[Federal Register Volume 89, Number 133 (Thursday, July 11, 2024)]
[Rules and Regulations]
[Pages 56929-57046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15169]



  Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules 
and Regulations  

[[Page 56929]]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 9

[Docket ID FEMA-2023-0026]
RIN 1660-AB12


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

AGENCY: Federal Emergency Management Agency, Department of Homeland 
Security.

ACTION: Final rule.

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SUMMARY: On October 2, 2023, the Federal Emergency Management Agency 
(FEMA) published a notice of proposed rulemaking (NPRM) and 
supplementary policy that proposed to implement the Federal Flood Risk 
Management Standard (FFRMS) and update the agency's 8-step decision-
making process for floodplain reviews by changing how FEMA defines a 
floodplain with respect to certain actions and how FEMA uses natural 
systems, ecosystem processes, and nature-based approaches when 
developing alternatives to locating a proposed action in the 
floodplain. After a careful review of the public comments received, 
FEMA is now issuing a final rule that implements the proposed rule, 
with some minor amendments.

DATES: This rule is effective September 9, 2024.

FOR FURTHER INFORMATION CONTACT: Portia Ross, Policy and Integration 
Division Director, Office of Environmental Planning and Historic 
Preservation, Resilience, DHS/FEMA, 400 C St. SW, Suite 313, 
Washington, DC 20472-3020. Phone: (202) 709-0677; Email: [email protected].

SUPPLEMENTARY INFORMATION:

Contents

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Notice of Proposed Rulemaking (NPRM)
    C. Summary of Changes From the NPRM to the Final Rule
II. Background and Legal Authority
    A. Executive Order 11988, ``Floodplain Management''
    B. Statutory Authority To Require FFRMS Under FEMA Grant 
Programs
    C. 44 CFR Part 9, ``Floodplain Management and Protection of 
Wetlands''
    D. Executive Order 13690, the Federal Flood Risk Management 
Standard and Subsequent Amendments to Executive Order 11988, and 
Revisions to the 1978 Guidelines
    E. Substantive Components of the FFRMS
    F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy
    G. Summary of FEMA's Final Rule and Updated Policy
III. Discussion of Public Comments and FEMA's Responses
    A. Summary of Public Comments
    B. Comments in Support of the Rule
    C. Comments in General Opposition to the Rule
    D. FEMA's Authority for Part 9 and Revisions
    E. Definitions
    F. FFRMS Applicability
    G. FFRMS Approaches
    H. FEMA's FFRMS Policy Approach
    I. The FFRMS and Floodplain/Wetland Determination Data
    J. FFRMS Implementation
    K. Emphasis on Nature-Based Approaches
    L. Other 8-Step Process Comments
    M. Other Comments
    N. Accessibility
    O. Regulatory Impact Analysis Comments

I. Executive Summary

A. Purpose of the Regulatory Action

    The purpose of this regulatory action is to finalize a rulemaking 
that will improve the preparedness and resilience of communities and 
Federal assets against the increasing impacts of flooding. All Federal 
agencies, including FEMA, have long taken 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 when carrying out certain agency 
functions. Federal agencies accomplish this by applying the 
longstanding 8-step decision-making process to any action they take in 
floodplains to ensure they avoid, to the extent possible, the long- and 
short-term adverse impacts associated with the occupancy and 
modification of floodplains, and to avoid direct or indirect support of 
floodplain development wherever there is a practicable alternative.
    This framework was originally established in 1977 by Executive 
Order 11988, ``Floodplain Management,'' (42 FR 26951) which was issued 
in furtherance of the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.), the National Flood Insurance Act of 1968 as 
amended (NFIA) (42 U.S.C. 4001 et seq.), and the Flood Disaster 
Protection Act of 1973, as amended (Flood Disaster Protection Act) 
(Pub. L. 93-234, 87 Stat. 975). Executive Order 11988 was supplemented 
by guidance called ``Floodplain Management Guidelines'' issued in 1978 
by the U.S. Water Resources Council (``1978 Guidelines'').\1\ FEMA 
implemented Executive Order 11988 in 1980 through the promulgation of 
regulations at 44 CFR part 9, ``Floodplain Management and Protection of 
Wetlands,'' \2\ which applies the 8-step decision-making process to all 
actions FEMA directly takes and to all actions that it funds through 
grants to eligible State, local, Tribal, and territorial (SLTT) 
governments, certain private non-profits, and individuals and 
households for pre- and post-emergency or disaster-related projects.
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    \1\ 42 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines 
can be found at this link: hud.gov/sites/documents/DOC_14216.PDF 
(last accessed Jan. 24, 2024).
    \2\ FEMA published an interim final rule on December 27, 1979 
(44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520). 
Note that this part also implements a related Executive Order 11990, 
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
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    The first step in the 8-step process is to determine whether the 
action FEMA proposes to take or fund will occur in a floodplain or 
wetland.\3\ Section (6)(c) of Executive Order 11988 defined the term 
``floodplain'' to mean, at a minimum, ``that area subject to a one 
percent or greater chance of flooding in any given year,'' which is 
recognized as the ``base floodplain.'' Executive Order 11988 and the 
base floodplain definition remained unchanged from 1977 until 2015. In 
2015, President Barack Obama amended Executive Order 11988 by adding a 
new flood risk reduction standard to the existing 8-step decision-
making process to improve the Nation's resilience against the 
increasing impacts of flooding.\4\ The flood risk reduction standard, 
called the Federal Flood Risk Management Standard (FFRMS), is a 
flexible framework to define the floodplain that allows agencies to 
choose among several approaches to expand the base floodplain to a 
higher vertical elevation and corresponding horizontal extent for all 
Federally

[[Page 56930]]

funded projects. Federally funded projects are defined as actions where 
Federal funds are used for new construction, substantial improvement, 
or repairs to address substantial damage to structures and 
facilities.\5\ The amendments also direct agencies to use natural 
systems, ecosystem processes, and nature-based approaches when 
developing alternatives to locating the action in the floodplain. The 
Water Resources Council then updated the 1978 Guidelines and issued the 
``Guidelines for Implementing Executive Order 11988, Floodplain 
Management, and Executive Order 13690, `Establishing a Federal Flood 
Risk Management Standard and a Process for Further Soliciting and 
Considering Stakeholder Input' '' (``Revised Guidelines'') \6\ to 
provide additional information on the use of the FFRMS.
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    \3\ Any action FEMA takes in a floodplain or wetland, including 
its provision of grants for disaster assistance, undergoes an 
analysis pursuant to Executive Orders 11988 and 11990 (unless the 
action is specifically exempted from the requirements of the 
Orders). The grant recipient, therefore, generally provides 
information to FEMA about the practicability of alternatives outside 
the floodplain and wetland and other information to assist in the 
analysis.
    \4\ Executive Order 13690, ``Establishing a Federal Flood Risk 
Management Standard (FFRMS) and a Process for Further Soliciting and 
Considering Stakeholder Input.'' 80 FR 6425, Feb. 4, 2015. In 2017, 
President Donald Trump revoked the amendments to Executive Order 
11988. See Executive Order 13807, ``Establishing Discipline and 
Accountability in the Environmental Review and Permitting Process 
for Infrastructure Project,'' 82 FR 40463, Aug. 24, 2017. In 2021, 
President Joseph Biden reinstated the amendments. See Executive 
Order 14030, ``Climate Related Financial Risk,'' 86 FR 27967, May 
25, 2021.
    \5\ See ``Guidelines for Implementing Executive Order 11998, 
Floodplain Management, and Executive Order 13690, Establishing a 
Federal Flood Risk Management Standard and a Process for Further 
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct. 
22, 2015) (providing notice of the availability of the Revised 
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and 
https://www.regulations.gov/document/FEMA-2015-0006-0372 
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
    \6\ 80 FR 64008, Oct. 22, 2015.
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    FEMA first partially implemented the FFRMS in its grant programs 
through policy using an interim approach that applied higher elevation 
requirements to eligible projects in existing floodplains.\7\ FEMA then 
proposed to fully implement the FFRMS in its October 2, 2023 NPRM and 
supplementary policy.\8\ FEMA proposed to prioritize the use of the 
Climate-Informed Science Approach (CISA) in its FFRMS implementation. 
The CISA establishes the required vertical elevation and corresponding 
horizontal floodplain, through the best-available, actionable 
hydrologic and hydraulic data and methods that integrate current and 
future changes in flooding based on climate science, in accordance with 
the Revised Guidelines. When such data is not available, FEMA's NPRM 
and supplementary policy proposed the use of other approaches depending 
on the criticality of the action. FEMA also proposed to require the use 
of natural systems, ecosystem processes, and nature-based approaches 
where possible.
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    \7\ See FEMA Policy 104-22-003, ``Partial Implementation of the 
Federal Flood Risk Management Standard for Public Assistance 
(Interim),'' June 3, 2022, found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 
206-21-003-0001, ``Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Program,'' Dec. 
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024).
    \8\ 88 FR 67870, Oct. 2, 2023; 88 FR 67697, Oct. 2, 2023.
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    FEMA has authority to require application of the FFRMS as a 
condition of funding in its grant programs based on the grant programs' 
authorizing statutes. Congress granted FEMA the authority to provide 
Federal assistance through multiple grant programs under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (Stafford 
Act),\9\ the NFIA,\10\ the Homeland Security Act of 2002,\11\ the 
Federal Fire Prevention and Control Act of 1974,\12\ the Earthquake 
Hazards Reduction Act of 1977,\13\ and various other appropriations 
acts. Under each of these authorities, FEMA may set grant eligibility 
criteria consistent with the respective purposes of such programs and 
FEMA's mission, including to protect Federal investments from the risks 
of further damage.\14\ Under the Stafford Act and the NFIA, which 
authorize the programs that fund the majority of the actions subject to 
the FFRMS, FEMA has general rulemaking authority.\15\ Further, FEMA has 
explicit authority under the Stafford Act to set the minimum standards 
for safe land use and construction standards required in the repair or 
construction of private and public facilities.\16\
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    \9\ 42 U.S.C. 5121 et seq.
    \10\ 42 U.S.C. 4001 et seq.
    \11\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which 
specifically charges the Administrator with supervising various 
grant programs authorized under the HSA. Such grant programs have 
long been governed by floodplain management regulations at 44 CFR 
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept. 
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal 
awarding agencies to manage and administer Federal awards in a 
manner so as to ensure that Federal funding is expended and 
associated programs are implemented in full accordance with the U.S. 
Constitution, Federal Law, and public policy requirements including, 
but not limited to, those protecting public welfare and the 
environment; and requiring the Federal awarding agency to 
communicate to the non-Federal entity all relevant public policy 
requirements, and incorporate them either directly or by reference 
in the terms and conditions of the Federal award.).
    \12\ 15 U.S.C. 2229 and 2229a.
    \13\ 42 U.S.C. 7701 et seq.
    \14\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority 
over grant funds for construction awards under its Homeland Security 
Grant Program, State Homeland Security Grant Program, Urban Area 
Security Initiative, Operation Stonegarden, Tribal Homeland Security 
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C. 
1182(d)(1) (granting DHS the authority to determine the grant 
requirements for the Intercity Bus Security Grant Program); 6 U.S.C. 
1163(c)(1) (granting FEMA the authority to determine the grant 
requirements for the Intercity Passenger Rail grant program); 46 
U.S.C. 70101 (granting DHS approval authority over grant funds for 
construction awards under the Port Security Grant Program); 6 U.S.C. 
1135(c)(1) (granting DHS the authority to determine the grant 
requirements for the Transit Security Grant Program); 33 U.S.C. 
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum 
eligibility requirements for the Rehabilitation of High Hazard Dam 
Program).
    \15\ See 42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
    \16\ 42 U.S.C. 5165a(a)(1)-(2).
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    This rule is an important first step toward mitigating future flood 
risk that will ultimately benefit communities by allowing them to 
recover from future disasters more efficiently and effectively. The 
United States is experiencing increased flooding and flood risk from 
changing conditions.\17\ The full extent of future changes in flood 
risk has not yet been estimated across the full inventory of Federal, 
State, local, Tribal, and territorial properties. However, in a survey 
of Federal properties alone, an assessment identified over 40,000 
individual Federal buildings and structures with a combined replacement 
cost of $81 billion (in 2020 dollars) located in the current 1 percent 
floodplain and approximately 160,000 structures with a total 
replacement cost of $493 billion (in 2020 dollars) located in the 
current 0.2 percent floodplain.\18\ Approximately 10,250 individual 
Federal buildings and structures were identified in coastal areas with 
a combined replacement cost of $32.3 billion that would be severely 
impacted by an eight-foot sea-level rise scenario and over 12,195 
individual Federal buildings and structures were identified with a 
combined replacement cost of over $43.7 billion under a ten-foot 
``worst case'' sea level rise scenario.\19\ The Federal fiscal exposure 
presented above can be reduced by enhancing resilience. This final rule 
will enhance resilience by ensuring that actions subject to the FFRMS 
are designed to be resilient to both current and future flood risks to 
minimize the impact of floods on human health, safety, and welfare and 
to protect Federal investments by reducing the risk of flood loss.
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    \17\ As a result of climate change, flood events are on the 
rise. Climate change is increasing flood risk through (1) more 
``extreme'' rainfall events,'' caused by a warmer atmosphere holding 
more water vapor and changes in regional precipitation patterns; and 
(2) sea-level rise. See Rob Bailey, Claudio Saffioti, and Sumer 
Drall, Sunk Costs: The Socioeconomic Impacts of Flooding 3 and 8, 
Marsh McLennan (2021).
    \18\ Federal Budget Exposure to Climate Risk. OMB Assessment 
found https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf (last accessed Jan. 24, 2024).
    \19\ Id.

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[[Page 56931]]

B. Summary of the Notice of Proposed Rulemaking (NPRM)

    On October 2, 2023, FEMA published the NPRM ``Updates to Floodplain 
Management and Protection of Wetlands Regulations to Implement the 
Federal Flood Risk Management Standard.'' \20\ FEMA also published 
``FEMA Proposed Policy: Federal Flood Risk Management Standard 
(FFRMS)'' with the proposed rule.\21\ The proposed rule sought to 
change how FEMA defines a floodplain with respect to certain actions 
taken by the agency and require that FEMA use natural systems, 
ecosystem process, and nature-based approaches, where possible, when 
developing alternatives to locating a proposed agency action in the 
floodplain.
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    \20\ 88 FR 67870, Oct. 2, 2023.
    \21\ 88 FR 67697, Oct 2, 2023.
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    The FFRMS is a flood resilience standard that is required for 
Federally funded projects and provides a flexible framework to increase 
resilience against flooding and help preserve the natural values of 
floodplains and wetlands. For actions subject to the FFRMS, the NPRM 
proposed to update the definition of ``floodplain'' to the definition 
used in the Revised Guidelines, which allows the agency to establish 
the floodplain using any of the following three approaches or a fourth 
approach resulting from any other method in an update to the FFRMS:
     Approach 1: Climate-Informed Science Approach (CISA): 
Utilizing the best-available, actionable hydrologic and hydraulic data 
and methods that integrate current and future changes in flooding based 
on climate science;
     Approach 2: Freeboard Value Approach (FVA): The elevation 
and corresponding horizontal floodplain that result from using the 
freeboard \22\ value, reached by reached by adding 2 feet to the base 
flood elevation (BFE) for non-critical actions (+2' FVA) and from 
adding 3 feet to the BFE for critical actions (+3' FVA).
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    \22\ Freeboard is a factor of safety usually expressed in feet 
above a flood level for purposes of floodplain management. See 
https://www.fema.gov/glossary/freeboard (last accessed June 11, 
2024).
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     Approach 3: 0.2-percent-annual-chance Flood Approach 
(0.2PFA): 0.2 percent annual chance flood (also known as the 500-year 
flood); or
     Approach 4: the elevation and flood hazard area that 
result from using any other method identified in an update to the 
FFRMS.
    In many cases, each of these approaches would result in a larger 
floodplain and a requirement to design projects to be resilient at a 
higher vertical elevation. For actions that do not meet the definition 
of an action subject to the FFRMS, FEMA would continue to use the 
historical floodplain definition, with minor clarifying revisions to 
help stakeholders better understand the terminology. The NPRM further 
proposed the use, where possible, of natural systems, ecosystem 
processes, and nature-based approaches in the development of 
alternatives for all actions proposed in a floodplain. FEMA proposed 
other edits to 44 CFR part 9, including edits to clarify the 
applicability of 44 CFR part 9 to specific FEMA programs and update the 
monetary thresholds in Sec.  9.5, edits to incorporate the use of the 
internet in public notice requirement in Sec.  9.8, edits to 
consolidate temporary housing requirements in Sec.  9.13, and other 
clarifying edits to update citations and remove outdated terminology.

C. Summary of Changes From the NPRM to the Final Rule

    In this final rule, FEMA adopts the changes proposed in the NPRM 
and FFRMS policy with clarifications in consideration of the relevant 
comments. Consistent with comments received, FEMA's edits in this final 
rule add a Federal agency (the National Park Service) to the best 
available information sources list and incorporate the use of 
Indigenous Knowledge by adding Indian Tribal governments to that list. 
The best available information sources list appears at 44 CFR 
9.7(c)(3). The list is a non-exhaustive list of resources that FEMA may 
use to make floodplain determinations. Additional clarifying edits are 
included in Sec. Sec.  9.5 and 9.7. The edits to the FFRMS policy 
accompanying this final rule clarify the use of the 0.2PFA in coastal 
areas and clarify FEMA's use of the Federal Flood Risk Management 
Floodplain Determination Job Aid (FFRMS Job Aid). FEMA describes these 
changes in detail below.

D. Impacts of the Final Rule

    FEMA estimated the total impacts of this rule by analyzing the 
impact of the FVA, 0.2PFA and CISA for FEMA's Public Assistance (PA), 
Individual Assistance (IA), and Hazard Mitigation Assistance (HMA) 
grant programs. FEMA did so by examining the number of projects that 
would be subject to the proposed requirements in the first 10 years 
after the rule's publication.\23\ FEMA's analysis focused on the costs, 
benefits, and transfer payments (i.e., impacts on FEMA grants) that 
would result over a 50-year period from applying the requirements of 
the rule to those projects, for a total period of analysis spanning 60 
years. Tables 1 and 2 show the total impacts under the three approaches 
for each of the affected programs.
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    \23\ FEMA used an average of the number of affected projects 
during the prior 10-year period to estimate the average annual 
impacts of the future 10-year period.
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BILLING CODE 9111-66-P

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[GRAPHIC] [TIFF OMITTED] TR11JY24.000

     
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    \24\ To obtain the total costs as in Section 7.12, add each 
individual approach to the FEMA admin cost. For example, CISA + FEMA 
admin = total CISA cost.

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[GRAPHIC] [TIFF OMITTED] TR11JY24.001

    Table 3 provides the estimated number of structures and facilities 
affected by the rule over the first 10 years, assuming that each 
approach is the only expansion option. Structures, which are walled and 
roofed buildings, would comply with the FFRMS through elevating or 
floodproofing to the required height. Facilities, which are any human-
made or human-placed items other than a structure such as roads and 
bridges, would require different mitigation measures to comply with the 
increased resilience standard. The monetized impacts of this rule are 
representative of the floodproofing and elevation mitigation measures 
that are required of structures. However, for reasons explained in more 
detail later, FEMA was unable to monetize the impacts of the rule for 
facilities.
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    \25\ To obtain the total costs as in Section 7.12, add each 
individual approach to the FEMA admin cost. For example, CISA + FEMA 
admin = total CISA cost.

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[GRAPHIC] [TIFF OMITTED] TR11JY24.002

BILLING CODE 9111-66-C
    Quantified estimates of the benefits of this rule are available for 
only non-residential PA Category E projects, which are for structures. 
Due to the project-specific nature of facilities projects and numerous 
options for making them resilient, FEMA could not estimate the costs of 
improving flood resilience of facilities.\27\ Table 2 shows that the 
total 60-year benefits for non-residential PA Category E projects in 
the first 10 years is $54.4 million (7 percent). This benefit is for 
adding one foot of freeboard, assuming a 59-inch sea level rise 
(SLR).\28\ Although the cost for PA Category E projects is $133.3 
million, this cost represents 5 feet of freeboard (FEMA's assumption 
for CISA).\29\ FEMA does not have data to quantify the benefits of 
additional freeboard and thus the quantified benefits represent only a 
portion of the increased risk reduction that would be achieved through 
this rule. Ensuring projects are built to the height necessary to avoid 
additional loss scenarios would provide additional unquantified 
benefits of avoided damages to the structure, decreased cleanup time 
and disruption to the community, and increased public health and 
safety. Moreover, FEMA's use of CISA as its preferred approach would 
use the best available and actionable scientific data to tailor future 
flooding risk to each project ensuring that projects are built only to 
the height necessary and thus maximizing net benefits. Accordingly, 
FEMA believes the benefits of the rule--quantified and unquantified--
would justify its costs.
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    \26\ These counts are based on the number of closed or obligated 
projects at the time of analysis. It can take several years for a 
project to close out or reach the obligation status after the 
disaster year.
    \27\ Category E projects are public buildings and contents. See 
Public Assistance Fact Sheet at https://www.fema.gov/sites/default/files/2020-07/fema_public-assistance-fact-sheet_10-2019.pdf.
    \28\ FEMA used one foot for benefits as the 2022 report, ``A 
Benefits Analysis of Increased Freeboard for Public and 
Nonresidential Buildings in Riverine and Coastal Floodplains,'' only 
specifies monetary benefits for an additional one foot over current 
requirements. FEMA included this number in the quantified benefits 
because it is the only monetary benefit available for any freeboard 
level.
    A Benefits Analysis of Increased Freeboard for Public and 
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA. 
Draft, July 2022, page 16. Available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
    \29\ Costs for the FVA may be a better comparison because they 
represent 2 or 3 feet of freeboard, depending on criticality. 
However, the number of projects using FVA and CISA differ, making 
such a comparison difficult.
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II. Background and Legal Authority

    The President issued Executive Order 11988 (42 FR 26951, May 25, 
1977) as amended by Executive Order 13690, ``Establishing a Federal 
Flood Risk Management Standard (FFRMS) and a Process for Further 
Soliciting and Considering Stakeholder Input,'' (80 FR 6425, Feb. 4, 
2015) and Executive Order 14030, ``Climate-Related Financial Risk,'' 
(86 FR 27967, May 25, 2021) in furtherance of the NFIA (42 U.S.C. 4001 
et seq.); the Flood Disaster Protection Act of 1973, as amended (Pub. 
L. 93-234, 87 Stat. 975); and the NEPA (42 U.S.C. 4321 et seq.). Each 
agency is responsible for implementing Executive Order 11988, as 
amended, as allowed by and consistent with applicable law within their 
existing statutory authorities.\30\
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    \30\ See 42 FR 26951, May 25, 1977 at Section 2(d); see also 80 
FR 6425, Feb. 4, 2015 at Section 5(b).
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    Section II.A below describes Executive Order 11988, the 1978 
Guidelines, and the statutory authority underlying the Executive Order. 
Executive Order 11988, along with the 1978 Guidelines, established an 
8-step decision-making process by which Federal agencies carry out 
Executive Order 11988's direction to avoid the long- and short-term 
adverse impacts associated with the occupancy and modification of the 
floodplain, and avoid the direct or indirect support of floodplain 
development whenever there is a practicable alternative.
    Next, Section II.B describes FEMA's statutory authority to require 
its grant recipients to carry out repairs or construction in accordance 
with specific standards. Section II.C describes FEMA's implementing 
regulations at 44 CFR part 9, which closely follow the model decision-
making process under Executive Order 11988. Section II.D describes the 
development of Executive Order 13690, the FFRMS, and additional 
guidance in the Revised Guidelines issued in 2015, as well as 
subsequent amendments to Executive Order 11988. Section II.E describes 
the substantive components of the FFRMS. Section II.F. describes FEMA's 
NPRM and supplementary policy implementing the FFRMS.

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

    The President issued Executive Order 11988 (42 FR 26951, May 25, 
1977) in furtherance of the NFIA (42 U.S.C. 4001 et seq.); the Flood 
Disaster Protection Act of 1973, as amended (Pub. L. 93-234, 87 Stat. 
975); and the NEPA (42 U.S.C. 4321 et seq.). The NFIA, as amended by 
the Flood Disaster Protection Act establishes a multi-purpose program 
to provide flood insurance, minimize exposure of property to flood 
losses, minimize the damage caused by flood losses, and guide the 
development of proposed construction, where practicable, away from 
floodplains.\31\ The NFIA and the Flood Disaster Protection Act 
highlight coordination of flood insurance with land management programs 
in flood-prone areas. NEPA requires Federal agencies to analyze the 
reasonably foreseeable environmental effects of proposed major Federal 
actions and evaluate a reasonable range of alternatives to those 
actions, which includes the evaluation of the impacts of proposed 
actions in floodplains.\32\ NEPA mandates that agencies ``attain the 
widest range of beneficial uses of the environment without degradation, 
risk to health or safety, or other undesirable and unintended 
consequences.'' \33\
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    \31\ See 42 U.S.C. 4001 and 4102.
    \32\ See 42 U.S.C. 4332(2)(C).
    \33\ See 42 U.S.C. 4331(b)(3).
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    In furtherance of and consistent with this statutory foundation, 
Executive Order 11988 directs Federal agencies to avoid, to the extent 
possible, the long-

[[Page 56935]]

and short-term adverse impacts associated with the occupancy and 
modification of floodplains, where there is a practicable alternative. 
The Executive Order directs each Federal agency to provide leadership 
and take action to reduce the risk of flood loss, to minimize the 
impact of floods on human safety, health, and welfare, and to restore 
and preserve the natural and beneficial values served by floodplains in 
carrying out its responsibilities for: (1) acquiring, managing, and 
disposing of Federal lands and facilities; (2) providing federally 
undertaken, financed, or assisted construction and improvements; and 
(3) conducting Federal activities and programs affecting land use, 
including but not limited to water and related land resources planning, 
regulating, and licensing activities. Each agency has a responsibility 
to evaluate the potential effects of any actions it may take in a 
floodplain; to ensure that its planning, programs, and budget requests 
reflect consideration of flood hazards and floodplain management; and 
to prescribe procedures to implement the policies and requirements of 
the Executive Order.
    To meet this direction, each agency, before taking an action, must 
determine whether the proposed action will occur in a floodplain.\34\ 
Section (6)(c) of Executive Order 11988 defined the word ``floodplain'' 
to mean ``the lowland and relatively flat areas adjoining inland and 
coastal waters including floodprone areas of offshore islands, 
including at a minimum, the area subject to a one percent or greater 
chance of flooding in any given year.'' \35\ If the action will occur 
in a floodplain, the agency must consider alternatives to avoid adverse 
effects and incompatible development in the floodplain. If the agency 
finds that the only practicable alternative requires the action to 
occur in the floodplain, the agency must, prior to taking the action, 
design or modify the action to minimize potential harm to or within the 
floodplain. Additionally, the agency must prepare and circulate a 
notice explaining why the proposed action is located in the floodplain. 
Particularly relevant to FEMA, the Executive Order also requires 
agencies to provide appropriate grant funding guidance to applicants to 
encourage them to evaluate the effects of their proposals in 
floodplains, prior to submitting grant applications.
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    \34\ Any action FEMA takes in a floodplain, including its 
provision of grants for disaster assistance, undergoes an analysis 
pursuant to FEMA's implementation of Executive Order 11988 (unless 
the action is specifically exempted from the requirements of the 
Order and the implementing regulations). The grant recipient, 
therefore, generally provides information to FEMA about the 
practicability of alternatives outside the floodplain and other 
information to assist in the analysis.
    \35\ This is also referred to as the ``100-year floodplain'' or 
the ``base floodplain.''
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    Executive Order 11988 directs agencies to prepare implementing 
procedures in consultation with the Water Resources Council (WRC),\36\ 
FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC 
issued the 1978 Guidelines, the authoritative interpretation of 
Executive Order 11988.\37\ The 1978 Guidelines provided a section-by-
section analysis, defined key terms, and outlined an 8-step decision-
making process for carrying out the directives of Executive Order 
11988.
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    \36\ The WRC, established by statute (42 U.S.C. 1962a-1), is 
charged with maintaining a continuing study and preparing an 
assessment biennially, or at such less frequent intervals as the 
Council may determine, of the adequacy of supplies of water 
necessary to meet the water requirements in each water resource 
region in the United States and the national interest therein; and 
maintaining a continuing study of the relation of regional or river 
basin plans and programs to the requirements of larger regions of 
the Nation and of the adequacy of administrative and statutory means 
for the coordination of the water and related land resources 
policies and programs of the several Federal agencies. It is 
responsible for appraising the adequacy of existing and proposed 
policies and programs to meet such requirements and making 
recommendations to the President with respect to Federal policies 
and programs.
    \37\ 42 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 
Guidelines can be found at this link: hud.gov/sites/documents/DOC_14216.PDF (last accessed Jan. 24, 2024).
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B. Statutory Authority To Require FFRMS Under FEMA Grant Programs

    FEMA has authority to require application of the FFRMS as a 
condition of funding in its grant programs based on the grant programs' 
authorizing statutes. Congress granted FEMA the authority to provide 
Federal assistance through multiple grant programs under the Stafford 
Act,\38\ the NFIA,\39\ the Homeland Security Act of 2002,\40\ the 
Federal Fire Prevention and Control Act of 1974,\41\ the Earthquake 
Hazards Reduction Act of 1977,\42\ and various other appropriations 
acts. Under each of these authorities, FEMA may set grant eligibility 
criteria consistent with the respective purposes of such programs and 
FEMA's mission, including to protect Federal investments from the risks 
of further damage.\43\
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    \38\ 42 U.S.C. 5121 et seq.
    \39\ 42 U.S.C. 4001 et seq.
    \40\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which 
specifically charges the Administrator with supervising various 
grant programs authorized under the HSA. Such grant programs have 
long been governed by floodplain management regulations at 44 CFR 
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept. 
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal 
awarding agencies to manage and administer Federal awards in a 
manner so as to ensure that Federal funding is expended and 
associated programs are implemented in full accordance with the U.S. 
Constitution, Federal Law, and public policy requirements including, 
but not limited to, those protecting public welfare and the 
environment; and requiring the Federal awarding agency to 
communicate to the non-Federal entity all relevant public policy 
requirements, and incorporate them either directly or by reference 
in the terms and conditions of the Federal award.).
    \41\ 15 U.S.C. 2229 and 2229a.
    \42\ 42 U.S.C. 7701 et seq.
    \43\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority 
over grant funds for construction awards under its Homeland Security 
Grant Program, State Homeland Security Grant Program, Urban Area 
Security Initiative, Operation Stonegarden, Tribal Homeland Security 
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C. 
1182(d)(1) (granting DHS the authority to determine the grant 
requirements for the Intercity Bus Security Grant Program); 6 U.S.C. 
1163(c)(1) (granting FEMA the authority to determine the grant 
requirements for the Intercity Passenger Rail grant program); 46 
U.S.C. 70101 (granting DHS approval authority over grant funds for 
construction awards under the Port Security Grant Program); 6 U.S.C. 
1135(c)(1) (granting DHS the authority to determine the grant 
requirements for the Transit Security Grant Program); 33 U.S.C. 
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum 
eligibility requirements for the Rehabilitation of High Hazard Dam 
Program).
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    Congress enacted the Stafford Act \44\ to ``provide an orderly and 
continuing means of assistance'' to State and local governments in 
carrying out their responsibilities to alleviate the suffering and 
damage that result from disasters by, among other responsibilities, 
``encouraging hazard mitigation measures to reduce losses from 
disasters, including the development of land use and construction 
regulations'' and ``identifying the climate and natural hazard 
resilience of vulnerable communities.'' \45\ FEMA has general authority 
under the Stafford Act to ``prescribe such rules and regulations as may 
be necessary and proper to carry out the provisions of [the Stafford 
Act], and may exercise, either directly or through such Federal agency 
as the President may designate, any power or authority conferred to the 
President by [the Stafford Act].'' \46\ The Stafford Act further grants 
FEMA explicit authority to set the minimum standards for safe land use 
and construction standards required in the repair or construction of 
private and public facilities.\47\
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    \44\ 42 U.S.C. 5121 et seq.
    \45\ 42 U.S.C. 5121(b)(5) and (7).
    \46\ 42 U.S.C. 5164.
    \47\ 42 U.S.C. 5165a(a)(1)-(2).
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    Congress enacted the NFIA to authorize a flood insurance program 
which is designed to ``promote the public interest by providing 
appropriate protection against the perils of flood losses and 
encouraging sound land use by minimizing exposure of property to

[[Page 56936]]

flood losses'' and the objectives of which should be ``integrally 
related to a unified national program for flood plain management.'' 
\48\ FEMA has general authority under the NFIA to ``issue such 
regulations as may be necessary'' to carry out its provisions.\49\ 
Section 404 of the NFIA grants FEMA the authority to provide flood 
mitigation grant funding and requires the activities funded to be 
consistent with floodplain management criteria developed by the 
Administrator.\50\
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    \48\ 42 U.S.C. 4001(c). As part of the floodplain management 
program under the NFIP, FEMA establishes minimum floodplain 
management criteria, and communities that participate in the NFIP 
must adopt and enforce floodplain management regulations that 
incorporate the minimum criteria. 44 CFR 59.2(b), 59.22(a)(3), 
60.1(d). FEMA has determined that it is consistent with the purposes 
of the NFIA to allow communities to adopt more comprehensive 
floodplain management regulations that exceed the minimum 
requirements. 44 CFR 60.1(d). Similarly, in its implementation of 
Executive Order 11988, FEMA prohibits taking any action taken unless 
it is consistent with the NFIP minimum criteria or any more 
restrictive Federal, State or local floodplain management standards. 
44 CFR 9.11(d)(6).
    \49\ 42 U.S.C. 4128(a).
    \50\ 42 U.S.C. 4104c and 4102. Please note this rulemaking does 
not alter the minimum floodplain management criteria that 
communities adopt to participate in the NFIP. The NFIP is a program 
through which property owners in participating communities can 
purchase Federal flood insurance as a protection against flood 
losses. 42 U.S.C. 4011(a). As a condition of eligibility, a 
community must adopt and enforce floodplain management regulations 
that incorporate NFIP minimum floodplain management criteria 
developed by the Administrator. 42 U.S.C. 4011(a) and (b); 42 U.S.C. 
4102; 44 CFR 59.2(b), 59.22(a)(3), 60.1(d). Further information 
regarding FEMA's minimum floodplain management standards for the 
NFIP can be found at 44 CFR part 59 et seq. Because this rule only 
applies to actions subject to the FFRMS, this rule does not change 
any FEMA standards applicable to community or individual 
participation in any aspect of the NFIP. In general, changes to 44 
CFR part 59 et seq. would require a rulemaking to revise the 
appropriate sections of the CFR.
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C. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''

