elimination of the SRL program and to conform to the mitigation
planning requirements proposed in this rulemaking. See proposed 44 CFR
77.6. The current language would be removed and replaced with a
sentence describing the mitigation plan requirement found in proposed
Sec. 77.6(b). See proposed 44 CFR 201.4(c)(3)(v). In paragraph
(c)(4)(iii), FEMA proposes to replace the word ``properties'' with the
word ``structures'' to reflect the definition of ``repetitive loss
structure'' used in BW-12 and proposed Sec. 77.2.
[[Page 53489]]
6. Section 201.6 Local Mitigation Plans
In Sec. 201.6(a)(1), FEMA proposes to remove the reference to the
RFC program, which was eliminated by BW-12.
7. Section 201.7 Tribal Mitigation Plans
FEMA proposes to revise Sec. 201.7 to reflect the elimination of
the SRL and RFC programs and to conform to the mitigation planning
requirements proposed in this rulemaking. See proposed 44 CFR 77.6.
FEMA proposes to remove paragraph (a)(2) to reflect the elimination of
the SRL program and to remove the reference to the RFC program in
paragraph (a)(3). FEMA proposes to redesignate current paragraphs
(a)(3) and (4) as (a)(2) and (3), respectively. The language in current
paragraph (c)(3)(vi) would be removed and replaced with a sentence
describing the mitigation plan requirement in proposed Sec. 77.6(b).
See proposed 44 CFR 201.7(c)(3)(vi).
E. 44 CFR part 206 Subpart N, Hazard Mitigation Grant Program
Throughout part 206,\94\ FEMA proposes to replace outdated terms
and definitions with substantively similar terms and definitions that
better align with 2 CFR part 200 and the HMA guidance. These are
nonsubstantive revisions intended to simplify definitions and improve
consistency among FEMA's HMA programs. FEMA also proposes to replace
the word ``shall'' with the word ``will'' or ``must,'' as appropriate.
---------------------------------------------------------------------------
\94\ See, e.g., Sec. Sec. 206.433 (State responsibilities),
206.435 (Project identification and selection criteria), 206.436
(Application procedures), 206.437 (State Administrative Plan),
206.438 (Project management), 206.439 (Allowable costs), and 206.440
(Appeals).
---------------------------------------------------------------------------
1. Section 206.431 Definitions
FEMA proposes to add a definition for ``pass-through entity'' to
reflect the definition in 2 CFR part 200. FEMA's proposed definition of
``pass-through entity'' is substantively the same as the definition in
2 CFR 200.74, with one exception. FEMA's proposed definition uses the
terms ``recipients'' and ``subrecipients'' instead of the term ``non-
Federal entities.'' The term ``non-Federal entity,'' as defined at 2
CFR 200.69, includes entities that are not eligible recipients or
subrecipients under HMGP. While all HMGP recipients and subrecipients
are ``non-Federal entities'' under 2 CFR part 200, FEMA proposes to
tailor the definitions in part 206 subpart N so that they are program-
specific and work when read in conjunction with the HMA-related
regulations in parts 79 (proposed part 77), 80, and 201.
FEMA proposes to replace the definitions ``grantee,'' ``subgrant,''
and ``subgrantee,'' with definitions for ``recipient,'' ``subaward,''
and ``subrecipient,'' respectively, to better align with the terms and
definitions used in 2 CFR part 200 and the HMA Guidance. The proposed
definition of ``recipient'' is similar to the definition at 2 CFR
200.86; however, FEMA proposes to use the terms ``State or Indian
Tribal government'' instead of the term ``non-Federal entity'' to
reflect the terms and definitions in this proposed rule, which are
tailored to reflect which entities are eligible recipients of HMGP. The
proposed definition of ``subaward'' is similar to the definition at 2
CFR 200.92; however, FEMA proposes to use the terms ``recipient'' and
``subrecipient'' instead of the term ``non-Federal entity'' to reflect
the terms and definitions in this proposed rule, which are tailored to
the HMGP regulations. The proposed definition of ``subrecipient'' is
similar to the definition at 2 CFR 200.93; however, instead of the term
``non-Federal entity,'' FEMA proposes to keep the language explaining
which entities are eligible subrecipients of HMGP. FEMA proposes to
make conforming amendments to these terms throughout part 206 subpart
N.
FEMA also proposes to revise the definitions of ``applicant'' and
``Indian Tribal government'' and add a definition for ``subapplicant.''
Section 206.431 currently defines ``applicant'' as a State agency,
local government, Indian Tribal government, or eligible private
nonprofit organization, submitting an application to the grantee for
assistance under the HMGP. FEMA proposes to clarify that an
``applicant'' is the non-Federal entity consisting of a State or Indian
Tribal government, applying to FEMA for a Federal award under HMGP, and
that upon award, the applicant becomes the recipient and may also be a
pass-through entity. FEMA proposes this revision because the current
definition mistakenly includes local governments and private nonprofit
organizations (they are subapplicants, not applicants) and applicants
do not submit an application to a recipient, but rather to FEMA. FEMA
proposes to add a sentence to the end of the current definition of
``Indian Tribal government'' to clarify that Indian Tribal governments
have the option to apply as an applicant or subapplicant. Lastly,
FEMA's proposed definition for ``subapplicant'' would clarify that it
means the State agency, local government, eligible private nonprofit
organization, or Indian Tribal government submitting a subapplication
to the applicant for financial assistance under HMGP, and that upon
award, the subapplicant becomes the subrecipient. FEMA proposes adding
this definition to more clearly distinguish the entities which may be
subapplicants from those which may be applicants.
2. Section 206.432 Federal Grant Assistance
FEMA proposes to revise 206.432(b), Amounts of Assistance, to
remove the references to specific sections of the Stafford Act.
Pursuant to 42 U.S.C. 5170c(a), the total contributions for HMGP in
each disaster should be based upon the estimated aggregate amount of
grants to be made under the Stafford Act for the major disaster.
Although 42 U.S.C. 5170c originally specified that the total should be
based on the estimated aggregate amount of grants to be made under
Section 406 of the Act,\95\ Congress later amended this provision to
remove the specific section reference.\96\ FEMA included specific
section references when it promulgated the HMGP regulations in 1990 to
reflect the level of specificity in the statute at that time.\97\ FEMA
subsequently revised 206.432(b) to include additional sections of the
Stafford Act under which major disaster assistance is made.\98\
However, this approach requires FEMA to update 206.432(b) whenever
statutory amendments change the section numbers or authorize assistance
under new sections of the Act.\99\ FEMA now proposes to remove specific
section references from 206.432(b) so that the regulation mirrors the
statutory provision and captures all of the sections under which grants
are made with respect to a major disaster. This change would improve
consistency with the statute and eliminate the need to continuously
update a list of Stafford Act sections.
---------------------------------------------------------------------------
\95\ Public Law 100-707, 102 Stat. 4698 (Nov. 23, 1988).
\96\ Public Law 103-181, 107 Stat. 2054 (Dec. 3, 1993).
\97\ See 55 FR 35537 (Aug. 30, 1990).
\98\ See 59 FR 24356 (May 11, 1994).
\99\ See, e.g., 67 FR 8853 (Feb. 26, 2002); 72 FR 61750 (Oct.
31, 2007); 74 FR 47482 (Sep. 16, 2009).
---------------------------------------------------------------------------
FEMA also proposes to remove the second sentence of paragraph (c),
which provides the cost share under HMGP for major disasters declared
before June 10, 1993. As this date has long since passed, it is no
longer necessary to include in the HMGP regulations.
3. Section 206.434 Eligibility
Paragraph (a), Applicants, currently describes the entities which
are eligible
[[Page 53490]]
to apply for the Hazard Mitigation Grant Program, listing States and
local governments, private nonprofit organizations owning or operating
a private nonprofit facility, and Indian Tribes. FEMA proposes to
remove the word ``Applicants'' from the first sentence, clarify in
subparagraph (a)(1) that applicants include States and Indian Tribal
governments, and revise subparagraph (a)(2) to clarify that State
agencies and local governments, eligible private nonprofit
organizations, and Indian Tribal governments may be subapplicants. FEMA
proposes to remove the language at subparagraph (a)(3) (Indian Tribes
or authorized Tribal organizations and Alaska Native villages or
organizations, but not Alaska native corporations with ownership vested
in private individuals) because this language refers to non-federally
recognized Tribes, which are included under local governments. 42
U.S.C. 5122(8)(B). FEMA proposes this revision to more clearly
distinguish the entities which may be applicants from those which may
be subapplicants.
In paragraph (e), Property acquisitions and relocation
requirements, FEMA proposes to retain the first sentence and remove the
rest of the paragraph. FEMA proposes to remove this language because it
addresses requirements for major disasters declared before December 3,
2007. For all major disasters declared on or after December 3, 2007,
the property acquisitions and relocation requirements are found in part
80.
IV. Regulatory Analysis
A. Executive Order 12866, as Amended, Regulatory Planning and Review;
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') 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. Executive Order 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') directs agencies to reduce regulation
and control regulatory costs and provides that ``for every one new
regulation issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.''
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. Accordingly, OMB has not reviewed it. This rule is exempt
from the requirements of Executive Order 13771 because it is non-
significant under Executive Order 12866. See OMB's Memorandum
``Guidance Implementing Executive Order 13771, Titled `Reducing
Regulation and Controlling Regulatory Costs' '' (April 5, 2017).
Need for Regulation
The Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12), Pub.
L.112-141, 126 Stat. 916, amended the National Flood Insurance Act of
1968 (NFIA) to require changes to FEMA's hazard mitigation assistance
(HMA) programs. FEMA implemented most of these changes through the
Hazard Mitigation Assistance Guidance in 2013.\100\ FEMA now proposes
to update its hazard mitigation assistance regulations to reflect these
changes.
---------------------------------------------------------------------------
\100\ FEMA, Hazard Mitigation Assistance Guidance, July 12,
2013, available at https://www.fema.gov/media-library/assets/documents/33634 (last accessed Jan 8, 2020).
---------------------------------------------------------------------------
Following guidance in OMB Circular A-4, FEMA assessed the impacts
of this rule against a no-action baseline as well as a pre-statutory
baseline. The no-action baseline is an assessment against what the
world would be like if the proposed rule is not adopted. The pre-
statutory baseline is an assessment against what the world would be
like if the relevant statute(s) had not been adopted and, in this case,
already been implemented through guidance.
Under a no-action baseline, this rule would result in cost savings
to FEMA, and familiarization costs to HMA recipients. Under a pre-
statutory baseline, this rule results in distributional impacts and
qualitative benefits, but no marginal costs. The annual distributional
impact of this rule is estimated at $4.16 million in increased
transfers from FEMA to HMA recipients.
FEMA addressed the substantive changes in this analysis and
presented how they affect costs, benefits, and transfers. The remaining
changes are nonsubstantive, meaning they are technical and include
definitional updates and other changes that modernize and standardize
regulations, reduce redundancy, or increase readability. The
nonsubstantive changes do not have an economic impact. FEMA included a
detailed marginal analysis table that summarizes the changes in this
proposed rule and the related impacts in the public docket for this
rulemaking available on www.regulations.gov under Docket ID FEMA-2019-
0011.
Affected Population
The proposed rule would affect all recipients of FEMA's Flood
Mitigation Assistance (FMA) grants. Recipients include 56 State and
territorial governments and 573 Indian Tribal governments.\101\ Local
governments and governmental organizations such as flood districts and
sewer districts are considered subrecipients and must apply through a
State or Indian Tribal government. For simplicity, FEMA refers to the
affected population as ``recipients'' throughout the analysis, except
in cases where there are different requirements for recipients or
subrecipients.
---------------------------------------------------------------------------
\101\ Indian Entities Recognized by, and Eligible to Receive
Services from the United States Bureau of Indian Affairs, 84 FR
1200, (Feb 1, 2019).
---------------------------------------------------------------------------
Baselines
BW-12 made substantial changes to FEMA's HMA programs. FEMA
implemented most of these changes via the HMA Guidance in 2013. FEMA
now proposes to codify those changes in this rule. Following guidance
in OMB Circular A-4, FEMA assessed the impacts of this rule against a
pre-statutory baseline covering 2006-2012 (pre-BW-12) and a no-action
baseline covering 2013-2017 \102\ (post-BW-12).
---------------------------------------------------------------------------
\102\ 2017 is the last year complete data is available.
---------------------------------------------------------------------------
The pre-statutory baseline shows the effects of the proposed rule
compared to the current regulations (i.e., as if FEMA had not already
implemented the changes through the HMA Guidance). The no-action
baseline shows the effects of the proposed rule compared to current
FEMA practice (i.e., compared to the HMA Guidance, which reflects
FEMA's current practice, but not the current regulations).
Under the pre-statutory baseline, the proposed rule has
distributional impacts and qualitative benefits. The distributional
impacts would affect recipients of Repetitive Loss (RL) grants and
Severe Repetitive Loss (SRL) grants that were combined into the FMA
program pursuant to BW-12. Under BW-12, RL and SRL properties received
increased assistance, while standard mitigation properties received
decreased assistance. Under the no-action baseline, the only impacts
are
[[Page 53491]]
implementation costs and Federal cost savings. Table 1 shows the
impacts of this proposed rule under the pre-statutory and no-action
baselines.
Table 1--Annual Effects of Proposed Rule Under Pre-Statutory and No-Action Baselines
[2018$]
----------------------------------------------------------------------------------------------------------------
Baseline Costs Benefits Transfers
----------------------------------------------------------------------------------------------------------------
Pre-Statutory........................ $610 (year 1 only)..... Qualitative............ $28.4 million from FEMA
to grant recipients.
No-Action............................ 610 (year 1 only)...... $85,463................ None.
----------------------------------------------------------------------------------------------------------------
Effects
The primary effects of BW-12 that would be codified by this
proposed rule resulted from changes in the Federal cost shares. A cost
share is the portion of the costs of a Federally assisted project or
program borne by the Federal Government. FEMA pays a portion of the
cost of a project, or the Federal cost share, and the recipient pays
the remaining share.
FMA Grant Cost Sharing Changes. The current regulations still
reflect the pre-BW-12 cost share provisions of the RL and SRL grant
programs. BW-12 modified these two programs and FEMA implemented the
modifications in the 2013 HMA Guidance. The newly expanded FMA program
now serves the recipients of these grant programs.
BW-12 increased the RL Federal cost share from 75 percent to
between 75 and 90 percent, and increased the SRL Federal cost share
from between 90 and 100 percent to 100 percent. Table 2 shows the cost
shares by type of grant.
Table 2--Cost Share by Type of Grant
----------------------------------------------------------------------------------------------------------------
RL SRL
----------------------------------------------------------------
Baseline FEMA cost Recipient cost FEMA cost Recipient
share (%) share (%) share (%) cost share (%)
----------------------------------------------------------------------------------------------------------------
Pre-Statutory (2006-2012) Pre-BW-12............ 75 25 90 to 100 10 to 0
No-Action (2013-2017) Post-BW-12............... 75-90 10-25 100 0
----------------------------------------------------------------------------------------------------------------
Lowering the Cap and Removing the Frequency Restriction. Prior to
BW-12, FMA funds for the development or update of the flood portion of
community multi-hazard mitigation plans were capped at $150,000 in
Federal funding for States and $50,000 for communities, with a total
cap of $300,000 in Federal funding for applications statewide. FEMA
could not award State or community planning grants more than once every
5 years.
BW-12 limited FMA grant funds to develop or update the flood
portion of community multi-hazard mitigation plans to a $50,000 Federal
share to any recipient or a $25,000 Federal share to any subrecipient.
BW-12 also removed the restriction on awarding State or community
planning grants more than once every 5 years. FEMA discusses the
impacts of these changes in the costs section.
Shifting from State Allocations to Competition. Prior to BW-12,
FEMA annually allocated FMA program funding to recipients based on the
number of insured properties and RL properties present within the
recipient's jurisdiction. Recipients that did not meet the minimum
threshold to receive a target allocation had to apply against funds
that were set aside for this purpose. BW-12 replaced this process with
a fully competitive program that selects subapplications against agency
priorities identified annually. This change allows FEMA to identify and
mitigate properties with the highest risk from flooding, thereby
providing the greatest savings to the NFIP.
Costs
Costs for this proposed rule would result from implementation of
the rule, rather than the 2013 HMA Guidance. FEMA estimated these costs
against the no-action baseline since these are directly attributable to
updating the text of the regulation, and not program changes that FEMA
already implemented.
Familiarization Costs. FEMA estimated familiarization costs for
States, but not for local emergency management divisions or
jurisdictions. FEMA assumed States regularly update their emergency
response networks and notify local emergency management divisions on
any changes. FEMA believes that States would continue to disseminate
the new information through each State's established process. FEMA
assumed that each State grant recipient would have two personnel that
would need to familiarize themselves and understand the proposed rule
by reading the existing and new regulations to understand the changes.
FEMA expects each person to spend one hour to become familiar with the
changes. FEMA assumes that the rule is likely to be reviewed by each
State's Emergency Management Director and one administrative support
personnel. FEMA assumes that BLS occupations Emergency Management
Director (SOC: 11-9160, mean hourly wage $39.70) \103\ and First-Line
Supervisor of Office and Administrative Support Workers (SOC: 43-1010,
mean hourly wage $28.53) \104\ are most representative of these roles
in a State. Using the 1.46 multiplier,\105\ the fully loaded wage rates
are $57.96 and $41.65 respectively. The estimated total cost of
recipients making themselves
[[Page 53492]]
familiar with the proposed rule is $4,582 in year 1 ($742 per year
annualized at 7 percent over 10 years, and $635 at 3 percent). ((56
recipients x 1 hour x $57.96 wage) + (56 recipients x 1 hour x $41.65
wage) = $5,578.16).
---------------------------------------------------------------------------
\103\ May 2018 National Occupational Employment and Wage Rates,
National File (xls), First-Line Supervisors of Office & Admin
Support Workers (OCC Code: 43-1010, Average, Column Title: H_Mean).
Accessed and downloaded June 4, 2019. https://www.bls.gov/oes/tables.htm.
\104\ May 2018 National Occupational Employment and Wage Rates,
National File (xls), Emergency Management Directors (OCC Code: 11-
9160, Average, Column Title: H_Mean). Accessed and downloaded June
4, 2019. https://www.bls.gov/oes/tables.htm.
\105\ December 2018 Bureau of Labor Statistics, Employer Costs
for Employee Compensation, Table 1. Employer costs per hour worked
for employee compensation and costs as a percent of total
compensation: Civilian workers, by major occupational and industry
group, page 4. Accessed and downloaded June 4, 2019. https://www.bls.gov/news.release/archives/ecec_03192019.pdf.
---------------------------------------------------------------------------
Summary of Costs. FEMA estimated the proposed rule would have
familiarization costs of $5,578 in the first year of implementation.
FEMA assumed that all staff and resources would come from existing
sources and thus represent an opportunity cost.
Benefits
This proposed rule would be beneficial to both FEMA and Hazard
Mitigation Grant recipients. While the benefits are not quantifiable,
FEMA believes that changes implemented by BW-12 allow it to target the
most vulnerable properties, and streamline the mitigation grant
process. Under the no-action baseline, most changes in this proposed
rule would be technical and include definitional updates and other
changes made to harmonize FEMA regulations with current FEMA practices
and HMA guidance, modernize and standardize the regulations, reduce
redundancy, or increase readability. These changes would be largely
nonsubstantive and not have an economic impact.
Cost Savings. Under a no-action baseline, FEMA estimated costs
savings of $85,463 that would result from removing the definition of
``market value'' at 44 CFR 79.2(f). Currently, the regulation requires
FEMA to use the market value of a structure when making grant
determinations. Removal of this requirement would allow FEMA to
consider the value of the structure listed on the flood insurance
policy when considering a grant request related to a vulnerable
structure, rather than the ``market value.'' This would result in a
reduction in the time it takes FEMA personnel to review a grant
application. Using ``market value'' required additional research and
appraisals, whereas the flood insurance property value is readily
available to FEMA personnel. FEMA estimated this change would reduce
the personnel time it takes to review a grant application by an
estimated 2 hours per review for a total of $85,463 annually.
FEMA based its estimates on the estimated annual average number of
FMA grant applications that required a market value review between 2013
and 2017 and the wage rates of the personnel reviewing the grants. The
annual average number of grant requests was 512. Table 3 shows the
annual number of grant requests for vulnerable properties that required
a market value review between 2013 and 2017.
Table 3--Annual Grant Requests Requiring Market Value Review
------------------------------------------------------------------------
Year FMA program
------------------------------------------------------------------------
2013.................................................... 602
2014.................................................... 438
2015.................................................... 508
2016.................................................... 592
2017.................................................... 418
---------------
Total............................................... 2,558
Annual average.......................................... 512
------------------------------------------------------------------------
Reviews of the grant applications can vary widely from simple--all
documentation accompanies the request and requires very little follow-
up--to complex. For this analysis, FEMA chose to capture the
variability in the grant application reviews by using a weighted
average of the hours it takes to complete the reviews. FEMA estimated
that 25 percent of the reviews are simple; these reviews take 8 hours
each on average to complete. Reviews of applications that are average
in their complexity comprise 50 percent of the reviews and are assumed
to take 12 hours each. Twenty-five percent of the reviews are complex
and take 16 hours on average to complete.\106\ Taking a weighted
average of the times listed and using the distribution of 25 percent
simple/50 percent average/25 percent complex, FEMA estimated that grant
application reviews take 12 hours on average to complete. ([(0.25 x 8)
+ (0.50 x 12) + (0.25 x 16)] = 12 hours).
---------------------------------------------------------------------------
\106\ FEMA personnel who review the FMA grant requests provided
the information on the average time to review and the discussion of
complexity.
---------------------------------------------------------------------------
Program Specialists (GS 13, step 5) and contracted Civil Engineers
conduct the reviews, the Program Specialists conduct 75 percent of
reviews and the Civil Engineers conduct the remaining 25 percent. The
fully-loaded average hourly wage for GS 13, step 5 at the FEMA regional
locations is $89.35 \107\ and $65.79 \108\ is the fully-loaded hourly
wage rate for Civil Engineers. Using the 12-hour average estimate for
reviewing the grant application, FEMA estimates that each year it
spends $512,778 on average to review FMA grant applications. ([(512
grant reviews x 12 hours per review x $89.35 hourly wage for Program
Specialist x 0.75) + ([(512 grant reviews x 12 hours per review x
$65.79 hourly wage for Civil Engineer x 0.25)] / (0.75 + 0.25) =
$512,778.20).
---------------------------------------------------------------------------
\107\ Based on the OPM General Schedule of Pay, January 2018,
the average base wage of GS 13, step 5 in each of the FEMA regional
office locations is $61.20 (Boston, MA; NY, NY; Philadelphia, PA;
Atlanta, GA; Chicago, IL; Denton, TX; KC, MO; Denver, CO; Oakland,
CA; and Bothell, WA), which is multiplied by a 1.46 benefits
multiplier (December 2018, BLS Employer Costs for Employee
Compensation) to get a fully loaded wage rate of $89.35/hour. Access
and downloaded July 5, 2019. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2018/salhrl.pdf.
\108\ Based on Bureau of Labor Statistics May 2018 National
Employment and Wage Rate, National File (xls), a Civil Engineer, SOC
17-2050, has a base wage of $45.06, which is multiplied by a
benefits multiplier of 1.46 (December 2018, BLS Employer Costs for
Employee Compensation) to get a fully loaded wage rate of $65.79/
hour. Accessed and downloaded July 5, 2019. https://www.bls.gov/oes/tables.htm.
---------------------------------------------------------------------------
FEMA estimated that removing the definition of ``market value''
would reduce its administrative burden by 2 hours per review. This
results in each review taking 10 hours instead of 12, on average. Using
the same calculation as above and 10 hours instead of 12 hours per
review, FEMA's average amount spent each year on reviewing FMA grant
applications would be $427,315 and would result in an estimated annual
cost savings of $85,463. ($512,778-$427,315 = $85,463).
Clarification of Mitigation Grant Terms and Conditions. The current
HMA grant program regulations contain inconsistencies or vague language
that may cause confusion. Specifically, FEMA would add definitions for
``Federal award'' and ``pass-through entity;'' and replace definitions
of ``grantee,'' ``subgrant,'' and ``subgrantee'' with ``recipient,''
``subaward,'' and ``subrecipient,'' respectively. These changes would
make the HMA regulations consistent with FEMA's other regulations.
Revising, Adding, or Removing Definitions. FEMA proposes to revise
existing definitions for clarification purposes, to add several
definitions to conform with BW-12 and current agency practice, and to
delete others that are obsolete. FEMA believes the changes are clear
and more consistent with definitions used in 2 CFR part 200 and the HMA
Guidance.\109\
---------------------------------------------------------------------------
\109\ Hazard Mitigation Assistance Guidance (HMA Guidance), Feb.
27, 2015, available at https://www.fema.gov/media-library-data/1424983165449-38f5dfc69c0bd4ea8a161e8bb7b79553/HMA_Guidance_022715_508.pdf (last accessed Feb. 13, 2020).
---------------------------------------------------------------------------
Shifting from Standard Mitigations to RL and SRL Structures. One of
the main focuses of this proposed rulemaking is on mitigation grants
made to properties in the NFIP that have been repeatedly subject to
costly loss claims. FEMA provides a range of available mitigation
options including the FMA program to address vulnerable RL and SRL
structures. Once a structure is mitigated through one of the programs,
it could be
[[Page 53493]]
protected from flooding, and can be removed from the repetitive flood
loss list of un-mitigated properties insured by the NFIP. This reduces
the flood vulnerability to RL and SRL structures, preventing further
losses to the policyholders, as well as to FEMA. This benefit applies
to the pre-statutory baseline, but not the no-action baseline because
recipients and FEMA both realized this benefit beginning in 2013 when
FEMA implemented it through the HMA Guidance.
Shifting from State Allocations to Competition. Before BW-12, FMA
program funding was based on an allocation methodology that required an
analysis of the number of insured properties and RL properties present
within a jurisdiction and each State was allocated a share of the
overall available funding. BW-12 changed this process to a fully-
competitive program that allows FEMA to select subapplications
according to FEMA priorities no matter the location.
This change lifted the constraints that were formerly in place
against multiple eligible subrecipients in the same jurisdiction with
vulnerable properties, allowing a more adequate coverage area within
and across States and contributing to the increase in the size and
volume of RL and SRL properties covered by each grant. FEMA is able to
identify and mitigate properties with the highest risk from flooding
and provide the greatest savings to the NFIP. This benefit applies to
the pre-statutory baseline, but not the no-action baseline because
recipients and FEMA both realized this benefit beginning in 2013 when
FEMA implemented it through the HMA Guidance.
Eliminating the Limit on In-Kind Contributions. Eliminating the
limit on in-kind contributions for a recipient's cost share modifies
the nature, or make-up, of the recipient's contribution but does not
change the overall dollar amount required for the recipient's
contribution. FEMA believes this is advantageous because recipients and
subrecipients are able to leverage their own optimal mix of in-kind and
cash to meet their portion of the cost-share. There is no change to
transfers between FEMA and grantees because the cost share does not
change; however, the make-up of the recipient's portion changes.
Summary of Benefits. Under a no-action baseline FEMA believes this
rule would promote a better understanding of the FMA program by
updating the regulations that govern the HMA programs to conform with
adjustments made by BW-12 and current agency practice. These changes
would clarify existing requirements and help facilitate the flood
portion of the Hazard Mitigation Grant Program processes.
FEMA estimated annual cost savings of $85,463 per year. Removing
the definition of ``market value'' would lead to cost savings to FEMA.
Removing this definition would reduce the time it takes to conduct an
initial grant application review by 2 hours.
Under a pre-statutory (pre-BW-12) baseline, FEMA believes there are
considerable benefits associated with the shift to entirely competitive
awards for the grants instead of the previous State-specific
allocations, as well as the more flexible in-kind match option. The
shift to more vulnerable RL and SRL properties by modifying the cost
shares and giving priority to applications with the most vulnerable
properties are expected to reduce the frequency of loss claims and
promote community resiliency through mitigation. There are also
qualitative benefits due to the elimination of the cap on FMA funding
for States and communities and the opening of the program to a fully
competitive award system. These changes enhance FEMA's ability to
administer the FMA program in a more streamlined and cost effective
manner. Removing State allocations of grant resources and accepting in-
kind State contributions further streamline the program. Collectively,
these benefits justify the proposed rule and update FEMA's regulations
to reflect current statutory authority.
Transfers
Federal Cost Shares. The adjustments in cost shares made by BW-12
result in distributional impacts, with certain grant programs receiving
relative increases and decreases in grant funds. To analyze the impact
of changes to the cost shares, FEMA summarized available mitigation
project data for standard, RL, and SRL grants.\110\
---------------------------------------------------------------------------
\110\ FEMA assumes that the mitigation project level grant data
with applications comprising mixed property categories resulting in
blended cost share percentages (any total cost share not equal to
100 percent, 90 percent, or 75 percent Federal) would be rounded up
to the nearest threshold category. This would not round up project
values or Federal cost shares in dollar terms, only their tabulation
and consideration as RL or SRL. An application with a determined
Federal cost share of 91-99 percent would be counted as part of the
100 percent SRL category, while applications with 76-89 percent
Federal cost shares would be counted as part of the 90 percent
Federal RL category.
---------------------------------------------------------------------------
Between 2006 and 2012 (pre-BW-12), FEMA provided a total of 390
grants to 244 recipients for 1,014 properties. The value of those
grants was $287,140,206 with FEMA paying $202,072,763 and recipients
paying $85,067,443. Table 4 shows the distribution of these grants by
category.
Table 4--Pre-BW-12 Mitigation Projects and Associated Value by Grant Category
[2018$]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Standard (<=75% federal cost share) Repetitive loss (75% federal cost share) Severe repetitive loss (90-100% federal
-------------------------------------------------------------------------------------- cost share)
Year ------------------------------------------
Number Value of Federal share Number Value of Federal share Number Value of Federal share
of grants grants obligated of grants grants obligated of grants grants obligated
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2006........................................................... 93 $38,326,383 $28,399,846 ......... $ $ 2 $147,974 $147,974
2007........................................................... 85 45,485,645 33,225,037 ......... .............. .............. ......... .............. ..............
2008........................................................... 70 36,449,791 24,638,444 ......... .............. .............. 1 34,540 31,086
2009........................................................... 54 79,692,889 57,976,016 3 2,973,885 2,431,695 3 611,432 550,289
2010........................................................... 35 32,133,654 22,507,910 2 1,454,583 881,884 ......... .............. ..............
2011........................................................... 17 17,218,947 11,035,040 ......... .............. .............. ......... .............. ..............
2012........................................................... 25 32,610,483 20,247,542 ......... .............. .............. ......... .............. ..............
Average........................................................ 54 40,273,970 28,289,976 3 632,638 473,368 2 113,421 104,193
--------------------------------------------------------------------------------------------------------------------------------
Total...................................................... 379 281,917,792 198,029,835 5 4,428,468 3,313,579 6 793,946 729,349
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 53494]]
The 390 grants from pre-BW-12 were one of three types--Standard
Mitigation (up to 75 percent Federal cost share); RL (75 percent
Federal cost share); or SRL (90-100 percent Federal cost share). Prior
to BW-12, there were 379 Standard Mitigation grants with a total value
of $281,917,792. FEMA's share was $198,029,835 and the recipients'
share was $83,887,957 (70 percent average Federal cost share). For RL
grants, there were five grants with a total value of $4,428,468. FEMA's
share was $3,313,579 and the recipients' share was $1,114,889 (75
percent Federal cost share). For SRL grants, there were six grants made
with a total value of $793,946. FEMA's share was $729,349 and the
recipients' share was $64,597 (92 percent Federal cost share).
Post-BW-12 (2013-2017), FEMA provided a total of 527 grants to 204
recipients for 2,873 properties. The total value of those grants was
$682,040,624. FEMA's share was $622,171,437 and recipients' share was
$59,869,187. Table 5 shows the distribution of these grants by
category.
Table 5--Post-BW-12 Mitigation Projects and Associated Value by Grant Category
[2018$]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Standard (<=75% federal cost share) Repetitive loss (75-90% federal cost Severe repetitive loss (100% federal cost
------------------------------------------- share) share)
Year -------------------------------------------------------------------------------------
Number Value of Federal share Number Value of Federal share Number Value of Federal share
of grants grants obligated of grants grants obligated of grants grants obligated
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2013........................................................... 18 $10,723,474 $7,079,996 5 $11,904,781 $10,163,082 65 $98,392,747 $88,681,628
2014........................................................... 28 8,730,394 5,245,019 5 6,731,307 5,749,293 68 73,550,347 74,444,363
2015........................................................... 16 7,187,417 5,375,058 8 33,162,836 29,399,251 80 122,139,120 117,708,589
2016........................................................... 26 11,762,427 8,729,565 12 29,128,628 24,800,531 99 170,742,360 156,950,119
2017........................................................... 33 13,430,244 9,967,987 5 5,835,914 4,880,298 59 78,618,628 72,996,658
Average........................................................ 24 10,366,791 7,279,525 7 17,352,693 14,998,491 74 108,688,640 102,156,271
--------------------------------------------------------------------------------------------------------------------------------
Total...................................................... 121 51,833,956 36,397,625 35 86,763,466 74,992,455 371 543,443,202 510,781,357
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
These 527 grants were one of three types--Standard Mitigation (up
to 75 percent Federal cost share); RL (75-90 percent Federal cost
share); or SRL (90-100 percent Federal cost share) (all post-BW-12 cost
shares). There were 121 Standard Mitigation grants with a total value
of $51,833,956. FEMA's share was $36,397,625 and the recipients' share
was $15,436,331 (70 percent average Federal cost share). For RL grants,
there were 35 grants with a total value of $86,763,466. FEMA's share
was $74,992,455 and the recipients' share was $11,771,011 (86 percent
Federal cost share). For SRL grants, there were 371 grants made with a
total value of $543,443,202. FEMA's share was $510,781,357 and the
recipients' share was $325,661,845 (94 percent Federal cost share).
These grants often include some ineligible costs, including cost
overruns or underruns, the use of insurance proceeds that FEMA deducted
as a duplication of benefits,\111\ or increased cost of compliance
(ICC),\112\ so the actual cost shares do not equal the percentages
listed above. For example, although SRL grants have a 100 percent
Federal cost share, the actual average Federal share was 94 percent.