    Consistent with the NFIA, the Flood Disaster Protection Act, and 
NEPA, FEMA promulgated regulations implementing Executive Order 11988 
at 44 CFR part 9, ``Floodplain Management and Protection of Wetlands.'' 
\51\ Part 9 closely follows the 1978 Guidelines in setting forth FEMA's 
policy and procedures for floodplain management relating to disaster 
planning, response and recovery, and hazard mitigation. Part 9 
generally applies to FEMA actions, including FEMA direct actions and 
FEMA's disaster and non-disaster assistance programs.\52\ Pursuant to 
section 8 of Executive Order 11988, part 9 does not apply to assistance 
provided for emergency work essential to save lives and protect 
property and public health and safety, performed pursuant to sections 
403 and 502 of the Stafford Act, as amended (42 U.S.C. 5170b and 5192). 
In addition, FEMA applies part 9 programmatically to the National Flood 
Insurance Program (NFIP).\53\ FEMA does not apply part 9 to site-
specific actions under the NFIP because the establishment of 
programmatic criteria, rather than the application of the programmatic 
criteria to individual situations, is the action with the potential to 
influence or affect floodplains.\54\
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    \51\ FEMA published an interim final rule on December 27, 1979 
(44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520). 
Note this part also implements a related Executive Order 11990, 
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
    \52\ 44 CFR 9.4 defines the actions subject to the requirements, 
which include federal lands and facilities, providing federal funds 
for construction and improvements, and conducting activities or 
programs that affect land use.
    \53\ A complete list of FEMA programs to which Part 9 does not 
apply appears at 44 CFR 9.5. The exemption for actions under the 
NFIP is located at 44 CFR 9.5(f).
    \54\ For example, Part 9 requires FEMA to apply the 8-step 
process to a programmatic determination of categories of structures 
to be insured but does not require FEMA to apply an 8-step review to 
a determination of whether to insure each individual structure. See 
44 CFR 9.5(g).
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    Part 9 outlines FEMA's 8-step decision-making process for 
conducting floodplain management reviews before performing certain 
actions, including approval of grant funding. The 8-step decision 
making process is:
    (1) Determine whether the proposed action is located in a wetland 
or floodplain and its potential to affect or be affected by a wetland 
or floodplain;
    (2) Notify the public of the intent to carry out the proposed 
action within or affecting a wetland or floodplain, and involve the 
affected and interested public in the decision-making process;
    (3) Identify and evaluate practicable alternatives to locating the 
proposed action in a floodplain or wetland, including alternative 
sites, actions, and the ``no action'' option;
    (4) Identify the potential direct and indirect impacts associated 
with the occupancy or modification of floodplains and wetlands and the 
potential direct and indirect support of floodplain and wetland 
development that could result from the proposed action;
    (5) Minimize the proposed action's potential adverse impacts and 
support to or within the floodplains and wetlands identified under Step 
4;
    (6) Re-evaluate the proposed action and other practicable 
alternatives identified in step 3 based on new information gained in 
steps 4 and 5;
    (7) Inform the public of any final decision that the floodplain or 
wetland is the only practicable alternative; and
    (8) Implement the action.
    There are certain exclusions from all or some of the 8-steps for 
certain categories of actions being funded by FEMA.\55\
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    \55\ 44 CFR 9.5(c), (d), (e), and (g).
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D. Executive Order 13690, the Federal Flood Risk Management Standard 
and Subsequent Amendments to Executive Order 11988, and Revisions to 
the 1978 Guidelines

    On January 30, 2015, the President issued Executive Order 13690, 
``Establishing a Federal Flood Risk Management Standard (FFRMS) and a 
Process for Further Soliciting and Considering Stakeholder Input.'' 
\56\ Executive Order 13690 amended Executive Order 11988 and 
established the FFRMS. It required FEMA to publish an updated version 
of the 1978 Guidelines (revised to incorporate the changes required by 
Executive Order 13690 and the FFRMS) in the Federal Register for notice 
and comment. Executive Order 13690 also required the WRC to issue final 
Guidelines to provide guidance to agencies on the implementation of 
Executive Order 11988, as amended, consistent with the FFRMS. FEMA, 
acting on behalf of the Mitigation Framework Leadership Group (MitFLG), 
published a Federal Register notice for a 60-day notice and comment 
period seeking comments on a draft of the Revised Guidelines on 
February 5, 2015.\57\ FEMA received over 556 separate submissions.\58\ 
The final Revised Guidelines were issued on October 8, 2015.\59\
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    \56\ 80 FR 6425, Feb. 4, 2015. Section 5(c) of Executive Order 
13690 specifically states that the order ``is not intended to, and 
does not, create any right or benefit, substantive or procedural, 
enforceable at law or in equity by any party against the United 
States, its departments, agencies, or entities, its officers, 
employees, or agents, or any other person.''
    \57\ 80 FR 6530, Feb. 5, 2015.
    \58\ FEMA received approximately 556 separate submissions, which 
raised over 2700 separate issues and positions. Written comments 
were received at a series of eight in-person listening sessions 
across the country (135 submissions); verbal comments were shared 
during the public comment periods of these same listening sessions 
(74 commenters); comments were submitted through the FFRMS email 
address (20 submissions); comments were submitted through 
regulations.gov (326 submissions); and comments were submitted as 
part of a petition of support (1 submission).
    \59\ 80 FR 64008, Oct. 22, 2015.
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    The Revised Guidelines contain an updated version of the FFRMS 
(located at Appendix G of the Revised Guidelines), reiterate key 
concepts from the 1978 Guidelines, and explain the new concepts 
resulting from the

[[Page 56937]]

FFRMS. In response to public comments, the MitFLG clarified the 
distinction between ``actions'' and ``Federally funded projects.'' On 
August 22, 2016, FEMA published an NPRM entitled ``Updates to 
Floodplain Management and Protection of Wetlands Regulations To 
Implement Executive Order 13690 and the Federal Flood Risk Management 
Standard'' in the Federal Register (81 FR 57402). The rulemaking would 
have revised FEMA's regulations on ``Floodplain Management and 
Protection of Wetlands'' to implement Executive Order 13690. FEMA also 
proposed a supplementary policy entitled ``FEMA Policy: Guidance for 
Implementing the Federal Flood Risk Management Standard (FFRMS)'' (FEMA 
Policy 078-3), which would have further clarified how FEMA would apply 
the FFRMS. The notice of availability and request for comments for the 
supplementary policy also published in the August 22, 2016, Federal 
Register at 81 FR 56558. On September 20, 2016, FEMA published a notice 
of data availability regarding a draft report, the 2016 Evaluation of 
the Benefits of Freeboard for Public and Nonresidential Buildings in 
Coastal Areas, which had been added to the docket for the proposed rule 
(81 FR 64403).
    On August 15, 2017, the President issued Executive Order 13807 
(``Establishing Discipline and Accountability in the Environmental 
Review and Permitting Process for Infrastructure Projects'') which 
revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017. 
Accordingly, on March 6, 2018, in light of the revocation of Executive 
Order 13690, FEMA withdrew the August 22, 2016, NPRM and supplementary 
policy (83 FR 9473). On May 20, 2021, the President issued Executive 
Order 14030 (``Climate-Related Financial Risk'') \60\ reinstating 
Executive Order 13690, thereby reestablishing the FFRMS. Executive 
Order 14030 also states the Revised Guidelines issued in 2015 were 
never revoked and remain in effect. As such, FEMA reviewed its prior 
NPRM and proposed policy, and revised its approach to implementation 
based on lessons learned during and since the 2016 rulemaking process. 
Specifically, FEMA first partially implemented the FFRMS by policy with 
respect to covered projects in existing floodplains in its Public 
Assistance and Hazard Mitigation Assistance programs.\61\ FEMA next 
proposed to fully implement the FFRMS through the NPRM, which proposed 
updates to FEMA regulations and a supplemental FFRMS policy.\62\
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    \60\ 86 FR 27967, May 25, 2021. See also Executive Order 13990 
(``Protecting Public Health and the Environment and Restoring 
Science To Tackle the Climate Crisis''), 86 FR 7037, Jan. 25, 2021 
(revoking Executive Order 13807).
    \61\ See FEMA Policy 104-22-003, ``Partial Implementation of the 
Federal Flood Risk Management Standard for Public Assistance 
(Interim),'' June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 
206-21-003-0001, ``Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Program,'' Dec. 
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024).
    \62\ 88 FR 67870, Oct. 2, 2023.
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E. Substantive Components of the FFRMS

    The FFRMS is a flexible framework to increase resilience against 
flooding and help preserve the natural values of floodplains and 
wetlands.\63\ Incorporating the FFRMS will expand the floodplain and 
require projects to increase their resilience to flooding. Applying the 
FFRMS will help ensure that Federally funded projects will last as long 
as intended. In addition, the FFRMS and Revised Guidelines require the 
evaluation of natural features and nature-based approaches, where 
possible, in the analysis of practicable alternatives of the decision-
making process for all Federal actions. Nature-based approaches can 
also help minimize an action's impacts to the floodplain and assist in 
restoring the natural and beneficial functions of floodplains.
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    \63\ Although the FFRMS describes various approaches for 
determining the higher vertical flood elevation and corresponding 
horizontal floodplain for Federally funded projects, it is not meant 
to be an ``elevation'' standard. The FFRMS is a resilience standard. 
The vertical flood elevation and corresponding horizontal floodplain 
determined using the approaches in the FFRMS establish the level to 
which a structure or facility must be resilient to. This may include 
using structural or non-structural methods to reduce or prevent 
damage; elevating a structure; or, where appropriate, designing it 
to adapt to, withstand, and rapidly recover from a flood event. See 
``Guidelines for Implementing Executive Order 11988, Floodplain 
Management, and Executive Order 13690, ``Establishing a Federal 
Flood Risk Management Standard and a Process for Further Soliciting 
and Considering Stakeholder Input'' (Oct. 8, 2015), found at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Jan. 24, 2024).
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    Under the FFRMS, a Federal agency may establish the floodplain for 
actions subject to the FFRMS using any of the following approaches:
     Approach 1: Climate-Informed Science Approach (CISA): 
Utilizing the best-available, actionable hydrologic and hydraulic data 
and methods that integrate current and future changes in flooding based 
on climate science;
     Approach 2: Freeboard Value Approach (FVA): Freeboard (1 
percent annual chance flood elevation + X, where X is 3 feet for 
critical actions and 2 feet for other actions);
     Approach 3: 0.2-percent-annual-chance Flood Approach 
(0.2PFA): 0.2 percent annual chance flood (also known as the 500-year 
flood); or
     Approach 4: the elevation and flood hazard area that 
result from using any other method identified in an update to the 
FFRMS.\64\
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    \64\ See Executive Order 13690 Section 2(i), 80 FR 6425, 6426 
(Feb. 4, 2015).
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    The four approaches are described in further detail below.
FFRMS Approach 1: CISA
    The Revised Guidelines state that the CISA is the preferred 
approach, and that Federal agencies should use this approach when data 
to support such an analysis are available and actionable. The CISA uses 
existing, sound science and engineering methods (e.g., hydrologic and 
hydraulic analysis and methods used to establish current flood 
elevations and floodplain maps), supplemented with best available and 
actionable climate science and consideration of impacts from projected 
land cover/land use changes, long-term erosion, and other processes 
that may alter flood hazards over the lifecycle of the Federal 
investment.\65\ For areas vulnerable to coastal flood hazards, the CISA 
includes consideration of the regional sea-level rise variability 
during the lifecycle of the Federal action. This includes use of global 
mean sea-level-rise scenarios adjusted to the local relative sea-level 
conditions and would be combined with surge, tide, and wave data using 
state-of-the-art science in a manner appropriate to policies, 
practices, criticality, and consequences. For areas vulnerable to 
riverine flood hazards (i.e., flood hazards stemming from a river 
source), the CISA would account for changes in riverine conditions due 
to current and future changes in climate and other factors such as land 
use, by applying state-of-the-art science in a manner appropriate to 
policies, practices, criticality, and consequences (risk). The CISA for 
critical actions would utilize the same methodology as used for non-
critical actions that are subject to Executive Order 11988, as amended, 
but with an emphasis on criticality as one of the factors for agencies 
to consider when conducting the analysis.
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    \65\ See Revised Guidelines, pgs. 36-37.

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[[Page 56938]]

FFRMS Approach 2: FVA
    The FFRMS and Revised Guidelines define freeboard values as an 
additional 2 feet added to the 1 percent annual chance flood elevation, 
or, for critical actions, an additional 3 feet added to the 1 percent 
annual chance flood elevation. In other words, the floodplain 
established by the FVA is the equivalent of the 1 percent annual chance 
floodplain, plus either 2 or 3 feet of vertical elevation, as 
applicable based on criticality, and a corresponding increase in the 
horizontal extent of the floodplain. The increased horizontal extent 
will not be the same in every case. When the same vertical increase is 
applied in multiple actions subject to the FFRMS in different areas, 
the amount of the increase in the horizontal extent of the respective 
floodplains will depend upon the topography of the area surrounding the 
proposed location of the action.
FFRMS Approach 3: 0.2PFA
    Agencies may use available 0.2 percent annual chance (or ``500-
year'') flood data as the basis of the FFRMS elevation and 
corresponding floodplain extent. Under this approach, the same 
floodplain and elevation is used for critical and non-critical actions. 
The FFRMS and Revised Guidelines note that often the 0.2 percent annual 
chance flood elevation data provided by FEMA in coastal areas only 
considers storm-surge hazards; this data does not include local wave 
action or storm-induced erosion that are considered in the computation 
of flood elevations. The FFRMS and Revised Guidelines encourage 
agencies to obtain or develop the necessary data, including wave 
heights, to ensure that any 0.2 percent annual chance flood data 
applied will achieve an appropriate level of flood resilience or use 
the FVA approach instead for the proposed investment.
FFRMS Approach 4: Update to FFRMS
    The MitFLG, in consultation with the Federal Interagency Floodplain 
Management Task Force (FIFM-TF), must reassess the FFRMS annually after 
seeking stakeholder input and provide recommendations to the WRC to 
update the FFRMS, if warranted. The WRC must issue an update to the 
FFRMS at least every 5 years. The updates ensure the floodplain 
determination process for actions subject to the FFRMS reflects current 
methodologies.
Further Guidance on Application of the FFRMS Approaches to Establishing 
the Floodplain
    The FFRMS and Revised Guidelines state that when an agency does not 
use the CISA in a coastal flood hazard area and where the FEMA 0.2 
percent annual chance flood elevation does not include wave height, or 
a wave height has not been determined, the 0.2 percent annual chance 
elevation should not be used, and the FVA should be used instead. The 
FFRMS and Revised Guidelines note that where the 0.2 percent annual 
chance flood elevation does not consider wave action, the result will 
likely either be lower than the current base flood elevation or the 
base flood elevation plus applicable freeboard. Where wave action has 
been incorporated into the 0.2 percent annual chance elevation, the 0.2 
percent annual chance elevation can be used.
    The Revised Guidelines state that for riverine flood hazard areas, 
agencies may select either the FVA or 0.2PFA (or a combination of 
approaches, as appropriate) when actionable science is not available, 
and an agency opts not to follow the CISA. The agency is not required 
to use the higher of the elevations but may opt to do so. The elevation 
standards of the FFRMS are not intended to supplant applicable State, 
Tribal, territorial, or local floodplain protection standards. If such 
standards exceed the FFRMS, an agency should apply those standards if 
the agency determines the application of the standards is reasonable 
considering the goals of Executive Order 11988, as amended.\66\
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    \66\ See Revised Guidelines at 53. The Revised Guidelines 
suggest agencies should apply a reasonableness standard to higher 
SLTT floodplain management standards. FEMA has historically deferred 
to higher local codes and standards from an SLTT government in 44 
CFR 9.11(d)(6) and will continue the practice through this 
rulemaking, rather than applying a case-by-case reasonableness 
analysis and believes this is appropriate because of program-
specific controls that ensure higher standards are reasonable. 
Specifically, in the PA program, if an SLTT government has adopted a 
code or standard that exceeds minimum standards set by FEMA, 
regulations at 44 CFR 206.226(d) require the code to be in place and 
adopted pre-disaster which guards against an SLTT government's 
adoption of unreasonably high codes and standards. With respect to 
mitigation projects, they are all required to be cost-effective as a 
minimum criteria of eligibility. See 42 U.S.C. 5170c(a); 42 U.S.C. 
5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-by-project cost-
effectiveness analysis should guard against any SLTT standards that 
are unreasonably high.
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F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy

    The proposed rule set forth how FEMA would implement Executive 
Order 11988, as amended, the FFRMS, and the Revised Guidelines as part 
of FEMA's floodplain management regulations, while also updating FEMA's 
8-step process. The proposed rule included the following provisions, 
which remain unchanged in this final rule except as indicated in 
section I.C of this preamble.
Severability
    The NPRM proposed to amend Sec.  9.3 to remove the authorities 
section as redundant and to replace it with a severability section. 
FEMA did not receive any comments on its proposal to include a 
severability provision. The proposed severability provision is 
therefore incorporated in Sec.  9.3 of this final rule without change. 
FEMA believes that its authority to require an 8-step decision making 
process and incorporate the FFRMS into it is well-supported in law and 
policy and should be upheld in any legal challenge. However, in the 
event that any portion of the proposed rule is declared invalid, FEMA 
intends that the various provisions of 44 CFR part 9 be severable. The 
provisions are not so interconnected that the rule's efficacy depends 
on every one of them remaining in place--implementation of the 
different provisions is sufficiently distinct that FEMA's aim of 
updating the 8-step process and incorporating the FFRMS would still be 
furthered by maintaining the other provisions. For example, if a court 
were to find unlawful FEMA's inclusion of the FFRMS approaches in Sec.  
9.7(c), FEMA intends to retain the inclusion of consideration of 
nature-based approaches in the appropriate steps of the 8-step decision 
making process and all other amendments to the 44 CFR part 9 not 
affected by the court decision. Similarly, if a court were to find 
unlawful FEMA's chosen approach in the proposed policy, FEMA intends to 
retain the regulatory changes implementing the FFRMS. Those provisions 
that are unaffected by a legal ruling can be implemented by an agency 
without requiring a new round of rulemaking simply to promulgate 
provisions that are not subject to a court ruling.
Conforming Changes to Definitions
    The NPRM proposed to amend Sec.  9.4 to reflect the new definitions 
required by the FFRMS and Revised Guidelines, while also updating other 
definitions to clarify terms and leverage common usage that has evolved 
since the regulation was issued. The most significant definitional 
change proposed by the FFRMS was the change to the meaning of 
``floodplain.'' To harmonize this change in Sec.  9.4, the NPRM 
proposed to revise a few existing definitions and removed other 
definitions. In addition, the NPRM proposed to revise the remaining 
sections of 44 CFR part 9 that

[[Page 56939]]

refer generally to the floodplain or refer specifically to the base (or 
100-year) floodplain or the 0.2 percent annual chance (or 500-year) 
floodplain, for clarity.
Distinction Between ``Actions Subject to the FFRMS'' and Other FEMA 
Actions
    Step 1 in the 8-step process is to determine whether the proposed 
action is in the floodplain. Because Executive Order 11988, as amended, 
and the FFRMS revised the definition of the ``floodplain'' that 
agencies use for ``Federally funded projects,'' the NPRM proposed to 
revise the first step to require FEMA to determine whether the proposed 
action falls within the definition of an ``action subject to the 
FFRMS.'' Under the proposed rule, if FEMA determined that the action is 
a Federally funded project, i.e., if FEMA determined that the action 
uses FEMA funds for new construction, substantial improvement, or to 
address substantial damage to a structure or facility, the FFRMS 
floodplain would apply. Alternatively, if FEMA determined that the 
action did not fall under the definition of an action subject to the 
FFRMS, the existing floodplain analysis would remain in place. For 
example, if the action was considered non-critical, the 1 percent 
annual chance floodplain applied, and if the action was considered 
critical, the 0.2 percent annual chance floodplain applied.
Emphasis on Nature-Based Approaches
    Executive Order 11988, as amended, directs agencies to use, where 
possible, natural systems, ecosystem processes, and nature-based 
approaches in the development of alternatives for Federal actions in 
the floodplain. The NPRM proposed to incorporate this requirement in 
Sec.  9.9, which addresses the requirement to consider practicable 
alternatives when determining whether to locate an action in the 
floodplain. This proposed requirement would apply regardless of whether 
the proposed action is a FEMA Federally funded project. To further 
explain this proposed requirement, the NPRM proposed to add a 
definition of ``nature-based approaches,'' meaning features designed to 
mimic natural processes and provide specific services such as reducing 
flood risk and/or improving water quality. The NPRM also proposed to 
add a definition of ``natural features,'' meaning the characteristics 
of a particular environment that are created by physical, geological, 
biological, and chemical processes and exist in dynamic equilibrium.
    Consistent with the Revised Guidelines, FEMA proposed to update the 
factors integrated into its impact analysis and minimization measures 
(Step 4 and Step 5) to identify those opportunities for beneficial 
floodplain and wetland values, to include natural values related 
factors that prioritize water resource values, living resource values, 
and agricultural, aquacultural, and forestry resource values. Applying 
natural features or nature-based approaches as alternatives furthers 
the goals in 44 CFR part 9 and allows for FEMA to further encourage 
those actions that increase the natural and beneficial functions of the 
floodplain.
    The NPRM proposed to update Step 1 of the 8-step process to 
describe the floodplain determination for those actions that are 
subject to the FFRMS, and Step 3 to require the consideration of 
natural features and nature-based approaches in the identification and 
evaluation of practicable alternatives. The NPRM also proposed to 
incorporate certain additional exclusions from all or some of the 8-
steps for certain categories of actions being funded by FEMA. 
Specifically, FEMA proposed to remove private bridges and debris 
clearance and removal under section 502 of the Stafford Act from the 8-
step process, while also updating the monetary thresholds for actions 
under sections 406 and 407 of the Stafford Act.
Proposed FFRMS Policy
    The proposed FFRMS policy outlined the FFRMS approach FEMA would 
use for actions subject to the FFRMS. FEMA's proposed FFRMS policy 
would be applicable to actions in the FFRMS floodplain where FEMA funds 
were used for new construction, substantial improvement, or to address 
substantial damage. Specifically, the proposed policy would require 
FEMA to determine the FFRMS floodplain according to the Climate-
Informed Science Approach (CISA) for all locations where the best-
available, actionable hydrologic and hydraulic data methods that 
integrate current and future changes in flooding based on climate 
science exist. When the CISA data was not available and not actionable 
for a critical action, the proposed FFRMS policy would require FEMA to 
determine the FFRMS floodplain as the area that would be inundated by 
the higher of either the 0.2 percent annual chance flood or the 3 feet 
of freeboard above the base flood elevation (BFE) for that location 
(the Freeboard Value Approach or FVA). When the CISA is not available 
and actionable for a non-critical action, the proposed FFRMS policy 
would require FEMA to determine the FFRMS floodplain as the area that 
would be inundated by the lower of either the 0.2 percent annual chance 
flood or the 2 feet of freeboard above the BFE for that location (the 
FVA). In coastal areas where the CISA data is not available and 
actionable, the proposed FFRMS policy would require the FVA be used if 
the available 0.2 percent annual chance flood elevation does not 
account for wave action.
    FEMA noted in the policy and the NPRM that it was coordinating 
across the Federal government to develop tools, such as the FFRMS Job 
Aid published in the public docket associated with this rulemaking,\67\ 
to assist agencies and stakeholders in determining the FFRMS floodplain 
and would rely on those tools as the best available information in 
making its determinations. The FFRMS Job Aid presents a general 
methodology to identify the FFRMS floodplain for each of the three 
approaches that relies on information from available FEMA FIRMs, U.S. 
Geological Survey (USGS) ground elevations, and the 2022 Sea Level Rise 
Technical Report sea level rise estimates.\68\
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    \67\ See NPRM, 88 FR 67870, 67900 and FEMA Proposed Policy: 
Federal Flood Risk Management Standard at pg. 5 (posted to the 
public docket at https://www.regulations.gov/document/FEMA-2023-0026-0005). See also https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last 
accessed Jan. 24, 2024) and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \68\ Id at Section 1.6.
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    FEMA's proposed FFRMS policy also required that nature-based 
solutions and natural features be considered and implemented where 
possible to all actions that are subject to Step 3 of the 8-step 
decision-making process and not just those actions subject to the 
FFRMS. Nature-based solutions and natural features must be considered 
as an alternative action in Step 3. Where it is not possible to use 
natural features and nature-based solutions as an alternative on their 
own, they would be considered in conjunction with the proposed action 
as a minimization measure in Step 5.
Updated FFRMS Resources
    The FFRMS approaches include the CISA, an ``approach that uses the 
best-available, actionable hydrologic and hydraulic data and methods 
that integrate current and future changes in flooding based on climate 
science.'' The Revised Guidelines and Appendix H help to define the 
``best available and actionable science,'' stating that best-available 
generally refers to science, data or information that is:

[[Page 56940]]

     transparent--clearly outlines assumptions, applications, 
and limitations;
     technically credible--transparent subject matter or more 
formal external peer review, as appropriate, of processes and source 
data;
     usable--relevance and accessibility of the information to 
its intended users; and
     legitimate--perceived by stakeholders to conform to 
recognized principles, rules, or standards.
    Legitimacy might be achieved by existing government planning 
processes with the opportunity for public comment and engagement.\69\
---------------------------------------------------------------------------

    \69\ See Revised Guidelines, Appendix H: Climate-Informed 
Science Approach and Resources, pg.5
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    Actionable science includes theories, data, analyses, models, 
projections, scenarios and tools that are:
     relevant to the decision under consideration;
     reliable in terms of its scientific or engineering basis 
and appropriate level of peer review;
     understandable to those making the decision;
     supportive of decisions across wide spatial, temporal, and 
organizational ranges, including those of time-sensitive operational 
and capital investment decision-making;
     co-produced by scientists, practitioners, and 
decisionmakers, and meet the needs of and are readily accessible by 
stakeholders.\70\
---------------------------------------------------------------------------

    \70\ See Revised Guidelines, pg. 51 and Appendix H: Climate-
Informed Science Approach and Resources, pg. 5.
---------------------------------------------------------------------------

    Appendix H further defines a general framework for the CISA by 
identifying types of changes that should be considered and discussing 
the importance of considering operational life; provides an approach 
for incorporating uncertainty into the CISA; and discusses a range of 
data sources. The document does not prescribe or direct agencies to use 
specific resources or methods.
    In 2023, the Science Subgroup convened by the Flood Resilience 
Interagency Working Group of the National Climate Task Force published 
the FFRMS CISA State of the Science Report (``FFRMS CISA State of the 
Science Report'').\71\ This report provides a review and update of the 
best-available, actionable science that can support application of the 
CISA, reflecting science and technology advancements made since 2015. 
Like Appendix H from the Revised Guidelines, the FFRMS CISA State of 
the Science Report provides non-prescriptive, scientific, and 
engineering guidance for use by Federal agencies, their non-Federal 
partners, and other entities in determining future flood hazards under 
the FFRMS' CISA option. The FFRMS CISA State of the Science Report 
refines the initial framework from Appendix H to define two specific 
workflows for applying the CISA,\72\ while acknowledging that technical 
competencies and capabilities needed to fully apply the CISA vary and 
may exceed those available in most Federal agencies and many non-
Federal users.\73\ The Report states that workflow implementation can 
be scaled to meet resource level and project requirements.\74\
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    \71\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Mar. 12, 
2024).
    \72\ FFRMS CISA State of the Science Report, Coastal workflow 
starting on pg. 11 and Riverine workflow starting on pg. 38.
    \73\ Id. at pg. 5.
    \74\ See id.
---------------------------------------------------------------------------

    The FFRMS CISA State of the Science Report specifically identifies 
the latest sea level rise projections from the National Climate 
Assessment as actionable.\75\ The FFRMS State of the Science Report 
states each agency should factor projected regional/local sea level 
change into Federal investment decisions located as far inland as the 
extent of estimated tidal influence, now and in the future, using the 
most appropriate methods for the scale and consequence of the 
decision.\76\ The FFRMS CISA State of the Science Report also suggests 
that along low-lying coastal shorelines on the Atlantic and Gulf Coasts 
not subject to runup or overtopping, the appropriate sea level rise 
estimates can be used similar to freeboard.\77\
---------------------------------------------------------------------------

    \75\ Id. at pgs. 21-22.
    \76\ Id. at pg. 23.
    \77\ The FFRMS CISA State of the Science Report identifies the 
latest interagency Federal guidance for regionally-based SLR 
projections as available and actionable by recommending that all 
agencies should use these data as part of a CISA approach. At pg. 
22, the Report states ``Federal agencies should apply this latest 
interagency Federal guidance for regionally-based SLR projections. 
Scenarios and time horizons should use a consistent national 
approach based on risk tolerance and criticality.'' However, the 
Report also warns against using the simplified approach with SLR in 
areas subject to runup and overtopping on pg. 28 ``Notably, areas 
subject to runup and overtopping can be very sensitive to changes in 
water level (including due to SLR) and the variability of the 
slope--so within a CISA implementation, these areas should be 
treated with appropriate analysis and not simple linear addition of 
flooding components.'' Based on these guidelines, the FFRMS Job Aid 
establishes the use of simplified CISA in specific areas, namely in 
some coastal environments, specifically along low-lying coastal 
shorelines on the Atlantic and Gulf Coasts. See FFRMS Job Aid, pg. 
10.
---------------------------------------------------------------------------

    This is the basis of the interagency implementation and supporting 
tools such as the FFRMS Job Aid.\78\ The FFRMS Job Aid is a resource to 
help Federal agencies and their non-Federal partners (including 
potential Federal financial aid recipients) conduct a screening to 
determine if a proposed Federally funded action will be located in an 
FFRMS floodplain, based on the CISA, FVA, or 0.2PFA. While Appendix H 
of the Revised Guidelines and the FFRMS CISA State of the Science 
Report provide more general approaches that could be used to apply the 
CISA with sufficient time, money and expertise,\79\ FEMA does not 
believe the data and science for these broader approaches are 
sufficiently available and actionable for FEMA to implement at scale. 
As explained below, FEMA prioritized the type and criticality of the 
action involved, the availability and actionability of the data, and 
equity concerns, and determined that applying the CISA through these 
broader, more complex approaches is not appropriate at this time given 
the agency's role in helping people recover from disasters in an 
expedited manner. FEMA instead decided to use consensus interagency 
approaches that are readily accessible to implement the CISA.
---------------------------------------------------------------------------

    \78\ Available at https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last 
accessed Mar. 12, 2024).
    \79\ FFRMS CISA State of the Science Report, pg.5, Coastal 
workflow starting on pg. 11, and Riverine workflow starting on pg. 
38.
---------------------------------------------------------------------------

    To help FEMA implement the FFRMS, the agency will leverage 
interagency tools. Specifically, FEMA will follow the methodology laid 
out in the FFRMS Job Aid to determine whether a site for a proposed 
action subject to the FFRMS is located within an FFRMS floodplain and 
if so, the FFRMS flood elevation for that site. FEMA will follow the 
CISA, FVA, or 0.2PFA Job Aid methodologies according to FEMA's FFRMS 
policy. Consistent with the FFRMS Job Aid, FEMA finds that the CISA is 
currently available and actionable for low-lying coastal shorelines on 
the Atlantic and Gulf Coasts.\80\ If a site poses other complexities, 
such as steep bluffs or shorelines armored by large seawalls or similar 
flood-control structures, the CISA is not available and actionable \81\ 
and FEMA will instead use the FVA or 0.2PFA, per the agency's policy. 
For the CISA, FVA and 0.2PFA, FEMA will follow the processes outlined 
in 44 CFR 9.7 and in FEMA Policy 104-008-2: Guidance on the Use of 
Available Flood

[[Page 56941]]

Hazard Information.\82\ For example, if a preliminary FIRM has more 
restrictive flood hazard data than an effective FIRM, FEMA will use the 
preliminary FIRM to identify the appropriate flood elevation.\83\
---------------------------------------------------------------------------

    \80\ FFRMS Job Aid, pg. 10.
    \81\ Id.
    \82\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf (last 
accessed Mar. 12, 2024).
    \83\ See FFRMS Policy, pg. 5.
---------------------------------------------------------------------------

    Consistent with the FFRMS Job Aid, to determine whether a proposed 
site is located within the FFRMS floodplain under the CISA and FVA 
approaches, FEMA will compare the ground elevation at the site (using 
the U.S. Geological Survey National Map) with the FFRMS flood 
elevation.\84\ To identify the FFRMS flood elevation under the CISA and 
FVA, FEMA will identify the BFE at the site or the BFE at the nearest 
mapped floodplain if the site is outside of the 1% annual chance 
floodplain. Any relevant characteristics of the action or site will be 
noted at this stage (e.g., service life, criticality, and flood 
characteristics).\85\ For the CISA, FEMA will determine the FFRMS flood 
elevation by using the NOAA Sea Level Rise Viewer.\86\ FEMA will use 
the service life of the action to select the scenario year.\87\ For 
non-critical actions, FEMA will use the intermediate scenario, and for 
critical actions, FEMA will use the intermediate high scenario.\88\ 
FEMA will then add the appropriate amount of sea level rise to the BFE 
to reach the FFRMS CISA flood elevation. If the site elevation is less 
than the CISA flood elevation, then the site is in the FFRMS CISA 
floodplain. For the FVA, 2 feet will be added to the BFE for non-
critical actions or 3 feet for critical actions to determine the FFRMS 
FVA flood elevation.\89\ If the site elevation is less than the FVA 
flood elevation, then the site is in the FFRMS FVA floodplain.\90\ For 
the 0.2PFA, FEMA will compare the location of the site with the 
horizontal extent of the 0.2 percent annual chance floodplain using the 
FEMA Map Service Center or National Flood Hazard Layer.\91\ If the site 
is within the floodplain, then it is within the FFRMS 0.2PFA 
floodplain.\92\
---------------------------------------------------------------------------

    \84\ FFRMS Job Aid, pgs. 8-9.
    \85\ FFRMS Job Aid, pgs. 8-9 and pgs.13-15.
    \86\ Id., pgs. 20-23.
    \87\ Id.
    \88\ FFRMS Job Aid, pg. 21.
    \89\ FFRMS Job Aid, pg. 8.
    \90\ Id., pgs. 8-9
    \91\ Id., pgs. 30-31.
    \92\ Id.
---------------------------------------------------------------------------

    FEMA published these additional resources in the public docket with 
this rulemaking \93\ to further assist the public in understanding the 
FFRMS and the approaches utilized, including the availability and 
actionability of the CISA data and how FEMA would implement the FFRMS 
through application of the FFRMS Job Aid methodology. FEMA will 
continue to collaborate across the Federal government to develop tools 
to facilitate the implementation of CISA and the FFRMS. The IWG 
recently released for comment a beta version of the Federal Flood 
Standard Support Tool (FFSST), a novel, interactive, map-based tool 
that incorporates new data to help users identify if a Federally funded 
project is in the FFRMS floodplain.\94\
---------------------------------------------------------------------------

    \93\ See https://www.regulations.gov/document/FEMA-2023-0026-0007 and https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \94\ 89 FR 25674 (Apr. 11, 2024).
---------------------------------------------------------------------------

G. Summary of FEMA's Final Rule and Updated Policy

    This final rule implements Executive Order 11988, as amended, the 
FFRMS, and the Revised Guidelines, while also updating FEMA's 8-step 
process. Consistent with the changes proposed in the NPRM, FEMA is 
incorporating a severability clause into part 9; updating definitions 
to implement the FFRMS and reflect current policy and practice; 
providing the applicable effective date for the changes made in the 
final rule and further clarifying the rule's scope; updating how FEMA 
determines whether an action is in a floodplain, consistent with the 
FFRMS approaches when the action is subject to the FFRMS; and adding an 
emphasis on nature-based approaches in the 8-step process consistent 
with Executive Order 11988, as amended.
    In this final rule, FEMA incorporates edits to reflect commenter 
feedback. Specifically, in Sec.  9.7(c)(3), FEMA is adding agencies 
from Federal and Indian Tribal governments as potential sources of 
information in making the floodplain determination. These changes 
better ensure that FEMA will effectively consider relevant and 
appropriate data in making the floodplain determination under part 9. 
FEMA is also making clarifying edits in Sec.  9.5(a)(3) to clarify that 
copies of the legacy regulations will be available on the agency's 
website and to Sec.  9.7(c)(3) to clarify that FEMA may consider 
information from the entities listed. FEMA is also making minor 
technical edits in Sec.  9.7(c)(1)(i)(C) and Sec.  9.11(d)(3)(ii).
FFRMS Policy
    FEMA's FFRMS policy is also being finalized with the publication of 
this rule and will be effective with the rule's implementation. The 
FFRMS policy provides guidance on how FEMA will implement the FFRMS 
across FEMA's programs and further incorporate nature-based solutions 
into the 8-step process. FEMA is making minor clarifying edits to the 
FFRMS policy consistent with commenters' suggestions by further 
clarifying the use of the 0.2PFA in coastal areas and making other 
technical edits to the document for readability. FEMA is also 
clarifying in the FFRMS policy that the agency will leverage the FFRMS 
Job Aid when implementing the FFRMS.