---------------------------------------------------------------------------
\111\ Duplication of Benefits refers to assistance from more
than one source that is used for the same mitigation purpose or
activity. The purpose may apply to the whole project or only part of
it. HMA funds cannot duplicate funds received by or available to
applicants or subapplicants from other sources for the same purpose.
Examples of other sources include insurance claims, other assistance
programs (including previous project or planning grants and
subawards from HMA programs), legal awards, or other benefits
associated with properties or damage that are the subject of
litigation. HMA does not require that property owners seek
assistance from other sources (except for insurance claims).
However, it is the responsibility of the property owner to report
other benefits received, any applications for other assistance, the
availability of insurance proceeds, or the potential for other
compensation, such as from pending legal claims for damages,
relating to the property. References: Sec. 312 of the Stafford Act;
44 CFR 79.6(d)(7); Hazard Mitigation Assistance Guidance (February
27, 2015), Part III, D.5, pages 31-32; HMA Tool for Identifying
Duplication of Benefits http://www.fema.gov/library/viewRecord.do?id=6815.
\112\ Increased Cost of Compliance (ICC) provides up to $30,000
to help cover the cost of mitigation measures that will reduce flood
risk. ICC coverage is a part of most standard flood insurance
policies available under the NFIP. https://www.fema.gov/media-library/assets/documents/1130.
---------------------------------------------------------------------------
Changing Cost Shares and to a Fully Competitive Grant Process for FMA
Changing the cost shares had a distributional impact, where the
proportion of Federal funds increased while the recipients' proportion
decreased by the same amount. Similarly, the shift from State
allocations of grant funding to a competitive-based program that allows
grants to be allocated to the most vulnerable properties, resulting in
distributional impacts where recipients in certain States receive more
in grant funding where others see a decrease. FEMA was not able to
isolate this effect from the effect of changing the cost shares, since
they were implemented at the same time.
First, FEMA analyzed the shift in grant priorities as a
distributional impact between grant programs. This was done by applying
the change in percent share of standard, RL, and SRL grants (from pre-
BW-12 to post-BW-12), to the total FMA grant funding post-BW-12,
showing the relative decreases and increases by type of FMA grant in
terms of post-BW-12 grant funding caused by making the grants
competitive and shifting funding to riskier properties.
The five-year total share of standard mitigation grants
decreased by $617,928,805 post-BW-12 (7.6 percent of total funding
post-BW-12 - 98.2 percent of funding pre-BW-12) x $682,040,624 total
grant funds post-BW-12)).
The five-year total share of RL grants increased by
$76,388,550 post-BW-12 (12.7 percent - 1.5 percent x $682,040,624).
The five-year total share of SRL grants increased by
$541,540,225 post-BW-12 (79.7 percent - 0.3 percent x $682,040,624).
This shows the total five-year relative increases and decreases
between FMA programs in terms of post-BW-12 grant funding: (-
$617,928,805 for standard grants + $76,388,550 for SL grants +
$541,540,225 SRL grants = $0).
Table 6 shows changes in the total number of grants as well as the
Federal and non-Federal shares for all grants pre-BW-12 and post-BW-12
with the percent change in grants and funding.
[[Page 53495]]
Table 6--Change in Average Annual Number of Grants and Funding Pre-BW-12 to Post-BW-12
[2018$]
----------------------------------------------------------------------------------------------------------------
Percent pre- Percent post- Percent
Pre-BW-12 BW-12 Post-BW-12 BW-12 change
----------------------------------------------------------------------------------------------------------------
Standard Mitigation
----------------------------------------------------------------------------------------------------------------
Grants per Year................. 54 91.5 24 22.9 -68.6
Funding per year................ $40,273,970 98.2 $10,366,791 7.6 -90.6
----------------------------------------------------------------------------------------------------------------
Repetitive Loss
----------------------------------------------------------------------------------------------------------------
Grants per Year................. 3 5.1 7 6.7 +1.6
Funding per year................ $632,638 1.5 $17,352,693 12.7 +11.2
----------------------------------------------------------------------------------------------------------------
Severe Repetitive Loss
----------------------------------------------------------------------------------------------------------------
Grants per Year................. 2 3.4 74 70.5 +67.1
Funding per year................ $113,421 0.3 $108,688,640 79.7 +79.4
----------------------------------------------------------------------------------------------------------------
When comparing pre-BW-12 standard mitigation grants to post-BW-12,
both the average annual number of approved grants and the average
annual total amount of funding dropped from $40.3 million to $10.4
million. For RL structures, the average annual number of approved
grants increased and the amount of funding increased from $1.8 million
to $17.4 million. For SRL structures, both the average annual number of
approved grants and the average annual funding increased from $0.25
million to $108.7 million when compared to pre-BW-12. This reflects BW-
12 shifting priority from standard mitigations to RL and SRL
structures. FEMA's data indicate a trend toward both larger project
sizes and more recently an increased number of RL and SRL projects.
FEMA then analyzed the distributional impacts of the Federal cost
shares that resulted from both the shift in priorities and the changes
in cost shares. The Federal cost share for standard mitigation grants
remained at 75 percent over the post-BW-12 period analyzed. The cost
share for RL grants increased from an average of 75 percent pre-BW-12
to 86 percent post-BW-12. SRL grants had an average 92 percent cost
share pre-BW-12 and a 94 percent cost share post-BW-12. FEMA also
analyzed the change in the Federal cost share for the three grant
categories together, which shows the impact of BW-12's changes to cost
share amounts as well as shifting funding to RL and SRL grants, which
have higher cost shares.
The total Federal share of all FMA grant categories pre-BW-12 was
70.4 percent ($287,140,206 / $202,072,763). Post BW-12, the Federal
share was 91.2 percent ($682,040,624 / $622,171,437). The increase in
transfers from FEMA to grantees as a result of the changed cost shares
and changed priorities, in terms of post-BW-12 grant funding, was
$141,864,450 (91.2 percent - 70.4 percent x $682,040,624) over five
years, or an average increase of $28,372,890 per year.
Under a no-action baseline, the proposed rule would result in no
transfer impacts, as FEMA has already implemented the updated cost
share percentages in the 2013 HMA Guidance. Under a pre-statutory (pre-
BW-12) baseline, the revisions to the cost share and re-prioritization
to grants with higher cost shares result in distributional transfer
impacts shifting funding to the most vulnerable properties and an
increase in transfers from FEMA to grant recipients. The discounted
total 10-year transfers from FEMA to grant recipients are $283.7
million ($28.4 million annualized \113\).
---------------------------------------------------------------------------
\113\ The annualized amounts for 3 percent and 7 percent are
equal to the estimated annual transfers of $28.4 million because the
amounts for each year are identical and the first year is
discounted.
---------------------------------------------------------------------------
Mitigation Planning Grants. BW-12 lowered the funding cap on the
amount of money that could be used for the flood portion of the
individual multi-hazard mitigation plans to $50,000 per recipient and
$25,000 per subrecipient, but removed a restriction that grantees could
only receive funding for planning grants once every 5 years. Lowering
the cap on Federal funds results in decreased funding per applicant.
However, FEMA believes this is offset by the removal of the frequency
restriction, which results in a negligible change in the number of
approved applications and awards. FEMA found the data does not show a
substantial change in the number of applications, and thus FEMA assumed
that the removal of the 5-year restriction is countered by the lowered
cap on funding, resulting in minimal distributional impacts as shown in
Table 7. Because FEMA implemented these changes concurrently, FEMA was
unable to isolate the effects of individual changes.
Table 7--Mitigation Planning Grants 2006-2017
[2018$]
----------------------------------------------------------------------------------------------------------------
Approved Average grant
Year Applications grants amount
----------------------------------------------------------------------------------------------------------------
2006............................................................ 167 92 $286,765
2007............................................................ 561 481 89,709
2008............................................................ 523 374 82,248
2009............................................................ 491 346 82,248
2010............................................................ 364 288 81,514
2011............................................................ 417 363 102,173
[[Page 53496]]
2012............................................................ 173 155 142,411
-----------------------------------------------
Average Pre-BW-12........................................... 385 300 107,838
----------------------------------------------------------------------------------------------------------------
2013............................................................ 260 228 115,022
2014............................................................ 293 264 87,772
2015............................................................ 351 315 93,000
2016............................................................ 329 287 170,262
2017............................................................ 422 377 98,268
-----------------------------------------------
Average Post-BW-12.......................................... 331 294 111,899
----------------------------------------------------------------------------------------------------------------
Since 2013, FEMA has applied the new caps on funding for FMA
planning grants per recipient and subrecipient. The caps align with and
reflect FEMA's shift to focus the majority of FMA program funds on
mitigating the risk to the most vulnerable properties. FEMA is no
longer constrained by any limit on how often a recipient or
subrecipient can receive a planning grant or the total amount that can
be granted to a recipient. Further, the lower caps per recipient and
subrecipient allow FEMA to assist more recipients and subrecipients.
Alternatives
Most of the changes in this proposed rule are based on statute.
FEMA has limited discretion in determining which changes to make. The
changes that carry an economic impact under a pre-statutory (pre-BW-12)
baseline are the proposed changes to 44 CFR 79.4 (proposed Sec. 77.4):
FMA Grant Federal Cost Shares and 44 CFR 79.6 (proposed Sec. 77.6):
Flood Portion of Multi-Hazard Mitigation Plans. BW-12 prescribed these
changes. These changes are neither new nor discretionary and FEMA did
not consider alternatives.
Table 8--A-4 Accounting Statement
[2018$]
----------------------------------------------------------------------------------------------------------------
Period of analysis: 2006 to 2017
-----------------------------------------------------------------------------------------------------------------
Source citation (RIA,
Category 7 Percent discount rate 3 Percent discount rate preamble, etc.)
----------------------------------------------------------------------------------------------------------------
BENEFITS:
Annualized Monetized $millions/ .085463................ .085463................ Preamble (RA)
year.
Annualized Quantified............ N/A.................... N/A....................
--------------------------------------------------
Qualitative...................... Allows FEMA to target most vulnerable Preamble (RA).
properties and streamline mitigation grant
process.
Modernize and standardize regulations
to match current practice and statute and
increase readability.
Shift from State-based allocations to a
competitive process, allowing FEMA to select
applications according to FEMA priorities
rather than location.
Eliminate limits on in-kind
contributions allowing recipients more
flexibility to cover their portion of the cost
share.
--------------------------------------------------
COSTS:
Annualized Monetized $millions/ 0.000742............... 0.000635............... Preamble (RA).
year.
Annualized quantified............ N/A.................... N/A....................
--------------------------------------------------
Qualitative...................... N/A.
--------------------------------------------------
TRANSFERS:
Annualized Monetized $millions/ 28.4................... 28.4................... Preamble (RA).
year.
--------------------------------------------------
From/To.......................... Increase in transfers from FEMA to HMA Preamble (RA).
recipients
----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
Source citation
Category Effects (RIA, preamble,
etc.)
------------------------------------------------------------------------
State, Local, and/or Tribal Qualitative benefits. Preamble (RA).
Government. Increase in transfers
from FEMA to State,
local, Tribal
governments.
[[Page 53497]]
Small business................ There were 231 Small Preamble (IRFA).
entity recipients
from 2006-2017. Prior
to BW-12, an average
of 16 recipients per
year were small
entities. Post-BW-12,
there were an average
of 24 small entity
recipients per year.
Small entities were
more likely to
receive RL or SRL
grants and slightly
less likely to
receive standard
mitigation grants, so
the Federal cost
shares for small
entities were, on
average, higher post-
BW-12.
Wages......................... None..................
Growth........................ None..................
------------------------------------------------------------------------
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires agency review of proposed and final rules to assess their
impact on small entities. When an agency promulgates a notice of
proposed rulemaking under 5 U.S.C. 553, the agency must prepare an
Initial Regulatory Flexibility Analysis (IRFA) unless it determines and
certifies pursuant to 5 U.S.C. 605(b) that a rule, if promulgated,
would not have a significant impact on a substantial number of small
entities. FEMA believes this proposed rule does not have a significant
economic impact on a substantial number of small entities. However,
FEMA is publishing this IRFA to aid the public in commenting on the
potential small entity impacts of the proposed requirements in this
NPRM. FEMA invites all interested parties to submit data and
information regarding the potential direct economic impacts on small
entities that would result from the adoption of this NPRM. FEMA will
consider all comments received in the public comment process.
In accordance with the Regulatory Flexibility Act of 1980 (RFA), 5
U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FEMA
prepared this IRFA to examine the effects of the adjustments made by
BW-12 and implemented by FEMA in the 2013 HMA Guidance on small
entities. A small entity may be: A small independent business, defined
as independently owned and operated, is organized for profit, and is
not dominant in its field per the Small Business Act (5 U.S.C. 632); a
small not-for-profit organization (any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field);
or a small governmental jurisdiction (locality with fewer than 50,000
people) per 5 U.S.C. 601-612.
1. A Description of the Reasons Why Action by the Agency Is Being
Considered
FEMA initiated this rulemaking to codify legislative requirements
included in the Biggert-Waters Flood Insurance Reform Act of 2012,
Public Law 112-141, 126 Stat. 916 (BW-12), which amended the National
Flood Insurance Act of 1968 (NFIA) and required changes to all major
components of the National Flood Insurance Program (NFIP), including
mitigation grants authorized under the NFIA. FEMA implemented the
legislative requirements in BW-12 through policy/guidance in 2013 and
is now proposing to codify these changes in regulation, to reflect
current agency practice, and to clarify existing regulations.
Annually, FEMA provides grant funding to reduce or eliminate risk
of flood damage to buildings that are insured under the NFIP. Before
BW-12, FEMA administered three distinct NFIP grant programs: (1) The
Flood Mitigation Assistance (FMA) Program; (2) the Repetitive Flood
Claims (RFC) Program; and (3) the Severe Repetitive Loss (SRL) Program.
BW-12 eliminated the RFC and SRL programs and consolidated aspects of
those programs into the FMA Program.
There are two BW-12 provisions that FEMA codifies in this rule that
result in substantive modifications to the FMA regulations: (1) Cost
shares for mitigation projects and (2) the amount of FMA funds
available for mitigation planning grants. BW-12 requires these changes
and FEMA implemented them through the HMA Guidance in 2013. In
addition, the proposed rule would make nonsubstantive revisions
intended to clarify the current grant regulations at 44 CFR parts 79,
80, 201, and 206, subpart N by adding new definitions and substitute
terms that reflect the current version of 2 CFR parts 200 and 3002.
Other nonsubstantive changes in the proposed rule remove references to
programs eliminated by BW-12. In general, the changes in the proposed
rule do not reduce the amount of funding appropriated for the FMA
program or the number of grant recipients. Rather, the proposed rule
alters the distribution of those funds to recipients with NFIP insured
facilities with the highest risk of flood damage. Specifically, BW-12
requires changes to the Federal cost shares used for FMA grants. These
changes to the cost shares prioritize the most vulnerable severe
repetitive loss properties by increasing FEMA's cost share portion from
75 percent Federal to 75-90 percent Federal for RL properties and from
90 to 100 percent Federal to 100 percent Federal for SRL properties.
FEMA does not change the cost share for ``standard'' mitigation
properties; that cost share remains at the current level of 75 percent
Federal.
FEMA includes a detailed marginal analysis table which lists all of
the changes made by BW-12; that table is posted in the public docket
for this rulemaking available on www.regulations.gov under Docket ID
FEMA-2019-0011. Most of the changes in this rule are nonsubstantive
clarifications. Many of the changes remove language describing a
program or a feature of the FMA program that expired or is no longer
relevant, applicable, or necessary. FEMA expects that the changes offer
negligible or inconsequential benefits to FEMA and other administrating
authorities.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The objective of this proposed rule is to codify the legislative
requirements in BW-12 and to clarify existing regulations.
Specifically, this proposed rule would make substantive changes
intended to codify BW-12 by removing 44 CFR part 78 and substantially
revising Part 79. In addition, the proposed rule would make
nonsubstantive revisions intended to clarify 44 CFR parts 79, 80, 201,
and 206, subpart N by adding new definitions and substitute terms that
reflect the current version of 2 CFR parts 200 and 3002. Other
nonsubstantive changes included in the proposed rule
[[Page 53498]]
would remove references to programs eliminated by BW-12.
3. A Description of and, Where Feasible, an Estimate of the Number of
Small Entities To Which the Proposed Rule Will Apply
The proposed rule directly affects all eligible FMA grant
recipients. FEMA estimates that the changes from BW-12 affect FMA grant
recipients that are small governmental jurisdictions with a population
of less than 50,000, as defined at 5 U.S.C. 601(5).\114\ To estimate
the effects of the adjustments made by BW-12, and codified in this
rule, FEMA used the same methodology used in the regulatory
analysis.\115\ In general, FEMA identified the affected population--
recipients of FEMA's FMA grants--and analyzed how the changes affect
those recipients. Using those results, FEMA then evaluated which
recipients qualified as ``small entities.'' Eligible FMA grant
recipients may include States, U.S. territories, and Indian Tribal
governments; subrecipients may include local governments and
governmental organizations such as flood, sewer, and water districts.