III. Discussion of Public Comments and FEMA's Responses

A. Summary of Public Comments

    The NPRM public comment period closed on December 1, 2023, and FEMA 
received 47 germane comments.\95\ Commenters included non-profit 
organizations; individuals; local governments; State governments and 
State government organizations; and for-profit entities. The majority 
of comments were supportive of FEMA's rule and policy approach to 
implementing the FFRMS and other updates to part 9. Commenters focused 
on the regulatory impact analysis (RIA) accompanying the rule; the CISA 
and the data FEMA would use to determine each of the FFRMS approaches; 
FEMA's implementation of the FFRMS; and the 8-step process detailed in 
part 9. FEMA describes the specific revisions in the final rule and 
addresses commenters' specific concerns below.
---------------------------------------------------------------------------

    \95\ One commenter provided a duplicate comment posted to both 
the rulemaking and FFRMS policy comments.
---------------------------------------------------------------------------

B. Comments in Support of the Rule

    The majority of commenters were generally supportive of the rule 
and accompanying FFRMS policy.\96\ Commenters noted appreciation of 
FEMA's rulemaking efforts to enhance the resilience and sustainability 
of communities and ecosystems that are vulnerable to flooding. These 
commenters stated the FFRMS was a critical policy tool to reduce risks 
and promote sound floodplain management and wetlands protection 
practices, as well as fiscal responsibility.
---------------------------------------------------------------------------

    \96\ 22 commenters expressed direct support for the rule while 
19 other commenters expressed only specific recommendations to 
improve the rule.
---------------------------------------------------------------------------

    Commenters were supportive of the agency's use of the FFRMS 
approaches in the rulemaking and accompanying FFRMS policy document. A 
commenter noted the incorporation of the CISA, FVA, and 0.2PFA 
reflected FEMA's commitment to using diverse and

[[Page 56942]]

adaptive strategies based on the best-available scientific knowledge. 
Another commenter supported the floodplain definition revisions, 
stating that an expanded floodplain definition would ensure that more 
projects were built with resilience in mind when compared to current 
projects. A commenter stated FEMA's preferred CISA approach would 
result in Federally funded projects that were more resilient to current 
and future flooding and ensured a wiser use of taxpayer dollars. The 
commenter stated stronger standards were feasible to implement, as many 
jurisdictions already have existing stronger building and land-use 
standards. Commenters also indicated support for FEMA's emphasis on 
using natural systems, ecosystem processes, and nature-based 
approaches.
Timing
    Comment: Some commenters supporting the rule requested FEMA quickly 
finalize and implement the final rule. While requesting FEMA work 
quickly to finalize and implement the rule, one commenter noted that 
the partial implementation policies in place did not fully implement 
FFRMS as they did not extend the horizontal floodplain. This commenter 
requested FEMA also integrate FFRMS into the minimum floodplain 
management standards for the NFIP. The commenter also stated FEMA 
should ensure FFRMS was sufficiently staffed and should develop a 
comprehensive plan to track enforcement and any concerns such as 
environmental justice to ensure effective implementation of the rule.
    FEMA Response: FEMA agrees with the commenters on the importance of 
finalizing and implementing the rule and FFRMS policy. FEMA is issuing 
this final rule with an effective date of September 9, 2024. As 
explained in Sec.  9.5(a)(3), the FFRMS applies only to new actions for 
which assistance is made available pursuant to declarations under the 
Stafford Act that are commenced on or after the effective date of the 
final rule, and new actions for which assistance is made available 
pursuant to notices of funding opportunity that publish on or after the 
effective date of the final rule.\97\
---------------------------------------------------------------------------

    \97\ Note that FEMA first partially implemented the FFRMS by 
policy with respect to covered projects in existing floodplains in 
its Public Assistance and Hazard Mitigation Assistance programs. See 
FEMA Policy 104-22-003, ``Partial Implementation of the Federal 
Flood Risk Management Standard for Public Assistance (Interim),'' 
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Program,'' Dec. 
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA 
actions may be subject to these partial implementation policies; 
however, those actions would not be subject to this final rule or 
policy.
---------------------------------------------------------------------------

    FEMA declines to accommodate the commenter's request to integrate 
the FFRMS into the minimum floodplain management standards for the NFIP 
because it is beyond the scope of this rulemaking. The NFIP is a 
program through which property owners in participating communities can 
purchase Federal flood insurance as a protection against flood 
losses.\98\ As a condition of eligibility, a community must adopt and 
enforce floodplain management regulations that meet or exceed the NFIP 
minimum floodplain management criteria developed by the 
Administrator.\99\ Further information regarding FEMA's minimum 
floodplain management standards for the NFIP can be found at 44 CFR 
part 59 et seq. Because this rule only applies to ``actions subject to 
the FFRMS,'' \100\ this rule does not change any FEMA standards 
applicable to community or individual participation in any aspect of 
the NFIP. In general, changes to 44 CFR part 59 et seq would require a 
rulemaking to revise the appropriate sections of the CFR.
---------------------------------------------------------------------------

    \98\ 42 U.S.C. 4011(a).
    \99\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b), 
59.22(a)(3), 60.1(d).
    \100\ See ``Guidelines for Implementing Executive Order 11998, 
Floodplain Management, and Executive Order 13690, Establishing a 
Federal Flood Risk Management Standard and a Process for Further 
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct. 
22, 2015) (providing notice of the availability of the Revised 
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and 
https://www.regulations.gov/document/FEMA-2015-0006-0372 
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
---------------------------------------------------------------------------

    As an illustrative example, if an NFIP-participating community owns 
a structure in a floodplain that has been substantially damaged and the 
community decides to repair it using community funds, funding from a 
flood insurance payment, or other funding that is not FEMA grant 
funding, the community's floodplain management regulations, not the 
FFRMS, would apply to the repair project. However, if that same 
structure was substantially damaged by a disaster event, and the 
community applied for assistance under a FEMA grant program like the 
Public Assistance program, the FFRMS would apply to that repair 
project.
    FEMA agrees with the commenter that it is important to adequately 
staff for FFRMS implementation. FEMA is accordingly ensuring that 
sufficient staff at headquarters and regional offices are appropriately 
trained to provide technical assistance. FEMA currently leverages the 
8-step process detailed in 44 CFR part 9 as the mechanism to implement 
Executive Order 11988. Step 8 of the process found at 44 CFR 9.6(b) 
requires FEMA to review the implementation and post-implementation 
phases of the proposed action to ensure that the requirements stated in 
Sec.  9.11 are fully implemented. Under this provision, oversight 
responsibility is integrated into existing processes associated with 
FEMA's grant management requirements. FEMA is not making changes to 
these requirements in the final rule and will continue to use the 
current process to ensure compliance with the FFRMS and Executive Order 
11988, as amended. 2 CFR 200.339 also allows FEMA to take action to 
remedy a recipient's noncompliance with federal requirements, including 
those required by 44 CFR part 9, such as imposing new conditions on the 
award or deobligating funding for the award if a recipient does not 
adhere to the requirements set forth during the part 9 review process.

C. Comments in General Opposition to the Rule

    Four commenters expressed opposition to the rule overall. Those 
commenters raised concerns about the complexity of the FFRMS 
approaches, uncertainty about the CISA standard, and the application of 
FFRMS to specific types of FEMA actions. The commenters stated concerns 
with the potential increased costs associated with implementing FFRMS 
and with FEMA's economic impact analysis accompanying the rule. The 
commenters also stated concerns with implementing the FFRMS given 
conflicting Federal, State, local, and other requirements. Commenters 
stated the FFRMS was a ``one-size-fits-all'' approach that lacked the 
flexibility to address regional and local needs. Commenters stated the 
use of the CISA introduced uncertainty into the regulations contrary to 
the fundamental principles outlined in Executive Orders 12866 and 
13563. Commenters also stated FEMA's analysis of the costs and benefits 
associated with the rulemaking did not adequately quantify the costs 
and benefits of several components of the risk reduction strategies in 
the rule. Commenters raised questions regarding FEMA's statutory 
authority to implement the rule. One commenter

[[Page 56943]]

stated Congress should define the floodplain. This commenter raised 
similar concerns regarding the use of the CISA and lack of data sources 
that map the FFRMS floodplain. FEMA responds to some of the general 
comments in opposition to the rule in the comment summaries and 
responses immediately below and responds in more detail to the 
remainder of the comments in the following sections of the preamble.
    Comment: One commenter requested FEMA extend the comment deadline 
associated with the rule for an additional 60 days. The commenter 
requested an extension of the comment period given the complexity of 
the rule and policy and to implement extensive public outreach.
    FEMA Response: FEMA received 48 comments to the public docket 
associated with this rulemaking and no other requests to extend the 
comment period were received. The 60-day comment period provided is 
consistent with 44 CFR 1.3(b) and Executive Orders 12866 and 13563. 
This timeframe provided a reasonable opportunity for public comment and 
is particularly appropriate given FEMA's prior engagement on this 
topic. FEMA completed extensive outreach in 2015 as part of the 
development and publication of the Revised Guidelines, and also sought 
public input in connection with the agency's prior NPRM in 2016.\101\ 
Additional outreach will be completed as part of the rule's 
implementation as FEMA will distribute additional information to SLTT 
partners and the public explaining again what the FFRMS is and how the 
agency will further implement the Executive Orders. FEMA's FFRMS policy 
will also be reassessed on a four-year cycle to ensure the approach 
continues to meet the goals of Executive Order 11988, as amended. 
During the four-year review process, FEMA's FFRMS policy will be 
reviewed, revised, extended, and/or rescinded as appropriate.
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    \101\ Established by the 2013 Climate Action Plan, the Climate 
Task Force met with stakeholders from State, local, Tribal, and 
territorial governments; private businesses; trade associations; 
academic organizations; civil society; and other stakeholders to 
develop and provide recommendations in November 2014. President's 
State, Local, and Tribal Leaders Task Force on Climate Preparedness 
and Resilience, Recommendations to the President, (2014), available 
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA, 
acting on behalf of the MitFLG and consistent with Executive Order 
13690, published a draft of the Revised Guidelines for notice and 
comment on February 5, 2015 at 80 FR 6530. During the public comment 
period, over 25 meetings were held across the country with State, 
local, and Tribal officials and interested stakeholders to discuss 
the Revised Guidelines. There were also 9 public listening sessions 
across the country that were attended by over 700 participants from 
State, local, and Tribal governments, and other stakeholder 
organizations to discuss the Revised Guidelines. The final Revised 
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA 
published a notice of proposed rulemaking to implement FFRMS 
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice 
of availability and request for comment on a FFRMS policy at 81 FR 
56558 (Aug. 22, 2016) and a notice of availability regarding a draft 
report at 81 FR 64403 (Sept. 20, 2016).
---------------------------------------------------------------------------

    FEMA does not believe additional engagement is needed to finalize 
this rule. All but a few of commenters expressed support for the rule 
and FEMA's FFRMS policy and many requested swift implementation, 
consistent with the need to protect federal dollars and communities 
from increasing flood risk.
    Comment: One commenter stated the rulemaking was premature in the 
absence of a clearly defined process for implementing the CISA and 
urged FEMA to withdraw the rule from consideration. The commenter 
expressed concern that FEMA will take a haphazard approach--completing 
each analysis of the extent and elevation of the CISA floodplain on a 
case-by-case basis and doing so using data that may not be complete or 
is not be widely known or available to the public. The commenter stated 
that in the end, neither the process nor the outcome will be 
predictable or replicable.
    FEMA Response: FEMA disagrees. This rulemaking is not premature, 
and FEMA provided information in and accompanying the NPRM explaining 
how the CISA and the FFRMS will be implemented. Each analysis will be 
completed on a case-by-case basis consistent with the current 8-step 
process, which has been in place for over four decades, to determine 
the floodplain, but the data used to make the analysis is publicly 
available and replicable using the FFRMS CISA State of the Science 
Report, the FFRMS Job Aid, and FEMA's FFRMS policy. As explained above, 
the FFRMS CISA State of the Science Report identifies the latest sea 
level rise projections from the National Climate Assessment as 
available and actionable data and the appropriate sea level rise 
estimates can be used to approximate future 1 percent annual chance 
flood levels. These estimates can simply be added to the current 1 
percent annual chance flood elevation to approximate the future 1 
percent annual chance flood level, in low-lying coastal shorelines on 
the Atlantic and Gulf Coasts not subject to runup or overtopping. The 
FFRMS Job Aid \102\ provides the methodology FEMA will use to determine 
the floodplain and elevation under the CISA where data is actionable 
and available (namely in low-lying coastal shorelines on the Atlantic 
and Gulf Coasts consistent with the FFRMS CISA State of the Science 
Report). FEMA's FFRMS policy further explains that the CISA is used 
where actionable and available and provides alternatives where such 
data is not actionable and/or available. The CISA analysis can be 
completed using these publicly available materials for areas with 
actionable and available data. FEMA anticipates actionable and 
available data will increase over time and the interagency tools 
provided will be updated to reflect the new data.
---------------------------------------------------------------------------

    \102\ Available at https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last 
accessed Mar. 12, 2024).
---------------------------------------------------------------------------

    Comments: Two commenters requested FEMA complete additional 
analyses before finalizing the rule. Both commenters referenced other 
flood-related regulatory and policy actions, including the Technical 
Mapping Advisory Council (TMAC)'s proposal to increase the regulatory 
floodplain and increase the NFIP floodplain management standards for 
land management and use; Risk Rating 2.0 for flood insurance premiums; 
and USACE's proposed levee safety updates as well as risk informed 
decision making.
    One commenter requested the rule be deferred until FEMA completed a 
cumulative impacts assessment and considered associated actions to 
mitigate the impacts of the actions above on communities participating 
in the NFIP, mapping and accreditation, low to moderate income 
families, and disadvantaged communities. The commenter further 
requested FEMA withdraw the rule until a regulatory analysis applying 
sound cost-benefit analysis principles and a comprehensive socio-
economic impact analyses to address the full and intended scope of 
FFRMS were completed. The commenter stated the regulatory impact 
analysis should address cumulative impacts and the need for mitigation 
of impacts to community property values, tax bases, the distribution of 
real income, as well as the impacts on affordable housing and low to 
moderate income families and disadvantaged communities.
    The other commenter stated that different flood regulations and 
policies may overlap with or duplicate each other and potentially lead 
to redundancy, confusion, and additional costs. The commenter requested 
FEMA conduct a more thorough quantitative cost-benefit analysis, 
considering the

[[Page 56944]]

cumulative effects of recent floodplain governing rules to make well 
informed decisions regarding appropriate risk reduction strategies and 
ensure a thorough understanding of the overall impact of the rule's 
implementation. The commenter requested FEMA conduct a comprehensive 
assessment of cumulative impacts to ensure a more informed and 
coordinated approach and requested that FEMA provide additional 
documentation on how FFRMS would impact other Federal agencies' 
programs, such as USACE's civil works projects and whether FEMA's FFRMS 
policy would supersede other Federal agencies' rules and regulations. 
The commenter stated FEMA relied on a subjective assessment of the 
rule's costs and benefits. The commenter asked FEMA to closely 
coordinate with other agencies that typically co-regulate projects, 
including USACE with water resources projects.
    The commenter also stated that the FFRMS could lead to further 
deterioration of key infrastructure, where meeting the new, higher 
standards is not technically or financially feasible, resulting in 
communities leaving the infrastructure to deteriorate in place and not 
serve the public need. The commenter stated that these types of costs 
should be considered in the regulatory analyses.
    FEMA Response: FEMA disagrees this rule should be deferred. While 
FEMA understands the commenters' interest in the policy activities 
mentioned, the agency does not believe those actions are relevant to 
this rulemaking or require additional analysis to finalize this rule. 
The commenters reference a recommendation made by the TMAC in a recent 
annual report \103\ that FEMA expand the NFIP regulatory floodplain as 
defined in 44 CFR 59.1 to which the NFIP's minimum floodplain 
management criteria set forth in 44 CFR 60.3 applies, and the 
commenters suggest that FEMA must delay this rulemaking until it has 
analyzed the effects of that recommendation. That is not necessary 
because FEMA has not implemented the TMAC recommendation and therefore 
it has no current effect on communities. The TMAC is a Federal advisory 
committee established to review and make recommendations to FEMA on 
matters related to the national flood mapping program authorized under 
the Biggert-Waters Flood Insurance Reform Act of 2012.\104\ The 
national flood mapping program requires FEMA to review, update, and 
maintain NFIP rate maps.\105\ It is outside the scope of this rule.
---------------------------------------------------------------------------

    \103\ TMAC 2023 Interim Report, available at https://www.fema.gov/sites/default/files/documents/fema_rm-tmac-2023-interim-report-30OCT2023.pdf (last accessed Mar. 28, 2024).
    \104\ 42 U.S.C. 4101a.
    \105\ 42 U.S.C. 4101b.
---------------------------------------------------------------------------

    The commenters also refer to the NFIP's pricing approach \106\ for 
NFIP policyholders as a new ``flood regulation'' that requires analysis 
prior to finalizing this rulemaking. However, this rulemaking does not 
impact the NFIP's site-specific actions, such as how FEMA rates the 
premium for a flood insurance policy. Further, the population of NFIP 
policyholders is much larger than the number of FEMA grant recipients 
who will be impacted by this rule.
---------------------------------------------------------------------------

    \106\ Also known as Risk Rating 2.0, Equity in Action. See 
https://www.fema.gov/flood-insurance/risk-rating (last accessed Mar. 
18, 2024).
---------------------------------------------------------------------------

    One commenter states FEMA needs to account for how the rule will 
impact mapping and accreditation under the NFIP; however, the rule does 
not appreciably impact those areas of the NFIP. This rule and the 
accompanying policy implement the FFRMS for actions where FEMA funds 
are used for new construction, substantial improvement or repairs to 
address substantial damage, and requires that nature-based solutions 
and natural features be considered and implemented where possible to 
all actions that are subject to Step 3 of the 8-step decision-making 
process. Nature-based solutions and natural features must be considered 
as an alternative action in Step 3. Where it is not possible to use 
natural features and nature-based solutions as an alternative on their 
own, they would be considered in conjunction with the proposed action 
as a minimization measure in Step 5. Neither FEMA's flood mapping 
program nor its accreditation of levees under the NFIP are actions 
subject to the FFRMS and, to the extent that any programmatic or policy 
change to either of those areas are required to undergo the 8-step 
process under 44 CFR part 9, it is unlikely that a consideration of 
nature-based solutions will result in changes with demonstrable 
impacts. FEMA cannot address the other actions referenced, such as the 
USACE's civil works projects and levee safety updates, as these involve 
other Federal agencies, and questions regarding those actions are best 
addressed by those agencies directly.
    FEMA believes that the commenter's concerns about this rule's 
economic impacts is inconsistent with this rule's relatively limited 
applicability. FEMA defines an ``action subject to the FFRMS'' as ``any 
action where FEMA funds are used for new construction, substantial 
improvement, or to address substantial damage to a structure or 
facility,'' consistent with Executive Order 11988, as amended, and the 
Revised Guidelines. The FFRMS applies to grants for projects funding 
the new construction, substantial improvement, or repair of substantial 
damage under FEMA programs such as the IA, PA, and HMA programs, and 
grants processed by FEMA's Grants Programs Directorate (GPD) (involving 
grants for preparedness activities). This rule does not regulate 
privately funded activity in the floodplain. As such, the 
implementation of the FFRMS will have negligible impacts on community 
property values, tax bases, and the distribution of real income. 
Additionally, FEMA expects the impacts on affordable housing for low to 
moderate income households and disadvantaged communities to be minimal 
since most actions subject to FFRMS requirements are non-residential. 
FEMA only funds residential construction in the IA and HMA programs; 
FEMA funds 153 residential IA projects and 268 HMA residential projects 
per year on average. The majority of the costs associated with FFRMS 
requirements will be covered by FEMA funding.
    Comment: A commenter stated the FFRMS policy and rule were one-
sided, as they limited how people could use and live in flood-prone 
areas without a clear goal to support economic growth or sensible 
development within reasonable limits. The commenter stated Congress 
likely would not endorse a flood risk strategy that did not consider 
using flood-prone areas optimally for the country's benefit. The 
commenter stated the rule's benefits were unclear given the emphasis on 
constraints and a lack of consideration for economic development as 
part of resilience. The commenter recommended that FEMA adjust the 
policy to include efficient and smart use of flood-prone areas while 
acknowledging the limitations on development.
    FEMA Response: The revisions to part 9 are consistent with FEMA's 
long-standing requirement as part of implementation of Executive Order 
11988, as amended, to only perform or fund actions within or affecting 
floodplains and wetlands if those actions are the only practicable 
alternative. FEMA's regulations provide for consideration of the need 
for economic development and community resilience, while also 
bolstering the resilience of communities and Federal

[[Page 56945]]

assets against the impacts of flooding. For instance, through the 8-
step process, FEMA considers alternative locations, alternative 
actions, natural features, nature-based approaches, and the no action 
alternative under the practicability analysis. The definition of 
``practicable'' makes clear that practicability depends on the 
situation and includes consideration of all pertinent factors, such as 
natural environment, social concerns, economic aspects, legal 
constraints, and agency authorities. In addition, if there is no 
practicable alternative, FEMA will perform or fund the action in the 
floodplain or wetland and will minimize any adverse impacts when doing 
so. Under Sec.  9.9 as well, in determining the practicability of the 
alternatives, FEMA considers economic aspects.

D. FEMA's Authority for Part 9 and Revisions

    Two commenters wrote comments concurring with FEMA's statutory and 
other authority for the rulemaking.
    Comments: Both commenters stated the rule was a valid use of FEMA's 
regulatory authority, citing to the NFIA, as amended by the Flood 
Disaster Protection Act (42 U.S.C. 4001 et seq.), the Stafford Act (42 
U.S.C. 5121 et seq.), and the NEPA (42 U.S.C. 4321 et seq.). One 
commenter noted the Congressional intent in the Stafford Act for the 
Federal Government to develop land use and construction regulations to 
help State and local governments mitigate risk and reduce losses and 
FEMA's broad discretion to define ``safe land use and construction 
practices'' as a condition of Stafford Act funding for both public and 
private structures.\107\ The commenter stated section 101 of NEPA 
required FEMA to use all practicable means to ensure Federal plans, 
programs, and resources ``(1) fulfill the responsibilities of each 
generation as trustee of the environment for succeeding generations; 
(2) assure for all Americans safe, healthful, productive, and 
esthetically and culturally pleasing surroundings; [and] (3) attain the 
widest range of beneficial uses of the environment without degradation, 
risk to health or safety, or other undesirable and unintended 
consequences'' among other priorities.\108\ The commenter stated the 
FFRMS reflects a tradition of executive action to enforce reasonable 
floodplain management and wetland protection. Another commenter noted 
the NFIA and Flood Disaster Protection Act require FEMA to establish 
land use criteria for floodplain management \109\ and that NEPA 
requires Federal agencies to evaluate the environmental and related 
social and economic effects of their proposed actions, which includes 
the evaluation of the impacts of proposed actions in the 
floodplains.\110\ Further, the commenter stated the Stafford Act 
directed FEMA to encourage ``hazard mitigation measures to reduce 
losses from disasters, including development of land use and 
construction regulations.'' \111\ The commenter stated FEMA's 
regulations were consistent with these legislative directives.
---------------------------------------------------------------------------

    \107\ 42 U.S.C. 5165a.
    \108\ 42 U.S.C. 4331(b).
    \109\ 42 U.S.C. 4102, 42 U.S.C. 4104c.
    \110\ 42 U.S.C. 4332(2)(C).
    \111\ 42 U.S.C. 5121(b)(5).
---------------------------------------------------------------------------

    FEMA Response: FEMA agrees with the commenter that the agency has 
statutory authority to implement FFRMS. Please refer to section II.B 
for a description of FEMA's statutory authority to implement grant 
programs and to require its grant recipients to carry out repairs or 
construction in accordance with specific standards.
    Three commenters raised concerns regarding FEMA's legal authority 
to amend part 9 and implement FFRMS.
    Comment: One commenter stated Congress should establish the 
definition of floodplains. The commenter acknowledged defining the 
geographic scope of a floodplain was not an easy task, but stated the 
implications on landowners and others made it a job best left for 
Congress. The commenter stated that Congress drafted and debated 
language over the last twenty plus years on the issue and stated that 
Congress has had the opportunity to revisit and refine Federal 
floodplain policies as part of NFIP regular reauthorization process. 
The commenter stated it was bad public policy to delegate defining the 
limits of Federal authority to the agencies, citing to challenges other 
agencies have had defining ``waters of the United States'' and 
reiterating the need for Congressional action.
    FEMA Response: This comment appears to confuse the definition of 
floodplain under the NFIP with the definition of floodplain that is 
being altered with this rulemaking, and, as such, makes incorrect 
statements and assumptions about the role Congress has played or should 
play. This rulemaking is not altering the definition of floodplain 
under the NFIP. The NFIP is a program through which property owners in 
participating communities can purchase Federal flood insurance as a 
protection against flood losses.\112\ As a condition of eligibility, a 
community must adopt and enforce floodplain management regulations that 
meet or exceed the NFIP minimum floodplain management criteria 
developed by the Administrator.\113\ The floodplain and other 
definitions governing the NFIP can be found at 44 CFR 59.1. This 
rulemaking is updating the definition of floodplain in 44 CFR part 9 as 
applied to actions subject to the FFRMS, defined as actions where FEMA 
funds are used for new construction, substantial improvement, or 
repairs to address substantial damage to structures and 
facilities.\114\ As set forth, in section II.B, Congress has authorized 
FEMA to implement grant programs and to require its grant recipients to 
carry out repairs or construction in accordance with specific 
standards.
---------------------------------------------------------------------------

    \112\ 42 U.S.C. 4011(a).
    \113\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b), 
59.22(a)(3), 60.1(d).
    \114\ See ``Guidelines for Implementing Executive Order 11998, 
Floodplain Management, and Executive Order 13690, Establishing a 
Federal Flood Risk Management Standard and a Process for Further 
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct. 
22, 2015) (providing notice of the availability of the Revised 
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and 
https://www.regulations.gov/document/FEMA-2015-0006-0372 
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
---------------------------------------------------------------------------

    Comment: Two commenters requested FEMA cite the specific and clear 
Congressional authority for each objective and mandate of FFRMS. Both 
commenters noted the President may have the authority to impose 
mandates on Federal projects as cost-saving measures, but regulation of 
private and non-Federal activities within the floodplain was limited to 
those jurisdictions where local communities have imposed upon 
themselves the burden of floodplain regulation as a condition of 
participation in the NFIP. The commenters stated that applying the 
FFRMS to private and non-Federal government entities under other 
regulatory programs was outside FEMA's statutory authority.
    FEMA Response: Please refer to section II.B for a description of 
FEMA's statutory authority to implement grant programs and to require 
its grant recipients to carry out repairs or construction in accordance 
with specific standards. Contrary to the commenter's assertions, this 
rule applies the FFRMS to FEMA funded projects for new construction, 
substantial improvement, and repairs to address substantial damage. It 
does not regulate privately funded activity in the floodplain, it does 
not alter the definition of floodplain under the NFIP, and it does not 
apply

[[Page 56946]]

the FFRMS to any programs other than FEMA's grant programs.
    Comment: One of the commenters stated that FEMA was acting without 
clear statutory authority as implementing the FFRMS fell within the 
scope of a major question because of the standard's aggregate economic 
impacts over time. Two commenters recommended FEMA remove any 
application of FFRMS to private and non-Federal activities covered by 
permitting, loan, or grant-in-aid programs administered by Federal 
agencies except where clear statutory authority has been granted and 
also sever any and all objectives related to regulating floodplain 
activities to protect wetlands. The commenters stated Federal authority 
over wetlands was limited by the Clean Water Act and recent Supreme 
Court rulings, including Sackett v. EPA.\115\
---------------------------------------------------------------------------

    \115\ Sackett v. EPA, 598 U.S. 651 (2023).
---------------------------------------------------------------------------

    FEMA Response: FEMA disagrees the aggregate economic impacts over 
time associated with this rulemaking are a matter of such ``deep 
economic and political significance'' as to constitute a ``major 
question,'' as described by the Supreme Court in West Virginia v. 
EPA.\116\ While FEMA expects that this rule would carry important 
benefits and would ultimately save significant taxpayer dollars, this 
rule is not akin to the rule in West Virginia, where the agency's ``own 
modeling concluded that the rule would entail billions of dollars in 
compliance costs (to be paid in the form of higher energy prices), 
require the retirement of dozens of coal-fired plants, and eliminate 
tens of thousands of jobs across various sectors.'' \117\ This 
rulemaking requires FEMA grant recipients to build a subset of the 
construction projects that FEMA funds to a higher standard in an 
expanded floodplain. There is an increase in the costs associated with 
this more resilient building standard, but that increase is paid 
primarily by FEMA and is ultimately a fraction of what grant recipients 
might already spend using Federal funds to accomplish such 
construction.
---------------------------------------------------------------------------

    \116\ 142 S. Ct. 2587 (2022).
    \117\ Id. at 2604.
---------------------------------------------------------------------------

    Even if the major questions doctrine did apply, there is clear 
statutory authority and longstanding precedent for the rule. FEMA has 
authority to require application of the FFRMS as a condition of funding 
in its grant programs based on the grant programs' authorizing 
statutes. Congress granted FEMA the authority to provide Federal 
assistance through multiple grant programs under the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (Stafford Act),\118\ the 
NFIA,\119\ the Homeland Security Act of 2002,\120\ the Federal Fire 
Prevention and Control Act of 1974,\121\ the Earthquake Hazards 
Reduction Act of 1977,\122\ and various other appropriations acts. 
Under each of these authorities, FEMA may set grant eligibility 
criteria consistent with the respective purposes of such programs and 
FEMA's mission, including to protect Federal investments from the risks 
of further damage.\123\ Under the Stafford Act and the NFIA, which 
authorize the programs that fund the majority of the actions subject to 
the FFRMS, FEMA has general rulemaking authority.\124\ Further, FEMA 
has explicit authority under the Stafford Act to set the minimum 
standards for safe land use and construction standards required in the 
repair or construction of private and public facilities.\125\ Further, 
in the time since Executive Order 11988 was first issued in 1977 and 
FEMA issued its implementing regulations at 44 CFR part 9 in 1979 and 
1980, Congress has amended FEMA's governing authorities multiple times 
without overriding part 9.\126\ Consistent with the approach that FEMA 
has taken for decades, this rule revises part 9 pursuant to FEMA's 
statutory authorities and in line with Executive Order 11988, as 
amended.
---------------------------------------------------------------------------

    \118\ 42 U.S.C. 5121 et seq.
    \119\ 42 U.S.C. 4001 et seq.
    \120\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which 
specifically charges the Administrator with supervising various 
grant programs authorized under the HSA. Such grant programs have 
long been governed by floodplain management regulations at 44 CFR 
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept. 
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal 
awarding agencies to manage and administer Federal awards in a 
manner so as to ensure that Federal funding is expended and 
associated programs are implemented in full accordance with the U.S. 
Constitution, Federal Law, and public policy requirements including, 
but not limited to, those protecting public welfare and the 
environment; and requiring the Federal awarding agency to 
communicate to the non-Federal entity all relevant public policy 
requirements, and incorporate them either directly or by reference 
in the terms and conditions of the Federal award.).
    \121\ 15 U.S.C. 2229 and 2229a.
    \122\ 42 U.S.C. 7701 et seq.
    \123\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority 
over grant funds for construction awards under its Homeland Security 
Grant Program, State Homeland Security Grant Program, Urban Area 
Security Initiative, Operation Stonegarden, Tribal Homeland Security 
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C. 
1182(d)(1) (granting DHS the authority to determine the grant 
requirements for the Intercity Bus Security Grant Program); 6 U.S.C. 
1163(c)(1) (granting FEMA the authority to determine the grant 
requirements for the Intercity Passenger Rail grant program); 46 
U.S.C. 70101 (granting DHS approval authority over grant funds for 
construction awards under the Port Security Grant Program); 6 U.S.C. 
1135(c)(1) (granting DHS the authority to determine the grant 
requirements for the Transit Security Grant Program); 33 U.S.C. 
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum 
eligibility requirements for the Rehabilitation of High Hazard Dam 
Program).
    \124\ See 42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
    \125\ 42 U.S.C. 5165a(a)(1)-(2).
    \126\ See, e.g., Disaster Mitigation Act of 2000, Public Law 
106-390, 114 Stat. 1552 (Oct. 30, 2000); Post-Katrina Emergency 
Management Reform Act of 2006, Public Law 109-295, 120 Stat. 1452 
(Oct. 4, 2006); Sandy Recovery Improvement Act of 2013; Public Law 
113-2, 127 Stat. 47 (Jan. 29, 2013); Disaster Recovery Reform Act of 
2018, Public Law 115-254, 132 Stat. 3448 (Oct. 5, 2018).
---------------------------------------------------------------------------

    Finally, the comments related to wetlands and the Supreme Court's 
decision in Sackett v. EPA are not germane to this rulemaking. FEMA's 
proposed changes to the definition of wetlands within the regulation 
was limited to reorganizing the placement of examples within the 
definition and removing an outdated resource. FEMA's proposed changes 
do not change how the agency makes wetland determinations.