FEMA removed from its RFA dataset and analysis any recipients that are
States and U.S. territories because they have populations greater than
50,000. FEMA also removed any Indian Tribal governments because they
are not included in the definition of a small entity.\116\ The
remaining recipients were either local governments or governmental
organizations. FEMA used the U.S. Census Bureau's annual population
estimates for 2018 produced by its Population Estimates Program (PEP)
\117\ to determine the population for each recipient.\118\ Table 9
summarizes the number of small entities affected by the changes in BW-
12.
---------------------------------------------------------------------------
\114\ See 5 U.S.C. 601(3)-(6). In general, the term ``small
entity'' can have the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction'' for
purposes of this analysis. Specifically, section 601(3) defines a
``small business'' as having the same meaning as ``small business
concern'' under section 3 of the Small Business Act. This includes
any small business concern that is independently owned and operated
that is not dominant in its field of operation. Section 601(4)
defines a ``small organization'' as any not-for-profit enterprise
that is independently owned and operated that is not dominant in its
field of operation. Section 601(5) defines ``small governmental
jurisdiction'' as governments of cities, counties, towns, townships,
villages, school districts, or special districts with a population
of less than 50,000. Acessed and downloaded June 4, 2019. http://uscode.house.gov/view.xhtml?req=(title:5 section:601 edition:prelim)
OR (granuleid:USC-prelim-title5-
section601)&f=treesort&edition=prelim&num=0&jumpTo=true.
\115\ FEMA's methodology is included in section IV. Regulatory
Analysis of this NPRM.
\116\ The Regulatory Flexibility Act (RFA) defines a small
entity as a small business, small nonprofit organization, or a small
governmental jurisdiction. Section 601(5) defines small governmental
jurisdictions as governments of cities, counties, towns, townships,
villages, school districts, or special districts with a population
of less than 50,000.
\117\ FEMA used the U.S. Census Bureau's PEP estimates file
entitled, ``sub-est2018_all.csv'' because it provided 2018 estimated
populations for all states and all subgovernmental jurisdictions,
including counties, parishes, etc., towns, cities, villages, etc.
Accessed and downloaded June 4, 2019. https://www2.census.gov/programs-surveys/popest/datasets/2010-2018/cities/totals/.
\118\ FEMA used the population of the county, parish, or borough
in which the grant project was located as a proxy to determine the
populations for governmental organizations. For example, FEMA used
the New Castle County, DE 2018 population of 559,335 to determine if
the New Castle Conservation District was a small entity. In this
example, the population of 559,335 is greater than the 50,000 small
entity threshold; thus, the new Castle Conservation District is not
a small entity.
Table 9--Estimated Number of Small Entities Affected by Proposed Rule
----------------------------------------------------------------------------------------------------------------
Grants to Properties Small entity
Year small entities within grants recipients
----------------------------------------------------------------------------------------------------------------
Pre-BW-12............................. 2006.................... 30 67 30
2007.................... 25 39 25
2008.................... 16 14 16
2009.................... 18 41 18
2010.................... 11 76 11
2011.................... 4 12 4
2012.................... 8 75 8
Post-BW-12............................ 2013.................... 23 64 23
2014.................... 27 66 27
2015.................... 18 71 18
2016.................... 25 56 25
2017.................... 26 78 26
-----------------------------------------------
Total Small Entity Recipients..... ........................ 231 659 231
-----------------------------------------------
Total All Recipients.............. ........................ 917 3,887 448
-----------------------------------------------
Small Entity Recipients as a ........................ 25.2% 17.0% 51.6%
Percent of Total Recipients.
----------------------------------------------------------------------------------------------------------------
Pre-BW-12:............................ Total................... 112 324 112
Annual Average.......... 16 46 16
Post-BW-12:........................... Total................... 119 335 119
Annual Average.......... 24 67 24
----------------------------------------------------------------------------------------------------------------
Between 2006 and 2017, FEMA awarded a total of 917 FMA grants to
448 recipients to mitigate flood risk to 3,887 properties. Of the total
448 recipients, 231 recipients, or 25.2 percent, had populations under
50,000 and are considered small entities. These small entities used the
FMA grants to mitigate flood risk to 659 vulnerable properties. These
231 small entity recipients are all local governments.
Pre-BW-12, FEMA awarded 112 grants to small entities. Of these, 109
were for standard mitigation with an average Federal cost share of 73
percent, 2 were RL with an average Federal cost share of 82 percent,
and 1 was SRL with a cost share of 90 percent.
[[Page 53499]]
Table 10--Pre-BW-12 Projects and Value by Grant Category (2018$) Awarded to Small Entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Standard (<=75% federal cost share) Repetitive loss (RL) (75% federal cost Severe repetitive loss (SRL) (90%-100%
------------------------------------------- share) federal cost share)
Year -------------------------------------------------------------------------------------
Grants Value of Federal share $ Value of Federal share Value of Federal share
grants obligated Grants grants obligated Grants grants obligated
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2006........................................................... 30 $5,907,776 $4,388,166 ......... .............. .............. ......... .............. ..............
2007........................................................... 25 10,819,810 7,647,471 ......... .............. .............. ......... .............. ..............
2008........................................................... 16 2,150,269 1,575,275 ......... .............. .............. ......... .............. ..............
2009........................................................... 15 7,924,904 5,763,784 2 $2,350,766 $1,917,922 1 $58,406 $52,565
2010........................................................... 11 15,128,995 11,345,865 ......... .............. .............. ......... .............. ..............
2011........................................................... 4 2,897,824 2,042,931 ......... .............. .............. ......... .............. ..............
2012........................................................... 8 6,393,968 4,789,345 ......... .............. .............. ......... .............. ..............
--------------------------------------------------------------------------------------------------------------------------------
Total...................................................... 109 51,223,546 37,552,837 2 2,350,766 1,917,922 1 58,406 52,565
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Post-BW-12, FEMA awarded 119 grants to small entities. Of these, 40
were standard mitigation with an average Federal cost share of 69
percent, 3 were RL with an average Federal cost share of 88 percent,
and 76 were SRL with an average Federal cost share of 90 percent. While
the cost shares did not change significantly, more applicants received
SRL grants when compared to the pre-BW-12 period. This shows the
prioritization of more vulnerable properties.
Table 11--Post-BW-12 Projects and Value by Grant Category (2018$) Awarded to Small Entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Standard (<=75% federal cost share) Repetitive loss (RL) (75%-90% federal Severe repetitive loss (SRL) (100%
------------------------------------------- cost share) federal cost share)
Year -------------------------------------------------------------------------------------
Grants Value of Federal share Value of Federal share Value of Federal share
grants obligated Grants grants obligated Grants grants obligated
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2013........................................................... 8 $955,085 $427,739 1 $7,145,136 $6,337,841 14 $5,618,711 $3,711,417
2014........................................................... 11 2,529,635 1,594,317 ......... .............. .............. 16 12,335,444 12,017,816
2015........................................................... 3 2,434,059 1,825,543 ......... .............. .............. 15 10,486,133 9,829,253
2016........................................................... 6 285,707 194,186 2 1,766,776 1,528,423 17 10,488,578 9,134,257
2017........................................................... 12 5,098,868 3,812,839 ......... .............. .............. 14 9,034,842 8,474,084
--------------------------------------------------------------------------------------------------------------------------------
Total...................................................... 40 11,303,354 7,854,624 3 8,911,912 7,866,264 76 47,963,708 43,166,827
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 Types of Professional Skills Necessary for Preparation of the
Report or Record
This proposed rulemaking would codify FEMA's current practice and
make changes for clarity and accuracy. For that reason, FEMA does not
anticipate this rulemaking places an increase in burden on small
entities.
5. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
There are no relevant Federal rules that 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
BW-12 mandated most of the changes in this proposed rule, and
therefore FEMA has limited discretion in implementing these changes.
These are not new or discretionary program changes and for this reason,
FEMA did not consider alternatives. Given that this rule is largely
distributive in nature, entailing transfers between less vulnerable and
more vulnerable groups of properties at all levels, no less burdensome
alternatives to the proposed rule are available. In the absence of this
proposed rule, small entities would experience negative repercussions
that might result from inconsistences between the statutes,
regulations, and agency policy.
7. Conclusion
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 NPRM. FEMA will consider all comments received
in the public comment process. FEMA is interested in the potential
impacts from the proposed rule on small entities and requests public
comment on these potential impacts. If you think that this rule would
have a significant economic impact on you, your business, your
organization, or your local government, please submit a comment to the
docket at the address under the ADDRESSES section. In your comment,
explain why, how, and to what degree you think this rule would have an
economic impact on you. After reviewing the public comments, FEMA may
certify the final rule as not having a significant economic impact on a
substantial number of small entities. FEMA will consider all comments
received in the public comment process when making a final
determination.
C. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of
[[Page 53500]]
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 Act (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 one 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 of 1969 (NEPA)
Under the National Environmental Policy Act of 1969 (NEPA), as
amended, 42 U.S.C. 4321 et seq. an agency must prepare an Environmental
Assessment (EA) and Environmental Impact Statement (EIS) for any
rulemaking that significantly affects the quality of the human
environment. FEMA has determined that this rulemaking does not
significantly affect the quality of the human environment and
consequently has not prepared an EA or EIS.
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 if they meet certain
criteria provided in A3(a-f). This proposed rule meets the criteria in
A3(a), (b), (c), and (d). The proposed rule would make a number of
regulatory revisions that are strictly administrative. In addition, the
proposed rule would amend an existing regulation without changing its
environmental effect, and would also implement, without substantive
change, statutory requirements and guidance documents. Because no
extraordinary circumstances have been identified, this rule does not
require the preparation of either an EA or an EIS as defined by NEPA.
See Department of Homeland Security Instruction Manual 023-01-001-01,
Revision 01, Implementation of the National Environmental Policy Act,
section (V)(B)(2).
E. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44
U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless the
agency obtains approval from the Office of Management and Budget (OMB)
for the collection and the collection displays a valid OMB control
number. See 44 U.S.C. 3506, 3507. This rule contains collections of
information that are subject to review by OMB. The information
collections included in this rule are approved by OMB under control
numbers 1660-0072 (Flood Mitigation Assistance (eGrants) and Grant
Supplement Information), 1660-0062 (State/Local/Tribal Hazard
Mitigation Plans), 1660-0026 (State Administrative Plan for the Hazard
Mitigation Grant Program), and 1660-0076 (Hazard Mitigation Grant
Program Application and Reporting). Currently, FEMA is working to
reinstate 1660-0103 (Property Acquisition and Relocation for Open
Space).
This proposed rulemaking would call for no new collections of
information under the PRA. This proposed rule includes information
currently collected by FEMA and approved in OMB information collections
1660-0072, 1660-0062, 1660-0026, and 1660-0076. Currently, FEMA is
working to reinstate 1660-0103. The actions of the proposed rulemaking
do not impose any additional burden to this collection of information.
The proposed changes in this rulemaking would not change the forms, the
substance of the forms, or the number of recipients who would submit
the forms to FEMA.
F. Privacy Act/E-Government Act
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a proposed regulation will 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.
The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires
specific procedures when an agency takes action to develop or procure
information technology that collects, maintains, or disseminates
information that is in an identifiable form. This Act also applies when
an agency initiates a new collection of information that will be
collected, maintained, or disseminated using information technology if
it includes any information in an identifiable form permitting the
physical or online contacting of a specific individual. A Privacy
Threshold Analysis was completed.
G. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249, November 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. 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 regulation are provided by the Federal Government, or the agency
consults with Tribal officials.
Although Indian Tribal governments are potentially eligible
applicants under HMA programs, FEMA 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. There is no substantial direct compliance
cost associated with this proposed rule. The HMA programs are voluntary
programs that provide funding to applicants, including Tribal
governments, for eligible mitigation planning and projects that reduce
disaster losses and protect life and property from future disaster
[[Page 53501]]
damages. An Indian Tribal government may participate as either an
applicant/recipient or a subapplicant/subrecipient. FEMA does not
expect the regulatory changes in this proposed rule to
disproportionately affect Indian Tribal governments acting as
recipients.
H. Executive Order 13132, Federalism
Executive Order 13132, Federalism, 64 FR 43255, August 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 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, and therefore
does not have federalism implications as defined by the Executive
Order. FEMA has determined that this 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. This rulemaking proposes amendments to regulations
governing voluntary grant programs that may be used by State, local and
Tribal governments to fund eligible mitigation activities that reduce
disaster losses and protect life and property from future disaster
damages. States are not required to seek grant funding, and this
rulemaking does not limit their policymaking discretion.
I. Executive Order 11988, Floodplain Management
Pursuant to Executive Order 11988, each agency is required 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. In carrying
out these responsibilities, each agency must 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.
Before promulgating any regulation, an agency must determine
whether the proposed regulations will affect a floodplain(s), and if
so, the agency must consider alternatives to avoid adverse effects and
incompatible development in the floodplain(s). If the head of the
agency finds that the only practicable alternative consistent with the
law and with the policy set forth in Executive Order 11988 is to
promulgate a regulation that affects a floodplain(s), the agency must,
prior to promulgating the regulation, design or modify the regulation
in order to minimize potential harm to or within the floodplain,
consistent with the agency's floodplain management regulations and
prepare and circulate a notice containing an explanation of why the
action is proposed to be located in the floodplain. The purpose of the
proposed rule is to update FEMA's HMA program regulations to reflect
statutory changes that have already been implemented. While the
proposed rule would revise the regulations FMA administered by the
NFIP, it would not impact other NFIA regulations that pertain to land
use, floodplain management, or flood insurance. The majority of the
revisions FEMA is proposing in this rulemaking apply to the regulations
for the FMA program, which is a voluntary grant program that provides
funding for activities designed to reduce the risk of flood damage to
structures insured under the NFIP. When FEMA undertakes specific
actions that may have effects on floodplain management, FEMA follows
the procedures set forth in 44 CFR part 9 to assure compliance with
this Executive Order. These procedures include a specific, 8-step
process for conducting floodplain management and wetland reviews. The
proposed rule would not change this process.
J. Executive Order 11990, Protection of Wetlands
Pursuant to Executive Order 11990, each agency must provide
leadership and take action to minimize the destruction, loss or
degradation of wetlands, and to preserve and enhance the natural and
beneficial values of wetlands in carrying out the agency's
responsibilities for (1) acquiring, managing, and disposing of Federal
lands and facilities; and (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. Each agency, to the extent permitted by law, must avoid
undertaking or providing assistance for new construction located in
wetlands unless the head of the agency finds (1) that there is no
practicable alternative to such construction, and (2) that the proposed
action includes all practicable measures to minimize harm to wetlands
which may result from such use. In making this finding the head of the
agency may take into account economic, environmental and other
pertinent factors.
In carrying out the activities described in the Executive Order,
each agency must consider factors relevant to a proposal's effect on
the survival and quality of the wetlands. Among these factors are:
Public health, safety, and welfare, including water supply, quality,
recharge and discharge; pollution; flood and storm hazards; and
sediment and erosion; maintenance of natural systems, including
conservation and long-term productivity of existing flora and fauna,
species and habitat diversity and stability, hydrologic utility, fish,
wildlife, timber, and food and fiber resources; and other uses of
wetlands in the public interest, including recreational, scientific,
and cultural uses.
The requirements of Executive Order 11990 apply in the context of
the provision of Federal financial assistance relating to, among other
things, construction and property improvement activities. However, the
changes proposed in this rule would not have an effect on land use or
wetlands. The purpose of the proposed rule is to update FEMA's HMA
program regulations to reflect statutory changes that have already been
implemented. While the proposed rule would revise the regulations for
FMA administered by the NFIP, it would not impact other NFIP
regulations that pertain to land
[[Page 53502]]
use, floodplain management, or flood insurance. The majority of the
revisions FEMA is proposing in this rulemaking apply to the regulations
for the FMA program, which is a voluntary grant program that provides
funding for activities designed to reduce the risk of flood damage to
structures insured under the NFIP. When FEMA undertakes specific
actions that may have effects on wetlands, FEMA follows the procedures
set forth in 44 CFR part 9 to assure compliance with this Executive
Order. These procedures include a specific, 8-step process for
conducting floodplain management and wetland reviews. The proposed rule
would not change this process.
K. Executive Order 12898, Environmental Justice
Pursuant to Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994, as amended by Executive
Order 12948, 60 FR 6381, February 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 those 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, or
national origin.
This rulemaking will not have a disproportionately high or adverse
effect on human health or the environment. This rulemaking will not
have a disproportionately high or adverse effect on human health or the
environment. Therefore the requirements of Executive Order 12898 do not
apply to this rule.
L. Congressional Review of Agency Rulemaking
Under the Congressional Review of Agency Rulemaking Act (CRA), 5
U.S.C. 801-808, before a rule can take effect, the Federal agency
promulgating the rule must submit to Congress and to the Government
Accountability Office (GAO) a copy of the rule, a concise general
statement relating to the rule, including whether it is a major rule,
the proposed effective date of the rule, a copy of any cost-benefit
analysis, descriptions of the agency's actions under the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act, and any other
information or statements required by relevant executive orders.
FEMA will send this rule to the Congress and to GAO pursuant to the
CRA if the rule is finalized. The rule is not a major rule within the
meaning of the CRA. It will not have an annual effect on the economy of
$100,000,000 or more, it will not result in a major increase in costs
or prices for consumers, individual industries, Federal, State, or
local government agencies, or geographic regions, and it will not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
List of Subjects
44 CFR Part 77
Flood insurance, Grant programs.