E. Definitions

    FEMA received over 40 specific comments on the proposed rule's 
definitions in Sec.  9.4. Commenters were generally supportive of the 
proposed revisions but sought clarification or offered suggestions to 
enhance the definitions provided in the proposed rule. FEMA has 
carefully reviewed the commenters' suggestions and is not revising the 
NPRM definitions in this final rule but is providing multiple 
clarifications below.
1. General Comments on Definitions
    Comments: Commenters requested additional clarity regarding 
definitions and additional engagement on definitions generally. A 
commenter requested FEMA provide clear definitions and describe 
abbreviations before they are used in the rulemaking, policy, and any 
additional guidance or resources provided. The commenter provided an 
example of the term ``AC floodplain'' used in a graphic without 
definition. Another commenter requested FEMA engage stakeholders from a 
range of relevant backgrounds in the review process to gather varied 
perspectives and ensure that definitions are clear and universally 
understood.
    FEMA Response: FEMA will distribute additional resources to the 
public and SLTT partners after the rule's publication to ensure that 
stakeholders understand what the FFRMS is and how the agency will 
implement the revised part 9. These resources will include additional 
examples to help applicants better understand the FFRMS as they apply 
for FEMA programs. FEMA appreciates the

[[Page 56947]]

commenter's concern and has updated Figure 1 in the FFRMS policy to 
clarify ``AC floodplain'' means ``annual chance floodplain.''
    FEMA engaged stakeholders as part of the development and 
publication of the Revised Guidelines, which contain most of the 
definitions FEMA uses in this rulemaking. Stakeholders also provided 
specific feedback on the definitions in Sec.  9.4 as part of this 
rulemaking effort and FEMA addresses their concerns in this final rule.
2. 0.2PFA
    Comment: A commenter expressed support for the definition of the 
0.2 percent annual chance flood elevation (0.2PFA), agreeing with the 
use of the terminology similar to annual exceedance probability for 
defining flow, floodplains, and water surface elevation in the 
floodplain.
    FEMA Response: FEMA appreciates the commenter's consideration of 
the definition.
3. Agency
    Comment: One commenter requested clarification on how the term 
``agency'' was defined under part 9.
    FEMA Response: FEMA defines ``agency'' in Sec.  9.4 as ``the 
Federal Emergency Management Agency (FEMA).'' FEMA is not changing the 
definition of ``agency'' in this final rule.
4. Critical Action
    Comments: Five commenters asked FEMA to further clarify the 
definition of ``critical action,'' stating the definition was too vague 
and left too much room for interpretation. Commenters asked for a list 
of examples of critical actions to support the definition in Sec.  9.4 
and/or sufficient information to distinguish between critical and non-
critical actions. One commenter asked FEMA to provide examples related 
to the transportation sector and recommended roadways, bridges, and 
culverts not be considered critical actions. One commenter requested a 
process for local representatives to provide input on what constitutes 
critical action/critical facilities.
    FEMA Response: FEMA's definition of ``critical action'' is 
consistent with Executive Order 11988, as amended, through the 1978 
Guidelines and further clarified in the Revised Guidelines. FEMA notes 
the term ``critical action'' is not new but was developed and 
implemented initially with Executive Order 11988 in 1977. The Revised 
Guidelines provide further details on what constitutes a critical 
action. FEMA will leverage the information in the Revised Guidelines 
when providing additional guidance to stakeholders. The determination 
of whether an action to create or extend the useful life of a structure 
or a facility is a critical action is generally made on a case-by-case 
basis consistent with the information found in the Revised Guidelines. 
Local representatives have input on whether a particular action is a 
``critical action'' as part of the agency's 8-step process.
5. Federal Action
    Comment: Two commenters sought clarification on the term ``Federal 
action.'' Commenters sought clarification on what is a ``Federal 
action'' subject to the FFRMS and stated confusion and inconsistency 
could result among different Federal agencies and programs implementing 
the FFRMS. One commenter asked for additional clarification on whether 
specific FEMA programs were subject to the FFRMS. That commenter also 
sought clarification on how the FFRMS would interact with other Federal 
laws and regulations that govern floodplain management, such as the 
NFIP, NEPA, and the Endangered Species Act (ESA).
    FEMA Response: In this rulemaking, FEMA revises Sec.  9.4 to define 
``action subject to the FFRMS'' as ``any action where FEMA funds are 
used for new construction, substantial improvement, or to address 
substantial damage to a structure or facility.'' As explained above, 
the requirements of this rule apply to grants for projects funding the 
new construction, substantial improvement, or repair of substantial 
damage under FEMA programs such as IA, PA, and HMA programs, and grants 
processed by FEMA's GPD.
    Part 9 only applies to FEMA actions. Other Federal agencies will 
implement FFRMS through their own regulations and/or policies. To 
ensure consistency, all Federal agencies will utilize the Revised 
Guidelines in their own FFRMS implementation. Per 44 CFR 9.11(d)(6), no 
action may be taken if it is inconsistent with the NFIP or any more 
restrictive Federal, State, or local floodplain management standards.
    FEMA funding actions are also evaluated pursuant to the NEPA, ESA, 
and other environmental and historic preservation requirements. The 
Federal action will not be approved unless it meets all applicable 
environmental and historic preservation requirements.
6. Floodplain
    Comments: A commenter requested FEMA coordinate with the agency's 
TMAC to ensure the new rule's definition of ``floodplain'' in Sec.  9.4 
accounts for potential changes in the definition and mapping of 
floodplains recommended by the TMAC. Another commenter asked how the 
floodplain would be defined in the FFRMS and if the floodway would be 
considered a regulatory floodplain. The commenter stated it was unclear 
how the expanded horizontal FFRMS floodplain would impact future State 
Department of Transportations' maintenance work in coordination with 
the Federal Highway Administration (FHWA).
    FEMA Response: FEMA appreciates the commenter's concerns. The 
purpose of TMAC is to provide analysis under the NFIA. The requirements 
of Executive Order 11988, as amended, are distinct from TMAC 
recommendations and thus FEMA disagrees with the commenter that 
coordination with TMAC is required to finalize this rule. As explained 
above, the TMAC is a Federal advisory committee established to review 
and make recommendations to FEMA on matters related to the national 
flood mapping program authorized under the Biggert-Waters Flood 
Insurance Reform Act of 2012.\127\ The national flood mapping program 
requires FEMA to review, update, and maintain NFIP rate maps.\128\ 
While the framework FEMA uses in part 9 is distinct from mapping 
recommendations for flood prone areas TMAC made in their recent annual 
report, FEMA believes that the flexibility outlined in 44 CFR 9.7 and 
the practice of using the best available information will allow the 
application of part 9 to adjust to any change made in the mapping 
process should FEMA adopt any of the TMAC recommendations.
---------------------------------------------------------------------------

    \127\ 42 U.S.C. 4101a.
    \128\ 42 U.S.C. 4101b.
---------------------------------------------------------------------------

    As explained in the NPRM in 44 CFR 9.4, FEMA defines the ``Federal 
Flood Risk Management Standard Floodplain'' as the floodplain 
established using one of the approaches described in 44 CFR 9.7(c). The 
floodway and the regulatory floodway are also defined in 44 CFR 9.4 and 
are within the floodplain for purposes of part 9. The requirements of 
this rule will apply to actions funding the new construction, 
substantial improvement, or repair of substantial damage under FEMA 
programs such as IA, PA, and HMA programs, and grants processed by 
FEMA's GPD. Roads that are under the jurisdiction of another Federal 
agency, such as those under the FHWA, are subject to that agency's 
requirements as they generally are ineligible for funding under FEMA's 
grant assistance programs.

[[Page 56948]]

7. Nature-Based Approaches
    While some commenters expressed support for the definition of 
``nature-based approaches'' in the rule, other commenters requested 
specific revisions.
    Comment: One commenter stated the definition of ``nature-based 
approaches'' failed to take into account a design intent to protect or 
restore natural processes; and did not include reference to hybrid 
gray/green solutions that might be required for restoring habitat, 
attenuating floods, and keeping communities safe. The commenter 
suggested a definition closer to the ``nature-based solutions'' 
definition published on FEMA's website. The commenter requested FEMA 
work with other Federal agencies to agree on common definitions for key 
terminology. Further, the commenter recommended that FEMA remove 
language stating that nature-based approaches ``generally, but not 
always, must be maintained in order to reliably provide the intended 
level of service,'' because maintenance requirements are highly 
variable and are also generally necessary to maintain grey 
infrastructure. The commenter stated that ``nature-based solutions 
specifically aim to work with nature (as opposed to grey infrastructure 
solutions that often are designed to control or work against nature 
processes) and therefore can be less susceptible to catastrophic 
failure or repeated maintenance and can require lower maintenance costs 
overall.'' This commenter also requested FEMA include ``green 
infrastructure'' when describing the definition. The commenter 
recommended FEMA include a broader range of ecosystem-based activities 
in the description of natural and nature-based actions, especially 
those more appropriate for larger or more rural floodplains. The 
commenter provided specific scenarios of nature-based approaches.
    FEMA Response: FEMA appreciates the commenter's concerns and 
believes the definition as written is appropriate. The definition is 
consistent with the glossary definition in the Revised Guidelines. The 
Revised Guidelines provide broad guidance in implementing Executive 
Order 11988, as amended and ``offer a common point of reference so that 
each agency can use or amend their procedures as appropriate.'' \129\ 
Consistency with the Revised Guidelines definition helps ensure more 
consistent implementation of nature-based approaches across the Federal 
government and meets the commenter's request for FEMA to utilize common 
terminology with other Federal agencies. Changes such as those proposed 
by the commenter would increase the potential for inconsistency and 
stakeholder confusion working on projects involving multiple Federal 
agencies.
---------------------------------------------------------------------------

    \129\ Revised Guidelines at pg. 13.
---------------------------------------------------------------------------

    FEMA notes that the Revised Guidelines state that nature-based 
approaches can restore natural processes, and the agency does not 
believe the definition excludes either protecting or restoring natural 
processes. For purposes of part 9, nature-based solutions are specific 
to floodplains and wetlands, and the commenter's references to nature-
based solutions on the agency's website reflects the full range of 
natural hazards FEMA programs may mitigate. Regarding maintenance, FEMA 
believes the language is appropriate in the definition as written. The 
use of ``maintenance'' is to differentiate between nature-based 
approaches and natural features. Nature-based approaches are designed 
to mimic natural processes, but they are not wholly naturally 
occurring. As such, they may require some form of maintenance to ensure 
they are performing as intended. In comparison, natural features are 
those characteristics of the environment that are naturally occurring 
and exist in a dynamic equilibrium, so should require little to no 
maintenance in serving their purpose. FEMA understands the commenter's 
concern that ``green infrastructure'' is more expansive than stated in 
the NPRM and plans to provide additional resources that will 
incorporate examples to address some of the specific scenarios raised 
by the commenter. FEMA notes the definition of ``nature-based 
approaches'' states that nature-based approaches are sometimes referred 
to as ``green infrastructure.''
    Comments: Two other commenters requested edits to the definition of 
``nature-based approaches'' to incorporate restoration and conservation 
of natural systems. The commenters stated that such edits would ensure 
all relevant nature-based approaches are adequately considered. Another 
commenter recommended expanding the definition of ``nature-based 
approaches'' by removing the reference to ``green infrastructure'' at 
the beginning of the definition and incorporating the statement 
``Nature-based approaches include green infrastructure practices, as 
well as conservation approaches such as the restoration of wetland and 
floodplain hydrology and other river processes'' into the definition 
while also revising the language regarding maintenance to state such 
approaches can be self-sustaining or need ongoing maintenance.
    FEMA Response: While FEMA appreciates the commenters' concerns to 
include restoration or conservation of naturally occurring systems and 
processes and concerns related to green infrastructure, FEMA's 
definitions are consistent with the glossary definition in the Revised 
Guidelines and the changes proposed by the commenters could result in 
inconsistencies including inconsistent implementation across other 
Federal agencies. As explained above, the Revised Guidelines help 
ensure key terminology is consistent across Federal agencies 
implementing FFRMS. The Revised Guidelines state that nature-based 
approaches can restore natural processes, and FEMA does not believe the 
definition excludes restoring or conserving natural systems. FEMA will 
provide additional resources with additional examples of nature-based 
approaches including more information on green infrastructure to 
address the commenters' concerns. FEMA will also coordinate with other 
Federal agencies regarding the use of nature-based solutions as part of 
the FFRMS implementation.
    FEMA appreciates the commenter's suggestion to specifically 
reference ``the restoration of wetland and floodplain hydrology and 
other river processes'' in the definition of ``nature-based 
approaches,'' but disagrees that such an edit is needed to the 
definition to address the commenter's concerns.
    FEMA's longstanding requirements in 44 CFR 9.11 outline the 
agency's requirements to restore and preserve the natural and 
beneficial values served by floodplains and wetlands. This requirement 
to restore and preserve the values served by floodplains and wetlands, 
see, e.g., 44 CFR 9.11(b)(3) & (e), applies to all actions located 
within a floodplain or wetland or that affect a floodplain or wetland, 
including actions that use nature-based approaches.
    As explained above, the use of ``maintenance'' is to differentiate 
between nature-based approaches and natural features and FEMA does not 
believe the changes suggested by the commenter are appropriate. Nature-
based approaches are designed to mimic natural processes, but they are 
not wholly naturally occurring. As such, they may require some form of 
maintenance to ensure they are performing as intended. In comparison, 
natural features are those characteristics of the environment that are 
naturally occurring and exist in a dynamic

[[Page 56949]]

equilibrium, so should require little to no maintenance in serving 
their purpose. FEMA understands the commenter's concern that ``green 
infrastructure'' is more expansive than stated in the NPRM and plans to 
provide additional resources that will incorporate examples to address 
some of the specific scenarios raised by the commenter. FEMA notes the 
definition of ``nature-based approaches'' states that nature-based 
approaches are sometimes referred to as ``green infrastructure'' and 
the proposed changes merely restate language already incorporated into 
the definition.
    Comment: One commenter restated concerns from a 2016 NPRM comment 
that the current definition listed ``green roofs'' or ``downspout 
disconnection'' as examples of nature-based approaches, and recommended 
FEMA provide more applicable examples of nature-based approaches, 
including ``property acquisitions and relocations;'' ``dam removal;'' 
``levee notching, setbacks, or removal;'' and ``stream crossing 
upgrades.'' The commenter also recommended FEMA expand the definition 
of nature-based approaches to encompass the restoration and 
conservation of natural features, providing added emphasis on the use 
of actions to bolster natural flood risk and water quality management 
services.
    FEMA Response: FEMA's definition of ``nature-based approaches'' in 
the final rule, like the definition in the NPRM, does not contain 
``green roofs'' or ``downspout disconnection.'' FEMA's definition is 
consistent with the Revised Guidelines glossary definition and, as 
explained above, the changes proposed by the commenter could result in 
inconsistencies including inconsistent implementation across other 
Federal agencies. While FEMA appreciates the commenters' concerns to 
include restoration or conservation of naturally occurring systems and 
processes and concerns related to green infrastructure, the Revised 
Guidelines help ensure key terminology is consistent across Federal 
agencies implementing FFRMS. Although the Revised Guidelines state that 
nature-based approaches can restore natural processes, FEMA does not 
believe the definition excludes either protecting or restoring natural 
processes.
    FEMA referred to green roofs and downspout disconnection in the 
preamble to the NPRM as potential examples of green infrastructure, but 
not as part of the proposed regulatory definition. See 88 FR at 67890. 
As part of implementing this final rule, FEMA will provide additional 
resources with additional examples to address the commenter's concerns 
as explained above.
    Comment: One commenter asked how FEMA defines natural systems and 
ecosystem processes.
    FEMA Response: FEMA defined ``nature-based approaches'' and 
``natural features'' in proposed Sec.  9.4. FEMA believes those 
definitions are sufficient and the terms the commenter used are 
generally accepted terms found in Executive Order 11988, as amended, 
that do not require additional definition in this final rule.
8. Natural and Beneficial Values of Floodplains and Wetlands and 
Natural Features
    FEMA received three comments on the definitions of ``natural and 
beneficial values of floodplains and wetlands'' and ``natural 
features.''
    Comment: One commenter requested FEMA incorporate more explicit 
references to biodiversity, ecosystem functioning, and natural values 
into the regulation and requested ``habitat connectivity'' be added to 
the definition of ``natural and beneficial values of floodplains and 
wetlands'' as an example under ``Living Resource Values.''
    FEMA Response: FEMA respectfully declines the commenter's request, 
as the agency believes the concept habitat connectivity is adequately 
addressed under Living Resource Values through the changes made in this 
final rule. Specifically, the final rule describes Living Resource 
Values as ``providing habitats and enhancing biodiversity for fish, 
wildlife, and plant resources.'' This language adequately encompasses 
habitat connectivity, and no edits are required to the final rule.
    Comment: A commenter requested FEMA include ``functions'' in 
addition to values when referring to protecting or restoring 
floodplains and wetlands to read ``the beneficial functions and values 
of floodplains and wetlands.''
    FEMA Response: FEMA's definition of ``natural and beneficial values 
of floodplains and wetlands'' incorporates functions and FEMA does not 
believe additional edits are required.
    Comment: One commenter supported the changes proposed to the 
definitions of ``natural and beneficial values of floodplains and 
wetlands,'' and ``wetlands'' and additional definitions for ``nature-
based approaches'' and ``natural features'' and requested FEMA develop 
post-regulatory guidance on functional floodplains and wetlands and 
nature-based solutions.
    FEMA Response: FEMA agrees the changes to the definitions of 
``natural and beneficial values of floodplains and wetlands'' and 
``wetlands'' and the addition of definitions for ``nature-based 
approaches'' and ``natural features'' are helpful features of the rule. 
FEMA will distribute additional resources to SLTT partners and the 
public identifying what the FFRMS is, and how the agency will further 
implement the Executive Orders and part 9.
9. New Construction
    Comment: One commenter recommended the definition of ``new 
construction'' include ``allowed new construction'' associated with 
systems that must be located in the floodplain for supplementing water 
supply. The commenter requested the rule require consideration of 
specific stormwater runoff requirements for construction that must be 
completed in the floodplain and that FEMA recognize managed aquifer 
recharge (MAR)-related activities might be subject to other State and/
or Federal regulation.
    FEMA Response: The definition of ``new construction'' in part 9 
must be broad in nature to support the various types of projects and 
activities FEMA may perform or fund. FEMA specifically incorporated 
examples in the definition of ``new construction'' to relate to typical 
FEMA actions, but those examples are not exhaustive. Under the 8-step 
decision-making process, FEMA identifies and evaluates practicable 
alternatives. If there is no practicable alternative outside of the 
floodplain, such as for functionally dependent uses,\130\ the action 
may be carried out in the floodplain. The types of actions described by 
the commenter (managed aquifer recharge floodwater storage retention, 
spillways, injection wells and other built systems that must be located 
in the floodplain for their intended purpose of supplementing water 
supply), would be determined to be functionally dependent uses with 
likely no alternative outside of the floodplain. FEMA believes no 
changes are required to the regulation language, as those types of 
actions would be allowable subject to the application of the FFRMS and 
the minimization requirements outlined in 44 CFR 9.11. FEMA notes some 
agency actions will also be subject to other Federal, State, Tribal, 
territorial, and/or local requirements and FEMA addresses this issue in 
the FFRMS policy.
---------------------------------------------------------------------------

    \130\ Functionally dependent use means those actions which 
cannot perform their intended function unless they are located in or 
in close proximity to water. See 44 CFR 9.4.

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

[[Page 56950]]

10. Practicable
    Comments: Two commenters were supportive of the definition of 
``practicable.''
    FEMA Response: FEMA agrees with the commenters that the updated 
definition of ``practicable'' in Sec.  9.4 ensures nature-based 
approaches are considered as practicable alternatives consistent with 
Executive Order 11988, as amended.
    Comment: One commenter stated the definition of ``practicable'' was 
extremely vague and might not provide sufficient guidance to ensure 
meaningful comparison of alternatives. Recognizing the agency's need 
for a broad definition to account for differences in situations, the 
commenter noted the definition did not provide much guidance to 
determine what is truly ``practicable,'' as opposed to merely 
expedient. The commenter requested FEMA require consideration of long-
term environmental, community, and economic benefits and costs of an 
alternative, to ensure practicability determinations were not skewed 
towards grey infrastructure or in-floodplain actions. The commenter 
wrote those actions appeared cheaper or more convenient in the short-
term but carried greater long-term adverse effects, risks, and/or 
costs.
    FEMA Response: FEMA did not make significant changes to the 
definition of ``practicable.'' The changes made in the NPRM and 
finalized in this rule add an agency authorities factor to clarify the 
agency's statutory and regulatory authorities may also limit FEMA's 
actions. These changes also updated the factors for consistency with 
the Revised Guidelines. FEMA does not believe additional changes are 
required to the definition of ``practicable'' as the factors listed are 
not all inclusive. The regulatory text in Sec.  9.9 also provides 
examples and FEMA will provide additional examples in resources to 
SLTTs and the public to further clarify as appropriate.
11. Restore
    Comment: One comment requested the agency provide examples of what 
``natural functions'' of the floodplain means and specifically include 
``wildlife habitat and connectivity, carbon sequestration, and water 
quality improvement.''
    FEMA Response: FEMA's definition of ``restore'' in Sec.  9.4 does 
not require the revisions requested. FEMA's definition of the ``natural 
and beneficial values of floodplains and wetlands'' provides examples 
of what natural functions of the floodplain mean and additional edits 
are not required to address the commenter's concerns. Specifically, the 
definition provides some examples but is not all inclusive. FEMA can 
provide additional examples in resources to SLTTs and the public to 
further clarify as appropriate.
12. Structures and Facilities
    Comment: One commenter recommended linear transportation structures 
not fall under the definition of ``structures.''
    FEMA Response: FEMA defines both ``structures'' and ``facilities'' 
in Sec.  9.4 and the agency believes these definitions are sufficiently 
clear. In the FFRMS policy, FEMA addresses both structures and 
facilities and how the agency will apply FFRMS to each. See section G 
of the FFRMS policy for more guidance on facilities. FEMA edited the 
FFRMS Policy accompanying this final rule to further clarify that 
section G.2 applies to ``facilities.'' Linear transportation structures 
fall under the definition of ``facilities'' for purposes of this part.
13. Wetlands
    While one commenter wrote in support of the revised definition of 
``wetlands,'' three other commenters requested revision to the 
definition.
    Comment: One commenter stated the use of the United States Fish and 
Wildlife Service (USFWS) 's wetlands definition was problematic, 
stating in their experience, USFWS declined to engage on projects 
unless the projects involved species protected by the Endangered 
Species Act (ESA) and their habitat. The commenter noted water projects 
and developments involve regulation by the U.S. Army Corps of Engineers 
(USACE) more often than with USFWS, and recommended FEMA revise the 
definition of ``wetlands'' to use the USACE's long-standing wetland 
definition.
    FEMA Response: FEMA appreciates the commenter's suggestion and 
declines to change the definition as the agency believes the reference 
to USFWS is more appropriate than to USACE's definition. FEMA's 
definition is consistent with the definition of ``wetlands'' in 
Executive Order 11990 and the agency is implementing that Executive 
Order with this regulation. FEMA believes changes to this definition 
may result in conflating the implementation of Executive Order 11990 
with the Clean Water Act. While the commenter is correct that the USACE 
definition focuses on flood attenuation or mitigation, FEMA's part 9 
implementation goes beyond those considerations for wetlands. FEMA also 
notes the agency performs Section 7 consultation with USFWS under ESA 
for actions that affect protected species or critical habitat.
    Comment: One commenter recommended FEMA retain the reference to the 
specific publication provided in the definition of ``wetlands.'' The 
commenter stated the publication provided extensive examples and 
further clarification of what should be considered wetlands and was 
still used in the definition by the USFWS. The commenter requested the 
definition be updated to the correct year of publication in the final 
rule.
    FEMA Response: FEMA's definition is consistent with the definition 
of ``wetlands'' in Executive Order 11990, and the agency is 
implementing that Executive Order with this regulation. FEMA believes 
deleting the reference to a specific publication in the regulations 
will not result in a less specific definition as the commenter states. 
Eliminating references to specific publications helps reduce the 
potential for the regulations to be outdated if the publication is 
updated or replaced. As the commenter pointed out, the current 
regulatory text does not reference the correct year of the publication 
and the final rule will eliminate confusion around this point. FEMA 
still anticipates remaining consistent with the USFWS definition for 
purposes of part 9.
    Comment: One commenter recommended the final rule specify whether 
artificially induced and/or isolated wetlands were included and add 
clearer agency expectations for subsections under the agency's FFRMS 
policy, particularly those involving wetlands.
    FEMA Response: FEMA has not changed how the 8-step process applies 
to wetlands and does not intend to as part of FFRMS implementation in 
this rulemaking. FEMA's definition is consistent with the definition of 
``wetlands'' in Executive Order 11990 and the agency is implementing 
that Executive Order with this regulation. FEMA believes the commenter 
is conflating the implementation of Executive Order 11990 with the 
Clean Water Act and FEMA's part 9 implementation goes beyond those 
considerations for wetlands.
14. Additional Definitions Requested
    In addition to the new and revised definitions provided in the 
NPRM, commenters requested FEMA add definitions to the final rule.
    Comment: One commenter stated the need for clearer definitions was 
paramount to avoiding ambiguity and ensuring a shared understanding of 
key

[[Page 56951]]

terms. The commenter referenced the Climate-Informed Science Approach 
(CISA) as a term lacking a definition in the rule as an example of the 
need for more clarity.
    FEMA Response: FEMA appreciates the commenter's concerns but 
changes to the final rule are not required to resolve those concerns. 
FEMA's explanation of the Climate-Informed Science Approach is 
consistent with Executive Order 11988, as amended, and the Revised 
Guidelines. Rather than providing specific definitions in regulatory 
text, FEMA describes each approach in Sec.  9.7(c) and in the FFRMS 
policy. FEMA believes these explanations are sufficiently clear and, 
because they are consistent with the Executive Order and Revised 
Guidelines, will not result in ambiguity.
    Comment: One commenter recommended adding a definition of 
``development'' for consistency with the NFIP at 44 CFR part 59. The 
commenter also recommended adding a definition of ``non-critical 
actions'' to help define structures and facilities that clearly do not 
fall under the critical action standard and reduce misunderstandings.
    FEMA Response: FEMA defines ``support of floodplain and wetland 
development'' in Sec.  9.4 and a definition of ``development'' is 
incorporated into that definition. In the FFRMS policy, FEMA clarifies 
what constitutes a non-critical action as any activity that does not 
meet the definition of critical action. FEMA does not believe a 
specific definition in the regulatory text is necessary given the 
definition of ``critical action'' already provided in Sec.  9.4.

F. FFRMS Applicability

    Commenters requested clarification on the applicability of FFRMS 
generally as well as to specific types of actions.
1. Generally
    Comments: Two commenters sought clarification on the Federal 
actions that are subject to FFRMS. Both commenters stated that the term 
``action subject to the FFRMS'' could cause misinterpretation or 
confusion among different Federal agencies implementing the FFRMS. 
Another commenter asked whether the regulation and FFRMS policy would 
affect only new construction funded by FEMA. The commenter recommended 
a clarification to help States understand where FEMA's regulations 
implementing the FFRMS apply and whether FFRMS applied to State DOT 
projects funded through FHWA. The commenter also recommended FEMA 
clarify how the FFRMS applied to FEMA-funded, non-FEMA but still 
Federally-funded, and State-funded activities.
    FEMA Response: FEMA defines ``action subject to the FFRMS'' as 
``any action where FEMA funds are used for new construction, 
substantial improvement, or to address substantial damage to a 
structure or facility,'' consistent with Executive Order 11988, as 
amended, and the Revised Guidelines. FEMA believes this definition is 
sufficiently clear. As explained in the preamble to the NPRM, 44 CFR 
part 9 applies to FEMA actions. As explained above, the requirements of 
this rule apply to grants funding the new construction, substantial 
improvement, or repair of substantial damage under FEMA programs such 
as IA, PA, and HMA programs, and grants processed by FEMA's GPD 
(involving grants for preparedness activities). All Federal agencies 
will utilize the Revised Guidelines for their own FFRMS implementation. 
Roads that are under the jurisdiction of another Federal agency, such 
as those under the FHWA, are subject to that agency's requirements as 
they generally are ineligible for funding under FEMA's grant assistance 
programs.
    As explained in Sec.  9.5(a)(3), FEMA will apply FFRMS only to new 
actions for which assistance is made available pursuant to declarations 
under the Stafford Act that are commenced on or after the effective 
date of the final rule, and new actions for which assistance is made 
available pursuant to notices of funding opportunity that publish on or 
after the effective date of the final rule. Ongoing projects will not 
be impacted by this final rule.\131\
---------------------------------------------------------------------------

    \131\ Note that FEMA first partially implemented the FFRMS by 
policy with respect to covered projects in existing floodplains in 
its Public Assistance and Hazard Mitigation Assistance programs. See 
FEMA Policy 104-22-003, ``Partial Implementation of the Federal 
Flood Risk Management Standard for Public Assistance (Interim),'' 
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Program,'' Dec. 
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA 
actions may be subject to these partial implementation policies; 
however, those actions would not be subject to this final rule or 
policy.
---------------------------------------------------------------------------

    Comment: A commenter requested FEMA clearly define how Federally 
funded expansions, renovations, rebuild, rehabilitations and similar 
activities would be impacted by the FFRMS. The commenter noted many 
infrastructure projects are not static structures, but rather 
periodically require rehabilitation, renovation, and/or expansion and 
thus would include a combination of rehabilitation of existing 
construction, modification of existing infrastructure, and entirely new 
infrastructure elements that would be combined during a project to 
create the ``new'' final structure and/or system. The commenter stated 
that FFRMS seemed to apply only to new structures that can be sited or 
elevated without moving or damaging existing construction and requested 
confirmation of that understanding. Another commenter commended FEMA's 
proposed policy provisions for identifying actions that might be 
subject to determinations of substantial damage or substantial 
improvement.
    FEMA Response: Part 9 does not apply only to new structures, and 
FEMA believes the rule and FFRMS policy are sufficiently clear on this 
point. As stated above, FEMA defines ``action subject to the FFRMS'' as 
``any action where FEMA funds are used for new construction, 
substantial improvement, or to address substantial damage to a 
structure or facility,'' consistent with Executive Order 11988, as 
amended, and the Revised Guidelines.
    In Sec.  9.4, FEMA defines ``new construction'' in this final rule 
as ``the construction of a new structure or facility or the replacement 
of a structure or facility which has been totally destroyed. New 
construction includes permanent installation of temporary housing units 
because even though such housing may initially have been planned to be 
temporary, when it is permanently installed, it becomes a permanent 
housing solution for survivors. New construction in wetlands includes 
draining, dredging, channelizing, filling, diking, impounding, and 
related activities.'' Also in Sec.  9.4, FEMA further defines 
``substantial improvement'' as any repair, reconstruction or other 
improvement of a structure or facility, which has been damaged in 
excess of, or the cost of which equals or exceeds, 50 percent of the 
pre-disaster market value of the structure or replacement cost of the 
facility (including all ``public facilities'' as defined in the 
Stafford Act) (1) before the repair or improvement is started, or (2) 
if the structure or facility has been damaged and is proposed to be 
restored. Substantial improvement includes work to address substantial 
damage to a structure or facility. As it related to the commenter's 
stated concern, if a facility is an essential link in a larger system, 
the percentage of damage will be based on the cost of repairing the 
damaged facility relative to

[[Page 56952]]

the replacement cost of the portion of the system which is 
operationally dependent on the facility. The term ``substantial 
improvement'' does not include any alteration of a structure or 
facility listed on the National Register of Historic Places or a State 
Inventory of Historic Places. Where an action falls under one of the 
definitions above, it would be considered an action subject to FFRMS.
    The revisions to part 9 do not change FEMA's long-standing 
requirement as part of implementing Executive Order 11988, as amended, 
to only perform or fund actions within or affecting floodplains if 
those actions are the only practicable alternative. Through the 8-step 
process, FEMA considers alternative locations, alternative actions, 
nature-based solutions, and the no action alternative under the 
practicability analysis. If there is no practicable alternative, FEMA 
will perform or fund the action and will minimize any adverse impacts 
when doing so.
2. FEMA Specific Programs
    Commenters also commented on the applicability of FFRMS to specific 
FEMA programs.
    Comments: Some commenters stated support for FEMA's policy 
regarding FFRMS applicability to temporary and permanent housing. One 
commenter requested FEMA give careful consideration to potentially 
unintended consequences of greatly expanded requirements for victims of 
a catastrophic disaster in need of emergency federal disaster 
assistance. The commenter cited a study related to the impacts of 
Hurricane Ian and discussed how the flood extent in many areas was 
approximated by the Special Flood Hazard Area (SFHA) boundaries, noting 
without constraints in development in the SFHA, flood damages for the 
area studied would have skyrocketed. Another commenter expressed 
concern that the proposed rule could increase local costs and delay 
affordable housing projects. The commenter requested FEMA consider ways 
to advance affordable housing projects, such as through expansion of 
its ``Housing Mitigation Assistance'' grants and requested the agency 
make accommodations for such projects to support a more expeditious 
regulatory process.
    FEMA Response: FEMA appreciates the commenter's interest in the 
agency's Individuals and Households Program. FEMA's revisions in Sec.  
9.13 reflect the agency's consideration of the need for disaster 
survivors to quickly recover, while also addressing the need for more 
resilient housing. FEMA notes this rulemaking will not expand the SFHA 
for NFIP purposes nor does it apply to a local community's permitting 
processes under the NFIP's floodplain management regulations. Those 
regulations are found at 44 CFR part 59 et seq. FEMA notes the agency 
does not have ``Housing Mitigation Assistance'' grants, but where FEMA 
provides funding for housing, the agency will consider social concerns 
and economic aspects as part of the practicability analysis in the 8-
step process.
    Comments: Multiple commenters referenced the NFIP and FFRMS 
applicability. One commenter stated that FEMA only applies the 8-step 
process programmatically to the NFIP as a whole. The commenter further 
noted the FFRMS would only apply to new construction or substantial 
improvement to existing structures or facilities that receive FEMA 
funding. The commenter stated support for exempting all privately 
funded activities from the FFRMS as those activities were beyond the 
scope of FEMA's authority and would create challenges in determining 
the geographic scope of the FFRMS defined floodplain and increased 
construction costs that would negatively impact housing affordability.
    Another commenter wrote asking if the FFRMS policy would impact 
where new flood insurance policies could be issued. The commenter 
recommended FEMA consider coordinating with other Federal agencies and 
expanding the Coastal Barrier Resources Act (CBRA) and/or identifying 
additional areas where new flood insurance policies could not be issued 
based on FFRMS approaches.
    A third commenter wrote the work needed to restore floodplain 
connectivity should have a streamlined regulatory process and 
additional financial and technical support to meet regulatory burdens. 
The commenter stated a fundamental tenet of the NFIP was to discourage 
increases in base flood elevation from ``traditional development,'' 
whereas floodplain restoration projects are intended to increase the 
base flood elevation in areas where it is safe and socially acceptable 
to do so. The commenter stated floodplain restoration work was urgently 
needed in many flood-prone areas, but the NFIP requirements hindered 
federal investments in floodplain restoration work. The commenter 
stated that regulatory reforms are needed to ensure Federal restoration 
dollars could be leveraged to help reduce flood risks and damages.
    FEMA Response: FEMA agrees with the commenter that privately funded 
activities are not subject to this rule. This rulemaking is not 
regulating privately funded action; instead, this rulemaking applies to 
actions subject to the FFRMS, i.e., Federally funded projects for new 
construction, substantial improvement, and repairs to address 
substantial damage. For the purposes of regulating private activities, 
the NFIP's floodplain management standards will continue to generally 
apply in NFIP participating communities.\132\ The commenter is also 
correct that FEMA applies part 9 programmatically to the NFIP.\133\ 
Notwithstanding the programmatic application of part 9 to the NFIP, the 
expanded floodplain established under this rule has no impact on where 
new flood insurance policies may be issued (including community 
eligibility for the NFIP participation and individual premiums) because 
the expanded floodplain only applies to actions subject to the FFRMS.
---------------------------------------------------------------------------

    \132\ The NFIP's floodplain management standards are generally 
found at 44 CFR 60.3. There are variances and exceptions from the 
standards written into 60.3. Additionally, some communities have 
higher standards above the NFIP's floodplain management minimum 
requirements.
    \133\ A comprehensive list of FEMA programs to which Part 9 does 
not apply appears at 44 CFR 9.5. The exemption for actions under the 
NFIP is located at 44 CFR 9.5(f).
---------------------------------------------------------------------------

    In short, part 9 does not apply to the issuance of flood insurance 
policies. This rule and accompanying policy will have no effect on 
where new flood insurance policies may be issued. FEMA notes that only 
Congress can expand CBRA, and USFWS has primary authority for the 
implementation of CBRA. While FEMA appreciates the commenter's concerns 
regarding floodplain restoration, regulatory reforms to the NFIP 
suggested by the commenter are beyond the scope of this rulemaking.
3. Facilities
    Four commenters had questions regarding the applicability of the 
final rule and FFRMS policy to facilities.
    Comment: A commenter recommended FEMA clarify special 
considerations for infrastructure projects by providing more 
information and guidance on how to implement FFRMS for ``facilities.'' 
The commenter stated essential facilities like roadways, bridges, and 
utilities might be vulnerable to flood damage and required even more 
attention, but the rule was largely silent as to how FFRMS applied to 
these projects.
    The same commenter wrote of their experience with agencies 
struggling to adequately assess relevant flood risks when evaluating 
vital facilities and