44 CFR Parts 78 and 79
Flood insurance, Grant programs.
44 CFR Part 80
Disaster assistance, Grant programs.
44 CFR Part 201
Administrative practice and procedure, Disaster assistance, Grant
programs, Reporting and recordkeeping requirements.
44 CFR Part 206
Administrative practice and procedure, Coastal zone, Community
facilities, Disaster assistance, Fire prevention, Grant programs-
housing and community development, Housing, Insurance,
Intergovernmental relations, Loan programs-housing and community
development, Natural resources, Penalties, and Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, FEMA proposes to amend
44 CFR parts 77, 78, 79, 80, 201, and 206 as follows:
PART 78--[REMOVED AND RESERVED]
0
1. Remove and reserve part 78 in its entirety.
PART 79--FLOOD MITIGATION GRANTS [REDESIGNATED AS PART 77 AND
AMENDED]
0
2. Revise the authority citation for part 79 to read as follows:
Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42
U.S.C. 4104c, 4104d.
0
3. Redesignate part 79 as part 77 and amend the references to
Sec. Sec. 79.1 through 79.9 as follows:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
79.1.................................................... 77.1
79.2.................................................... 77.2
79.3.................................................... 77.3
79.4.................................................... 77.4
79.5.................................................... 77.5
79.6.................................................... 77.6
79.7.................................................... 77.7
79.8.................................................... 77.8
79.9.................................................... 77.9
------------------------------------------------------------------------
0
4. Amend Sec. 77.1 by, revising the section heading and paragraphs (a)
and (b), and removing paragraph (c).
The revisions read as follows:
Sec. 77.1 Purpose and applicability.
(a) The purpose of this part is to prescribe actions, procedures,
and requirements for administration of the Flood Mitigation Assistance
(FMA) grant program made available under the National Flood Insurance
Act of 1968, as amended, and the Flood Disaster Protection Act of 1973,
as amended, 42 U.S.C. 4001 et seq. The purpose of the FMA program is to
assist States, Indian Tribal governments, and communities for planning
and carrying out mitigation activities designed to reduce the risk of
flood damage to structures insured under the National Flood Insurance
Program (NFIP).
(b) This part applies to the administration of funds under the FMA
program for which the application period opens on or after [EFFECTIVE
DATE OF THE FINAL RULE].
0
5. Amend Sec. 77.2 by revising paragraphs (a) through (m) and adding
paragraphs (n) through (q) to read as follows:
Sec. 77.2 Definitions.
(a) Except as otherwise provided in this part, the definitions set
forth in Sec. 59.1 of this subchapter are applicable to this part.
(b) Applicant means the entity, such as a State or Indian Tribal
government, applying to FEMA for a Federal award under the FMA program.
Once funds have been awarded, the applicant becomes the recipient and
may also be a pass-through entity.
(c) Closeout means the process by which FEMA or the pass-through
entity determines that all applicable administrative actions and all
required work of the Federal award have been completed and takes
actions as described in 2 CFR 200.343, ``Closeout.''
(d) Community means:
(1) A political subdivision, including any Indian Tribe, authorized
Tribal organization, Alaska Native village or authorized native
organization, that has zoning and building code jurisdiction over a
particular area having special
[[Page 53503]]
flood hazards, and is participating in the NFIP; or
(2) A political subdivision of a State or other authority that is
designated by political subdivisions, all of which meet the
requirements of paragraph (d)(1) of this section, to administer grants
for mitigation activities for such political subdivisions.
(e) Federal award means the Federal financial assistance a
recipient or subrecipient receives directly from FEMA or indirectly
from a pass-through entity. The terms ``award'' and ``grant'' may also
be used to describe a Federal award under this part.
(f) Indian Tribal government means any Federally recognized
governing body of an Indian or Alaska Native Tribe, band, nation,
pueblo, village, or community that the Secretary of Interior
acknowledges to exist as an Indian Tribe under the Federally Recognized
Indian Tribe List Act of 1994, 25 U.S.C. 479a. This does not include
Alaska Native corporations, the ownership of which is vested in private
individuals.
(g) Management costs mean any indirect costs, administrative
expenses, and other expenses not directly chargeable to a specific
project that are reasonably incurred by a recipient or subrecipient in
administering and managing an award or subaward.
(h) Pass-through entity means a recipient that provides a subaward
to a subrecipient to carry out part of the FMA program.
(i) Recipient means the State or Indian Tribal government that
receives a Federal award directly from FEMA to carry out an activity
under the FMA program. A recipient may also be a pass-through entity.
The term recipient does not include subrecipients.
(j) Repetitive loss structure means a structure covered under an
NFIP flood insurance policy that:
(1) Has incurred flood-related damage on 2 occasions, in which the
cost of repair, on average, equaled or exceeded 25% of the value of the
structure at the time of each such flood event; and
(2) At the time of the second incidence of flood related damage,
the contract for flood insurance contains increased cost of compliance
coverage.
(k) Severe repetitive loss structure means a structure that is
covered under an NFIP flood insurance policy and has incurred flood-
related damage:
(1) For which 4 or more separate claims payments have been made
under flood insurance coverage under subchapter B of this chapter, with
the amount of each claim (including building and contents payments)
exceeding $5,000, and with the cumulative amount of such claims
payments exceeding $20,000; or
(2) For which at least 2 separate flood insurance claims payments
(building payments only) have been made, with cumulative amount of such
claims exceeding the value of the insured structure.
(l) State means any state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
(m) Subaward means an award provided by a pass-through entity to a
subrecipient, for the subrecipient to carry out part of a Federal award
received by the pass-through entity. It does not include payments to a
contractor or payments to an individual that is a beneficiary of a
Federal program. A subaward may be provided through any form of legal
agreement, including an agreement that the pass-through entity
considers a contract.
(n) Subapplicant means a State agency, community, or Indian Tribal
government submitting a subapplication to the applicant for assistance
under the FMA program. Upon grant award, the subapplicant is referred
to as the subrecipient.
(o) Subrecipient means the State agency, community, or Indian
Tribal government that receives a subaward from a pass-through entity
for the subrecipient to carry out an activity under the FMA program.
(p) Administrator means the head of the Federal Emergency
Management Agency, or his/her designated representative.
(q) Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated
representative.
0
6. Amend Sec. 77.3 by revising paragraphs (a) through (c) and removing
paragraph (d).
The revisions read as follows:
Sec. 77.3 Responsibilities.
(a) Federal Emergency Management Agency (FEMA). Administer and
provide oversight to all FEMA-related hazard mitigation programs and
grants, including:
(1) Issue program implementation procedures, as necessary, which
will include information on availability of funding;
(2) Award all grants to the recipient after evaluating subaward
applications for eligibility and ensuring compliance with applicable
Federal laws, giving priority to such properties, or to the subset of
such properties, as the Administrator may determine are in the best
interest of the NFIF;
(3) Provide technical assistance and training to State, local and
Indian Tribal governments regarding the mitigation and grants
management process;
(4) Review and approve State, Indian Tribal, and local mitigation
plans in accordance with part 201 of this chapter;
(5) Comply with applicable Federal statutory, regulatory, and
Executive Order requirements related to environmental and historic
preservation compliance, including reviewing and supplementing, if
necessary, the environmental analyses conducted by the State and
subrecipient in accordance with applicable laws, regulations, and
agency policy;
(6) Monitor implementation of awards through quarterly reports; and
(7) Review all closeout documentation for compliance and sending
the recipient a request for additional supporting documentation, if
needed.
(b) Recipient. The recipient must have working knowledge of NFIP
goals, requirements, and processes and ensure that the program is
coordinated with other mitigation activities. Recipients will:
(1) Have a FEMA approved Mitigation Plan in accordance with part
201 of this chapter;
(2) Provide technical assistance and training to communities on
mitigation planning, mitigation project activities, developing subaward
applications, and implementing approved subawards;
(3) Prioritize and recommend subaward applications to be approved
by FEMA, based on the applicable mitigation plan(s), other evaluation
criteria, and the eligibility criteria described in Sec. 77.6;
(4) Award FEMA-approved subawards;
(5) Monitor and evaluate the progress of the mitigation activity in
accordance with the approved original scope of work and budget through
quarterly reports;
(6) Closeout the subaward in accordance with 2 CFR 200.343 and
200.344, and applicable FEMA guidance; and
(7) Comply with program requirements under this part, grant
management requirements identified under 2 CFR parts 200 and 3002, the
grant agreement articles, and other applicable Federal, State, Tribal
and local laws and regulations.
(c) Subrecipient. The subrecipient (or subapplicant, as applicable)
will:
(1) Complete and submit subaward applications to the recipient for
FMA planning and project subawards;
[[Page 53504]]
(2) Implement all approved subawards;
(3) Monitor and evaluate the progress of the mitigation activity in
accordance with the approved original scope of work and budget through
quarterly reports;
(4) Comply with program requirements under this part, grant
management requirements identified under 2 CFR parts 200 and 3002, the
grant agreement articles, and other applicable Federal, State, Tribal
and local laws and regulations; and
(5) Closeout the subaward in accordance with 2 CFR 200.343 and
200.344, and applicable FEMA guidance.
0
7. Revise Sec. 77.4 to read as follows:
Sec. 77.4 Availability of funding.
(a) Allocation. (1) For the amount made available for the FMA
program, the Administrator will allocate the available funds based upon
criteria established for each application period. The criteria may
include the number of NFIP policies, severe repetitive loss structures,
repetitive loss structures, and any other factors the Administrator
determines are in the best interest of the NFIF.
(2) The amount of FMA funds used may not exceed $50,000 for any
mitigation plan of a State or $25,000 for any mitigation plan of a
community.
(b) Cost share. All mitigation activities approved under the grant
will be subject to the following cost share provisions:
(1) For each severe repetitive loss structure, FEMA may contribute
either:
(i) Up to 100 percent of all eligible costs if the activities are
technically feasible and cost effective; or
(ii) Up to the amount of the expected savings to the NFIP for
acquisition or relocation activities;
(2) For repetitive loss structures, FEMA may contribute up to 90
percent of the eligible costs;
(3) For all other mitigation activities, FEMA may contribute up to
75 percent of all eligible costs.
(4) For projects that contain a combination of severe repetitive
loss, repetitive loss, and/or other insured structures, the cost share
will be calculated as appropriate for each type of structure submitted
in the project subapplication.
(c) Failure to make award within 5 years. Any FMA application or
subapplication that does not receive a Federal award within 5 years of
the application/subapplication submission date is considered to be
denied, and any funding amounts allocated for such applications/
subapplications will be made available for other FMA awards and
subawards.
0
8. Revise Sec. 77.5 to read as follows:
Sec. 77.5 Application process.
(a) Applicant. (1) Applicants will be notified of the availability
of funding for the FMA program pursuant to 2 CFR 200.202 and 200.203.
(2) The applicant is responsible for soliciting applications from
eligible communities, or subapplicants, and for reviewing and
prioritizing applications prior to forwarding them to FEMA for review
and award.
(b) Subapplicant. Communities or other subapplicants who choose to
apply must develop subapplications within the timeframes and
requirements established by FEMA and must submit subapplications to the
applicant.
0
9. Revise Sec. 77.6 to read as follows:
Sec. 77.6 Eligibility.
(a) NFIP requirements. (1) States, Indian Tribal governments, and
communities must be participating in the NFIP and may not be suspended
or withdrawn under the program.
(2) For projects that impact individual structures, for example,
acquisitions and elevations, an NFIP policy for the structure must be
in effect prior to the opening of the application period and be
maintained for the life of the structure.
(b) Plan requirement--(1) Applicants. States must have a FEMA-
approved mitigation plan meeting the requirements of Sec. 201.4 of
this chapter that provides for reduction of flood losses to structures
for which NFIP coverage is available. Indian Tribal governments must
have a FEMA-approved mitigation plan meeting the requirements of Sec.
201.7 of this chapter that provides for reduction of flood losses to
structures for which NFIP coverage is available. The FEMA-approved
mitigation plan is required at the time of application and award.
(2) Subapplicants. To be eligible for FMA project grants,
subapplicants must have an approved mitigation plan in accordance with
part 201 of this chapter that provides for reduction of flood losses to
structures for which NFIP coverage is available. The FEMA-approved
mitigation plan is required at the time of application and award.
(c) Eligible activities--(1) Planning. FMA planning grants may be
used to develop or update State, Indian Tribal and/or local mitigation
plans that meet the planning criteria outlined in part 201 of this
chapter and provide for reduction of flood losses to structures for
which NFIP coverage is available.
(2) Projects. Projects funded under the FMA program are limited to
activities that reduce flood damages to properties insured under the
NFIP. Applications involving any activities for which implementation
has already been initiated or completed are not eligible for funding,
and will not be considered. Eligible activities are:
(i) Acquisition of real property from property owners, and
demolition or relocation of buildings and/or structures to areas
outside of the floodplain to convert the property to open space use in
perpetuity, in accordance with part 80 of this subchapter;
(ii) Elevation of existing structures to at least base flood levels
or higher, if required by FEMA or if required by any State or local
ordinance, and in accordance with criteria established by the
Administrator;
(iii) Floodproofing of existing non-residential structures in
accordance with the requirements of the NFIP or higher standards if
required by FEMA or if required by any State or local ordinance, and in
accordance with criteria established by the Administrator;
(iv) Floodproofing of historic structures as defined in Sec. 59.1
of this subchapter;
(v) Demolition and rebuilding of properties to at least base flood
levels or higher, if required by FEMA or if required by any State or
local ordinance, and in accordance with criteria established by the
Administrator;
(vi) Localized flood risk reduction projects that lessen the
frequency or severity of flooding and decrease predicted flood damages,
and that do not duplicate the flood prevention activities of other
Federal agencies. Non-localized flood risk reduction projects such as
dikes, levees, floodwalls, seawalls, groins, jetties, dams and large-
scale waterway channelization projects are not eligible;
(vii) Elevation, relocation, or floodproofing of utilities; and
(viii) Other mitigation activities not described or identified in
(c)(2)(i) through (vii) of this section that are described in the
State, Tribal or local mitigation plan.
(3) Technical assistance. If a recipient applied for and was
awarded at least $1 million in the prior fiscal year, that recipient
may be eligible to receive a technical assistance grant for up to
$50,000.
(d) Minimum project criteria. In addition to being an eligible
project type, mitigation grant projects must also:
(1) Be in conformance with State, Tribal and/or local mitigation
plans approved under part 201 of this chapter
[[Page 53505]]
for the jurisdiction where the project is located;
(2) Be in conformance with applicable environmental and historic
preservation laws, regulations, and agency policy, including parts 9
and 60 of this chapter, and other applicable Federal, State, Tribal,
and local laws and regulations;
(3) Be technically feasible and cost-effective; or, eliminate
future payments from the NFIF for severe repetitive loss structures
through an acquisition or relocation activity;
(4) Solve a problem independently, or constitute a functional
portion of a long-term solution where there is assurance that the
project as a whole will be completed. This assurance will include
documentation identifying the remaining funds necessary to complete the
project, and the timeframe for completing the project;
(5) Consider long-term changes to the areas and entities it
protects, and have manageable future maintenance and modification
requirements. The subrecipient is responsible for the continued
maintenance needed to preserve the hazard mitigation benefits of these
measures; and
(6) Not duplicate benefits available from another source for the
same purpose or assistance that another Federal agency or program has
more primary authority to provide.
Sec. 77.7 [Removed]
0
10. Remove Sec. 77.7 in its entirety.
0
11. Redesignate Sec. 77.8 as Sec. 77.7 and amend newly redesignated
Sec. 77.7 by revising paragraphs (a) through (c) to read as follows:
Sec. 77.7 Allowable costs.
(a) General. General policies for allowable costs for implementing
awards and subawards are addressed in 2 CFR 200.101, 200.102, 200.400-
200.475.
(1) Eligible management costs--(i) Recipient. Recipients are
eligible to receive management costs consisting of a maximum of 10
percent of the planning and project activities awarded to the
recipient, each fiscal year under FMA. These costs must be included in
the application to FEMA.
(ii) Subrecipient. Subapplicants may include a maximum of 5 percent
of the total funds requested for their subapplication for management
costs to support the implementation of their planning or project
activity. These costs must be included in the subapplication to the
recipient.
(2) Indirect costs. Indirect costs of administering the FMA program
are eligible as part of the 10 percent management costs for the
recipient or the 5 percent management costs of the subrecipient, but in
no case do they make the recipient eligible for additional management
costs that exceed the caps identified in paragraph (a)(1) of this
section. In addition, all costs must be in accordance with the
provisions of 2 CFR parts 200 and 3002.
(b) Pre-award costs. FEMA may fund eligible pre-award costs related
to developing the application or subapplication at its discretion and
as funds are available. Recipients and subrecipients may be reimbursed
for eligible pre-award costs for activities directly related to the
development of the project or planning proposal. These costs can only
be incurred during the open application period for the FMA program.
Costs associated with implementation of the activity but incurred prior
to award are not eligible. Therefore, activities where implementation
is initiated or completed prior to award are not eligible and will not
be reimbursed.