[[Page 56953]]

recommended incorporating language into Steps 1 and 5 of the 8-step 
process, clarifying appropriate considerations and methods to apply the 
FFRMS to facilities. The commenter requested FEMA set forth factors to 
consider when defining the FFRMS floodplain for facilities (such as 
considering a larger project area and vulnerability of nearby assets 
that could be affected) to encourage better, more informed decisions. 
The commenter also recommended FEMA revise Sec.  9.11 to clarify that 
although elevation is not universally required for facilities, 
mitigation measures for facilities subject to the FFRMS must be 
designed to be resilient to the FFRMS flood elevation.
    Another commenter encouraged FEMA to provide more information and 
guidance in the final rule on implementing the FFRMS for facilities. 
The commenter stated that most facilities would likely require 
different implementation considerations and standards than those 
defined in the rule for structures. The commenter stated that elevation 
may not be an appropriate means to improve or achieve resilience for 
facilities and requested that the final rule and related guidance 
provide variables to consider, which could help define appropriate 
resilience measures in addition to or in place of elevation.
    FEMA Response: FEMA appreciates the commenter's references to 
challenges with assessing relevant flood risks for vital facilities and 
infrastructure. As the commenter notes, several factors must be 
considered when implementing the FFRMS for facilities. FEMA believes 
that the agency's 8-step process and implementing policy account for 
the specific concerns raised in the examples provided. The agency's 
policy reflects a preference for using the CISA that considers sea 
level rise and FEMA's practicability analysis incorporates social 
concerns and economic aspects into the 8-step process. FEMA's revisions 
to part 9 reflect consideration of the type and criticality of the 
action involved, the availability and actionability of the data, and 
equity concerns in the implementation of Executive Order 11988, as 
amended. FEMA also has an agency-wide initiative focused on reducing 
barriers and increasing opportunities so that all people, including 
those from vulnerable and underserved communities, can get help when 
they need it.\134\Additionally, FEMA reviews all proposed FEMA-funded 
actions for potential disproportionate and adverse human health and 
environmental effects on communities with environmental justice 
concerns using a standardized environmental justice compliance review 
process.
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    \134\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    For the reasons described below, FEMA's current proposed FFRMS 
policy uses the FFRMS flood elevation and corresponding floodplain to 
establish the minimum level to which a structure or facility must be 
resilient. For facility projects that are subject to the FFRMS, the 
FFRMS flood elevation represents the magnitude of flooding that must be 
considered in incorporating flood resilient design features into 
project designs. This approach allows the FFRMS to be integrated as one 
element of project-specific comprehensive design methods and leaves 
open the possibility of more prescriptive design requirements as 
infrastructure design methods improve, better incorporating 
consideration of continually changing hazard conditions.
    Due to the vast diversity of facilities, the highly project-
specific nature of facilities projects, and numerous options for making 
them resilient, infrastructure standards (in terms of narrowly scoped 
specifications) to reduce risk from climate change and future 
conditions currently do not exist on a national level. This lack of 
established standards, and the long timeline necessary to develop them, 
requires consideration of less prescriptive approaches. In the absence 
of such standards, Federal agencies that oversee construction of 
infrastructure projects such as the FHWA and USACE apply project-
specific risk assessment and adaptive management approaches, which 
generally require data collection, detailed studies, benefit-cost 
analyses, and consideration of various alternatives, adaptation, and 
mitigation measures.\135\
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    \135\ See, e.g., Federal Highway Administration Hydraulic 
Engineering Circular No. 17, 2nd Ed: Highways in the River 
Environment--Floodplains, Extreme Events, Risk, and Resilience 2016, 
available at https://www.fhwa.dot.gov/engineering/hydraulics/library_arc.cfm?pub_number=2&id=162 (last accessed Jan. 24, 2024), 
Federal Highway Administration Hydraulic Engineering Circular No. 
25, 2nd Ed: Highways in the Coastal Environment October 2014, 
available at https://www.fhwa.dot.gov/engineering/hydraulics/pubs/nhi14006/nhi14006.pdf (last accessed March 28, 2024), US Army Corps 
of Engineers Engineering and Construction Bulletin 2018-14: Guidance 
for Incorporating Climate Change Impacts to Inland Hydrology in 
Civil Works Studies, Designs, and Projects, available at https://wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2018-14 (last accessed Jan. 24, 2024), and US Army Corps of 
Engineers Engineer Regulation No. 1100-2-8162: Incorporating Sea 
Level Change in Civil Works Programs, June 2019, available at 
https://www.publications.usace.army.mil/USACE-Publications/Engineer-Regulations/udt_43546_param_orderby/Pub_x0020_Number/udt_43546_param_direction/descending/?udt_43546_param_page=3 (last 
accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA already incorporates many of these approaches into its grant 
requirements. FEMA Recovery Interim Policy 104-009-11 Version 2.0, 
``Consensus-Based Codes, Specifications and Standards for Public 
Assistance'' (December 20, 2019) requires ``application of the latest 
nationwide consensus-based codes, specifications and standards that 
incorporate hazard resistance for PA funded projects,'' including 
buildings, electric power, roads, bridges, potable water, and 
wastewater.\136\ Appendix A of the policy includes an extensive list of 
risk assessment and adaptive management methods which applicants are 
required to use ``as the minimum design criteria for eligible 
projects.'' Eligibility for Hazard Mitigation Assistance funding 
requires SLTT partners to have up-to-date hazard mitigation plans, 
which incorporate community-wide risk assessment and adaptive 
management approaches applicable to facilities or linear 
infrastructure.
---------------------------------------------------------------------------

    \136\ https://www.fema.gov/sites/default/files/2020-05/DRRA1235b_Consensus_BasedCodes_Specifications_and_Standards_for_Public_Assistance122019.pdf (last accessed Apr. 2, 2024).
---------------------------------------------------------------------------

    Further, FEMA does not believe changes to the final rule are 
required as the regulation applies the 8-step process to any action, as 
defined in 44 CFR 9.4, which includes facilities. In the 8-step 
process, FEMA considers not just whether proposed actions would be in a 
floodplain or wetland, but also whether the proposed action would 
affect a floodplain or wetland. FEMA has routinely applied Steps 1 and 
5 to facilities. FEMA also applies Step 4, which identifies impacts of 
a proposed action at and beyond the proposed action location. FEMA will 
distribute additional resources for the public and SLTT partners to 
help identify what the FFRMS is, and how the agency will implement the 
Executive Orders. These resources will help applicants better 
understand the FFRMS as they apply for FEMA programs.
    Section G.2. of FEMA's FFRMS policy discusses flood risk 
minimization for facilities. FEMA's FFRMS policy uses the FFRMS flood 
elevation and corresponding floodplain to establish the minimum level 
to which a structure or facility must be resilient. For facilities 
projects that are subject to the FFRMS, the FFRMS flood elevation 
represents the magnitude of flooding that must be considered in 
incorporating flood resilient design features into facility project 
designs.

[[Page 56954]]

This approach allows the FFRMS to be integrated as one element of 
project-specific comprehensive design methods, and leaves open the 
possibility of more prescriptive design requirements as infrastructure 
design methods improve, better incorporating consideration of 
continually changing hazard conditions.
    FEMA further believes that revising the text of Sec.  9.11 to 
clarify that mitigation measures for facilities subject to FFRMS must 
be designed to be resilient to the FFRMS flood elevation, as the 
commenter requested, is not necessary. As the commenter noted, this 
point is made in the FFRMS policy, and FEMA does not believe changes to 
the regulatory text are required to achieve the FFRMS resilience.
    Comment: One commenter raised several questions regarding FFRMS 
implementation and facilities. The commenter stated that building 
transportation infrastructure to survive extreme events is a good 
investment, but the FFRMS is overly conservative and based on risk of 
low probability. The commenter asked about the applicability of part 9 
and the FFRMS to a range of potential actions from linear 
transportation structures to roadways, bridges, and culverts and raised 
concerns with how FFRMS application to these types of actions might 
raise conflicts with other Federal, State, or local agencies. The 
commenter also stated concerns about elevating facilities and provided 
an example of where the FFRMS would elevate a bridge to a height 
greater than the flood-prone height of the connecting roads. The 
commenter recommended FEMA clarify roadways and associated bridges and 
culverts were not required to perform an alternatives analysis for 
their location in a floodplain.
    FEMA Response: FEMA appreciates the commenter's concerns regarding 
the applicability of FFRMS and part 9 to specific infrastructure 
projects. FEMA defines both ``structures'' and ``facilities'' in Sec.  
9.4 and the agency believes these definitions are sufficiently clear to 
explain FFRMS and part 9 applicability to specific actions. Executive 
Order, 11988, as amended, requires both structures and facilities be 
resilient against current and future flood hazards. FEMA believes that, 
as described by the commenter, roadways, bridges, culverts, and linear 
transportation structures would fall under the definition of 
``facilities'' for this part and thus would not necessarily be exempt 
from part 9.
    As explained above, FEMA defines ``action subject to the FFRMS'' as 
``any action where FEMA funds are used for new construction, 
substantial improvement, or to address substantial damage to a 
structure or facility.'' The FFRMS applies to grants for projects 
funding the new construction, substantial improvement, or repair of 
substantial damage under FEMA programs such as IA, PA, and HMA 
programs, and grants processed by FEMA's GPD. FEMA does not fund 
repairs or improvements to Federal-aid roads, and this rulemaking would 
not be applicable to those roads. Rather, the FHWA regulations would 
govern those actions. Where FEMA may provide funding, FEMA's FFRMS 
policy provides details on how FEMA will coordinate with other agencies 
when implementing actions in the same area as another Federal agency. 
See FFRMS policy Section H, page 9. When coordinating with other 
Federal agencies, FEMA generally defaults to the FFRMS policy approach 
in FEMA's FFRMS policy, as appropriate. Where FEMA provides funding for 
these activities, FFRMS applies to improve resilience to facilities 
against both current and future flood risks.
    In the FFRMS policy, FEMA addresses both structures and facilities 
and how the agency will apply FFRMS to each. See section G of the FFRMS 
policy for more guidance on facilities. Note FEMA edited the FFRMS 
policy accompanying this final rule to further clarify that section G.2 
applies to ``facilities,'' by using the term ``Facilities'' instead of 
the term ``Non-Structure Facilities.''
    Further, Sec.  9.11(d)(6) states when FEMA is providing funding, a 
more restrictive Federal, State, or local floodplain management 
standard will be applied. Section G.2 of FEMA's FFRMS policy further 
discusses flood risk minimization for facilities and clarifies that 
FEMA would also allow methods other than elevation to be used to 
improve resilience against flooding up to the flood elevation of the 
FFRMS floodplain in conjunction with any other applicable codes and 
standards.\137\
---------------------------------------------------------------------------

    \137\ See FFRMS Policy, pg. 8, ``Particularly in cases where 
elevation may not be feasible or appropriate for non-structure 
facilities, the FFRMS floodplain, determined according to the 
process described in section C of this policy, establishes the level 
to which a structure or facility must be resilient. Resilience 
measures include using structural or nonstructural methods to reduce 
or prevent damage; elevating a structure; or, where appropriate, 
designing it to adapt to, withstand and rapidly recover from a flood 
event.''
---------------------------------------------------------------------------

    FEMA's FFRMS policy uses the FFRMS flood elevation and 
corresponding floodplain to establish the minimum level to which a 
structure or facility must be resilient. The minimization requirements 
are similar to how FEMA currently implements part 9 for the 1 percent 
and 0.2 percent annual chance floods. For facility projects that are 
subject to the FFRMS, the FFRMS flood elevation represents the 
magnitude of flooding that must be considered in incorporating flood 
resilient design features into facility project designs. This approach 
allows the FFRMS to be integrated as one element of project-specific 
comprehensive design methods and leaves open the possibility of more 
prescriptive design requirements as infrastructure design methods 
improve, better incorporating consideration of continually changing 
hazard conditions. Further, as explained above, FEMA already 
incorporates FHWA Hydraulic Engineering Circulars 17 and 25 (Highways 
in the River Environment and Highways in the Coastal Environment) into 
its Public Assistance grant requirements.
    To address the commenter's concerns regarding overly conservative 
methods, FEMA notes the FFRMS is a flexible framework to define the 
floodplain that allows agencies to choose among several approaches to 
expand the base floodplain to a higher vertical elevation and 
corresponding horizontal extent for all Federally funded projects. 
FEMA's FFRMS policy is not a one-size-fits-all approach. Rather, FEMA's 
policy approach is flexible to address criticality of the action being 
taken, data availability based on the location of the action, and 
equity concerns.
    Finally, the final rule does not change many of the current 
requirements for proposed actions. Proposed actions involving roadways, 
bridges, and culverts located in or impacting floodplains and wetlands 
continue to be subject to alternatives analysis under Executive Order 
11988, as amended, and part 9. For certain small-scale actions under 
FEMA's PA program, the proposed rule increases the dollar value 
thresholds for projects that are exempt from the 8-step process or that 
are subject to an abbreviated 8-step review.
    Comment: The same commenter stated that enhancing resilience should 
be the responsibility of the States to enable community-specific 
strategies. The commenter requested clarification on whether States and 
localities could use Federal funds for resilience measures, such as 
raising or widening roadways and bridges to meet the increased vertical 
elevation and expanded horizontal floodplain while still qualifying for 
FEMA funding. The commenter further stated the FFRMS would remove risk 
to structures from risk-based design criteria some States had in place 
and would require a one-size-fits-all approach for bridge-sized

[[Page 56955]]

structures. The commenter also noted some non-Federal partners might 
not allow States to select the FFRMS approach. The same commenter 
stated the FFRMS approaches added an unnecessary factor of safety for 
proposed actions, as many States would replace a structure multiple 
times before the CISA floodplains would take place. The commenter 
stated it was impossible to accurately predict change over long periods 
of time due to the nature of these systems.
    FEMA Response: FEMA agrees that States and localities should lead 
their own efforts to enhance resilience. FFRMS is required for Federal 
actions that are subject to the FFRMS to protect against current and 
future flood risks and help ensure that Federally-funded projects last 
as long as intended. FEMA's FFRMS policy is not a one-size-fits-all 
approach. Rather, FEMA's policy approach is flexible to address 
criticality of the action being taken, data availability based on the 
location of the action, and equity concerns. Risk is an inherent factor 
in applying all of the FFRMS approaches. FEMA considers the criticality 
of the action in determining the level of risk that must be considered 
in minimizing flood hazards. Critical actions are those actions for 
which even a slight chance of flooding is too great and would be 
protected to a higher level under the FFRMS.
    FEMA explained above the applicability of the FFRMS and the 8-step 
process generally to facilities. As noted above, part 9 only applies to 
FEMA actions. Where FEMA may provide funding, FEMA's FFRMS policy 
provides details on how FEMA will apply the appropriate FFRMS approach 
to improve resilience to facilities against both current and future 
flood risks.
    SLTTs can provide input into the determination. Pursuant to 44 CFR 
9.11(d)(6), a more restrictive Federal, State, or local standard will 
be used in lieu of the FFRMS. FEMA values additional input from SLTT 
partners and the public in the 8-step process. FEMA notes, where the 
agency provides funding, any increased costs are generally eligible for 
funding under FEMA's assistance programs subject to cost share 
requirements.
    Regarding the commenter's concerns about replacing a facility or 
structure several times over a period of time, FEMA's preferred 
approach (CISA) incorporates service life as part of determining the 
FFRMS floodplain. FEMA understands the commenter's concerns and will 
determine the appropriate service life on a case-by-case basis for each 
action. The FFRMS Job Aid provides additional information on service 
life and how FEMA will make those individual determinations.\138\
---------------------------------------------------------------------------

    \138\ See FFRMS Job Aid, pg. 14.
---------------------------------------------------------------------------

    Comment: The same commenter also wrote by raising the base flood 
elevation, the FFRMS would make the floodway obsolete and asked if FEMA 
would stop using floodways to regulate construction, and let local 
governments decide how much development was acceptable while adhering 
to the FFRMS. The commenter further recommended ``temporary 
encroachments,'' such as temporary structures required for bridge 
construction, be explicitly exempted from the FFRMS.
    FEMA Response: FEMA assumes the commenter's reference to the base 
flood elevation is the base flood elevation established and applicable 
under the NFIP. This final rule does not raise the base flood elevation 
under the NFIP. The NFIP is a program through which property owners in 
participating communities can purchase Federal flood insurance as a 
protection against flood losses.\139\ As a condition of eligibility, a 
community must adopt and enforce floodplain management regulations that 
incorporate NFIP minimum floodplain management criteria developed by 
the Administrator.\140\ Further information regarding FEMA's minimum 
floodplain management standards for the NFIP can be found at 44 CFR 
part 59 et seq. Any update to those standards would require a 
rulemaking to revise the appropriate regulatory sections of the CFR. By 
contrast, the FFRMS as implemented by this rulemaking, only applies to 
actions where FEMA funds are used for new construction, substantial 
improvement, or repairs to address substantial damage to structures and 
facilities.\141\
---------------------------------------------------------------------------

    \139\ 42 U.S.C. 4011(a).
    \140\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b), 
59.22(a)(3), 60.1(d).
    \141\ See ``Guidelines for Implementing Executive Order 11998, 
Floodplain Management, and Executive Order 13690, Establishing a 
Federal Flood Risk Management Standard and a Process for Further 
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct. 
22, 2015) (providing notice of the availability of the Revised 
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and 
https://www.regulations.gov/document/FEMA-2015-0006-0372 
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
---------------------------------------------------------------------------

    As explained above, Sec.  9.4 defines both ``floodway'' and 
``regulatory floodway.'' The definition of ``floodway'' was not changed 
with this final rule and the definition of ``regulatory floodway'' was 
further clarified by eliminating the reference to a specific amount set 
by the NFIP and instead defining the term to mean the area regulated by 
Federal, State, or local requirements to provide for the discharge of 
the base flood so that the cumulative rise in water surface is no more 
than a designated amount above the base flood elevation. These edits 
more accurately encompass situations where communities have adopted 
more restrictive floodway definitions than the minimum specified by the 
NFIP. The changes are intended to help stakeholders better understand 
what a regulatory floodway is and how it is determined without tying 
the term to a specific amount that can change under the NFIP.
    Regarding temporary encroachments, Sec.  9.5(c)(1) exempts actions 
under PA category B pursuant to section 403 of the Stafford Act. Those 
actions may include temporary repairs to structures and facilities. Any 
temporary work associated with permanent work, however, is generally 
included in the 8-step analysis for the permanent action.
    Comment: A commenter stated the RIA was limited and inadequate and 
cited several examples of where FEMA should improve the RIA. 
Specifically, the commenter stated that FEMA attempted to isolate a 
population of actions where the standards would be applied, limiting 
the analysis to structures that will be paid for with Federal funds and 
did not capture the costs and benefits of the regulatory alternatives 
that would be associated with applying the FFRMS to Federal licenses 
and permits. The commenter also stated that FEMA did not consider the 
impacts of the new standards on the floodplain regulations mandated for 
communities that participate in the NFIP and the economic impacts of 
applying the new standards to NFIP floodplain mapping and the 
accreditation of levees under the NFIP. The commenter further stated 
accreditation was mapping and the scope of 44 CFR part 9 included 
application of the 8-step process to NFIP mapping.
    FEMA Response: FEMA appreciates the commenter's suggestions 
regarding the RIA but believes the commenter's requests go beyond the 
scope of this rulemaking. FEMA disagrees with the commenter that the 
RIA should capture costs and benefits associated with Federal licenses 
and permits. The changes made to part 9 to implement FFRMS only apply 
to actions subject to the FFRMS. FEMA defines ``action subject to the 
FFRMS'' as ``any action where FEMA funds are used for new construction, 
substantial improvement,

[[Page 56956]]

or to address substantial damage to a structure or facility,'' 
consistent with Executive Order 11988, as amended, and the Revised 
Guidelines. The FFRMS applies to grants for projects funding the new 
construction, substantial improvement, or repair of substantial damage 
under FEMA programs such as IA, PA, and HMA programs, and grants 
processed by FEMA's GPD. Accordingly, the scope of FEMA's regulatory 
impact analysis is limited to the FEMA projects where the FFRMS 
standards would be applied.
    FEMA further does not believe the agency is required to consider 
the impacts of the new standards on the floodplain regulations mandated 
for communities that participate in the NFIP and the economic impacts 
of applying the new standards to NFIP floodplain mapping and the 
accreditation of levees under the NFIP. As explained above, the NFIP is 
a program through which property owners in participating communities 
can purchase Federal flood insurance as a protection against flood 
losses. As a condition of eligibility, a community must adopt and 
enforce floodplain management regulations that incorporate NFIP minimum 
floodplain management criteria developed by the Administrator. Further 
information regarding FEMA's minimum floodplain management standards 
for the NFIP can be found at 44 CFR part 59 et seq. By contrast, the 
FFRMS as implemented by this rulemaking, only applies to actions where 
FEMA funds are used for new construction, substantial improvement, or 
repairs to address substantial damage to structures and facilities.

G. FFRMS Approaches

1. CISA
    Several commenters expressed support for the use of the CISA but 
sought additional clarification on implementation of the approach. A 
few commenters raised concerns with the use of the CISA.
General Comments
    Comment: A commenter stated utilizing the CISA to determine the 
FFRMS floodplain where possible was of critical importance as CISA 
offered a forward-thinking approach to improve resilient development 
considering both current and future flood risk. The commenter noted the 
necessary data and modeling capabilities underpinning CISA have 
continued to expand in recent years, making CISA an increasingly 
practicable methodology for more accurately determining the extent of 
the FFRMS floodplain.
    FEMA Response: FEMA agrees with the commenter that since the 
introduction of the CISA in 2015, additional data has become available 
to better inform CISA.\142\ FEMA believes data availability and 
actionability will continue to advance for CISA in the future. 
Specifically, FEMA expects more data will be developed, supporting 
broader-based application of CISA as agencies implement the FFRMS, and 
this data will be considered and incorporated into future updates of 
the FFRMS and FEMA's implementation thereof. FEMA's policy approach is 
to use CISA where available, recognizing the data is still not 
available in every location.
---------------------------------------------------------------------------

    \142\ See ``Federal Flood Risk Management Standard Climate-
Informed Science Approach (CISA) State of the Science Report,'' 
available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
---------------------------------------------------------------------------

    Comment: Two commenters wrote the CISA did not promote 
predictability or reduce uncertainty as required by Executive Orders 
12866 and 13563 and instead left the public to guess a standard from a 
range of possible climate scenarios. The commenters stated questions 
regarding the flood hazard area and elevation remain unanswered within 
the CISA and the approach lacked specific criteria for making those 
determinations. The commenters noted FEMA did not propose to require 
the use of CISA in the agency's 2016 NPRM because of the lack of 
available CISA data and stated those concerns still exist. The 
commenters further stated that the lack of coherent decision criteria 
within the CISA raised concerns about the clarity of Congressional 
authority guiding the standard.
    FEMA Response: FEMA disagrees with the commenters that the CISA 
results in uncertainty for the public as the agency provided 
information on the CISA with the NPRM. Appendix H of the Revised 
Guidelines \143\ provides an overview of the available and actionable 
data for CISA, which is the basis for interagency supporting tools to 
implement the FFRMS. As explained above, the Science Subgroup convened 
by the Flood Resilience Interagency Working Group (IWG) of the National 
Climate Task Force published the FFRMS CISA State of the Science 
Report.\144\ The FFRMS CISA State of the Science Report refines the 
initial framework from Appendix H and specifically identifies the 
latest sea level rise projections from the National Climate Assessment 
as actionable, stating that each agency should factor projected 
regional/local sea level change into Federal investment decisions 
located as far inland as the extent of estimated tidal influence, now 
and in the future, using the most appropriate methods for the scale and 
consequence of the decision.\145\ This report is the basis of the 
interagency implementation and supporting tools such as the FFRMS Job 
Aid.\146\ FEMA is relying on these interagency processes to select and 
evaluate the data and methods used. FEMA published the FFRMS Job Aid 
and the FFRMS CISA State of the Science Report in the public docket 
associated with this rulemaking.\147\ FEMA also posted the FFRMS Job 
Aid on its website \148\ and currently plans to use the methodology 
found in the FFRMS Job Aid to determine the FFRMS floodplain as 
explained above.
---------------------------------------------------------------------------

    \143\ Available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf 
(last accessed Jan. 24, 2024).
    \144\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
    \145\ FFRMS CISA State of the Science Report, pg. 23.
    \146\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024) and posted to the public docket for this rulemaking at 
https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \147\ See https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \148\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024).
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    FEMA believes the policy approach detailed in the agency's FFRMS 
Policy is sufficiently certain for FFRMS implementation. As detailed in 
the FFRMS Policy, FEMA will use the CISA when such data is available 
and actionable as further explained in Appendix H of the Revised 
Guidelines \149\ and refined in the FFRMS CISA State of the Science 
Report.\150\ Where the CISA data is not available and/or actionable, 
the agency will use either the FVA or 0.2PFA depending on the 
criticality of the action and data availability. Consistent with the

[[Page 56957]]

information in the FFRMS CISA State of the Science Report regarding 
data availability/actionability,\151\ FEMA will initially rely on the 
methodology from the FFRMS Job Aid \152\ to make the CISA, FVA, and 
0.2PFA determinations.
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    \149\ Revised Guidelines, pgs. 16-17 and 50-52.
    \150\ FFRMS CISA State of the Science Report, pgs. 7-8.
    \151\ Id.
    \152\ FFRMS Job Aid, pgs. 7-11 generally.
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    FEMA understands data availability and actionability is a key 
factor in completing this analysis in a consistent, equitable manner. 
As stated above, since the introduction of the CISA in 2015, additional 
data has become available to better inform CISA.\153\ FEMA believes 
data availability and actionability will continue to advance for CISA 
in the future. However, as actionable climate data are currently only 
available along low-lying coastal shorelines on the Atlantic and Gulf 
Coasts not subject to runup or overtopping pursuant to the FFRMS CISA 
State of the Science Report,\154\ FEMA is proposing the FVA and 0.2PFA 
alternatives in the absence of actionable CISA data. FEMA notes, 
consistent with current practice, the agency will continue make the 
floodplain determinations as part of the action taken, reducing the 
burden on applicants in the process. FEMA estimated the cost for 
determining the appropriate FFRMS floodplain in the Administrative Cost 
section within the RIA.
---------------------------------------------------------------------------

    \153\ See ``Federal Flood Risk Management Standard Climate-
Informed Science Approach (CISA) State of the Science Report,'' 
available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
    \154\ FFRMS CISA State of the Science Report, pgs. 22-23 and 28.
---------------------------------------------------------------------------

CISA Implementation
    Commenters inquired as to how FEMA would implement CISA as part of 
the agency's FFRMS implementation.
    Comment: A commenter requested FEMA amend Sec.  9.7(c)(i)(A) to 
require an assumption that ``climate impacts would be more rather than 
less severe under conditions of uncertainty.''
    FEMA Response: FEMA is not codifying the specific climate scenarios 
to be used as part of the CISA analysis. As previously explained, FEMA 
is relying on interagency tools to determine CISA flood elevations and 
corresponding horizontal floodplains. FEMA will initially implement 
this final rule using the FFRMS Job Aid that was published in the 
public docket associated with this rulemaking along with the proposed 
rule. The FFRMS Job Aid is also on FEMA's website.\155\
---------------------------------------------------------------------------

    \155\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024) and posted to the public docket for this rulemaking at 
https://www.regulations.gov/document/FEMA-2023-0026-0004.
---------------------------------------------------------------------------

    Comments: One commenter characterized CISA as a framework built 
upon continually evolving models, projections, and assumptions 
regarding climate change and anticipated future conditions. The 
commenter stated the decision criteria under the CISA approach was not 
adequately defined in the rule and the information provided about CISA 
in the rule regarding the best available information remained 
unspecified, raising concerns about project implementation and general 
uncertainty. Another commenter recommended that FEMA make clear its 
ability to update how it implements the FFRMS approaches as necessary 
according to the latest climate science, rather than going through a 
rulemaking process for each successive update. The commenter stated 
that the CISA State of the Science Report provided robust information 
on CISA implementation but because of its length was not necessarily an 
easily accessible reference document. The commenter recommended 
providing succinct and practical guidance on CISA to facilitate 
implementation of the approach. The comment suggested that such 
guidance could including a representative list of acceptable data 
sources and guidance on how to interpret and apply these sources (for 
instance, how to choose an appropriate timeline or planning scenario).
    FEMA Response: FEMA's explanation of the CISA is consistent with 
Executive Order 11988, as amended, and the Revised Guidelines. FEMA has 
not provided specific definitions of each approach under FFRMS but 
rather describes each in Sec.  9.7 and also in the FFRMS policy. FEMA 
believes these explanations are sufficiently clear and will not result 
in ambiguity or misunderstanding because they are consistent with the 
Executive Order and Revised Guidelines.
    FEMA further believes the information provided is consistent with 
Executive Order 11988, as amended; the Revised Guidelines; and the CISA 
State of the Science report. The information is also sufficient to 
implement FFRMS and CISA. FEMA will rely on 44 CFR 9.7, FEMA Policy 
104-008-2: Guidance on the Use of Available Flood Hazard 
Information,\156\ the Revised Guidelines, and the FFRMS CISA State of 
the Science Report in determining whether CISA and flood hazard data is 
available and actionable. The FFRMS CISA State of the Science Report 
\157\ is the basis of the interagency implementation and supporting 
tools such as the FFRMS Job Aid.\158\ FEMA published the FFRMS Job Aid 
and the FFRMS CISA State of the Science Report in the public docket 
associated with this rulemaking.\159\ FEMA also posted the FFRMS Job 
Aid on its website.\160\
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    \156\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf 
(last accessed Mar. 12, 2024). The FFRMS proposed and final policies 
reference this existing FEMA policy in Section D.1.
    \157\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
    \158\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024) and posted to the public docket for this rulemaking at 
https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \159\ See https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \160\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024).
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    FEMA intends to leverage the FFRMS Job Aid when implementing FFRMS. 
FEMA will initially rely on the methodology found in the FFRMS Job Aid 
for determining the FFRMS floodplain and, as explained elsewhere in our 
responses, will accept higher standards provided by other Federal, 
State, or local entities in accordance with 44 CFR 9.11(d)(6) so long 
as it is as least as restrictive as FEMA's FFRMS floodplain 
determination and adopted by the community for use, including where 
communities have adopted local CISA. FEMA will continue to collaborate 
across the Federal government to develop tools to facilitate the 
implementation of CISA and the FFRMS. The IWG recently released a beta 
version of the Federal Flood Standard Support Tool (FFSST), a novel 
interactive, map-based tool that incorporates new data to help users 
identify if a Federally funded project is in the FFRMS floodplain, for 
comment.\161\ FEMA intends to provide additional resources to assist 
stakeholders as FFRMS is implemented.
---------------------------------------------------------------------------

    \161\ 89 FR 25674 (Apr. 11, 2024).

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[[Page 56958]]

    Consistent with Executive Order 11988, as amended, and the Revised 
Guidelines, CISA requirements will change as the available and 
actionable data change. The MitFLG in consultation with the Federal 
Interagency Floodplain Management Task Force (FIFM-TF) will reassess 
FFRMS annually, after seeking stakeholder input, and provide 
recommendations to the WRC to update FFRMS, including the FVA, if 
warranted based on accurate and actionable science that takes into 
account changes to climate and other changes in flood risk. The WRC 
shall issue an update to FFRMS at least every 5 years.\162\
---------------------------------------------------------------------------

    \162\ Section 4, Executive Order 13690, 80 FR 6425 (Feb. 4, 
2015).
---------------------------------------------------------------------------

    Comments: Three commenters requested that FEMA clarify how it will 
determine that CISA data are available and actionable when determining 
the FFRMS floodplain. One of the commenters asked whether CISA data 
availability was dependent on FEMA mapping using CISA data. Another 
commenter requested clarity on how CISA would be assessed. The 
commenter noted the CISA data must be ``existing'' and both 
``available'' and ``actionable,'' and stated this implied that entities 
proposing a project were only obligated to rely on information that was 
already existing, available, and actionable, which was inconsistent 
with the rest of the rule that focused on creating project-specific 
assessments.
    FEMA Response: Data availability is not dependent on the 
development of FEMA regulatory mapping products (such as effective 
Flood Insurance Rate Maps [FIRMs]) utilizing CISA data. The Revised 
Guidelines require agencies to utilize the ``best available and 
actionable science.'' The Revised Guidelines state that in this 
context, ``best-available'' generally refers to science, data or 
information that is:
     Transparent--clearly outlines assumptions, applications, 
and limitations;
     Technically credible--transparent subject matter or more 
formal external peer review, as appropriate, of processes and source 
data;
     Usable--relevance and accessibility of the information to 
its intended users;
     Legitimate--perceived by stakeholders to conform to 
recognized principles, rules, or standards. Legitimacy might be 
achieved by existing government planning processes with the opportunity 
for public comment and engagement.\163\
---------------------------------------------------------------------------

    \163\ See Revised Guidelines at pgs. 16-17.
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    The Revised Guidelines further state that actionable science 
includes theories, data, analyses, models, projections, scenarios and 
tools that are:
     Relevant to the decision under consideration;
     Reliable in terms of its scientific or engineering basis 
and appropriate level of peer review;
     Understandable to those making the decision;
     Supportive of decisions across wide spatial, temporal, and 
organizational ranges, including those of time-sensitive operational 
and capital investment decision-making;
     Co-produced by scientists, practitioners, and decision-
makers, and meet the needs of and are readily accessible by 
stakeholders.
    These concepts of best-available and actionable science are further 
described in Part II, Step 1 of the Revised Guidelines, in the context 
of the various approaches for determining a floodplain and in Appendix 
H of the Revised Guidelines specifically as it relates to the 
CISA.\164\
---------------------------------------------------------------------------

    \164\ See Revised Guidelines at pgs. 16-17.
---------------------------------------------------------------------------

    As previously explained, the FFRMS CISA State of the Science Report 
\165\ contains an up-to-date review and update of the best-available, 
actionable science that can support application of the CISA, and is the 
basis of the interagency implementation and supporting tools such as 
the FFRMS Job Aid.\166\ FEMA will initially rely on the methodology in 
the FFRMS Job Aid to determine the FFRMS floodplain when implementing 
this final rule.
---------------------------------------------------------------------------

    \165\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
    \166\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024) and posted to the public docket for this rulemaking at 
https://www.regulations.gov/document/FEMA-2023-0026-0004.
---------------------------------------------------------------------------

    FEMA disagrees with the commenter that requiring CISA data be 
available and actionable is inconsistent with the rest of the rule. The 
8-step process is action-specific, and the floodplain determination is 
made based on the location of the action, but the data to determine the 
floodplain at that location must be available and actionable for CISA 
to be utilized. FEMA's FFRMS policy further defines where CISA is 
applicable.
    Comments: FEMA received comments regarding the service life of 
proposed actions and how the agency would calculate the service life of 
actions. One commenter suggested FEMA provide guidelines on how to 
determine an appropriate period. Another commenter noted FEMA used a 
default 50-year lifecycle analysis that would not be appropriate for 
all actions and requested FEMA provide information on how the 50-year 
lifecycle timeline was determined, as well as guidelines on how to 
determine the appropriate lifecycle on a case-by-case basis.
    FEMA Response: FEMA's analysis of the rule's benefits relied upon a 
report defaulting to a 25-year and 50-year lifecycle for all actions. 
However, when making floodplain determinations, FEMA intends to 
determine the appropriate service life on a case-by-case basis for each 
action. This will ensure that FEMA evaluates floodplain hazards over 
the appropriate lifecycle for each action. The FFRMS Job Aid provides 
additional information on service life and how FEMA will make those 
individual determinations.\167\
---------------------------------------------------------------------------

    \167\ See FFRMS Job Aid, pg. 14.
---------------------------------------------------------------------------

    FEMA's RIA used the 2022 report titled ``A Benefits Analysis of 
Increased Freeboard for Public and Nonresidential Buildings in Riverine 
and Coastal Floodplains,'' (``2022 report'') in its analysis of 
benefits. The 2022 report calculated benefits for increased freeboard 
over 25-year and 50-year useful lives under a variety of climate change 
scenarios.\168\ FEMA's analysis considered the benefits of the rule 
assuming a 50-year useful life.
---------------------------------------------------------------------------

    \168\ The FEMA BCA Toolkit recommends using a 50-year project 
useful lift for public buildings and a 25-year project useful life 
for nonresidential buildings.
---------------------------------------------------------------------------