(c) Duplication of benefits. Grant funds may not duplicate benefits
received by or available to applicants, subapplicants and project
participants from insurance, other assistance programs, legal awards,
or any other source to address the same purpose. Such individual or
entity must notify the recipient and FEMA of all benefits that it
receives or anticipates from other sources for the same purpose. FEMA
will reduce the subaward by the amounts available for the same purpose
from another source.
* * * * *
0
12. Redesignate Sec. 77.9 as Sec. 77.8 and revise the newly
redesignated Sec. 77.8 to read as follows:
Sec. 77.8 Grant administration.
(a) General. Recipients must comply with the requirements contained
in 2 CFR parts 200 and 3002 and FEMA award requirements, including
submission of performance and financial status reports. Recipients must
also ensure that subrecipients are aware of and comply with 2 CFR parts
200 and 3002.
(b) Cost overruns. (1) During the implementation of an approved
grant, the recipient may find that actual costs are exceeding the
approved award amount. While there is no guarantee of additional
funding, FEMA will only consider requests made by the recipient to pay
for such overruns if:
(i) Funds are available to meet the requested increase in funding;
and
(ii) The amended grant award meets the eligibility requirements,
including cost share requirements, identified in this section.
(2) Recipients may use cost underruns from ongoing subawards to
offset overruns incurred by another subaward(s) awarded under the same
award. All costs for which funding is requested must have been included
in the original subapplication's cost estimate. In cases where an
underrun is not available to cover an overrun, the Administrator may,
with justification from the recipient and subrecipient, use other
available FMA funds to cover the cost overrun.
(3) For all cost overruns that exceed the amount approved under the
award, and which require additional Federal funds, the recipient must
submit a written request with a recommendation, including a
justification for the additional funding to the Regional Administrator
for a determination. If approved, the Regional Administrator will
increase the award through an amendment to the original award document.
(c) Recapture. At the time of closeout, FEMA will recapture any
funds provided to a State or a community under this part if the
applicant has not provided the appropriate matching funds, the approved
project has not been completed within the timeframes specified in the
grant agreement, or the completed project does not meet the criteria
specified in this part.
(d) Remedies for noncompliance. FEMA may terminate an award or take
other remedies for noncompliance in accordance with 2 CFR 200.338
through 200.342.
(e) Reconsideration. FEMA will reconsider determinations of
noncompliance, additional award conditions, or its decision to
terminate a Federal award. Requests for reconsideration must be made in
writing to FEMA within 60 calendar days after receipt of a notice of
the action, and in accordance with submission procedures set out in
guidance. FEMA will notify the requester of the disposition of the
request for reconsideration. If the decision is to grant the request
for reconsideration, FEMA will take appropriate implementing action.
0
13. Add and reserve part 79.
PART 80--PROPERTY ACQUISITION AND RELOCATION FOR OPEN SPACE
0
14. Revise the authority citation for part 80 to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; the National Flood
Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq.; Homeland
Security Act of 2002, 6 U.S.C. 101.
[[Page 53506]]
0
15. Amend Sec. 80.3 by revising paragraphs (a) through (m) and adding
paragraphs (n) and (o) to read as follows:
Sec. 80.3 Definitions.
(a) Except as noted in this part, the definitions applicable to the
funding program apply to implementation of this part. In addition, for
purposes of this part:
(b) Applicant means a State or Indian Tribal government applying to
FEMA for a Federal award that will be accountable for the use of funds.
Once funds have been awarded, the applicant becomes the recipient and
may also be a pass-through entity.
(c) Federal award means the Federal financial assistance that a
recipient or subrecipient receives directly from FEMA or indirectly
from a pass-through entity. The terms ``award'' and ``grant'' may also
be used to describe a ``Federal award'' under this part.
(d) Market Value means the price that the seller is willing to
accept and a buyer is willing to pay on the open market and in an arm's
length transaction.
(e) National of the United States means a person within the meaning
of the term as defined in the Immigration and Nationality Act, 8 U.S.C.
1101(a)(22).
(f) Pass-through entity means a recipient that provides a subaward
to a subrecipient.
(g) Purchase offer is the initial value assigned to the property,
which is later adjusted by applicable additions and deductions,
resulting in a final offer amount to a property owner.
(h) Qualified alien means a person within the meaning of the term
as defined at 8 U.S.C. 1641.
(i) Qualified conservation organization means a qualified
organization with a conservation purpose pursuant to 26 CFR 1.170A-14
and applicable implementing regulations, that is such an organization
at the time it acquires the property interest and that was such an
organization at the time of the major disaster declaration, or for at
least 2 years prior to the opening of the grant application period.
(j) Recipient means the State or Tribal government that receives a
Federal award directly from FEMA. A recipient may also be a pass-
through entity. The term recipient does not include subrecipients.
(k) Subapplicant means the entity that submits an application for
FEMA mitigation assistance to the State or Indian Tribal applicant/
recipient. With respect to open space acquisition projects under the
Hazard Mitigation Grant Program (HMGP), this term has the same meaning
as given to the term ``applicant'' in part 206, subpart N of this
chapter. Upon grant award, the subapplicant is referred to as the
subrecipient.
(l) Subaward means an award provided by a pass-through entity to a
subrecipient, for the subrecipient to carry out part of a Federal award
received by the pass-through entity.
(m) Subrecipient means the State agency, community or Indian Tribal
government or other legal entity to which a subaward is awarded and
which is accountable to the recipient for the use of the funds
provided.
(n) Administrator means the head of the Federal Emergency
Management Agency, or his/her designated representative.
(o) Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated
representative.
Sec. 80.5 [Amended]
0
16. Amend Sec. 80.5 by removing the word ``grantee'' and adding in its
place the word ``recipient'' in paragraphs (a)(1), (b) introductory
text, (c) introductory text, (c)(1), (7) and (8); and by removing the
word ``subgrantee'' and adding in its place the word ``subrecipient''
in the introductory text, paragraphs (a)(5), (b) introductory text,
(b)(1) and (3), (c) introductory text, and (d).
0
17. Amend Sec. 80.9 by revising paragraphs (b) and (c) to read as
follows:
Sec. 80.9 Eligible and ineligible costs.
* * * * *
(b) Pre-award costs. FEMA may fund eligible pre-award project costs
at its discretion and as funds are available. Recipients and
subrecipients may be reimbursed for eligible pre-award costs for
activities directly related to the development of the project proposal.
These costs can only be incurred during the open application period of
the respective grant program. Costs associated with implementation of
the project but incurred prior to grant award are not eligible.
Therefore, activities where implementation is initiated or completed
prior to award are not eligible and will not be reimbursed.
(c) Duplication of benefits. Grant funds may not duplicate benefits
received by or available to applicants, subapplicants and other project
participants from insurance, other assistance programs, legal awards,
or any other source to address the same purpose. Such individual or
entity must notify the subapplicant and FEMA of all benefits that it
receives, anticipates, or has available from other sources for the same
purpose. FEMA will reduce the subaward by the amounts available for the
same purpose from another source.
* * * * *
0
18. Amend Sec. 80.11 by revising paragraph (a) to read as follows:
Sec. 80.11 Project eligibility.
(a) Voluntary participation. Eligible acquisition projects are
those where the property owner participates voluntarily, and the
recipient/subrecipient will not use its eminent domain authority to
acquire the property for the open space purposes should negotiations
fail.
* * * * *
0
19. Amend Sec. 80.13 by revising paragraph (a)(3) to read as follows:
Sec. 80.13 Application information.
(a) * * *
(3) The deed restriction language, which must be consistent with
the FEMA model deed restriction that the local government will record
with the property deeds. Any variation from the model deed restriction
language can only be made with prior approval from FEMA's Office of
Chief Counsel;
* * * * *
0
20. Revise Sec. 80.17 to read as follows:
Sec. 80.17 Project implementation.
(a) Hazardous materials. The subrecipient must take steps to ensure
it does not acquire or include in the project properties contaminated
with hazardous materials by seeking information from property owners
and from other sources on the use and presence of contaminants
affecting the property from owners of properties that are or were
industrial or commercial, or adjacent to such. A contaminated property
must be certified clean prior to participation. This excludes permitted
disposal of incidental demolition and household hazardous wastes. FEMA
mitigation grant funds may not be used for clean up or remediation of
contaminated properties.
(b) Clear title. The subrecipient will obtain a title insurance
policy demonstrating that fee title conveys to the subrecipient for
each property to ensure that it acquires only a property with clear
title. The property interest generally must transfer by a general
warranty deed. Any incompatible easements or other encumbrances to the
property must be extinguished before acquisition.
(c) Purchase offer and supplemental payments. (1) The amount of
purchase offer is the current market value of the property or the
market value of the property immediately before the
[[Page 53507]]
relevant event affecting the property (``pre-event'').
(i) The relevant event for Robert T. Stafford Disaster Relief and
Emergency Assistance Act assistance under HMGP is the major disaster
under which funds are available; for assistance under the Pre-disaster
Mitigation program (PDM) (42 U.S.C. 5133), it is the most recent major
disaster. Where multiple disasters have affected the same property, the
recipient and subrecipient will determine which is the relevant event.
(ii) The relevant event for assistance under the National Flood
Insurance Act is the most recent event resulting in a National Flood
Insurance Program (NFIP) claim of at least $5000.
(2) The recipient should coordinate with the subrecipient in their
determination of whether the valuation should be based on pre-event or
current market value. Generally, the same method to determine market
value should be used for all participants in the project.
(3) A property owner who did not own the property at the time of
the relevant event, or who is not a National of the United States or
qualified alien, is not eligible for a purchase offer based on pre-
event market value of the property. Subrecipients who offer pre-event
market value to the property owner must have already obtained
certification during the application process that the property owner is
either a National of the United States or a qualified alien.
(4) Certain tenants who must relocate as a result of the project
are entitled to relocation benefits under the Uniform Relocation
Assistance and Real Property Acquisition Act (such as moving expenses,
replacement housing rental payments, and relocation assistance advisory
services) in accordance with 49 CFR part 24.
(5) If a purchase offer for a residential property is less than the
cost of the homeowner-occupant to purchase a comparable replacement
dwelling outside the hazard-prone area in the same community,
subrecipients for mitigation grant programs may make such a payment
available in accordance with criteria determined by the Administrator.
(6) The subrecipient must inform each property owner, in writing,
of what it considers to be the market value of the property, the method
of valuation and basis for the purchase offer, and the final offer
amount. The offer will also clearly state that the property owner's
participation in the project is voluntary.
(d) Removal of existing buildings. Existing incompatible facilities
must be removed by demolition or by relocation outside of the hazard
area within 90 days of settlement of the property transaction. The FEMA
Regional Administrator may grant an exception to this deadline only for
a particular property based upon written justification if extenuating
circumstances exist, but will specify a final date for removal.
(e) Deed Restriction. The subrecipient, upon settlement of the
property transaction, must record with the deed of the subject property
notice of applicable land use restrictions and related procedures
described in this part, consistent with FEMA model deed restriction
language.
0
21. Amend Sec. 80.19 by revising paragraphs (a) introductory text,
(a)(3), and (b) through (e) to read as follows:
Sec. 80.19 Land use and oversight.
* * * * *
(a) Open space requirements. The property must be dedicated and
maintained in perpetuity as open space for the conservation of natural
floodplain functions.
* * * * *
(3) Any improvements on the property must be in accordance with
proper floodplain management policies and practices. Structures built
on the property according to paragraph (a)(2) of this section must be
floodproofed or elevated to at least the base flood level plus 1 foot
of freeboard, or greater, if required by FEMA, or if required by any
State or local ordinance, and in accordance with criteria established
by the Administrator.
* * * * *
(b) Subsequent transfer. After acquiring the property interest, the
subrecipient, including successors in interest, will convey any
interest in the property only if the Regional Administrator, through
the State, gives prior written approval of the transferee in accordance
with this paragraph.
(1) The request by the subrecipient, through the State, to the
Regional Administrator must include a signed statement from the
proposed transferee that it acknowledges and agrees to be bound by the
terms of this section, and documentation of its status as a qualified
conservation organization if applicable.
(2) The subrecipient may convey a property interest only to a
public entity or to a qualified conservation organization. However, the
subrecipient may convey an easement or lease to a private individual or
entity for purposes compatible with the uses described in paragraph (a)
of this section, with the prior approval of the Regional Administrator,
and so long as the conveyance does not include authority to control and
enforce the terms and conditions of this section.
(3) If title to the property is transferred to a public entity
other than one with a conservation mission, it must be conveyed subject
to a conservation easement that must be recorded with the deed and must
incorporate all terms and conditions set forth in this section,
including the easement holder's responsibility to enforce the easement.
This must be accomplished by one of the following means:
(i) The subrecipient will convey, in accordance with this paragraph
(b), a conservation easement to an entity other than the title holder,
which must be recorded with the deed, or
(ii) At the time of title transfer, the subrecipient will retain
such conservation easement, and record it with the deed.
(4) Conveyance of any property interest must reference and
incorporate the original deed restrictions providing notice of the
conditions in this section and must incorporate a provision for the
property interest to revert to the subrecipient or recipient in the
event that the transferee ceases to exist or loses its eligible status
under this section.
(c) Inspection. FEMA, its representatives and assigns, including
the recipient will have the right to enter upon the property, at
reasonable times and with reasonable notice, for the purpose of
inspecting the property to ensure compliance with the terms of this
part, the property conveyance and of the grant award.
(d) Monitoring and reporting. Every 3 years the subrecipient (in
coordination with any current successor in interest) through the
recipient, must submit to the FEMA Regional Administrator a report
certifying that the subrecipient has inspected the property within the
month preceding the report, and that the property continues to be
maintained consistent with the provisions of this part, the property
conveyance and the grant award.
(e) Enforcement. The subrecipient, recipient, FEMA, and their
respective representatives, successors and assigns, are responsible for
taking measures to bring the property back into compliance if the
property is not maintained according to the terms of this part, the
conveyance, and the grant award. The relative rights and
responsibilities of FEMA, the recipient, the subrecipient, and
subsequent holders of the property interest at the time of enforcement,
include the following:
[[Page 53508]]
(1) The recipient will notify the subrecipient and any current
holder of the property interest in writing and advise them that they
have 60 days to correct the violation. If the subrecipient or any
current holder of the property interest fails to demonstrate a good
faith effort to come into compliance with the terms of the grant within
the 60-day period, the recipient will enforce the terms of the grant by
taking any measures it deems appropriate, including but not limited to
bringing an action at law or in equity in a court of competent
jurisdiction.
(2) FEMA, its representatives, and assignees may enforce the terms
of the grant by taking any measures it deems appropriate, including but
not limited to 1 or more of the following:
(i) Withholding FEMA mitigation awards or assistance from the State
and subrecipient; and current holder of the property interest.
(ii) Requiring transfer of title. The subrecipient or the current
holder of the property interest will bear the costs of bringing the
property back into compliance with the terms of the grant; or
(iii) Bringing an action at law or in equity in a court of
competent jurisdiction against any or all of the following parties: the
recipient, the subrecipient, and their respective successors.
0
22. Amend Sec. 80.21 by revising the introductory text and paragraph
(d) to read as follows:
Sec. 80.21 Closeout requirements.
Upon closeout of the grant, the subrecipient, through the
recipient, must provide FEMA, with the following:
* * * * *
(d) Identification of each property as a repetitive loss structure,
if applicable; and
* * * * *
PART 201--MITIGATION PLANNING
0
23. Revise the authority citation for part 201 to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act
of 2002, 6 U.S.C. 101.
0
24. Amend Sec. 201.1 by revising paragraph (a) to read as follows:
Sec. 201.1 Purpose.
(a) The purpose of this part is to provide information on the
policies and procedures for mitigation planning as required by the
provisions of section 322 of the Stafford Act, 42 U.S.C. 5165.
* * * * *
0
25. Revise Sec. 201.2 to read as follows:
Sec. 201.2 Definitions.
Administrator means the head of the Federal Emergency Management
Agency, or his/her designated representative.
Applicant means the entity applying to FEMA for a Federal award
that will be accountable for the use of funds.
Federal award means the Federal financial assistance that a
recipient or subrecipient receives directly from FEMA or indirectly
from a pass-through entity. The term ``grant'' or ``award'' may also be
used to describe a Federal award under this part.
Flood Mitigation Assistance (FMA) means the program authorized by
section 1366 of the National Flood Insurance Act of 1968, as amended,
42 U.S.C. 4104c, and implemented at part 77.
Hazard mitigation means any sustained action taken to reduce or
eliminate the long-term risk to human life and property from hazards.
Hazard Mitigation Grant Program (HMGP) means the program authorized
under section 404 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5170c, and implemented at part 206,
subpart N of this chapter.
Indian Tribal government means any Federally recognized governing
body of an Indian or Alaska Native Tribe, band, nation, pueblo,
village, or community that the Secretary of Interior acknowledges to
exist as an Indian Tribe under the Federally Recognized Indian Tribe
List Act of 1994, 25 U.S.C. 479a. This does not include Alaska Native
corporations, the ownership of which is vested in private individuals.
Local government is any county, municipality, city, town, township,
public authority, school district, special district, intrastate
district, council of governments (regardless of whether the council of
governments is incorporated as a nonprofit corporation under State
law), regional or interstate government entity, or agency or
instrumentality of a local government; any Indian Tribe or authorized
Tribal organization, or Alaska Native village or organization; and any
rural community, unincorporated town or village, or other public
entity.