    Comment: A commenter stated some states, such as California, had 
guidelines on sea level rise and those guidelines were inconsistent 
with the CISA +5 feet option discussed in the rule's regulatory impact 
analysis. The commenter stated such an elevation requirement would be 
overbuilt per those State guidelines. The commenter stated that CISA 
would be overly conservative for many locations, because of what the 
commenter characterized as CISA's one-size-fits-all approach.
    FEMA Response: FEMA's regulatory impact analysis utilizes an 
assumption of +5 feet for CISA as an analysis point. The +5 feet is an 
assumption because FEMA does not currently have detailed enough data to 
estimate the average CISA level within the United States based on 
currently available CISA data and the additional CISA data that will

[[Page 56959]]

continue to become available over time. However, CISA is not a one-
size-fits-all approach. FEMA notes the FFRMS Floodplain Determination 
Job Aid indicates the CISA method is recommended for actions along low-
lying coastal shorelines on the Atlantic and Gulf Coasts. For Pacific 
coasts and other coasts with bluffs, FEMA may initially use the FVA 
approach.
    SLTTs can provide input into the determination. Pursuant to 44 CFR 
9.11(d)(6), a more restrictive Federal, State, or local standard will 
be used, including local CISA data and methods that have been adopted 
by a community for use in floodplain management, as long as such data 
result in a more restrictive standard.
    FEMA's FFRMS policy is not a one-size-fits-all approach; rather, 
the agency's policy approach is flexible to address criticality of the 
action being taken, data availability based on the location of the 
action, and equity concerns. FEMA is not codifying the specific climate 
scenarios to be used as part of the CISA analysis. As previously 
explained, FEMA is relying on interagency tools to determine CISA flood 
elevations and corresponding horizontal floodplains. FEMA will 
initially implement this final rule using the FFRMS Job Aid that 
published in the public docket associated with this rulemaking along 
with the proposed rule. The FFRMS Job Aid is also on FEMA's 
website.\169\
---------------------------------------------------------------------------

    \169\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024) and posted to the public docket for this rulemaking at 
https://www.regulations.gov/document/FEMA-2023-0026-0004.
---------------------------------------------------------------------------

    Comment: The same commenter stated that when designing bridges and 
embankments, the CISA approach considers impacts from projected land 
cover/land use changes, long-term erosion, and other processes that may 
alter flood hazards over the lifecycle of the Federal investment. The 
commenter asked how the estimates for long-term erosion and scour would 
be determined. This commenter further stated the outcomes from these 
estimates were subject to uncertainty, resulting in overdesign and 
greatly reducing the likelihood of the CISA data actually occurring.
    FEMA Response: FEMA's FFRMS policy provides details on how FEMA 
will implement FFRMS for facilities. This analysis is completed on a 
case-by-case basis and may require the services of a professional 
engineer, as appropriate, consistent with FEMA program requirements. 
More information on consideration of flood characteristics such as 
erosion and scour can be found in the Revised Guidelines.\170\
---------------------------------------------------------------------------

    \170\ See Revised Guidelines pg. 23 for information on flooding 
characteristics and Appendix H of the Revised Guidelines for 
information on the CISA, pgs. 20-22.
---------------------------------------------------------------------------

    Whether CISA data are available and/or actionable will depend in 
part upon the location of the action being taken. FEMA believes the 
policy approach detailed in the agency's FFRMS policy is sufficiently 
certain for FFRMS implementation. As detailed in the FFRMS policy, FEMA 
will use the CISA where such data is available and actionable. FEMA is 
relying on interagency tools to determine CISA flood elevations and 
corresponding horizontal floodplains. Where the CISA data are not 
available and actionable, the agency will leverage either the FVA or 
0.2PFA depending on the criticality of the action and data 
availability. Where the CISA data are available and actionable, the 
CISA floodplain must be at least as restrictive as the 1 percent annual 
chance flood elevation or 0.2PFA, again depending on the criticality of 
the action. In this way, FEMA has addressed equity concerns in the 
policy approach, specifically to mitigate the likelihood of over- and 
under-building. FEMA believes that allowing for a lower standard for 
non-critical actions helps address concerns related to overbuilding. 
Selecting the lower approach for non-critical actions will still result 
in a higher level of resilience than the current requirements under 
part 9 while also taking equity and cost-effectiveness considerations 
into account.
CISA Applicability
    Comment: A commenter requested FEMA apply the CISA to all of the 
agency's mapping and map revision processes. The commentor wrote that 
letters of map amendment (LOMAs) and letters of map revision-based on 
fill (LOMR-Fs) essentially allowed FEMA to piecemeal exempt properties 
and stated the combination of Executive Orders and statutes required 
FEMA to build a robust and well-informed mapping program to guide 
development away from floodplains. The commenter stated the exclusion 
of LOMAs and LOMR-Fs from FFRMS created an exception that would swallow 
the rule.
    FEMA Response: FEMA appreciates the commenter's support of the CISA 
and understands the commenter's concerns regarding LOMAs and LOMR-Fs. 
FEMA is not making changes to the agency's NFIP mapping process with 
this rulemaking or accompany FFRMS policy. The NFIP's regulations on 
mapping and changes to FEMA maps are found at 44 CFR part 70 et seq. 
Further, the proposed changes to part 9 do not affect implementation of 
the NFIP's floodplain management regulations. Those regulations are 
found at 44 CFR part 59 et seq. The framework that FEMA uses in part 9, 
including the revised definition of floodplain applicable to actions 
subject to the FFRMS under this rule, is distinct from NFIP mapping. 
FEMA believes that the flexibility outlined in 44 CFR 9.7 and the 
practice of best available information will allow the application of 
part 9 to adjust to any future change made in the NFIP mapping process.
CISA and Equity Considerations
    Comment: A commenter requested FEMA consider inequities in access 
to the best available climate science as some communities may not have 
access to the CISA data. The commenter acknowledged FEMA's proposed 
alternatives to the CISA but requested the agency consider how this 
rule would unintentionally exacerbate inequities in flood preparedness 
and safety across the country and how FEMA would distribute Federal 
funding and other financial assistance to address these discrepancies.
    FEMA Response: FEMA's revisions to part 9 reflect consideration of 
the type and criticality of the action involved, the availability and 
actionability of the data, and equity concerns in the implementation of 
Executive Order 11988, as amended. FEMA also has an agency-wide 
initiative focused on reducing barriers and increasing opportunities so 
all people, including those from vulnerable and underserved 
communities, can get help when they need it.\171\ FEMA notes any 
increased costs are generally eligible for funding under FEMA's 
assistance programs subject to cost share requirements.
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    \171\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    As part of the implementation cost, FEMA will publicize the FFRMS 
to public and SLTT partners, identifying what the FFRMS is and how the 
agency will implement the Executive Order as amended and part 9. These 
resources will help applicants applying for FEMA-funded assistance 
programs. FEMA's regional offices will also provide technical 
assistance in support of FFRMS implementation.
    As climate science data continues to be advanced, FEMA will 
continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: Guidance on the 
Use of

[[Page 56960]]

Available Flood Hazard Information,\172\ and the Revised Guidelines in 
determining whether CISA and flood hazard data is available and 
actionable. Appendix H of the Revised Guidelines and the CISA FFRMS 
State of the Science Report provide an overview of the available and 
actionable data for CISA, which is the basis for these interagency 
supporting tools. The Revised Guidelines also provide an explanation of 
how the FFRMS will be updated in the future. Additionally, where a 
community does have access to CISA data and has adopted its use for 
floodplain management, that data will be used pursuant to 44 CFR 
9.11(d)(6), as long as it results in a more restrictive standard. In 
this way the unique considerations of a particular community are also 
taken into account.
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    \172\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf 
(last accessed Mar. 12, 2024).
---------------------------------------------------------------------------

2. FVA
    Comment: A commenter stated FEMA should be prepared to reassess the 
use of 2 and 3 feet of freeboard in the FVA according to the latest 
climate science. The commenter requested the FFRMS should explicitly 
allow this type of reassessment to take place without rulemaking.
    FEMA Response: The FVA is an alternative approach to the CISA under 
the FFRMS. FEMA cannot independently revise the FFRMS. The MitFLG in 
consultation with the FIFM-TF will reassess the FFRMS annually, after 
seeking stakeholder input, and provide recommendations to the WRC to 
update the FFRMS, including the FVA, if warranted based on accurate and 
actionable science that takes into account changes to climate and other 
changes in flood risk. The WRC shall issue an update to the FFRMS at 
least every 5 years.\173\
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    \173\ Section 4, Executive Order 13690, 80 FR 6425 (Feb. 4, 
2015).
---------------------------------------------------------------------------

    FEMA appreciates the intent behind the comment, namely that the 
agency should implement the FFRMS in a way that allows for 
reassessments that account for changes in climate science. FEMA has 
ensured that its implementation of the FFRMS will allow for such 
updates. Specifically, in this final rule, FEMA will implement the 
FFRMS by adopting the flexible framework identified in Executive Order 
11988, as amended by Executive Order 13690, in its entirety, instead of 
mandating a particular approach in its regulations and will provide 
additional guidance (more readily capable of revisions and updates) 
that addresses which approach FEMA would generally use for different 
types of actions. Consistent with Executive Order 11988, as amended, 
and the Revised Guidelines, the CISA requirements will change as the 
available and actionable data change and FEMA will similarly update its 
guidance, as appropriate, to account for such changes.
3. 0.2PFA
    Comments: Commenters asked questions about the 0.2PFA and how FEMA 
would implement the approach. A commenter expressed support for the use 
of the 0.2PFA as an effective alternative to the CISA while technology 
and capabilities to implement CISA are scaling to a nationwide level. 
At the same time, the commenter recommended that FEMA allow for the 
flexibility to use the most protective and up-to-date science in 
coastal regions or where higher quality data and analytics are 
available. The same commenter wrote that FEMA should continue educating 
the public regarding flood risk from flood events that could affect 
areas beyond the 0.2 percent annual chance floodplains. The commenter 
stated that during the past two decades, many storm events of a 
magnitude greater than a 0.2PFA event have occurred, such as the 2010 
Nashville flood and the 2017 inland flood induced by Hurricane Harvey. 
The commenter stated that while reliance on the 0.2PFA would 
significantly reduce flood risk in comparison to reliance upon the 1 
percent annual chance floodplain, FEMA should not be satisfied that 
this would be sufficient. The commenter also requested FEMA include 
land surface flooding. The commenter also recommended the flood 
mitigation standard for critical infrastructure (such as subway 
systems, metropolitan wastewater treatment facilities, and others) be 
different and higher than those for non-critical. Another commenter 
requested FEMA account for the area of elevation that was above or 
below sea level to plan for implementation of the 0.2PFA.
    FEMA Response: FEMA's policy approach provides flexibility. As 
explained in the FFRMS policy, FEMA will use the CISA to determine the 
floodplain where that data is available and actionable. Where the CISA 
data is not available or actionable, FEMA will utilize either the FVA 
or 0.2PFA depending on the criticality of the action and data 
availability. FEMA notes there is no requirement in the FFRMS or the 
Revised Guidelines to select the higher approach when not using the 
CISA, as FFRMS is a resilience standard. ``When an agency is not using 
the Climate-informed Science Approach in riverine flood hazard areas, 
the agency may select either the Freeboard Value Approach or the 0.2-
percent-annual chance elevation, as appropriate, and is not required to 
use the higher of the two.'' \174\
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    \174\ See Revised Guidelines, pg. 57.
---------------------------------------------------------------------------

    FEMA will continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: 
Guidance on the Use of Available Flood Hazard Information,\175\ and the 
Revised Guidelines in determining whether CISA and flood hazard data is 
available and actionable. FEMA will use the best available information 
in making the floodplain determination under part 9, and the best 
available information may include information that is non-regulatory or 
FEMA preliminary flood hazard data. To be designated as the best 
available information, it must be at least as restrictive as 
information provided by effective FIRMs. Pursuant to 44 CFR 9.11(d)(6), 
a more restrictive Federal, State, or local standard will be used and 
this includes the use of local CISA data and methods that have been 
adopted by a community for use in floodplain management, as long as 
such data results in a more restrictive standard.
---------------------------------------------------------------------------

    \175\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf 
(last accessed Mar. 12, 2024).
---------------------------------------------------------------------------

    To clarify, FEMA is not relying on the 1 percent annual chance 
floodplain in the FFRMS approaches. Rather, FEMA is relying on the 
CISA, FVA, or 0.2PFA. FEMA's FFRMS policy clarifies the agency will use 
the higher of the FVA or 0.2PFA for critical actions when CISA data is 
not available or actionable. FEMA will continue to utilize the 1 
percent annual chance floodplain under part 9 only for those actions 
that are not subject to the FFRMS and are considered non-critical 
actions.
    FEMA has considered and will continue to consider flooding 
characteristics such as land surface flooding consistent with Sec.  
9.7. FEMA's FFRMS policy also emphasizes whether the action is a 
critical action as one of the factors to consider when conducting the 
analysis as to the approach to utilize when CISA data is not available 
or actionable.
    Regarding the commenter's concerns about elevation, the interagency 
tools FEMA will use to determine the 0.2PFA, as well as CISA and FVA, 
will account for ground elevation.
    Comment: One commenter wrote only 20 percent of the country had 
detailed horizontal floodplain boundaries of the 0.2 percent annual 
chance floodplain

[[Page 56961]]

and that the elevation determination was also important given that some 
flood depths could be lower in the 0.2 annual chance floodplain than in 
the 1 percent annual chance floodplain. A commenter stated the lack of 
comprehensive elevation information for the 0.2PFA would cause 
confusion among stakeholders and applying FFRMS without accounting for 
distinct elevation profiles undermined the practicality and success of 
the policy. Another commenter supported utilizing the 0.2PFA and FVA 
when the CISA data was not available and not actionable. The commenter 
noted wave modeling should be included when applying the 0.2PFA and 
FEMA had not regularly produced maps that incorporate wave modeling. 
The commenter requested FEMA regularly include wave modeling in its 0.2 
percent annual chance flood maps.
    FEMA Response: As explained above, FEMA's FFRMS policy identifies 
data availability as a factor in determining the FFRMS approach to be 
used for a specific action. FEMA recognizes data availability of the 
0.2 percent annual chance floodplain, as well as technical 
considerations relating to how wave action may be incorporated, can be 
challenges in implementing the 0.2PFA. In coastal areas, the Revised 
Guidelines note Federal agencies should use the FVA as the minimum 
elevation when not using the CISA if the 0.2 percent annual chance 
flood information depicted on FEMA's regulatory products considers 
storm-surge hazards but not wave action, and wave action data cannot be 
obtained from other sources.
    As the commenter notes, when the CISA is not available and the 
0.2PFA is used in coastal areas, the 0.2PFA should consider wave 
action. As the Revised Guidelines state, before using the 0.2PFA in 
that situation, an analysis should be conducted of coastal flood 
hazards at the site that incorporates the local effects of wave action, 
scour and erosion, wave run-up, and overtopping.\176\ In some 
instances, the FEMA 0.2 percent annual chance flood elevation, which 
does not consider wave action, will be lower than the current BFE or 
the FVA. As noted in the Executive Summary of this preamble, FEMA 
edited the agency's proposed FFRMS policy to clarify that FIRMs and 
Federal Insurance Studies (FIS) provide 1 percent annual chance flood 
elevations including wave action in coastal areas; however, the 0.2 
percent annual chance flood elevations generally are stillwater 
elevations that do not account for the effects of wave action. To 
emphasize the importance of this for non-critical actions in 
particular, the FFRMS policy wording has been clarified and relocated 
to Section C.3.a, stating that when the lower of the 0.2PFA or FVA is 
used, the FVA flood elevation must be used in those instances where the 
0.2-percent-annual-chance flood elevation does not account for the 
effects of wave action.\177\ For critical actions, the policy approach 
is to use the higher of the FVA or 0.2PFA, which would avoid relying on 
0.2PFA in situations where the 0.2PFA elevations would be lower.
---------------------------------------------------------------------------

    \176\ See Revised Guidelines, pg. 57.
    \177\ See section C.3.a note 13, pg. 4.
---------------------------------------------------------------------------

4. Fourth Approach
    Comment: A commenter stated the fourth approach listed in the rule 
was a ``hedge'' and resulted in inexcusable operational uncertainty to 
the FFRMS. The commenter stated the public would struggle to understand 
the appropriate standard on an annual basis given this approach. 
Another commenter stated the fourth approach was a ``safety net'' and 
consistent with the other commenter, stated the approach amplified 
operational uncertainty within FFRMS rather than addressing it.
    FEMA Response: FEMA disagrees that the fourth approach in the 
regulation provides additional uncertainty for the public. This 
approach is provided in the Revised Guidelines, and FEMA would provide 
notice to the public of any such approach and the adoption of that 
approach consistent with Executive Order 11988, as amended.
5. Alternatives to FFRMS Approaches
    Comment: One commenter suggested that cost-benefit analysis could 
serve as an alternative to using the FFRMS approaches. The commenter 
stated cost-benefit analysis informed by risk could be scaled to the 
circumstances of decisions and would achieve better results than 
applying error-prone arbitrary standards. The commenter stated that 
benefits and costs can be broadly conceived to include more than values 
reflected in market transactions. The commenter wrote that FEMA applied 
cost-benefit analysis in a partial way to its hazard mitigation program 
only and asked how not leveraging a cost-benefit analysis but instead 
applying the FFRMS approaches would result in net Federal resource 
savings.
    FEMA Response: As an initial matter, FEMA notes that establishing 
the floodplain for each project on the basis of individualized cost-
benefit assessments would potentially be inconsistent with the 
commenter's stated preference for predictability and reduced 
uncertainty (as reflected in the commenter's objection to the CISA 
standard). For instance, the commenter's proposal could require 
individualized flood risk assessments that would make it challenging 
for private parties to predict the applicable floodplain prior to 
engaging with FEMA. In addition, in at least some cases, the 
commenter's proposed approach would call for consideration of relevant 
data and science in order to understand the potential costs and 
benefits of building to different levels of resilience. Although as 
reflected throughout this response and preamble, FEMA shares the 
commenter's sensitivity to cost and preference to limit unnecessary 
expenditures to the extent possible, FEMA does not believe that the 
approach suggested by the commenter is necessarily more likely to be 
predictable or administrable, or to maximize net benefits.
    While not all of FEMA's programs are statutorily required to be 
cost-effective, FEMA has consistently leveraged cost-benefit analysis 
and will continue to do so along with minimum standards for floodplain 
management across the agency's programs to provide for Federally funded 
projects that are both cost-effective and result in more resilient 
communities.
    In its NPRM and proposed policy, FEMA explained how the agency 
considered cost along with data availability, criticality of the 
action, and equity in establishing a flexible framework for FFRMS 
implementation. Consistent with the Revised Guidelines, FEMA's 
preferred approach is the CISA, but the FFRMS policy explains the CISA 
must be available and actionable and where it is not, the FVA or 0.2PFA 
will be utilized depending on the criticality of the action and 
availability of data.
    FEMA believes the benefits of preventing property damage and 
potentially saving lives justify the costs of the rule. These benefits 
are a result of the improved protection of structures due to increased 
elevation and floodproofing standards in FEMA's implementation of the 
FFRMS. This rule will help to ensure that Federal investments are 
better protected from flood damage, and the natural values of 
floodplains are preserved. If, in the future, the commenter were to 
identify a specific cost-benefit methodology that warranted adoption 
via the process outlined in the Executive Order, FEMA could in 
principle pursue such an option.
    Comments: Some commenters recommended FEMA adopt specific building 
codes and design standards as part of this rulemaking. One commenter

[[Page 56962]]

stated FEMA's rule was consistent with ASCE Policy Statement 421. The 
commenter recommended FEMA adopt both the current 2022 edition of ASCE 
7 as well as Supplement #1 and Supplement #2 for the Flood Chapter, and 
the upcoming revision to ASCE 24. Another commenter recommended FEMA 
require up-to-date editions of the International Residential Code (IRC) 
and International Building Code (IBC) to ensure the FFRMS incorporates 
the most stringent flood provisions for Federally assisted construction 
in flood zones. Another commenter also recommended FEMA specifically 
adopt a reference to the ANSI/FM Approvals 2510 standard for 
floodproofing/flood mitigation products, similar to the U.S. Department 
of Housing and Urban Development (HUD)'s proposal to allow 
floodproofing of non-residential areas below the FFRMS floodplain 
elevation in their NPRM.
    FEMA Response: FEMA appreciates the commenter's concerns and notes 
the agency does implement specific codes and standards through grant 
program policies and requirements.\178\ However, the scope of this rule 
is limited to implementation of FFRMS consistent with Executive Order 
11988, as amended, and the Revised Guidelines; FEMA did not propose to 
adopt specific building codes and standards in the NPRM. FEMA may, 
however, clarify the use of such standards through additional guidance.
---------------------------------------------------------------------------

    \178\ For example, FEMA Recovery Interim Policy 104-009-11 
Version 2.1, ``Consensus-Based Codes, Specifications and Standards 
for Public Assistance'' (December 20, 2019) requires ``application 
of the latest nationwide consensus-based codes, specifications and 
standards that incorporate hazard resistance for PA funded 
projects'' including buildings, electric power, roads, bridges, 
potable water, and wastewater. Available at https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf (last accessed Jan. 24, 2024). HMA also 
specifically references ASCE 24 and ASCE 7 in the HMA Program and 
Policy Guide available at https://www.fema.gov/grants/mitigation/hazard-mitigation-assistance-guidance (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA adopted a Building Codes Strategy \179\ in March 2022 that 
focuses on leveraging partnerships to promote current hazard resistant 
building codes; understanding stakeholder needs to identify 
opportunities that advance building code adoption and enforcement; 
amplifying climate science messaging to increase public demand for 
building codes and standards; and targeting building code adoption 
outreach to the most vulnerable communities to achieve a more resilient 
nation. FEMA believes the changes made in this final rule and the FFRMS 
policy will further this strategy without mandating specific codes and 
standards in the regulatory text. FEMA will continue to review and 
update the agency's policies and guidance regarding codes and standards 
to ensure the agency is promoting use of the standards consistent with 
FEMA program requirements.
---------------------------------------------------------------------------

    \179\ See ``Building Codes Strategy'' March 2022 available at 
https://www.fema.gov/sites/default/files/documents/fema_building-codes-strategy.pdf (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA appreciates the commenter's request that the agency mirror 
HUD's proposal to allow floodproofing of non-residential structures 
below the FFRMS flood elevation. FEMA already allows for floodproofing 
of non-residential structures below the floodplain in 44 CFR 9.11(d)(3) 
and will continue to allow floodproofing below the FFRMS flood 
elevation. No changes to the regulatory text are required to achieve 
this result.
H. FEMA's FFRMS Policy Approach
1. Overall
    Comments: Commenters offered support for the edits proposed to 
Sec.  9.7 and the accompanying proposed FFRMS policy document to 
implement FFRMS. Commenters also stated specific support for FEMA's 
policy decision to prioritize the use of CISA when determining the 
FFRMS floodplain for actions subject to the FFRMS. Commenters were also 
generally supportive of FEMA's approach to utilize either the FVA or 
0.2PFA where CISA data was not available or not actionable.
    FEMA Response: FEMA appreciates the commenter's agreement with the 
general policy approach detailed in FEMA's FFRMS policy and the agency 
is finalizing that policy approach with the publication of this final 
rule. FEMA notes the revisions made to part 9 apply only to FEMA 
projects and not all Federally funded projects as some commenters 
suggested. All Federal agencies will utilize the Revised Guidelines for 
their own FFRMS implementation.
    Comment: One commenter wrote in support of the revisions to Sec.  
9.7. The commenter stated that a recent TMAC report indicated that 
existing 1 percent and 0.2 percent annual chance floodplains were 
insufficient for informing land use practices and stated the use of 
CISA aligned with TMAC's principle to use a climate-informed map for 
floodplain management, separate from the 1 percent annual chance map 
used for NFIP mandatory purchase and other regulatory requirements.
    FEMA Response: FEMA appreciates the commenter's support of the 
agency's preferred approach and the clarifications made in Sec.  9.7 as 
part of this final rule. Executive Order 11988, as amended, and the 
FFRMS reinforce the importance of avoiding adverse impacts associated 
with actions in or affecting a floodplain and minimizing potential harm 
if an action must be located in a floodplain. As amended, Executive 
Order 11988 directs agencies to use a higher vertical flood elevation 
and corresponding horizontal floodplain than that of the base flood for 
Federally funded projects to address current and future flood risk and 
help ensure that projects last as long as intended. FEMA appreciates 
the commenter's reference to the recent TMAC recommendations, but notes 
TMAC recommendations are not binding on FEMA and relate directly to the 
NFIP, not necessarily to part 9 and this final rule.
    Comment: One commenter was not supportive of FFRMS, stating that a 
national ``one-size-fits-all'' approach that lacked flexibility to 
address specific regional and local circumstances and needs and a 
uniform strategy would not adequately address the nuanced and varied 
nature of flood dynamics. The commenter wrote that without tailored 
considerations for regional variations, FFRMS overlooked critical 
factors, risking inconsistency and inefficiency in flood management 
efforts.
    FEMA Response: The FFRMS is a resilience standard with flexibility 
in the approach selected to meet the standard. FEMA's FFRMS policy 
explains how the agency selects the FFRMS approach to use for each 
project and is not a ``one-size-fits-all'' policy. The FFRMS policy is 
flexible to address data availability based on the location of the 
action, criticality of the action being taken, and equity concerns and 
allows consideration of regional variations and community concerns.
    SLTTs can provide input into the floodplain determination. Pursuant 
to 44 CFR 9.11(d)(6), a more restrictive Federal, State, or local 
standard will be used. This includes the use of local CISA data and 
methods that have been adopted by a community for use in floodplain 
management, as long as such data result in a more restrictive standard. 
FEMA values additional input from SLTT partners and the public 
throughout the 8-step process.
    Comment: Another commenter also opposed FFRMS, stating that the 
approaches based on elevation and areal extent determined by flood 
elevations across the watershed were subject to availability heuristic 
bias. The commenter stated that higher is not always better and that 
FFRMS did not consider whether the standard was prone to error and 
therefore introduced

[[Page 56963]]

new risks, including the risk that FFRMS would impose more costs than 
it achieves in benefits. The commenter stated FEMA acknowledged the 
proposed standard would make errors and, in some cases, imposed costs 
greater than anything it prevented or saved. The commenter recommended 
that FEMA test its new standard in proposed use cases to determine 
where the standard would make errors. The commenter recommended that 
where the probability and consequences of errors from using the 
standard were significant, the agency should resort to detailed cost-
benefit analysis. The commenter recommended that the FFRMS be 
formulated with reference to alternatives and cost-benefit analysis, 
stating the public deserves some clarity about when FFRMS applies and 
when it did not.
    FEMA Response: FEMA disagrees with the commenter that the agency is 
assuming higher is universally better. There is no requirement in the 
FFRMS or the Revised Guidelines to select the most restrictive 
standard, as FFRMS is a resilience standard. The Revised Guidelines 
state ``[w]hen an agency is not using the Climate-informed Science 
Approach in riverine flood hazard areas, the agency may select either 
the Freeboard Value Approach or the 0.2-percent-annual chance 
elevation, as appropriate, and is not required to use the higher of the 
two.'' \180\ In some instances, building to a higher elevation may lead 
to overbuilding and thus not be the most cost-effective, equitable 
approach particularly for non-critical actions. FEMA believes its 
proposed approach to use the CISA, and to utilize the lower of the FVA 
or 0.2PFA where the CISA is not available and actionable, reflects 
appropriate sensitivity to cost and risk.
---------------------------------------------------------------------------

    \180\ See Revised Guidelines, pg. 57.
---------------------------------------------------------------------------

    Further, the revisions to part 9 do not change FEMA's long-standing 
requirement as part of implementing Executive Order 11988, as amended, 
to only perform or fund actions within or affecting floodplains if 
those actions are the only practicable alternative. Through the 8-step 
process, FEMA will consider alternative locations, alternative actions, 
nature-based solutions, and the no action alternative under the 
practicability analysis. If there is no practicable alternative, FEMA 
will perform or fund the action and will minimize any adverse impacts 
when doing so.
    Regarding clarity on the application of FFRMS, FEMA defines 
``action subject to the FFRMS'' as ``any action where FEMA funds are 
used for new construction, substantial improvement, or to address 
substantial damage to a structure or facility.'' The FFRMS applies to 
grants for projects funding the new construction, substantial 
improvement, or repair of substantial damage under FEMA programs such 
as IA, PA, and HMA programs, and grants processed by FEMA's GPD. FFRMS 
applies only to Federal actions and this rule only applies to those 
actions FEMA takes using Federal funding. This rulemaking is generally 
not expected to negatively impact individuals and their ability to pay. 
Where applicable, any increased costs associated with this rulemaking 
would be subject to cost share requirements for FEMA's programs.
    FEMA also disagrees with the commenter that the agency acknowledged 
the FFRMS would create errors and would impose costs greater than 
anything the standard would prevent or save. FEMA believes the benefits 
of preventing property damage and potentially saving lives justify the 
costs of the rule. These benefits are a result of the improved 
protection of structures and facilities due to increased elevation and 
floodproofing standards in FEMA's implementation of the FFRMS. This 
rule will improve the resilience of Federal investments to be better 
protected from flood damage and promote preservation of the natural and 
beneficial values of floodplains.
    FEMA believes the regulatory impact analysis was sufficiently 
detailed to analyze the FFRMS approaches in general, as the RIA itself 
was not intended to analyze the costs and benefits of applying the 
FFRMS standards to specific use cases. FEMA conducted an analysis to 
create a range of the potential impacts. FEMA does not know how many 
projects will be subject to the FVA, 0.2PFA, or CISA requirements over 
the 10-year period as FEMA anticipates it to continually change. 
Therefore, FEMA has analyzed the impact of FVA, 0.2PFA and CISA for 
each of the programs, PA, IA, and HMA as if each were the only FFRMS 
expansion option. Evaluation of the practicability of certain FFRMS 
standards in the context of specific use cases occurs as part of the 8-
step process, and to the extent that FEMA finds certain approaches to 
be incompatible with practicable implementation in certain cases, FEMA 
may issue further guidance on the topic. In general, however, 
commenters did not identify categories of actions for which application 
the FFRMS approaches appears likely to be particularly problematic.
    While FEMA could not quantify the costs and benefits of several 
aspects of this rule, FEMA was able to quantify the number of 
structures and facilities that would be impacted by the rule. FEMA was 
transparent about its inability to quantify the costs and benefits of 
several aspects of the rule. FEMA provided a literature review of 
relevant benefits that could be realized from flood mitigation, an 
analysis of benefits quantified for the rule, and a qualitative 
description of additional benefits that could be realized from the 
rule. FEMA conducted a quantitative cost-benefit analysis based on the 
data available.
2. Application of the FFRMS Approaches for Critical and Non-Critical 
Actions
    Comments: Commenters were generally supportive of FEMA's policy 
approach to utilize the higher of the FVA or 0.2PFA for critical 
actions where CISA data was not available and/or actionable. Some of 
these commenters, however, expressed concerns with utilizing the lower 
of the FVA or 0.2PFA for non-critical actions where CISA data was not 
available and not actionable. Several of these commenters inaccurately 
stated policy positions on the FFRMS approaches selected by other 
Federal agencies for non-critical actions.
    Commenters requested that FEMA adopt the higher of the FVA or 
0.2PFA for non-critical actions where CISA data was not available and 
not actionable. Commenters stated that FEMA's policy decision to 
utilize the lower standard would undermine the urgent need to design 
development proposals to a more resilient standard and minimize overall 
impacts to the floodplain. In response to FEMA's statements in the NPRM 
regarding concerns with overbuilding and inequitable outcomes that may 
not be cost-effective, a commenter noted that FEMA has consistently 
advocated for states and localities to embrace stricter standards such 
as updated building codes that can have similar cost implications. 
Commenters also wrote that upfront investments in resilient development 
produced significant cost savings to communities in the long run and 
stated that the cost of construction was not the only consideration for 
costs, particularly for housing. These commenters requested FEMA 
consider the higher standard for non-critical actions, stating that the 
long-term benefits would outweigh the costs.
    FEMA Response: As explained above, there is no requirement in the 
FFRMS or the Revised Guidelines to select the most restrictive 
standard, as FFRMS is

[[Page 56964]]

a resilience standard. The Revised Guidelines state ``[w]hen an agency 
is not using the Climate-informed Science Approach in riverine flood 
hazard areas, the agency may select either the Freeboard Value Approach 
or the 0.2-percent-annual chance elevation, as appropriate, and is not 
required to use the higher of the two.'' \181\ While the approach the 
commenters suggested would ensure that applicants were building all 
actions to the most protective level where CISA data is not available, 
this approach may lead to overbuilding and thus not be the most cost-
effective, equitable approach particularly for non-critical actions. 
FEMA believes the agency's approach is sufficiently protective of all 
actions and would be less expensive and complex to administer and 
implement than the commenters' approach.
---------------------------------------------------------------------------

    \181\ See Revised Guidelines, pg. 57.
---------------------------------------------------------------------------

    FEMA did consider the long-term costs and benefits of the 
rulemaking and policy and does not agree with the commenters that 
FEMA's policy approach would result in inequities. Rather, FEMA 
believes the policy approach is appropriate as it will help ensure 
communities can rebound quickly and effectively from a disaster.
    Comments: Other commenters requested FEMA require the use of the 
more protective standard for non-critical actions to better align with 
HUD's proposed rule to implement the FFRMS. Several of those commenters 
stated that aligning with HUD's approach would reduce conflicts and 
delays. One commenter stated that FEMA's approach to use a lower 
elevation for non-critical projects facilitated a beneficial benefit/
cost ratio. That commenter stated the higher standard should not be 
overly burdensome and consistent with another commenter noted the cost 
of construction was not the only consideration for costs, particularly 
for housing.
    FEMA Response: As explained above, there is no requirement in the 
FFRMS or the Revised Guidelines to select the most restrictive 
standard, as FFRMS is a resilience standard. While the approach the 
commenter suggested would ensure applicants were building all actions 
to the most protective level where CISA data is not available, this 
approach may lead to overbuilding and thus not be the most cost-
effective, equitable approach, particularly for non-critical actions. 
FEMA believes the agency's approach is sufficiently protective of all 
actions and would be less expensive and complex to administer and 
implement than the commenter's approach.
    While HUD's rule would require all proposed actions that require an 
Environmental Impact Statement (EIS) under NEPA to define the FFRMS 
floodplain using CISA, FEMA does not believe it is appropriate to 
require CISA in every instance where an EIS is required. FEMA cannot 
utilize CISA if CISA data is not available and actionable even if an 
action requires an EIS. Where CISA data is both available and 
actionable, FEMA will require CISA, including for those proposed 
actions that require an EIS.
    HUD proposed to use the CISA to determine the FFRMS floodplain 
where the data is available and actionable. For non-critical actions 
where CISA is unavailable, HUD will use the 0.2PFA. Where the 0.2PFA is 
also unavailable for non-critical actions, HUD will use the FVA. For 
critical actions where CISA is unavailable, HUD will use either the 
0.2PFA or the FVA to determine the FFRMS floodplain, whichever results 
in the larger floodplain and higher elevation. The only significant 
difference between HUD's policy approach and FEMA's is that HUD will 
first use the 0.2PFA for non-critical actions where it is available, 
but the CISA is not, and FEMA will use the lower of the 0.2PFA and the 
FVA for non-critical actions where CISA is not available.
    FEMA considered requiring the use of the 0.2PFA when CISA is not 
available for non-critical actions rather than the lower of the 0.2PFA 
or FVA. While application of the 0.2PFA may provide a more consistent 
reduction of flood risk as it is probability based, the relationship to 
the FVA varies depending on topography (i.e., in some instances the 
0.2PFA may result in a lower flood elevation than the FVA). Application 
of only the 0.2PFA without a comparison to the FVA may result in 
building to a higher resilience standard than is necessary. There could 
also be equity concerns related to underbuilding or overbuilding to 
this standard, as communities seek to rebound quickly and effectively 
from a disaster. Data availability of the 0.2 percent annual chance 
floodplain can also be a challenge in implementing the 0.2PFA, as well 
as technical considerations relating to how wave action may be 
incorporated. In coastal areas, the Revised Guidelines note Federal 
agencies should use the FVA as the minimum elevation when not using the 
CISA if the 0.2 percent annual chance flood information depicted on 
FEMA's regulatory products considers storm-surge hazards but not wave 
action and wave action data cannot be obtained from other sources. Only 
some of those coastal areas have included wave action in the 
computation of the 0.2 percent annual chance floodplain.
    FEMA's FFRMS policy provides details on how FEMA will coordinate 
with other agencies when implementing actions in the same area as 
another Federal agency. See Section H, page 9. FEMA's interagency 
consultative role in the broader implementation of the FFRMS across the 
Federal government, through the agency's participation in the 
Interagency Working Groups and the FIFM-TF helps ensure consistent and 
effective implementation.
    FEMA agrees with the commenter that equity is an important 
consideration and FEMA incorporated equity into the agency's policy 
approach as explained above. Equity was a primary consideration for 
FEMA's policy approach, not a desire to achieve a better benefit-cost 
ratio for non-critical actions as the commenter suggests. FEMA did 
consider the long-term costs and benefits of the rulemaking and policy 
and does not agree with the commenters that the policy approach would 
result in inequities. Rather, FEMA believes the policy approach is 
appropriate as it will help ensure communities seeking to rebound 
quickly and effectively from a disaster may do so.
    Comment: One commenter also stated using the less restrictive 
standard could result in greater impacts on floodplains, ESA-listed 
species, Tribal treaty rights, and realized costs to vulnerable 
communities. The commenter stated using the higher standard between FVA 
or 0.2PFA when CISA data was not available and not actionable would not 
only prevent impacts on floodplains but would also avoid a similar 
situation that required expensive infrastructure upgrades and 
government liability after poorly located initial development within 
floodplains.
    FEMA Response: As explained above, there is no requirement in the 
FFRMS or the Revised Guidelines to select the most restrictive 
standard, as FFRMS is a resilience standard. While the approach the 
commenter suggested would ensure applicants were building all actions 
to the most protective level where CISA data is not available, this 
approach may lead to overbuilding and thus not be the most cost-
effective, equitable approach particularly for non-critical actions. 
FEMA believes the agency's approach is sufficiently protective of all 
actions and would be less expensive and complex to administer and 
implement than the commenter's approach.
    A more restrictive application of the FVA or 0.2PFA would not 
necessarily