Managing State means a State to which FEMA has delegated the
authority to administer and manage the HMGP under the criteria
established by FEMA pursuant to 42 U.S.C. 5170c(c). FEMA may also
delegate authority to Tribal governments to administer and manage the
HMGP as a Managing State.
Pass-through entity means a recipient that provides a subaward to a
subrecipient to carry out part of a Federal program.
Pre-Disaster Mitigation Program (PDM) means the program authorized
under section 203 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5133.
Regional Administrator means the head of a Federal Emergency
Management Agency regional office, or his/her designated
representative.
Recipient means the government that receives a Federal award
directly from FEMA. A recipient may also be a pass-through entity. The
term recipient does not include subrecipients. The recipient is the
entire legal entity even if only a particular component of the entity
is designated in the grant award document. Generally, the State is the
recipient. However, an Indian Tribal government may choose to be a
recipient, or may act as a subrecipient under the State. An Indian
Tribal government acting as recipient will assume the responsibilities
of a ``State'', as described in this part, for the purposes of
administering the grant.
Repetitive loss structure means a structure as defined at Sec.
77.2 of this chapter.
Severe repetitive loss structure is a structure as defined at Sec.
77.2 of this chapter.
Small and impoverished communities means a community of 3,000 or
fewer individuals that is identified by the State as a rural community,
and is not a remote area within the corporate boundaries of a larger
city; is economically disadvantaged, by having an average per capita
annual income of residents not exceeding 80 percent of national, per
capita income, based on best available data; the local unemployment
rate exceeds by one percentage point or more, the most recently
reported, average yearly national unemployment rate; and any other
factors identified in the State Plan in which the community is located.
The Stafford Act refers to the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, Public Law 93-288, as amended (42 U.S.C.
5121-5207).
State is any State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana Islands.
State Hazard Mitigation Officer is the official representative of
State government who is the primary point of contact with FEMA, other
Federal agencies, and local governments in mitigation planning and
implementation of mitigation programs
[[Page 53509]]
and activities required under the Stafford Act.
Subapplicant means an entity submitting a subapplication to the
applicant for a subaward to carry out part of a Federal award.
Subaward means an award provided by a pass-through entity to a
subrecipient for the subrecipient to carry out part of a Federal award.
Subrecipient means the entity that receives a subaward from a pass-
through entity. Depending on the program, subrecipients of hazard
mitigation assistance subawards can be a State agency, local
government, private nonprofit organization, or Indian Tribal
government. Subrecipients of FMA subawards can be a State agency,
community, or Indian Tribal government, as described in 44 CFR part 77.
Indian Tribal governments acting as a subrecipient are accountable to
the State recipient.
0
26. Amend Sec. 201.3 by revising paragraphs (a), (b)(2), (c)(1), and
(e)(1) to read as follows:
Sec. 201.3 Responsibilities.
(a) General. This section identifies the key responsibilities of
FEMA, States, and local/Tribal governments in carrying out section 322
of the Stafford Act, 42 U.S.C. 5165.
(b) * * *
(2) Provide technical assistance and training to State, local, and
Indian Tribal governments regarding the mitigation planning process;
* * * * *
(c) * * *
(1) Prepare and submit to FEMA a Standard State Mitigation Plan
following the criteria established in Sec. 201.4 as a condition of
receiving non-emergency Stafford Act assistance and FEMA mitigation
grants. In accordance with Sec. 77.6(b) of this chapter, applicants
and subapplicants for FMA project grants must have a FEMA-approved
mitigation plan that addresses identified flood hazards and provides
for reduction of flood losses to structures for which NFIP coverage is
available.
* * * * *
(e) * * *
(1) Prepare and submit to FEMA a Tribal Mitigation Plan following
the criteria established in Sec. 201.7 as a condition of receiving
non-emergency Stafford Act assistance and FEMA mitigation grants as a
recipient. This plan will also allow Indian Tribal governments to apply
through the State, as a subrecipient, for any FEMA mitigation project
grant. In accordance with Sec. 77.6(b) of this chapter, applicants and
subapplicants for FMA project grants must have a FEMA-approved
mitigation plan that addresses identified flood hazards and provides
for reduction of flood losses to structures for which NFIP coverage is
available.
* * * * *
0
27. Amend Sec. 201.4 by revising paragraphs (c)(2) through (4) to read
as follows:
Sec. 201.4 Standard State Mitigation Plans.
* * * * *
(c) * * *
(2) Risk assessments that provide the factual basis for activities
proposed in the strategy portion of the mitigation plan. Statewide risk
assessments must characterize and analyze natural hazards and risks to
provide a statewide overview. This overview will allow the State to
compare potential losses throughout the State and to determine their
priorities for implementing mitigation measures under the strategy, and
to prioritize jurisdictions for receiving technical and financial
support in developing more detailed local risk and vulnerability
assessments. The risk assessment must include the following:
(i) An overview of the type and location of all natural hazards
that can affect the State, including information on previous
occurrences of hazard events, as well as the probability of future
hazard events, using maps where appropriate;
(ii) An overview and analysis of the State's vulnerability to the
hazards described in this paragraph (c)(2), based on estimates provided
in local risk assessments as well as the State risk assessment. The
State must describe vulnerability in terms of the jurisdictions most
threatened by the identified hazards, and most vulnerable to damage and
loss associated with hazard events. State owned or operated critical
facilities located in the identified hazard areas must also be
addressed;
(iii) An overview and analysis of potential losses to the
identified vulnerable structures, based on estimates provided in local
risk assessments as well as the State risk assessment. The State must
estimate the potential dollar losses to State owned or operated
buildings, infrastructure, and critical facilities located in the
identified hazard areas.
(3) A Mitigation Strategy that provides the State's blueprint for
reducing the losses identified in the risk assessment. This section
must include:
(i) A description of State goals to guide the selection of
activities to mitigate and reduce potential losses.
(ii) A discussion of the State's pre- and post-disaster hazard
management policies, programs, and capabilities to mitigate the hazards
in the area, including: An evaluation of State laws, regulations,
policies, and programs related to hazard mitigation as well as to
development in hazard-prone areas; a discussion of State funding
capabilities for hazard mitigation projects; and a general description
and analysis of the effectiveness of local mitigation policies,
programs, and capabilities.
(iii) An identification, evaluation, and prioritization of cost-
effective, environmentally sound, and technically feasible mitigation
actions and activities the State is considering and an explanation of
how each activity contributes to the overall mitigation strategy. This
section should be linked to local plans, where specific local actions
and projects are identified.
(iv) Identification of current and potential sources of Federal,
State, local, or private funding to implement mitigation activities.
(v) In accordance with Sec. 77.6(b) of this chapter, applicants
and subapplicants for FMA project grants must have a FEMA-approved
mitigation plan that addresses identified flood hazards and provides
for reduction of flood losses to structures for which NFIP coverage is
available.
(4) A section on the Coordination of Local Mitigation Planning that
includes the following:
(i) A description of the State process to support, through funding
and technical assistance, the development of local mitigation plans.
(ii) A description of the State process and timeframe by which the
local plans will be reviewed, coordinated, and linked to the State
Mitigation Plan.
(iii) Criteria for prioritizing communities and local jurisdictions
that would receive planning and project grants under available funding
programs, which should include consideration for communities with the
highest risks, repetitive loss structures, and most intense development
pressures. Further, that for non-planning grants, a principal criterion
for prioritizing grants will be the extent to which benefits are
maximized according to a cost benefit review of proposed projects and
their associated costs.
* * * * *
0
28. Amend Sec. 201.6 by revising paragraphs (a) through (c) to read as
follows:
Sec. 201.6 Local Mitigation Plans.
* * * * *
(a) Plan requirements. (1) A local government must have a
mitigation plan
[[Page 53510]]
approved pursuant to this section in order to receive HMGP project
grants. A local government must have a mitigation plan approved
pursuant to this section in order to apply for and receive mitigation
project grants under all other mitigation grant programs.
(2) Plans prepared for the FMA program, described at part 77 of
this chapter, need only address these requirements as they relate to
flood hazards in order to be eligible for FMA project grants. However,
these plans must be clearly identified as being flood mitigation plans,
and they will not meet the eligibility criteria for other mitigation
grant programs, unless flooding is the only natural hazard the
jurisdiction faces.
(3) Regional Administrators may grant an exception to the plan
requirement in extraordinary circumstances, such as in a small and
impoverished community, when justification is provided. In these cases,
a plan will be completed within 12 months of the award of the project
grant. If a plan is not provided within this timeframe, the project
grant will be terminated, and any costs incurred after notice of
grant's termination will not be reimbursed by FEMA.
(4) Multi-jurisdictional plans (e.g. watershed plans) may be
accepted, as appropriate, as long as each jurisdiction has participated
in the process and has officially adopted the plan. State-wide plans
will not be accepted as multi-jurisdictional plans.
(b) Planning process. An open public involvement process is
essential to the development of an effective plan. In order to develop
a more comprehensive approach to reducing the effects of natural
disasters, the planning process must include:
(1) An opportunity for the public to comment on the plan during the
drafting stage and prior to plan approval;
(2) An opportunity for neighboring communities, local and regional
agencies involved in hazard mitigation activities, and agencies that
have the authority to regulate development, as well as businesses,
academia and other private and nonprofit interests to be involved in
the planning process; and
(3) Review and incorporation, if appropriate, of existing plans,
studies, reports, and technical information.
(c) Plan content. The plan must include the following:
(1) Documentation of the planning process used to develop the plan,
including how it was prepared, who was involved in the process, and how
the public was involved.
(2) A risk assessment that provides the factual basis for
activities proposed in the strategy to reduce losses from identified
hazards. Local risk assessments must provide sufficient information to
enable the jurisdiction to identify and prioritize appropriate
mitigation actions to reduce losses from identified hazards. The risk
assessment must include:
(i) A description of the type, location, and extent of all natural
hazards that can affect the jurisdiction. The plan must include
information on previous occurrences of hazard events and on the
probability of future hazard events.
(ii) A description of the jurisdiction's vulnerability to the
hazards described in paragraph (c)(2)(i) of this section. This
description must include an overall summary of each hazard and its
impact on the community. All plans approved after October 1, 2008 must
also address NFIP insured structures that have been repetitively
damaged by floods. The plan should describe vulnerability in terms of:
(A) The types and numbers of existing and future buildings,
infrastructure, and critical facilities located in the identified
hazard areas;
(B) An estimate of the potential dollar losses to vulnerable
structures identified in paragraph (c)(2)(ii)(A) of this section and a
description of the methodology used to prepare the estimate;
(C) Providing a general description of land uses and development
trends within the community so that mitigation options can be
considered in future land use decisions.
(iii) For multi-jurisdictional plans, the risk assessment section
must assess each jurisdiction's risks where they vary from the risks
facing the entire planning area.
(3) A mitigation strategy that provides the jurisdiction's
blueprint for reducing the potential losses identified in the risk
assessment, based on existing authorities, policies, programs and
resources, and its ability to expand on and improve these existing
tools. This section must include:
(i) A description of mitigation goals to reduce or avoid long-term
vulnerabilities to the identified hazards.
(ii) A section that identifies and analyzes a comprehensive range
of specific mitigation actions and projects being considered to reduce
the effects of each hazard, with particular emphasis on new and
existing buildings and infrastructure. All plans approved by FEMA after
October 1, 2008, must also address the jurisdiction's participation in
the NFIP, and continued compliance with NFIP requirements, as
appropriate.
(iii) An action plan describing how the actions identified in
paragraph (c)(3)(ii) of this section will be prioritized, implemented,
and administered by the local jurisdiction. Prioritization will include
a special emphasis on the extent to which benefits are maximized
according to a cost benefit review of the proposed projects and their
associated costs.
(iv) For multi-jurisdictional plans, there must be identifiable
action items specific to the jurisdiction requesting FEMA approval or
credit of the plan.
(4) A plan maintenance process that includes:
(i) A section describing the method and schedule of monitoring,
evaluating, and updating the mitigation plan within a five-year cycle.
(ii) A process by which local governments incorporate the
requirements of the mitigation plan into other planning mechanisms such
as comprehensive or capital improvement plans, when appropriate.
(iii) Discussion on how the community will continue public
participation in the plan maintenance process.
(5) Documentation that the plan has been formally adopted by the
governing body of the jurisdiction requesting approval of the plan
(e.g., City Council, County Commissioner, Tribal Council). For multi-
jurisdictional plans, each jurisdiction requesting approval of the plan
must document that it has been formally adopted.
* * * * *
0
29. Amend Sec. 201.7 by revising paragraphs (a), (c), and (d) to read
as follows:
Sec. 201.7 Tribal Mitigation Plans.
* * * * *
(a) Plan requirement. (1) Indian Tribal governments applying to
FEMA as a recipient must have an approved Tribal Mitigation Plan
meeting the requirements of this section as a condition of receiving
non-emergency Stafford Act assistance and FEMA mitigation grants.
Emergency assistance provided under 42 U.S.C. 5170a, 5170b, 5173, 5174,
5177, 5179, 5180, 5182, 5183, 5184, 5192 will not be affected.
Mitigation planning grants provided through the PDM program, authorized
under section 203 of the Stafford Act, 42 U.S.C. 5133, will also
continue to be available.
(2) Indian Tribal governments applying through the State as a
subrecipient must have an approved Tribal Mitigation Plan meeting the
requirements of this section in order to receive HMGP project grants. A
Tribe must have an approved Tribal Mitigation Plan in order to apply
for and receive FEMA mitigation project grants under all other
mitigation grant programs. The provisions in
[[Page 53511]]
Sec. 201.6(a)(3) are available to Tribes applying as subrecipients.
(3) Multi-jurisdictional plans (e.g. county-wide or watershed
plans) may be accepted, as appropriate, as long as the Indian Tribal
government has participated in the process and has officially adopted
the plan. Indian Tribal governments must address all the elements
identified in this section to ensure eligibility as a recipient or as a
subrecipient.
* * * * *
(c) Plan content. The plan must include the following:
(1) Documentation of the planning process used to develop the plan,
including how it was prepared, who was involved in the process, and how
the public was involved. This must include:
(i) An opportunity for the public to comment on the plan during the
drafting stage and prior to plan approval, including a description of
how the Indian Tribal government defined ``public;''
(ii) As appropriate, an opportunity for neighboring communities,
Tribal and regional agencies involved in hazard mitigation activities,
and agencies that have the authority to regulate development, as well
as businesses, academia, and other private and nonprofit interests to
be involved in the planning process;
(iii) Review and incorporation, if appropriate, of existing plans,
studies, and reports; and
(iv) Be integrated to the extent possible with other ongoing Tribal
planning efforts as well as other FEMA programs and initiatives.
(2) A risk assessment that provides the factual basis for
activities proposed in the strategy to reduce losses from identified
hazards. Tribal risk assessments must provide sufficient information to
enable the Indian Tribal government to identify and prioritize
appropriate mitigation actions to reduce losses from identified
hazards. The risk assessment must include:
(i) A description of the type, location, and extent of all natural
hazards that can affect the Tribal planning area. The plan must include
information on previous occurrences of hazard events and on the
probability of future hazard events.
(ii) A description of the Indian Tribal government's vulnerability
to the hazards described in paragraph (c)(2)(i) of this section. This
description must include an overall summary of each hazard and its
impact on the Tribe. The plan should describe vulnerability in terms
of:
(A) The types and numbers of existing and future buildings,
infrastructure, and critical facilities located in the identified
hazard areas;
(B) An estimate of the potential dollar losses to vulnerable
structures identified in paragraph (c)(2)(ii)(A) of this section and a
description of the methodology used to prepare the estimate;
(C) A general description of land uses and development trends
within the Tribal planning area so that mitigation options can be
considered in future land use decisions; and
(D) Cultural and sacred sites that are significant, even if they
cannot be valued in monetary terms.
(3) A mitigation strategy that provides the Indian Tribal
government's blueprint for reducing the potential losses identified in
the risk assessment, based on existing authorities, policies, programs
and resources, and its ability to expand on and improve these existing
tools. This section must include:
(i) A description of mitigation goals to reduce or avoid long-term
vulnerabilities to the identified hazards.
(ii) A section that identifies and analyzes a comprehensive range
of specific mitigation actions and projects being considered to reduce
the effects of each hazard, with particular emphasis on new and
existing buildings and infrastructure.
(iii) An action plan describing how the actions identified in
paragraph (c)(3)(ii) of this section will be prioritized, implemented,
and administered by the Indian Tribal government.
(iv) A discussion of the Indian Tribal government's pre- and post-
disaster hazard management policies, programs, and capabilities to
mitigate the hazards in the area, including: An evaluation of Tribal
laws, regulations, policies, and programs related to hazard mitigation
as well as to development in hazard-prone areas; and a discussion of
Tribal funding capabilities for hazard mitigation projects.
(v) Identification of current and potential sources of Federal,
Tribal, or private funding to implement mitigation activities.
(vi) In accordance with Sec. 77.6(b) of this chapter, applicants
and subapplicants for FMA project grants must have a FEMA-approved
mitigation plan that addresses identified flood hazards and provides
for reduction of flood losses to structures for which NFIP coverage is
available.
(4) A plan maintenance process that includes:
(i) A section describing the method and schedule of monitoring,
evaluating, and updating the mitigation plan.
(ii) A system for monitoring implementation of mitigation measures
and project closeouts.
(iii) A process by which the Indian Tribal government incorporates
the requirements of the mitigation plan into other planning mechanisms
such as reservation master plans or capital improvement plans, when
appropriate.
(iv) Discussion on how the Indian Tribal government will continue
public participation in the plan maintenance process.
(v) A system for reviewing progress on achieving goals as well as
activities and projects identified in the mitigation strategy.
(5) The plan must be formally adopted by the governing body of the
Indian Tribal government prior to submittal to FEMA for final review
and approval.
(6) The plan must include assurances that the Indian Tribal
government will comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding, including 2 CFR parts 200 and 3002. The Indian Tribal
government will amend its plan whenever necessary to reflect changes in
Tribal or Federal laws and statutes.
(d) Plan review and updates. (1) Plans must be submitted to the
appropriate FEMA Regional Office for formal review and approval. Indian
Tribal governments who would like the option of being a subrecipient
under the State must also submit their plan to the State Hazard
Mitigation Officer for review and coordination.
(2) The Regional review will be completed within 45 days after
receipt from the Indian Tribal government, whenever possible.
(3) Indian Tribal governments must review and revise their plan to
reflect changes in development, progress in local mitigation efforts,
and changes in priorities, and resubmit it for approval within 5 years
in order to continue to be eligible for non-emergency Stafford Act
assistance and FEMA mitigation grant funding.
PART 206--FEDERAL DISASTER ASSISTANCE
0
30. The authority citation for part 206 is revised to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security
Delegation 9001.1; sec. 1105, Pub. L. 113-2, 127 Stat. 43 (42 U.S.C.
5189a note).
0
31. Revise Sec. 206.431 to read as follows:
[[Page 53512]]
Sec. 206.431 Definitions.
Activity means any mitigation measure, project, or action proposed
to reduce risk of future damage, hardship, loss or suffering from
disasters.
Applicant means the non-Federal entity consisting of a State or
Indian Tribal government, applying to FEMA for a Federal award under
the Hazard Mitigation Grant Program. Upon award, the applicant becomes
the recipient and may also be a pass-through entity.
Enhanced State Mitigation Plan is the hazard mitigation plan
approved under 44 CFR part 201 as a condition of receiving increased
funding under the HMGP.
Grant application means the request to FEMA for HMGP funding, as
outlined in Sec. 206.436, by a State or Tribal government that will
act as recipient.
Grant award means total of Federal and non-Federal contributions to
complete the approved scope of work.
Indian Tribal government means any Federally recognized governing
body of an Indian or Alaska Native Tribe, band, nation, pueblo,
village, or community that the Secretary of Interior acknowledges to
exist as an Indian Tribe under the Federally Recognized Indian Tribe
List Act of 1994, 25 U.S.C. 479a. This does not include Alaska Native
corporations, the ownership of which is vested in private individuals.
Indian Tribal governments have the option to apply as an applicant or
subapplicant.
Local Mitigation Plan is the hazard mitigation plan required of a
local government acting as a subrecipient as a condition of receiving a
project subaward under the HMGP as outlined in 44 CFR 201.6.
Pass-through entity means a recipient that provides a subaward to a
subrecipient.
Recipient means the State or Indian Tribal government that receives
a Federal award directly from FEMA. A recipient may also be a pass-
through entity. The term recipient does not include subrecipients. The
recipient is the entire legal entity even if only a particular
component of the entity is designated in the grant award document.
Generally, the State is the recipient. However, an Indian Tribal
government may choose to be a recipient, or may act as a subrecipient
under the State. An Indian Tribal government acting as recipient will
assume the responsibilities of a ``State'', as described in this part,
for the purposes of administering the grant.
Standard State Mitigation Plan is the hazard mitigation plan
approved under 44 CFR part 201, as a condition of receiving Stafford
Act assistance as outlined in Sec. 201.4 of this chapter.
State Administrative Plan for the Hazard Mitigation Grant Program
means the plan developed by the State to describe the procedures for
administration of the HMGP.
Subapplicant means the State agency, local government, eligible
private nonprofit organization, or Indian Tribal government submitting
a subapplication to the applicant for financial assistance under HMGP.
Upon award, the subapplicant becomes the subrecipient.
Subaward means an award provided by a pass-through entity to a
subrecipient for the subrecipient to carry out part of a Federal award.
Subaward application means the request to the recipient for HMGP
funding by the eligible subrecipient, as outlined in Sec. 206.436.
Subrecipient means the government or other legal entity to which a
subaward is awarded and which is accountable to the recipient for the
use of the funds provided. Subrecipients can be a State agency, local
government, private nonprofit organization, or Indian Tribal government
as outlined in Sec. 206.433. Indian Tribal governments acting as a
subrecipient are accountable to the State recipient.
Tribal Mitigation Plan is the hazard mitigation plan required of an
Indian Tribal government acting as a recipient or subrecipient as a
condition of receiving a project award or subaward under the HMGP as
outlined in 44 CFR 201.7.
0
32. Amend Sec. 206.432 by revising paragraphs (b) introductory text,
(b)(2) and (3), and (c) to read as follows:
Sec. 206.432 Federal grant assistance.
* * * * *
(b) Amounts of assistance. The total Federal contribution of funds
is based on the estimated aggregate grant amount to be made under the
Stafford Act for the major disaster (less associated administrative
costs), and must be as follows:
* * * * *
(2) Twenty (20) percent. A State with an approved Enhanced State
Mitigation Plan, in effect before the disaster declaration, which meets
the requirements outlined in Sec. 201.5 of this subchapter will be
eligible for assistance under the HMGP not to exceed 20 percent of such
amounts, for amounts not more than $35.333 billion.
(3) The estimates of Federal assistance under this paragraph (b)
will be based on the Regional Administrator's estimate of all eligible
costs, actual grants, and appropriate mission assignments.
(c) Cost sharing. All mitigation measures approved under the
State's grant will be subject to the cost sharing provisions
established in the FEMA-State Agreement. FEMA may contribute up to 75
percent of the cost of measures approved for funding under the Hazard
Mitigation Grant Program for major disasters declared on or after June
10, 1993. The non-Federal share may exceed the Federal share. FEMA will
not contribute to costs above the Federally approved estimate.
0
33. Amend Sec. 206.433 by revising paragraph (a) to read as follows:
Sec. 206.433 State responsibilities.
(a) Recipient. The State will be the recipient to which funds are
awarded and will be accountable for the use of those funds. There may
be subrecipients within the State government.
* * * * *
0
34. Amend Sec. 206.434 by revising paragraphs (a), (b), (c)(1) and
(5), (d)(1), and (e) to read as follows:
Sec. 206.434 Eligibility.
(a) Eligible entities. The following are eligible to apply for the
Hazard Mitigation Program Grant:
(1) Applicants--States and Indian Tribal governments;
(2) Subapplicants--(i) State agencies and local governments;
(ii) Private nonprofit organizations that own or operate a private
nonprofit facility as defined in Sec. 206.221(e). A qualified
conservation organization as defined at Sec. 80.3(h) of this chapter
is the only private nonprofit organization eligible to apply for
acquisition or relocation for open space projects;
(iii) Indian Tribal governments.
(b) Plan requirement. (1) Local and Indian Tribal government
applicants for project subawards must have an approved local or Tribal
Mitigation Plan in accordance with 44 CFR part 201 before receipt of
HMGP subaward funding for projects.
(2) Regional Administrators may grant an exception to this
requirement in extraordinary circumstances, such as in a small and
impoverished community when justification is provided. In these cases,
a plan will be completed within 12 months of the award of the project
subaward. If a plan is not provided within this timeframe, the project
subaward will be terminated, and any costs incurred after notice of
subaward's termination will not be reimbursed by FEMA.
(c) * * *
(1) Be in conformance with the State Mitigation Plan and Local or
Tribal Mitigation Plan approved under 44 CFR part 201; or for Indian
Tribal governments acting as recipients, be in
[[Page 53513]]
conformance with the Tribal Mitigation Plan approved under 44 CFR
201.7;
* * * * *
(5) Be cost-effective and substantially reduce the risk of future
damage, hardship, loss, or suffering resulting from a major disaster.
The recipient must demonstrate this by documenting that the project;
(i) Addresses a problem that has been repetitive, or a problem that
poses a significant risk to public health and safety if left unsolved,
(ii) Will not cost more than the anticipated value of the reduction
in both direct damages and subsequent negative impacts to the area if
future disasters were to occur,
(iii) Has been determined to be the most practical, effective, and
environmentally sound alternative after consideration of a range of
options,
(iv) Contributes, to the extent practicable, to a long-term
solution to the problem it is intended to address,
(v) Considers long-term changes to the areas and entities it
protects, and has manageable future maintenance and modification
requirements.
(d) Eligible activities--(1) Planning. Up to 7% of the State's HMGP
award may be used to develop State, Tribal and/or local mitigation
plans to meet the planning criteria outlined in 44 CFR part 201.
* * * * *
(e) Property acquisitions and relocation requirements. Property
acquisitions and relocation projects for open space proposed for
funding pursuant to a major disaster declared on or after December 3,
2007 must be implemented in accordance with part 80 of this chapter.
* * * * *
Sec. 206.435 [Amended]
0
35. Amend Sec. 206.435 by removing the word ``shall'' and adding in
its place the word ``will'' in the last sentence of paragraph (a).
0
36. Amend Sec. 206.436 by revising paragraphs (a), (b), (c)
introductory text, (c)(1), (e), and (g) to read as follows:
Sec. 206.436 Application procedures.
(a) General. This section describes the procedures to be used by
the recipient in submitting an application for HMGP funding. Under the
HMGP, the State or Indian Tribal government is the recipient and is
responsible for processing subawards to applicants in accordance with 2
CFR parts 200 and 3002. Subrecipients are accountable to the recipient.
(b) Governor's Authorized Representative. The Governor's Authorized
Representative serves as the grant administrator for all funds provided
under the Hazard Mitigation Grant Program. The Governor's Authorized
Representative's responsibilities as they pertain to procedures
outlined in this section include providing technical advice and
assistance to eligible subrecipients, and ensuring that all potential
applicants are aware of assistance available and submission of those
documents necessary for grant award.
(c) Hazard mitigation application. Upon identification of
mitigation measures, the State (Governor's Authorized Representative)
will submit its Hazard Mitigation Grant Program application to the FEMA
Regional Administrator. The application will identify one or more
mitigation measures for which funding is requested. The application
must include a Standard Form (SF) 424, Application for Federal
Assistance, SF 424D, Assurances for Construction Programs, if
appropriate, and a narrative statement. The narrative statement will
contain any pertinent project management information not included in
the State's administrative plan for Hazard Mitigation. The narrative
statement will also serve to identify the specific mitigation measures
for which funding is requested. Information required for each
mitigation measure must include the following:
(1) Name of the subrecipient, if any;
* * * * *
(e) Extensions. The State may request the Regional Administrator to
extend the application time limit by 30 to 90 day increments, not to
exceed a total of 180 days. The recipient must include a justification
in its request.
* * * * *
(g) Indian Tribal recipients. Indian Tribal governments may submit
a SF 424 directly to the Regional Administrator.
0
37. Amend Sec. 206.437 by revising paragraphs (a), (b)(4)(i), (x), and
(xiii), and (d) to read as follows:
Sec. 206.437 State administrative plan.
(a) General. The State must develop a plan for the administration
of the Hazard Mitigation Grant Program.
(b) * * *
(4) * * *
(i) Identify and notify potential applicants (subrecipients) of the
availability of the program;
* * * * *
(x) Provide technical assistance as required to subrecipient(s);
* * * * *
(xiii) Determine the percentage or amount of pass-through funds for
management costs provided under 44 CFR part 207 that the recipient will
make available to subrecipients, and the basis, criteria, or formula
for determining the subrecipient percentage or amount.
* * * * *
(d) Approval. The State must submit the administrative plan to the
Regional Administrator for approval. Following each major disaster
declaration, the State must prepare any updates, amendments, or plan
revisions required to meet current policy guidance or changes in the
administration of the Hazard Mitigation Grant Program. Funds will not
be awarded until the State Administrative Plan is approved by the FEMA
Regional Administrator.
0
38. Revise Sec. 206.438 to read as follows:
Sec. 206.438 Project management.
(a) General. The State serving as recipient has primary
responsibility for project management and accountability of funds as
indicated in 2 CFR parts 200 and 3002 and 44 CFR part 206. The State is
responsible for ensuring that subrecipients meet all program and
administrative requirements.
(b) Cost overruns. During the execution of work on an approved
mitigation measure the Governor's Authorized Representative may find
that actual project costs are exceeding the approved estimates. Cost
overruns which can be met without additional Federal funds, or which
can be met by offsetting cost underruns on other projects, need not be
submitted to the Regional Administrator for approval, so long as the
full scope of work on all affected projects can still be met. For cost
overruns which exceed Federal obligated funds and which require
additional Federal funds, the Governor's Authorized Representative will
evaluate each cost overrun and submit a request with a recommendation
to the Regional Administrator for a determination. The applicant's
justification for additional costs and other pertinent material must
accompany the request. The Regional Administrator will notify the
Governor's Authorized Representative in writing of the determination
and process a supplement, if necessary. All requests that are not
justified must be denied by the Governor's Authorized Representative.
In no case will the total amount obligated to the State exceed the
funding limits set forth in Sec. 206.432(b). Any such problems or
circumstances affecting project costs must be identified through the
quarterly progress reports required in paragraph (c) of this section.
(c) Progress reports. The recipient must submit a quarterly
progress report
[[Page 53514]]
to FEMA indicating the status and completion date for each measure
funded. Any problems or circumstances affecting completion dates, scope
of work, or project costs which are expected to result in noncompliance
with the approved grant conditions must be described in the report.
(d) Payment of claims. The Governor's Authorized Representative
will make a claim to the Regional Administrator for reimbursement of
allowable costs for each approved measure. In submitting such claims
the Governor's Authorized Representative must certify that reported
costs were incurred in the performance of eligible work, that the
approved work was completed and that the mitigation measure is in
compliance with the provisions of the FEMA-State Agreement. The
Regional Administrator will determine the eligible amount of
reimbursement for each claim and approve payment. If a mitigation
measure is not completed, and there is not adequate justification for
noncompletion, no Federal funding will be provided for that measure.
(e) Audit requirements. Uniform audit requirements as set forth in
2 CFR parts 200 and 3002 and 44 CFR part 206 apply to all grant
assistance provided under this subpart. FEMA may elect to conduct a
Federal audit on the disaster assistance award or on any of the
subawards.
Sec. 206.439 [Amended]
0
39. Amend Sec. 206.439 by revising the second sentence of paragraph
(c) to read as follows:
Sec. 206.439 Allowable costs.
* * * * *
(c) * * * Recipients and subrecipients may be reimbursed for
eligible pre-award costs for activities directly related to the
development of the project or planning proposal. * * *
0
40. Amend Sec. 206.440 by revising the introductory text and
paragraphs (a), (b) heading, (c) heading, (c)(2) and (3), (d), and
(e)(3) to read as follows:
Sec. 206.440 Appeals.
An eligible applicant, subrecipient, or recipient may appeal any
determination previously made related to an application for or the
provision of Federal assistance according to the procedures in this
section.
(a) Format and content. The applicant or recipient will make the
appeal in writing through the recipient to the Regional Administrator.
The recipient-will review and evaluate all subrecipient appeals before
submission to the Regional Administrator. The recipient may make
recipient-related appeals to the Regional Administrator. The appeal
must contain documented justification supporting the appellant's
position, specifying the monetary figure in dispute and the provisions
in Federal law, regulation, or policy with which the appellant believes
the initial action was inconsistent.
* * * * *
(b) Levels of appeal.
* * * * *
(c) Time limits.
* * * * *
(2) The recipient will review and forward appeals from an applicant
or subrecipient, with a written recommendation, to the Regional
Administrator within 60 days of receipt.
(3) Within 90 days following receipt of an appeal, the Regional
Administrator (for first appeals) or Assistant Administrator for the
Mitigation Directorate (for second appeals) will notify the recipient
in writing of the disposition of the appeal or of the need for
additional information. A request by the Regional Administrator or
Assistant Administrator for the Mitigation Directorate for additional
information will include a date by which the information must be
provided. Within 90 days following the receipt of the requested
additional information or following expiration of the period for
providing the information, the Regional Administrator or Assistant
Administrator for the Mitigation Directorate will notify the recipient
in writing of the disposition of the appeal. If the decision is to
grant the appeal, the Regional Administrator will take appropriate
implementing action.
(d) Technical advice. In appeals involving highly technical issues,
the Regional Administrator or Assistant Administrator for the
Mitigation Directorate may, at his or her discretion, submit the appeal
to an independent scientific or technical person or group having
expertise in the subject matter of the appeal for advice or
recommendation. The period for this technical review may be in addition
to other allotted time periods. Within 90 days of receipt of the
report, the Regional Administrator or Assistant Administrator for the
Mitigation Directorate will notify the recipient in writing of the
disposition of the appeal.
(e) * * *
(3) The decision of the FEMA official at the next higher appeal
level will be the final administrative decision of FEMA.
Pete Gaynor,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2020-16004 Filed 8-27-20; 8:45 am]
BILLING CODE 9110-11-P