[[Page 56965]]

determine whether an action will impact a protected species or critical 
habitat or impact Tribal treaty rights. In step 4 of the 8-step 
process, FEMA determines impacts to the floodplain which include 
changes to the hydraulics and hydrology of the floodplain which informs 
on potential impacts to protected species and their critical habitats. 
FEMA will also perform Section 7 consultation under the Endangered 
Species Act where appropriate.
3. Alternative Policy Approaches
    Comments: Two commenters provided feedback on FEMA's specific 
request for comment on requiring the highest elevation for all actions 
regardless of criticality. One commenter noted FEMA's policy approach 
was flexible and acknowledged the need to be flexible and design an 
approach that would not unduly burden communities. The commenter 
recommended that FEMA continue to evaluate these approaches and 
consider revising and strengthening the standards if the standards 
become insufficiently protective. The other commenter stated that 
completing the required floodplain analysis for any one of the 
approaches would be challenging on its own and to require the analysis 
and consideration of all three would be costly and might not yield 
results materially different from the CISA. The commenter stated that 
because CISA would result in a determination of the appropriate level 
of resilience to design minimization measures, it would be unnecessary 
to require the use of the highest standard for all actions. The 
commenter stated that such an approach would be costly and, in some 
instances, would result in projects being built to higher resilience 
levels than required. This commenter supported FEMA's policy approach 
for critical actions as separate and apart from other actions, stating 
by separating critical actions from others, FEMA would be able to 
properly balance different levels of protection with minimization and 
mitigation measures and cost considerations.
    FEMA Response: FEMA appreciates the commenters' consideration of 
the alternatives and understanding of the need for a flexible approach 
balancing cost and equity considerations. FEMA agrees with the 
commenter that the use of the highest standard for all actions is not 
always appropriate and the FFRMS policy reflects the decision to use 
the lower standard for non-critical actions. FEMA intends to continue 
to evaluate the policy approach as FFRMS is implemented and will 
consider future revisions as appropriate. While FEMA understands the 
commenter's concern that completing the analysis for all of the 
approaches for every action could be an administrative burden on the 
agency, the agency does not believe that completing the analysis for 
any one of the approaches is on its own too challenging. As explained 
above, FEMA will use the FFRMS Job Aid to determine the FFRMS 
floodplain for actions, and that tool provides the agency and 
stakeholders with a methodology and process for completing the 
analysis.
    Comment: Two commenters wrote that FEMA artificially constrained 
the agency's consideration of alternatives to just the three disclosed 
regulatory approaches in the proposal and did not consider no 
regulatory action as an alternative. One of the commenters added that 
FEMA did not assess how private and non-Federal interests would adapt 
to flooding without regulation and the no regulation alternative likely 
understated flood adaptation, which resulted in the cost-benefit 
analysis overstating the benefits of the three regulatory alternatives. 
The commenter also wrote the true value of cost-benefit analysis is 
nearly always realized when alternatives are identified that achieve 
substantial benefits and at much less cost than much higher levels of 
regulation. The commenter stated that FEMA could have analyzed other 
alternatives, such as strategic choices of use-case subsets for 
application of the various FEMA standards rather than all use-cases 
being subject to CISA. The commenter further stated that the FVA or 
0.2PFA entail much lower analysis costs and are probably better suited 
to decisions where the costs of the structures or costs of adaptation 
were lower. The commenter stated avoiding the CISA in those situations 
might result in substantial cost savings.
    FEMA Response: FEMA's policy approach detailed in the NPRM preamble 
explains how the agency balanced consideration of costs with data 
availability, criticality of the action, and equity in establishing a 
flexible framework for FFRMS implementation. Consistent with the 
Revised Guidelines, FEMA's preferred approach is the CISA, but the 
FFRMS policy explains the CISA must be available and actionable and 
where it is not, the FVA or 0.2PFA will be utilized depending on the 
criticality of the action and availability of data. The CISA is FEMA's 
preferred approach, as FEMA believes it has the potential to be the 
best and most well-informed approach to building resilience in an 
equitable manner and ensuring a reduction in disaster-related 
suffering. CISA is designed to meet current and future estimates of 
flood risks unique to the location and thus provide the best overall 
resilience, cost effectiveness, and equity. FEMA understands the 
availability and actionability of data are key factors in completing 
the RIA in a consistent, equitable manner and believes data 
availability and actionability will continue to advance for the CISA. 
In response to the commenter's concerns that FEMA did not assess how 
private and non-Federal interests would adapt to flooding without 
regulation, FEMA notes that this regulation would not regulate purely 
privately funded activity in the floodplain. To the extent that private 
incentives exist to plan for increased flood risk, those incentives are 
substantially diluted by the use of FEMA assistance to support 
projects. FEMA thus did not understate private incentives to plan for 
flood risk and did not overstate the benefits of the regulatory 
alternatives.
    FEMA's policy approach includes consideration of the alternatives 
as part of the framework explained above. FEMA intends to continue to 
evaluate the policy approach as FFRMS is implemented and will consider 
future revisions as appropriate. Additionally, FEMA's RIA does analyze 
all three approaches, as well as the no action alternative the 
commenter references. Under the No Action alternative, although non-
Federal jurisdictions or private entities may continue to adapt to the 
future risk of flooding over time, the current Federal standards would 
remain. To the extent that private incentives exist to plan for 
increased flood risk, those incentives are substantially diluted by the 
use of FEMA assistance to support projects. Accordingly, such 
adaptation is unlikely to occur as quickly or as fully as this rule, 
leaving Federal investments at a greater risk of flooding than under 
the final rule. Because of the greater risk to structures and 
facilities, there is also a greater risk to life. In addition, the 
natural value and function of the floodplains would be at a greater 
risk of loss under the No Action alternative. However, the No Action 
alternative would initially cost incrementally less than the FFRMS 
approach and would result in less administrative complexity as compared 
to implementing the FFRMS. Overall, based on the evaluation, the FFRMS 
was selected over the No Action alternative for the benefits that it 
provides to Federal investments and those who use them.
    In response to the commenter's suggestion on how FEMA should have 
analyzed other alternatives, such as strategic choices of use-case 
subsets for

[[Page 56966]]

application of the various FEMA standards rather than all-use cases 
being subject to CISA, FEMA did complete an analysis of all three 
approaches. FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for 
each of the programs (PA, IA, and HMA) as if each approach were the 
only FFRMS expansion option to create a range (see sections 7.4, 7.5, 
and 7.6 in the RIA). In reality, it is likely that with FFRMS, there 
will be a mix, with some projects falling under CISA, FVA, or 0.2PFA. 
Therefore, the actual cost will fall somewhere within the range. FEMA 
selected the CISA as the primary approach, as it is the preferred 
option. CISA is designed to meet current and future estimates of flood 
risks unique to the location and thus provide the best overall 
resilience, cost effectiveness, and equity. As noted above, FEMA 
intends to continue to evaluate the policy approach as FFRMS is 
implemented and will consider future revisions as appropriate. Such 
revisions could in principle include defaulting to the FVA or 0.2PFA 
for smaller investments, although FEMA believes that the administrative 
costs associated with implementing the CISA are likely to decline over 
time.
    Further, FEMA did consider the long-term costs and benefits of the 
rulemaking and policy. Rather, FEMA believes the policy approach is 
appropriate, as it will help ensure communities can rebound quickly and 
effectively from a disaster.
4. Comments on FEMA's FFRMS Policy
    Comment: A commenter requested FEMA revise the proposed principle B 
in the FFRMS policy (``Avoid, to the extent possible, the long- and 
short-term adverse impacts associated with occupancy and modification 
of floodplains and avoid direct or indirect support of floodplain 
development wherever there is a practicable alternative'') to include 
additional language for FEMA to restore and preserve the natural and 
beneficial functions and values of wetlands and floodplains. Another 
commenter requested FEMA add a principle to the FFRMS policy and final 
rule specific to the restoration and preservation of the natural and 
beneficial functions and values of floodplains, and use of natural 
systems, ecosystem processes, and nature-based approaches.
    FEMA Response: FEMA believes the commenters' requested revisions 
are unnecessary. The principles laid out in the FFRMS policy are an 
abbreviated version of FEMA's policy statements found in Sec.  9.2. As 
stated in new Sec.  9.2(d), FEMA shall ``[r]estore and preserve the 
natural and beneficial values served by floodplains'' and ``[p]reserve 
and enhance the natural values of wetlands.'' FEMA's longstanding 
requirements in 44 CFR 9.11(e) outline the agency's requirements to 
restore and preserve the natural and beneficial values served by 
floodplains and wetlands. These current requirements meet the 
commenters' concerns and remain unchanged in this rulemaking process.
    Comment: A commenter requested other specific edits to the policy 
document, including adding ``dry'' before floodproofing throughout the 
document and replacing ``minimization standards'' with ``residential 
flood resistant design and construction requirements.'' The commenter 
also suggested FEMA add emphasis that nature-based solutions complement 
the elevation requirements versus being alternative actions and 
implementing a nature-based solution would not exempt an applicant from 
the elevation requirements.
    FEMA Response: FEMA believes the current language in the FFRMS 
policy is sufficiently clear. FEMA believes adding ``dry'' before 
floodproofing is not necessary as floodproofing is described in detail 
in new Sec.  9.11(d)(3)(ii) and section G.1.c of the FFRMS policy. 
Further, FEMA's policy references the use of the agency's additional 
resources including FEMA's NFIP Technical Bulletins that address 
floodproofing.\182\ Using the term ``minimization requirements'' is 
consistent with the minimization provisions and minimization standards 
in Sec.  9.11. The term ``flood risk minimization measures'' is 
preferred by FEMA to avoid confusion with ``hazard mitigation'' actions 
funded by FEMA.
---------------------------------------------------------------------------

    \182\ See FFRMS Policy, pg. 8, Section G.1.d ``FEMA guidance 
provides technical information on elevation methods for new 
construction and retrofitting existing structures with various types 
of foundations. Guidance is available in NFIP Technical Bulletins 
(1-11), FEMA P-758: Substantial Improvement/Substantial Damage Desk 
Reference, FEMA P-936: Floodproofing Non-Residential Buildings, FEMA 
P-348: Protecting Building Utility Systems from Flood Damage, FEMA 
P-467-2: Floodplain Management Bulletin on Historic Structures, 
among other FEMA publications.''
---------------------------------------------------------------------------

    FEMA believes that natural features and nature-based solutions 
should be considered as project alternatives and used where possible. 
Where they are not practicable as an alternative on their own, natural 
features and nature-based solutions may be incorporated into actions as 
minimization measures. The FFRMS policy clarifies the FFRMS is a 
resilience standard and where elevation may not be feasible or 
appropriate, the FFRMS floodplain establishes the level to which a 
structure or facility must be resilient. Resilience measures include 
using structural or nonstructural methods to reduce or prevent damage; 
elevating a structure; or, where appropriate, designing it to adapt to, 
withstand and rapidly recover from a flood event.
    Comment: The same commenter requested several clarifications. The 
commenter requested FEMA clarify the requirements provided in the 
policy were minimum requirements not maximums and that applicants could 
exceed those requirements. The commenter requested FEMA clarify the 
policy's requirements apply regardless of whether or not substantial 
improvement or substantial damage is triggered and also clarify whether 
a structure within an FFRMS floodplain must comply with the policy's 
requirements.
    The commenter also requested clarifications on--
     The application of FFRMS to FEMA's benefit-cost analysis 
tool used by some FEMA programs;
     whether the FFRMS policy limited where certain projects 
could be done, citing an example of mitigation reconstruction projects 
being prohibited in V Zone; and
     what constitutes a critical action and specifically 
whether or not certain specific actions would be considered critical, 
such as construction of new safe room and stand-alone generator 
projects if they are supporting a critical facility.
    FEMA Response: The commenter is correct that FFRMS is a minimum 
requirement under part 9. In section C.4 of the policy, FEMA clarifies 
pursuant to 44 CFR 9.11(d)(6), a more restrictive Federal, State, or 
local standard will be used. Actions may follow a higher standard so 
long as the action complies with FEMA's program requirements.
    In section A.2 of FEMA's FFRMS policy, the agency clarifies 
applicability of the policy to specific actions, including actions 
involving substantial improvement and substantial damage. FEMA does not 
believe the policy requires additional revision given the language in 
section A.2 regarding applicability. Section C of the policy explains 
how FEMA determines the FFRMS floodplain. Specific actions listed in 
section A.2 that are within the FFRMS floodplain are subject to the 
requirements of the policy.
    FEMA appreciates the commenter's interest in the application of the 
Benefit-Cost Analysis (BCA) tool to the FFRMS process for FEMA 
programs. FFRMS does consider current and future flood risks. Where 
CISA is available and

[[Page 56967]]

actionable, sea level rise is specifically incorporated into the 
determination of the FFRMS flood elevation. FEMA's FFRMS policy will 
generally not change BCA requirements for FEMA programs. For FEMA's HMA 
program, additional elevation above the BFE incorporated into the 
design of the project and attributed to current and future flood risk 
such as sea level rise would be allowable in the BCA. Currently, pre-
calculated benefits that streamline the cost-effectiveness 
determination for structure elevation projects are limited to 
structures where some part of the structure is within the SFHA. For an 
elevation project where the entire structure footprint is outside the 
SFHA, a BCA will be required to show cost-effectiveness. For FEMA's PA 
program, cost-effectiveness requirements apply only to Hazard 
Mitigation measures on projects to restore disaster damaged structures 
and facilities. FFRMS elevation requirements are mandated by law and 
therefore are eligible for financial assistance without additional 
cost-effectiveness analysis. FEMA notes any increased costs are 
generally eligible for funding under FEMA's assistance programs subject 
to cost share requirements.
    The requirements of Sec.  9.11(d)(1) still apply and remain 
unchanged in this final rule. The commenter references V Zone 
mitigation reconstruction projects. For V Zone actions that are new 
construction, FEMA is prohibited from funding such actions unless the 
action is functionally dependent or facilitates open space use. The HMA 
Program and Policy Guide also states HMA mitigation reconstruction 
projects are prohibited in the V Zone and in floodways \183\ and this 
final rule and FFRMS policy will not change that requirement. HMA 
mitigation reconstruction actions that are within the FFRMS floodplain 
must either be relocated or elevated to the FFRMS requirements.
---------------------------------------------------------------------------

    \183\ Hazard Mitigation Assistance Program and Policy Guide, pg. 
85 available at https://www.fema.gov/grants/mitigation/guide (last 
accessed Mar. 20, 2024).
---------------------------------------------------------------------------

    Regarding the commenter's request for clarification on whether or 
not specific actions were considered critical and subject to FFRMS, 
FEMA cannot provide a full adjudication of whether an action is a 
critical action without context. FEMA makes the determination of 
whether an action is a critical action as part of the 8-step process on 
a case-by-case basis with input from the applicant. FEMA's definition 
of ``critical action'' is consistent with Executive Order 11988, as 
amended, through the Implementing Guidelines and further clarified in 
the Revised Guidelines. The Revised Guidelines provide further details 
on what constitutes a critical action. FEMA will leverage the 
information in the Revised Guidelines when providing additional 
guidance to stakeholders.
    As explained throughout this final rule, FEMA will publish 
additional resources for the public and SLTT partners identifying what 
the FFRMS is, and how the agency will implement the Executive Orders to 
help applicants of FEMA-funded assistance programs. FEMA's regional 
offices will also provide technical assistance in support of FFRMS 
implementation.
    Comment: The same commenter also had several other recommendations 
for FEMA's FFRMS policy. The commenter recommended FEMA add an emphasis 
on specific codes and standards that might be applicable to specific 
FEMA programs, limit the dry floodproofing design to 3 feet for any new 
construction as recommended by NFIP Technical Bulletin 3, and cap 
elevation costs at the current NFIP ceiling for building coverage or 
the current replacement value. The commenter also suggested FEMA add 
information related to relocation regarding nature-based solutions, 
stating that instead of elevating or reconstructing in place the 
preference should be to relocate an action.
    FEMA Response: The FFRMS policy provides information on FEMA's 
Building Codes Strategy and refers to specific codes and standards the 
agency leverages through specific program policies. FEMA does not 
believe additional emphasis on specific codes and standards is required 
in the FFRMS policy, as these are detailed in each specific program's 
policies. FEMA will distribute additional resources for the public and 
SLTT partners identifying what the FFRMS is, and how the agency will 
implement the Executive Orders to assist applicants of FEMA-funded 
assistance programs. FEMA will also provide technical assistance 
through the agency's regional offices in support of FFRMS 
implementation.
    FEMA's FFRMS policy states ``[e]levation and floodproofing 
requirements must be consistent with NFIP criteria or any more 
restrictive local standard.'' \184\ Rather than direct quotation of a 
specific requirement for floodproofing design as the commenter 
requested, section G.1.d of the FFRMS policy addresses the use of other 
FEMA publications, including NFIP Technical Bulletins to assist 
readers.
---------------------------------------------------------------------------

    \184\ FFRMS policy, pg.8.
---------------------------------------------------------------------------

    FEMA believes the commenter's suggested funding limitations to cap 
elevation costs are outside the scope of this rulemaking. Applicants 
seeking FEMA program funding will be required to comply with that 
program's eligibility requirements, which may consider cost 
effectiveness of the proposed action.
    Regarding the commenter's request to add information regarding 
relocation, FEMA notes this policy does not change the current 
requirement of step 3 of the 8-step process: ``If a practicable 
alternative exists outside of the floodplain or wetland FEMA must 
locate the action at the alternative site.''
    Comment: Another commenter asked if Approach 2 was only for 
critical actions.
    FEMA Response: Approach 2 (the FVA) may be used for both critical 
and non-critical actions where CISA is not available and actionable. 
FEMA's FFRMS policy requires FEMA to determine the FFRMS floodplain 
according to the CISA for all locations where the best-available, 
actionable hydrologic and hydraulic data methods that integrate current 
and future changes in flooding based on climate science exist. When 
CISA is not available for a critical action, the FFRMS policy requires 
FEMA to determine the FFRMS floodplain as the area that would be 
inundated by the higher of the 0.2 percent annual chance flood and 3 
feet of freeboard above the BFE for that location (the Freeboard Value 
Approach or FVA). When CISA is not available for a non-critical action, 
the FFRMS policy requires FEMA to determine the FFRMS floodplain as the 
area that would be inundated by the lower of the 0.2 percent annual 
chance flood and 2 feet of freeboard above the BFE for that location 
(the FVA). In coastal areas where CISA is unavailable, the FFRMS policy 
requires the FVA be used if the available 0.2 percent annual chance 
flood elevation does not account for wave action.
    Comment: One commenter stated several links in the policy document 
did not appear to be active.
    FEMA Response: FEMA appreciates the commenter's review of the 
policy document links and has confirmed the links are updated and 
active in the attached FFRMS policy.

I. The FFRMS and Floodplain/Wetland Determination Data

1. Data Availability
    Comments: Four commenters discussed the availability of the CISA 
data to implement the FFRMS and some of the commenters requested maps 
or other resources depicting the FFRMS

[[Page 56968]]

floodplain. A commenter stated there were no consistently accurate 
resources depicting the floodplain, floodway, the 100-year floodplain, 
the 500-year floodplain, or the FFRMS floodplain. The commenter stated 
that the floodplain determination triggered whether a proposed action 
was required to complete the 8-step decision-making process and the 
lack of FFRMS floodplain maps would create difficulty for stakeholders 
seeking Federal funding from FEMA for projects. The commenter stated 
that FEMA's work with other agencies to develop FFRMS tools and 
resources would help situations involving existing development but 
would not deter new development because the FFRMS floodplain 
determination would come only after the initial investments were made. 
The commenter added that FEMA's regulatory maps for the NFIP help 
stakeholders determine whether a property is located in a regulated 
floodplain within a short period of time and with a high degree of 
certainty and that the FFRMS establishes a moving, undocumented, and 
unmapped target that would be used haphazardly to determine the 
floodplain status of any given property.
    Further, the commenter stated FEMA had not provided enough 
information on how FEMA would implement the preferred CISA approach and 
had not defined when data might be considered to be ``available'' or 
``actionable.'' The commenter stated the regulatory text lacked 
information on the CISA data and FEMA's request for comment on how the 
CISA could be implemented using a publicly accessible, standardized, 
predictable, flexible, and cost-effective methodology indicated the 
agency was uncertain of how to apply the CISA to any given project. The 
commenter stated the lack of maps and other resources depicting the 
FFRMS floodplain made the floodplain determination susceptible to 
confusion, error, and potential abuse. The commenter stated FEMA 
rejected the use of the 0.2PFA based on data availability, costs, and 
certainty for stakeholders and stated concern with FEMA moving forward 
with the CISA, stating that approach was supported by even less data.
    Conversely, a second commenter stated the necessary data and 
modeling capabilities underpinning CISA have continued to expand in 
recent years, making CISA an increasingly practicable methodology for 
more accurately determining the extent of the FFRMS floodplain. The 
commenter wrote that FEMA should emphasize developing and deploying the 
necessary data to support the use of the CISA more broadly and 
specifically consider and address how regional data limitations could 
result in inequitable outcomes if the CISA is routinely unavailable in 
low income, rural, Tribal, or otherwise underserved communities.
    Two other commenters requested that FEMA provide mapping depicting 
the FFRMS floodplain. One commenter specifically requested mapping 
reflecting the CISA. One of the commenters noted the importance of 
mapping to identify all 3.5 million miles of floodplains associated 
with streams, rivers, and coastlines. This commenter recommended FEMA 
create maps with as much coverage as possible by considering 
incorporating data from areas with Base Level Engineering (BLE) in 
additional areas with detailed flood studies, when possible. The 
commenter stated this was the best way to ensure consistent, accurate 
CISA use.
    FEMA Response: FEMA disagrees with the commenter that there are not 
sufficient resources depicting the floodplain, floodway, the 1 percent 
annual chance floodplain, or the 0.2 percent annual chance floodplain 
for all regions of the country. The commenter acknowledges further in 
their own comment that such resources currently exist for the 1 percent 
annual chance floodplain when stating the wide availability and 
certainty of FEMA's FIRMs. While regulatory mapping products may not 
exist depicting all of the areas referenced by the commenter, 
floodplain determinations under part 9 are not solely predicated on 
existing FIRMs. Rather, FEMA will use best available information, which 
may include information that is non-regulatory or FEMA preliminary 
flood hazard data. To be designated as the best available information, 
the information must be at least as restrictive as information provided 
by effective FIRMs per FEMA's best available information policy.\185\ 
Given this policy, the agency will be continuously improving the data 
associated with the floodplain determination. FEMA's regulatory mapping 
products are a starting point for the floodplain determination under 
part 9 and any other flood information used should be at least as 
restrictive as those regulatory products.
---------------------------------------------------------------------------

    \185\ See FEMA Policy 104-008-2: Guidance on the Use of 
Available Flood Hazard Information, available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf (last 
accessed Mar. 20, 2024).
---------------------------------------------------------------------------

    Further, while there are no regulatory mapping products depicting 
the FFRMS floodplain, FEMA believes the information provided in the 
public docket with this rulemaking is sufficient to establish the FFRMS 
floodplain. Specifically, the FFRMS CISA State of the Science Report 
and the FFRMS Job Aid are resources to determine the FFRMS floodplain. 
Using the FFRMS Job Aid, FEMA can determine the FFRMS floodplain 
relevant to a particular location within approximately 23 minutes.
    While FEMA appreciates that the commenter seeks to make the 
floodplain determinations, the agency has historically made and will 
continue to make floodplain determinations under part 9 by partnering 
with applicants in the 8-step decision-making process. FEMA will make 
the floodplain determination leveraging the FFRMS Job Aid published on 
the agency's website and in the public docket of this rulemaking. The 
FFRMS Job Aid is a resource for FEMA and applicants that details the 
methodology and process by which the FFRMS floodplain can be determined 
for the CISA, FVA, and 0.2PFA. FEMA further notes that the commenter's 
concerns regarding the floodplain determination are only a part of the 
analysis at Step 1 of the 8-step process. The determination in Step 1 
is not just whether or not an action is located within a floodplain or 
wetland but is also whether the action would impact the floodplain or 
wetland.
    FEMA will continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: 
Guidance on the Use of Available Flood Hazard Information,\186\ and the 
Revised Guidelines in determining whether CISA and flood hazard data is 
available and actionable. The FFRMS CISA State of the Science Report is 
based on the Revised Guidelines and further refines the initial 
framework from Appendix H to define two specific workflows for applying 
CISA. The FFRMS CISA State of the Science Report identifies the latest 
sea level rise projections from the National Climate Assessment as 
available and actionable data for CISA.\187\ FEMA understands the 
commenter's concerns in seeking a simplified resource that depicts the 
FFRMS floodplain and is coordinating across the federal government to 
develop additional tools beyond the FFRMS Job Aid to assist agencies 
and stakeholders in determining the appropriate vertical flood 
elevation and corresponding horizontal FFRMS floodplain. FEMA will 
continue to

[[Page 56969]]

collaborate across the Federal government to develop tools to 
facilitate the implementation of CISA and the FFRMS. The IWG recently 
released a beta version of the Federal Flood Standard Support Tool 
(FFSST), a novel, interactive, map-based tool that incorporates new 
data to help users identify if a Federally funded project is in the 
FFRMS floodplain, for comment.\188\ However, FEMA will initially rely 
on the FFRMS Job Aid methodology to determine the FFRMS floodplain.
---------------------------------------------------------------------------

    \186\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf 
(last accessed Jan. 24, 2024).
    \187\ FFRMS CISA State of the Science Report, pgs. 22-23.
    \188\ 89 FR 25674 (Apr. 11, 2024).
---------------------------------------------------------------------------

    The commenter incorrectly characterizes FEMA's request for comment 
as an indication that the agency is unable to apply the CISA. As 
explained above and throughout this final rule, FEMA is leveraging the 
resources provided in the public docket of this rulemaking to implement 
the FFRMS. As part of the NPRM, FEMA sought public comment to gauge the 
public's understanding of CISA and implementation of the FFRMS using 
the CISA, including locally available CISA data and methods. FEMA is 
collaborating across the Federal government to develop resources to 
further assist with FFRMS implementation beyond the FFRMS Job Aid 
provided in the rulemaking docket, the public comments requested will 
help the agency through work with the IWG to enhance the Job Aid and 
other interagency resources. Additionally, FEMA sought public comment 
to engage more dialogue on data availability and actionability beyond 
Federal interagency resources for FFRMS implementation.
    FEMA further disagrees with the first commenter that the CISA is 
supported by even less data than the 0.2PFA. FEMA's policy addresses 
concerns regarding the availability and actionability of CISA data by 
offering a flexible approach to implement either the FVA or 0.2PFA 
where CISA data is not available and/or actionable. Further, as the 
policy explains, the use of both CISA and 0.2PFA are subject to data 
availability. While CISA is preferred, where CISA data is not available 
and/or actionable, the agency will rely on the alternative approaches 
as detailed in the FFRMS policy.
    FEMA agrees with the second commenter that since the introduction 
of the CISA in 2015, additional data has become available to better 
inform the CISA.\189\ FEMA believes data availability and actionability 
will continue to advance for the CISA in the future. Specifically, FEMA 
expects more data will be developed supporting broader-based 
application of the CISA as agencies implement the FFRMS, and this data 
will be considered and incorporated into future updates of the FFRMS 
and FEMA's implementation thereof. FEMA's policy approach is to use the 
CISA where available and actionable, recognizing that the data is still 
not available and not actionable in every location. FEMA also 
recognized equity concerns in the policy approach, specifically 
considering over- and under-building concerns for locations where the 
CISA may be unavailable as explained in the NPRM preamble. The Revised 
Guidelines recognize the importance of consideration of impacts to 
vulnerable populations, including those at risk to impacts of flooding 
due to their location or because they are overburdened, lack resources, 
or have less access to resources.\190\ Consistent with these concerns, 
FEMA's FFRMS policy would require the lower of the FVA floodplain or 
the 0.2PFA floodplain for non-critical actions. FEMA believes the lower 
approach would help reduce the burden on communities by addressing 
concerns related to overbuilding, particularly in underserved 
communities seeking to rebound quickly and effectively from a disaster. 
Selecting the lower approach for non-critical actions will still result 
in a higher level of resilience than the current requirements under 
part 9, while also taking equity and cost-effectiveness considerations 
into account.
---------------------------------------------------------------------------

    \189\ See ``Federal Flood Risk Management Standard Climate-
Informed Science Approach (CISA) State of the Science Report,'' 
available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
    \190\ See Revised Guidelines, pg. 67.
---------------------------------------------------------------------------

    FEMA appreciates the concerns of the remaining commenters 
requesting maps that depict the FFRMS floodplain and the importance of 
providing maps with as much coverage as possible. FEMA understands the 
commenter's concerns in seeking a simplified resource such as a map 
depicting the FFRMS floodplain and is coordinating across the federal 
government to develop additional tools beyond the FFRMS Job Aid to 
assist agencies and stakeholders in determining the appropriate 
vertical flood elevation and corresponding horizontal FFRMS floodplain. 
The IWG recently released a beta version of the Federal Flood Standard 
Support Tool (FFSST), a novel, interactive, map-based tool that 
incorporates new data to help users identify if a Federally funded 
project is in the FFRMS floodplain, for comment.\191\ However, FEMA 
will initially rely on the FFRMS Job Aid methodology to determine the 
FFRMS floodplain.
---------------------------------------------------------------------------

    \191\ 89 FR 25674 (Apr. 11, 2024).
---------------------------------------------------------------------------

2. Methodology
    Comments: FEMA received questions regarding the CISA floodplain 
determination methodology. Commenters stated the NPRM did not specify 
how FEMA would determine the best-available, actionable climate science 
data and methods for the CISA, stating the agency also did not explain 
how it would select, evaluate, and update the data and methods that 
inform the CISA. One commenter asked what sources of data and methods 
FEMA would use; how FEMA would account for uncertainty and variability 
in climate projections; and how often FEMA would update the data and 
methods to reflect new scientific findings. One commenter requested 
information on the methods FEMA would use prior to selecting data and 
asked whether state agencies, floodplain managers, and other 
stakeholders would have an opportunity to inform what best aligned with 
on-the-ground realities. Both of these commenters asked how FEMA would 
communicate the data and methods to stakeholders and the public.
    One commenter raised concerns that the CISA was still emerging and 
stated the overall approach would be overly conservative. Similar to 
other comments described earlier in this summary, this commenter asked 
who would make the determination to accept the science used for CISA 
and which projections would be applicable for design life and risk 
aversion of the structure. This commenter noted the FFRMS did not 
mention how recent the local climate study needed to be for the CISA 
and stated that regulatory agencies choose to enforce the most extreme 
flood events. The commenter recommended FEMA provide guidance for how 
to use climate projection data for development of unsteady hydraulic 
models which would be required to determine rate of rise of floodwater 
and durations.
    Another commenter provided several specific recommendations 
regarding actionable model criteria for the CISA including that the 
models be well-established in practice; not extrapolate results; 
display information on uncertainty; are well-calibrated; provide 
outputs that are understandable; and be

[[Page 56970]]

evaluated via peer-review. The commenter recommended that FEMA provide 
additional clarity as to what standard of peer review would be 
considered efficacious when producing future flood risk models, and 
that FEMA follow up with entities peer reviewing models to confirm that 
this standard has actually been met. This commenter encouraged the use 
of a consistent and accurate methodology for determining the FFRMS 
floodplain across the Federal government. The commenter stated that 
where CISA data was not available, utilizing the 1 percent annual 
chance floodplain and the 0.2 percent annual chance floodplain would be 
appropriate, as those are well understood and adopted for regulatory 
purposes under the NFIP, as well as the mortgage and insurance 
industries broadly.
    Another commenter stated the lack of transparency in the FFRMS 
floodplain determination data raised concerns similar to concerns 
raised regarding proprietary tools used in the implementation of FEMA's 
Risk Rating 2.0. The same commenter stated proprietary tools would make 
it difficult to assess whether a CISA floodplain determination was 
appropriate for local conditions for a specific action and stated 
national-scale, one-size-fits-all tools would not be readily applicable 
to project sites in every location, including rural states. The 
commenter requested FEMA commit to bringing in State and local 
stakeholders to provide their perspectives.
    FEMA Response: FEMA believes the information provided in the 
rulemaking docket addresses the commenters' concerns regarding how the 
agency will select, evaluate, and update the data and methods that 
inform the CISA and account for uncertainty and variability in climate 
projections. As explained above, the FFRMS CISA State of the Science 
Report and FFRMS Job Aid provide the public with information on the 
best available and actionable data for the CISA and the methodology the 
agency intends to initially use to determine the FFRMS floodplain using 
the CISA. The FFRMS CISA State of the Science Report and the Revised 
Guidelines provides details on how the agency will determine the 
availability and actionability of data for the CISA. The FFRMS Job Aid 
provides the methodology and process FEMA will use, based on those 
resources, to determine the FFRMS floodplain.
    As explained above, FEMA makes the determination for Step 1 of the 
8-step process, in coordination with applicants, and will work with 
State agencies, floodplain managers, and other stakeholders during this 
process to best understand the on-the-ground realities. Pursuant to 44 
CFR 9.11(d)(6), a more restrictive Federal, State, or local standard 
will be used in lieu of the FFRMS. This includes the use of local CISA 
data and methods that have been adopted by a community for use in 
floodplain management, as long as such data result in a more 
restrictive standard. FEMA notes that the agency did communicate 
information on the data and methodology to determine the FFRMS 
floodplain to stakeholders and the public with this rulemaking by 
providing the FFRMS CISA State of the Science Report and FFRMS Job Aid 
in the public docket. FEMA will provide additional resources to SLTTs 
and the public and will offer technical assistance regarding the FFRMS 
floodplain determination as part of the FFRMS implementation. FEMA 
disagrees with the commenter that agencies choose to enforce the most 
extreme flood events; the CISA is based on the best available and 
actionable data, not the most extreme scenarios.
    With respect to the comment suggesting that FEMA support a 
consistent and accurate methodology for determining the FFRMS 
floodplain across the Federal government, FEMA supports the development 
of interagency tools because such tools enhance predictability and 
mitigate transaction costs associated with floodplain determinations. 
FEMA has prioritized the use of such tools in its policy approach and 
will initially implement the CISA using the FFRMS Job Aid. FEMA's 
interagency consultative role in the broader implementation of the 
FFRMS across the Federal government, through the agency's participation 
in the Flood Resilience IWG and the FIFM-TF, helps ensure consistent 
and effective implementation. FEMA's FFRMS policy further provides 
details on how FEMA will coordinate with other agencies when 
implementing actions in the same area as another Federal agency. See 
Section H, page 9. At the same time, there is no requirement in the 
FFRMS or the Revised Guidelines for all Federal agencies to select the 
same approach or to implement the CISA with the same tools; the FFRMS 
is a resilience standard and is meant to be flexible.\192\ Regarding 
the commenter's question regarding which projections would be 
applicable for design life and risk aversion of the structure, the 
FFRMS Job Aid Section 2.4.1 discusses service life including in the 
context of critical actions.\193\ This information should resolve the 
commenter's question. FEMA notes that the agency's proposed 
implementation of the CISA does not include incorporating climate 
projection data into hydraulic models (steady or unsteady).
---------------------------------------------------------------------------

    \192\ See Revised Guidelines, pg. 57.
    \193\ See FFRMS Job Aid, pg. 14.
---------------------------------------------------------------------------

    FEMA appreciates the recommendations provided by another commenter 
on the actionable model criteria for the CISA. FEMA is not relying on 
models for the CISA implementation beyond the models already utilized 
to produce the agency's regulatory and non-regulatory products for the 
NFIP. Appendix H of the Revised Guidelines \194\ and the FFRMS CISA 
State of the Science Report \195\ provide an overall framework for 
assessment of data and models to determine available and actionable 
climate science.
---------------------------------------------------------------------------

    \194\ See Revised Guidelines, pgs. 16-17, 50-52.
    \195\ See FFRMS CISA State of the Science Report, pgs. 7-8.
---------------------------------------------------------------------------

    FEMA agrees with this commenter that, where CISA data is not 
available and not actionable, the agency will rely on the alternative 
approaches as detailed in FEMA's FFRMS policy. Section C.3 of FEMA's 
FFRMS policy states that FEMA will determine the FFRMS elevation and 
the FFRMS floodplain depending on the criticality of the action. For 
non-critical actions, the FFRMS floodplain is the area that would be 
inundated by the lower of the 0.2 percent annual chance flood or 2 feet 
of freeboard above the BFE. For critical actions, the FFRMS floodplain 
is the area that would be inundated by the higher of the 0.2 percent 
annual chance flood or 3 feet of freeboard above the BFE. For locations 
where information about the elevation and/or extent of the 0.2 percent 
annual chance floodplain is not available, the FFRMS floodplain is 3 
feet of freeboard above the BFE. To clarify, the FVA relies on the 1 
percent annual chance floodplain but incorporates an additional measure 
of safety beyond the 1 percent annual chance floodplain. If available 
0.2 percent annual chance floodplain data is not available, FEMA will 
utilize the appropriate FVA to determine the FFRMS floodplain and 
elevation.
    Finally, FEMA believes the interagency tools used for FFRMS 
implementation have been transparent in nature. The tools FEMA will 
utilize to implement the FFRMS are not proprietary. FEMA, as a co-chair 
of the Flood Resilience IWG, under the National Climate Task Force, 
facilitated the publication of both the FFRMS Job

[[Page 56971]]

Aid \196\ and FFRMS CISA State of the Science Report.\197\ The FFRMS 
Job Aid helps federal agencies and their non-federal partners 
(including potential federal financial aid recipients) conduct a 
screening to determine if a proposed federally funded action will be 
located within an FFRMS floodplain, based on any of the three 
approaches in accordance with Sec. 2(a)(1) of Executive Order 11988, as 
amended. FEMA will initially utilize the FFRMS Job Aid to make these 
determinations, and this resource was posted in the public docket of 
this rulemaking for transparency to the public. As explained above, 
FEMA makes the determination for Step 1 of the 8-step process, in 
coordination with applicants, and will work with State and local 
communities during the 8-step process. FEMA will accept local CISA data 
and methods that have been adopted by a community for use in floodplain 
management, as long as such data result in a more restrictive standard 
and will help further ensure local needs are met.
---------------------------------------------------------------------------

    \196\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024) and posted to the public docket for this rulemaking at 
https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \197\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
---------------------------------------------------------------------------

    Comment: One commenter requested FEMA specify which NOAA sea level 
rise (SLR) scenario the agency would consider as the minimum standard 
to apply the CISA to HMA grant project benefit-cost analysis (BCA) and 
designs. The commenter also requested FEMA specify under what 
conditions it would allow higher SLR scenarios to be used, stating the 
lack of clarity would result in slowdowns and inconsistency in 
application reviews across FEMA regions and projects. The commenter 
requested FEMA clarify whether the agency would defer to applicant or 
State policies that may incorporate higher projections and otherwise 
meet the criteria for the CISA.
    FEMA Response: FEMA is not codifying the specific climate scenarios 
to be used as part of the CISA analysis. As explained above, FEMA is 
relying on interagency processes to select and evaluate the data and 
methods used to implement the FFRMS. In the proposed rule, FEMA 
referred readers to the FFRMS Job Aid and the FFRMS CISA State of the 
Science Report, which were posted to the public docket associated with 
this rulemaking.\198\ FEMA has also posted the FFRMS Job Aid on its 
website \199\ and will leverage this tool when implementing the FFRMS. 
Consistent with the FFRMS Job Aid, FEMA will use the intermediate 
scenarios for non-critical actions and intermediate-high scenarios for 
critical actions using the SLR data from NOAA.\200\
---------------------------------------------------------------------------

    \198\ See https://www.regulations.gov/document/FEMA-2023-0026-0004.
    \199\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan. 
24, 2024).
    \200\ FFRMS Job Aid, pgs. 20-21. NOAA viewer available at 
https://coast.noaa.gov/slr/ (last accessed Mar. 28, 2024).
---------------------------------------------------------------------------

    In response to the commenter's concerns regarding the use of higher 
SLR scenarios and whether FEMA would accept higher standards, 44 CFR 
9.11(d)(6) provides that a more restrictive Federal, State, or local 
standard will be used in lieu of the FFRMS. Thus, if a more restrictive 
State or local standard relied on a higher SLR scenario, that more 
restrictive standard would be used. FEMA notes the determination on the 
information the applicant is using under part 9 has always been made by 
the agency and thus, FEMA does not anticipate delays with projects as a 
result of the FFRMS implementation.
    Comment: A commenter stated that FEMA's policy approach was not 
straightforward, as the boundaries and elevations for both the FVA and 
0.2PFA must be identified for each project and then compared to 
establish the final floodplain but stated there was little information 
on how those boundaries and elevations would be determined. Similar to 
other commenters above, the commenter asked who would conduct the 
analysis, what data would be used, and what ground-truthing if any 
would be performed. The commenter stated this must be determined prior 
to FFRMS implementation. This commenter stated CISA's application was 
not understood nor was it likely to be consistent given the significant 
leeway provided to the Regional Administrators. The commenter requested 
FEMA explain how the agency would choose the FFRMS approach it would 
take, what data the agency would rely on, and provide publicly 
available maps depicting the regulated floodplain (whether that 
floodplain was determined based on the 1 percent annual chance 
floodplain, the 0.2 percent annual chance floodplain, or using the 
CISA, FVA, or any other methodology). The commenter stated the FFRMS 
was otherwise premature, and FEMA should cease implementation until 
these efforts were complete.
    FEMA Response: FEMA understands the commenter's concern that both 
the FVA and 0.2PFA will be identified where the CISA is not available 
and/or actionable. However, FEMA does not believe this analysis will be 
overly burdensome to the agency or to applicants. FEMA has made, and 
will continue to make, floodplain determinations partnering with 
applicants in the 8-step decision-making process. The FFRMS Job Aid 
provides the methodology and process by which the FVA and 0.2PFA can be 
determined. This document is publicly available on FEMA's website and 
was posted to the public docket with this rulemaking. Using the FFRMS 
Job Aid, FEMA can determine the FFRMS floodplain relevant to a 
particular location within approximately 23 minutes.
    FEMA disagrees with the commenter that the CISA's application is 
not understood nor likely to be consistent given the resources provided 
with this rulemaking as detailed above. The FFRMS CISA State of the 
Science Report and the FFRMS Job Aid help Federal agencies and the 
public better understand the CISA, the availability and actionability 
of the CISA data, and how to determine the FFRMS floodplain using the 
CISA, FVA, and the 0.2PFA. FEMA does not agree with the commenter that 
FFRMS implementation, including the CISA, will result in inconsistency. 
FEMA does not believe Regional Administrators are provided with a level 
of discretion to result in inconsistent FFRMS implementation. Regional 
Administrators have historically had the authority provided in 44 CFR 
9.7, and FEMA is not changing their authority with this rule.
    FEMA notes that the agency explains how it will choose the FFRMS 
approach to be taken in the FFRMS policy. Section C.3 of the FFRMS 
policy states FEMA will determine the FFRMS elevation and the FFRMS 
floodplain depending on the criticality of the action. For non-critical 
actions, where the CISA is not available, the FFRMS floodplain is the 
area that would be inundated by the lower of the 0.2 percent annual 
chance flood or 2 feet of freeboard above the BFE. For critical 
actions, where the CISA is not available, the FFRMS floodplain is the 
area that would be inundated by the higher of the 0.2 percent annual 
chance flood or 3 feet of freeboard above the BFE. For locations where 
information about the

[[Page 56972]]

elevation and/or extent of the 0.2 percent annual chance floodplain is 
not available, the FFRMS floodplain is 3 feet of freeboard above the 
BFE. To clarify, the FVA relies on the 1 percent annual chance 
floodplain but incorporates an additional measure of safety beyond the 
1 percent annual chance floodplain. If available 0.2 percent annual 
chance floodplain data is not available, FEMA will utilize the 
appropriate FVA to determine the FFRMS floodplain and elevation.
    As explained above, FEMA will initially rely on the FFRMS CISA 
State of the Science Report and the FFRMS Job Aid to implement the 
FFRMS. FEMA appreciates the desire to have maps depicting the FFRMS 
floodplain and is coordinating across the Federal government to develop 
additional tools beyond the FFRMS Job Aid to assist agencies and 
stakeholders in determining the appropriate vertical flood elevation 
and corresponding horizontal FFRMS floodplain. However, FEMA will 
initially rely on the FFRMS Job Aid methodology to determine the FFRMS 
floodplain. Given the agency made resources publicly available on this 
rulemaking docket to determine the FFRMS floodplain, FEMA does not 
believe delaying the FFRMS implementation is needed. Flood risk is not 
static and will evolve over time due to changing conditions. 
Particularly in the context of Federal grantmaking, FEMA does not 
believe it would be appropriate to delay FFRMS implementation pending a 
comprehensive FFRMS floodplain mapping of the United States. The 
decision to proceed in this matter is also consistent with FEMA's 
historical practice of using best available information in the 8-step 
process, which also resulted in some degree of uncertainty as part of 
the project planning and application process.
    Comment: A commenter noted the key language of ``best available'' 
and ``actionable'' in the definition of the CISA as determining the 
reliability, usability, and overall credibility of the final floodplain 
identification. The commenter noted FEMA's consistent use of the 
terminology and the definitions found in Appendix H of the Revised 
Guidelines. The commenter agreed with the terminology but recommended 
the inclusion of granularity, stating that climate-informed flood risk 
granular data is property-specific data. The commenter stated granular 
data has three significant characteristics: structure specific 
identifications, first floor height assessments, and high-resolution 
digital elevation model (DEM) data. To reliably assess future flood 
risk, the commenter stated FEMA must be able to both identify the 
property itself and the specific structure(s) on that property that 
require separate assessments. The commenter wrote that the 
identification requires geospatial data that can reliably assess the 
geographical boundaries of a property and its structure(s), and without 
this, risk assessments would not reflect the true risk to the 
structure. The commenter went on to explain how these assessments 
involved models based on underlying data inputs that reliably determine 
the first floor height elevation relative to sea level and ground level 
and require the use of DEM. The commenter stated the key to reliability 
is the use of high-resolution DEM, the level of granularity necessary 
to permit reliable assessment of first floor height elevation and 
related footprint data. The commenter recommended FEMA advocate for the 
addition of ``granular'' as a necessary characteristic for ``best 
available, actionable science.''
    The same commenter stated that FEMA's flexible approach would 
likely facilitate the uptake of critical forward-looking climate and 
flood assessment methodologies and where those techniques and solutions 
needed time to develop, still accurately account for flood risk through 
proven approaches. The commenter stated that while a forward looking, 
climate-informed approach would be the best framework for understanding 
flood and other natural hazard risk in the future, not every community, 
builder, or developer is currently equipped to understand and account 
for that risk. As building the knowledge base would take time, the 
commenter recommended use of the waterfall approach proposed by FEMA's 
policy allowing the FFRMS floodplain to be determined using the FVA or 
0.2PFA. The commenter encouraged FEMA to depict the 0.2 percent annual 
chance floodplain on maps consistent with the requirements of the 
Biggert Waters Flood Insurance Reform Act of 2012 (BW-12).
    FEMA Response: FEMA appreciates the commenter's emphasis on the 
importance of best available, actionable science to the CISA. FEMA 
agrees that a determination of the location of an action and site-
specific details of the action that are needed for the floodplain 
determination and minimization of impacts requires a variety of 
granular data. However, all of the science and data used to define the 
floodplain does not necessarily need to be granular to be actionable. 
For example, regional sea level rise data is considered actionable best 
available science in the FFRMS CISA State of the Science Report but 
would not satisfy the definition of granular data provided by the 
commenter. FEMA will continue to use granular data, where appropriate, 
such as detailed digital elevation models to determine floodplain 
extents and first flood elevations for structures that are part of 
Federal actions. FEMA will further consider the commenter's request to 
incorporate granularity through the use of structure-specific 
identifications, first floor height assessments, and high-resolution 
digital elevation model (DEM) data as part of the agency's role in the 
IWG.
    FEMA agrees with the commenter that, given that the best available 
data is not available and/or actionable in all locations, both FVA and 
0.2PFA should be leveraged to determine the FFRMS floodplain. FEMA also 
agrees it is important to depict the 0.2 percent annual chance 
floodplain on community maps consistent with the requirements of BW-12.
    Comment: A commenter asked whether the approaches in the FFRMS 
policy should be used to develop FIRMs or FIS. The commenter stated the 
methods listed to develop the floodplain should only apply to those 
actions listed in the Applicability section of the FFRMS policy.
    FEMA Response: The approaches listed in section C of FEMA's FFRMS 
policy document for determining the FFRMS floodplain are not used to 
develop FIRMs or FIS. FIRMs and FIS are a starting point for the 
floodplain determination under the 8-step process. The approaches 
listed in section C of the policy are only applicable to the actions 
detailed in the applicability section of FEMA's FFRMS policy.
    Comment: Two commenters stated that FEMA's 2016 proposed rule 
indicated the use of CISA was not appropriate and stated FEMA's current 
reliance on CISA was unsubstantiated. The commenters noted an article 
that expressed concerns with climate science \201\ and cited statements 
in the FFRMS CISA State of the Science Report as evidence that attempts 
to apply the CISA to set flood risk management standards would be 
subjective. Both commenters requested transparency and adherence to the 
principles of replicability and independent peer review if FEMA 
utilizes the CISA. One of the commenters stated FEMA must adhere to a 
specific set of criteria to clarify the

[[Page 56973]]

standard and that there must be metrics. The commenters stated that the 
other approaches provided numerical targets that define what success 
shall be. Both commenters stated that if FEMA could not provide 
decision criteria to be applied in the CISA approach, the agency should 
eliminate it as a standard.
---------------------------------------------------------------------------

    \201\ See Jesse M. Kennan, ``A climate intelligence arms race in 
financial markets,'' Science 365 (6459), pp. 1240-1243, abstract 
available at https://www.science.org/doi/10.1126/science.aay8442 
(last accessed Mar. 21, 2024).
---------------------------------------------------------------------------

    FEMA Response: Since the introduction of the CISA in 2015, 
additional data has become available to better inform CISA. The FFRMS 
CISA State of the Science Report provides a recommendation on available 
and actionable CISA data.\202\ Many of the concerns expressed by the 
commenters are further addressed in that report and explain why the 
CISA data is not actionable in all locations. FEMA disagrees with the 
commenters' suggestion that certain statements in the FFRMS CISA State 
of the Science Report regarding multiple scenarios and hybrid 
approaches that could be used to determine the CISA serve as evidence 
that the CISA is too subjective. The CISA guidance in Appendix H of the 
Revised Guidelines and the FFRMS CISA State of the Science Report 
provide broad guidance for where the CISA might be available and 
actionable with sufficient expertise, local data, and project-specific 
analysis. However, FEMA prioritized the type and criticality of the 
action involved, the availability and actionability of the data, and 
equity concerns, and determined that applying the CISA through complex 
expert project-specific modeling was not appropriate for FEMA given the 
agency's role in helping people recover from disasters in an expedited 
manner and to reduce the subjectivity concerns of the commenters stated 
above. FEMA instead decided to use consensus interagency approaches 
that were readily accessible and do not require project specific CISA 
modeling found in the FFRMS Job Aid.
---------------------------------------------------------------------------

    \202\ The FFRMS CISA State of the Science Report identifies the 
latest interagency Federal guidance for regionally-based SLR 
projections as available and actionable by recommending that all 
agencies should use these data as part of a CISA approach. At pg. 
22, the Report states ``Federal agencies should apply this latest 
interagency Federal guidance for regionally-based SLR projections. 
Scenarios and time horizons should use a consistent national 
approach based on risk tolerance and criticality.'' However, the 
Report also warns against using the simplified approach with SLR in 
areas subject to runup and overtopping on pg. 28 ``Notably, areas 
subject to runup and overtopping can be very sensitive to changes in 
water level (including due to SLR) and the variability of the 
slope--so within a CISA implementation, these areas should be 
treated with appropriate analysis and not simple linear addition of 
flooding components.'' Based on these guidelines, the FFRMS Job Aid 
establishes the use of simplified CISA in specific areas, namely in 
some coastal environments, specifically along low-lying coastal 
shorelines on the Atlantic and Gulf Coasts. See FFRMS Job Aid, pg. 
10.
---------------------------------------------------------------------------

    The FFRMS Job Aid details the underlying methodology used to 
determine the FFRMS floodplain, including using the CISA, and FEMA 
believes that resource provides sufficient transparency and 
replicability to stakeholders and the public. FEMA will initially use 
the FFRMS Job Aid to make the FFRMS floodplain determination. FEMA is 
coordinating across the federal government to develop additional tools 
beyond the FFRMS Job Aid to assist agencies and stakeholders in 
determining the appropriate vertical flood elevation and corresponding 
horizontal FFRMS floodplain.
    FEMA does not believe that the use of CISA results in uncertainty 
in the 8-step process. The FFRMS Job Aid details the underlying 
methodology used to determine the FFRMS floodplain, including using the 
CISA, and FEMA believes that resource provides sufficient transparency 
and replicability to stakeholders and the public. The FFRMS CISA State 
of the Science Report, upon which the FFRMS Job Aid is based, was 
reviewed by subject-matter experts across the members of the Flood 
Resilience IWG, including staff from NOAA's National Weather Service, 
the USGS's Water Resources Mission Area and Coastal/Marine Hazards and 
Resources Program, FEMA's National Flood Hazard Mapping Program, and 
other members of the FFRMS Science Subgroup.\203\
---------------------------------------------------------------------------

    \203\ See FFRMS CISA State of the Science Report at i.
---------------------------------------------------------------------------

    FEMA agrees with one of the commenters that the FVA and 0.2PFA 
provide some additional clarity to stakeholders because the 1 percent 
annual chance and 0.2 annual chance floodplains are more commonly used 
and depicted on FEMA regulatory and non-regulatory mapping products. 
FEMA's FFRMS policy provides for the use of these approaches where the 
CISA data is not available or not actionable. However, FEMA does not 
believe that the CISA must be eliminated simply because the FVA and 
0.2PFA are more commonly understood. The FFRMS CISA State of the 
Science Report and the FFRMS Job Aid are resources the public can use 
to better understand the CISA and how FEMA will implement it. These 
resources provide the requisite decision criteria for how the CISA will 
be determined by FEMA in the initial FFRMS implementation. FEMA will 
provide additional resources and technical assistance to SLTTs and the 
public regarding the FFRMS floodplain determination as part of the 
FFRMS implementation to help further educate stakeholders.
3. Use of State and/or Local CISA Data
    Several commenters requested FEMA consider local CISA data in 
making the CISA floodplain determination.
    Comments: Some commenters requested the use of specific State and/
or local data. One commenter stated the use of locally available CISA 
data and methods would provide opportunities for underserved 
communities to provide critical local input. One commenter recommended 
FEMA develop a framework for evaluating whether local CISA data is 
technically credible and appropriate. One commenter stated if State, 
Tribal, territorial, or local data resulted in CISA-based elevation 
standards that met or exceeded standards developed using Federal data, 
then FEMA should apply the higher, locally available standards, if 
reasonable. The commenter stated Federal data should act as a floor for 
CISA calculation under the FFRMS.
    Another commenter stated FEMA should accept local data where it is 
accurate and sufficiently protective to maximize the effectiveness of 
the rule. The same commenter requested FEMA consider the potential 
inequities in access to CISA. Another commenter recommended FEMA 
develop a framework for evaluating whether local CISA data is 
technically credible and appropriate.
    In addition to requesting FEMA accept local CISA data, one 
commenter sought additional details on the FEMA FFRMS CISA data 
development to avoid developing duplicative or conflicting data. The 
commenter stated FEMA's Federal floodplain management tools (i.e., FIS 
and FIRMs) are used for applications beyond their originally intended 
purpose, including comprehensive planning and resilience planning. The 
commenter encouraged FEMA to consider how its CISA FFRMS data and tools 
could be used for comprehensive flood risk planning at multiple levels 
of government when developing the products. The commenter also 
encouraged FEMA to coordinate with stakeholders when developing its 
CISA data and methods. Two commenters agreed that FEMA should further 
engage with stakeholders regarding CISA data and methods.
    FEMA Response: FEMA agrees with the commenter that Federal data 
should act as a floor for the CISA calculations under the FFRMS. SLTTs 
can provide input into the determination. Pursuant to 44 CFR 
9.11(d)(6), a more restrictive Federal, State, or local standard will 
be

[[Page 56974]]

used. This includes the use of local CISA data and methods that have 
been adopted by a community for use in floodplain management, as long 
as such data results in a more restrictive standard.
    FEMA notes the FFRMS Job Aid is a resource to help Federal agencies 
and their non-Federal partners (including potential federal financial 
aid recipients) conduct a screening to determine if a proposed 
federally funded action will be located within an FFRMS floodplain, 
based on the CISA, FVA, or 0.2PFA, in accordance with Sec. 2(a)(1) of 
Executive Order 11988, as amended. FEMA will continue to collaborate 
across the Federal government to develop tools to facilitate the 
implementation of CISA.
    Regarding the framework for accepting local CISA data, FEMA will 
continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: Guidance on the 
Use of Available Flood Hazard Information,\204\ and the Revised 
Guidelines in determining whether CISA and flood hazard data is 
available and actionable. FEMA is coordinating across the federal 
government to develop additional tools to assist agencies and 
stakeholders in determining the appropriate vertical flood elevation 
and corresponding horizontal FFRMS floodplain.
---------------------------------------------------------------------------

    \204\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf 
(last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA's policy approach considers situations where CISA data is not 
available. Specifically, the policy approach detailed in the FFRMS 
Policy provides for the use of the FVA or 0.2PFA depending on the 
criticality of the action and data availability. FEMA believes the 
agency's policy approach will reduce concerns with underbuilding or 
overbuilding and thus provide a more cost-effective, equitable 
approach.
    As previously explained, FEMA is relying on interagency processes 
to select and evaluate the data and methods used. Appendix H of the 
Revised Guidelines \205\ provides an overview of the available and 
actionable data for CISA, which is the basis for these interagency 
supporting tools. The FFRMS CISA State of the Science Report \206\ 
provides a review and update of the best-available, actionable science 
that can support application of the Climate-Informed Science Approach 
(CISA), reflecting science and technology advancements made since 
Executive Order 13690 was issued in 2015.\207\ FEMA will rely on these 
and future interagency publications for CISA data. The Revised 
Guidelines also provide an explanation of how the FFRMS will be updated 
in the future.
---------------------------------------------------------------------------

    \205\ Available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf 
(last accessed Jan. 24, 2024).
    \206\ See https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Dec. 14, 20 
last accessed Jan. 24, 202423) and also posted to the public docket 
with this rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
    \207\ 80 FR 6425 (Feb. 4, 2015).
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    FEMA appreciates the importance of comprehensive flood risk 
planning and is developing additional resources for communities and the 
public to better understand their current and future flood risks. For 
example, FEMA's Future of Flood Risk Data (FFRD) initiative will 
provide a more comprehensive picture of the country's flood hazards and 
risks by leveraging new technologies to include more efficient, 
accurate, and consistent flood risk information across the nation.\208\ 
These resources can be used by communities for planning purposes. FEMA 
will continue to engage with SLTTs and the public on the development 
and enhancement of flood risk resources, including FFRMS implementation 
resources for the CISA, FVA, and 0.2PFA.
---------------------------------------------------------------------------

    \208\ See https://www.fema.gov/fact-sheet/future-flood-risk-data-ffrd (last accessed Mar. 26, 2024).
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    Comment: One commenter requested FEMA provide training resources to 
help local communities, practitioners, and property owners understand 
the impact of the rule.
    FEMA Response: FEMA values additional input from SLTT partners and 
the public in the 8-step process. FEMA will provide additional 
resources to SLTTs and the public as part of the FFRMS implementation, 
and FEMA's regional offices will provide technical assistance to 
applicants for FEMA programs.
4. Other Data Concerns
    Comment: One commenter stated concerns with the language in 
proposed Sec.  9.7(b)(1), which stated that FEMA shall obtain enough 
information so that it can fulfill the requirements in part 9 to (i) 
avoid Federal action in floodplain and wetland locations unless they 
are the only practicable alternatives and (ii) Minimize harm to and 
within floodplains and wetlands). The commenter stated that the 
language was too vague to have any meaning, as ``enough information'' 
did not inform the agency or the public of the requirement. The 
commenter recommended some identifiable minimum standard be provided.
    FEMA Response: FEMA disagrees that the proposed language is unduly 
vague. In context, paragraph (b) provides that FEMA will make the 
determination as part of the 8-step process and provides a list of the 
types of information FEMA will use to make this determination including 
the current and future flooding characteristics detailed in paragraph 
(b)(3). Not all of this information is required, as the information 
needed to make the floodplain or wetland determination is action-
specific and subject to data availability.
    Comment: One commenter stated costs would increase for engineering 
and planning around Federally funded projects when implementing FFRMS, 
particularly in areas where the 0.2 percent floodplain is not currently 
mapped.
    FEMA Response: FEMA appreciates the commenter's concerns regarding 
costs but disagrees that engineering and planning costs will 
necessarily increase for actions subject to the FFRMS and particularly 
for those in areas where the 0.2 percent annual chance floodplain is 
not currently mapped. FEMA will initially implement the FFRMS using the 
FFRMS Job Aid to determine the FFRMS floodplain and stakeholders can 
also leverage this tool to determine the CISA, FVA, and 0.2PFA where 
such data is available. As FEMA's FFRMS policy states, where the CISA 
data is not actionable and not available and information about the 
elevation and/or extent of the 0.2 percent annual chance floodplain is 
also not available, the FFRMS floodplain is the FVA. By considering 
data availability in the FFRMS floodplain determination and providing 
resources to help stakeholders understand the FFRMS floodplain 
determination, FEMA believes the commenter's concerns are addressed.
    Further, FEMA considered the costs and benefits associated with 
this rule, including the overall increased costs of FEMA projects, in 
the regulatory impact analysis provided on the docket.\209\ FEMA 
believes that the benefits of preventing property damage, protecting 
Federal investments, and potentially saving lives justify the costs of 
the rule. These benefits are a result of the improved protection of 
structures and facilities due to increased elevation and floodproofing 
standards in FEMA's implementation of the FFRMS. This rule will help to 
ensure that Federal investments are better protected from

[[Page 56975]]

flood damage, and that the natural and beneficial values of floodplains 
are preserved. FEMA notes any increased costs are generally eligible 
for funding under FEMA's assistance programs subject to cost share 
requirements.
---------------------------------------------------------------------------

    \209\ See https://www.regulations.gov/document/FEMA-2023-0026-0013.
---------------------------------------------------------------------------

FEMA's Regulatory Mapping Products
    Comments: Some commenters requested clarification on the use of 
current FEMA regulatory products in the FFRMS floodplain determination. 
Commenters provided input asking FEMA to improve those maps for the 
FFRMS floodplain determination and other purposes. One commenter 
requested FEMA update the agency's floodplain mapping techniques and 
incorporate future risk into the mapping. The commenter recommended 
FEMA incorporate the recommendations by the TMAC for significant 
changes to FEMA's floodplain mapping techniques. The commenter 
requested all agencies collaborate and align around definitions for 
floodplain mapping and share expertise to develop CISA floodplain 
definition methods that are consistent with one another. Such 
consistency would be easier and assist applicants in adhering to agency 
regulations. The commenter further recommended the MitFLG work toward 
common definitions and delineation of floodplains to enable better 
interagency collaboration and coordination on issues related to flood 
risk reduction. The commenter also stated the need to improve and 
update FEMA's regulatory mapping products, indicating these products 
were essential for community-level planning, yielding enhanced 
resilience. The commenter stated flood maps were essential underpinning 
to drive wise land use decisions, including where not to develop and 
where to conserve lands that might aid in flood risk reduction.
    Another commenter stated the FFRMS did not consider FIRM effective 
dates in communities where FIRMs are currently being updated and 
requested clarification for applying the CISA to those communities or 
applicable use of effective flood maps. One commenter noted FEMA's 
policy approach to leverage the 0.2PFA or FVA where CISA data is not 
available and not actionable and stated that approach was not without 
challenges given FEMA's regulatory and other mapping products used in 
the analysis of those approaches were outdated and likely to remain so 
for the foreseeable future.
    A commenter recommended Federal agencies continue relying on FEMA 
flood risk data and tools for future implementation of a climate-
informed floodplain. The commenter noted FEMA's investment on flood 
engineering studies and flood mapping over the past half century and 
that States and localities nationwide adopted FEMA flood map data for 
flood mitigation, community development, and many other purposes. The 
commenter stated that abandoning current Federal efforts on flood 
mapping and adopting an alternative flood map dataset would waste 
Federal investments on flood engineering studies and flood inundation 
mapping. Another commenter stated FEMA would have the primary 
responsibility to prepare the data to support the CISA through its 
existing mapping activities. The commenter noted other FEMA mapping 
priorities through the agency's RiskMAP program and encouraged FEMA to 
secure and allocate sufficient resources and fully utilize the 
Cooperating Technical Partners program to support the CISA and related 
mapping activities.
    FEMA Response: FEMA appreciates the commenters' interest in the 
agency's flood risk mapping efforts. FEMA is considering the TMAC 
recommendations associated with future flood conditions mapping and 
intends to incorporate future flood conditions into mapping products as 
practicable.\210\ FEMA's interagency consultative role in the broader 
implementation of the FFRMS across the Federal government, through the 
agency's participation in the IWG and the FIFM-TF helps ensure 
consistent and effective implementation. FEMA will continue to work in 
an interagency manner in conjunction with the Water Resources Council, 
the MitFLG, and the FIFM-TF to develop tools to facilitate the 
implementation of CISA. FEMA agrees that the agency's regulatory 
mapping products support community-level planning that enhances 
resilience and help drive wise land use decisions.
---------------------------------------------------------------------------

    \210\ See TMAC 2021 Annual Report, Chapter 3 Future Conditions 
available at https://www.fema.gov/sites/default/files/documents/fema_2021-technical-mapping-advisory-annual-report.pdf (last 
accessed Apr. 1, 2024).
---------------------------------------------------------------------------

    FEMA understand other commenters' concerns regarding FIRM effective 
dates and the age of FIRMs in some communities that may no longer 
reflect current flood risk. FEMA plans to continue updating regulatory 
mapping products to help address the commenter's concerns regarding 
stale maps. However, floodplain determinations under part 9 are not 
solely predicated on existing FIRMs and commenters' concerns about 
potential challenges with the FVA and 0.2PFA based on the age of 
existing FIRMs is thus unwarranted. As explained in the NPRM, FEMA will 
use best available information which may include information that is 
non-regulatory or FEMA preliminary flood hazard data. To be designated 
as the best available information, it must be at least as restrictive 
as information provided by effective FIRMs. Given the best available 
information policy FEMA adopted,\211\ the agency will be continuously 
improving the data associated with the floodplain determination. FEMA 
notes pursuant to 44 CFR 9.11(d)(6), a more restrictive Federal, State, 
or local standard will be used in lieu of the FFRMS. Communities can 
leverage their own data, including the use of local CISA data and 
methods that have been adopted by a community for use in floodplain 
management, as long as such data results in a more restrictive 
standard. FEMA believes these flexibilities address the second 
commenter's concerns to ensure the best available flood risk 
information is being considered in the 8-step analysis.
---------------------------------------------------------------------------

    \211\ FEMA Policy 104-0008-2: Guidance on the use of available 
flood hazard information, available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf (last accessed Mar. 27, 2024).
---------------------------------------------------------------------------

    FEMA notes that, as explained above, the agency is not abandoning 
current efforts on flood mapping but rather is continuing to update 
regulatory maps. FEMA is not adopting an alternative flood map dataset 
as part of this rulemaking. Regulatory mapping products are part of the 
NFIP's regulatory process and not impacted by this rulemaking. The 
agency's investments in regulatory mapping products are not being 
wasted by this effort and will continue in support of the NFIP's 
regulatory process, as well as to inform the public on flood risk. FEMA 
further appreciates the commenter's concern regarding sufficient 
resources and will continue to utilize the Cooperating Technical 
Partners program to support the agency's mapping efforts.
    Comment: A commenter wrote their support for modernizing the data 
and approaches used to understand and anticipate flood risks, stating 
the use of best available data, technology, and modeling would yield 
better baseline data to account for climate-induced increases in 
precipitation and inundation. The commenter noted that data from FIRMs 
in some areas can be 40 years old. The commenter noted that FEMA 
predicted more accurate maps would expand the floodplain but stated 
adjustments were needed to ensure the expanded mapping does not further 
hinder Federal, State, and local efforts

[[Page 56976]]

to restore natural and beneficial floodplain functions.
    FEMA Response: FEMA does not anticipate that more accurate mapping 
of current flood risks will necessarily expand the floodplain. FEMA's 
experience when revising existing regulatory floodplains is that the 
overall floodplain area does not generally increase, as more accurate 
maps can also mean areas are no longer designated as being within the 
floodplain. While revised maps reflect updated data on inland 
hydrology, coastal storms, and sea levels, they focus on current 
conditions and do not include projections of future changes. FEMA does 
anticipate the FFRMS, when implemented, will generally expand the 
floodplain area for actions subject to the FFRMS under part 9. FEMA 
agrees with the commenter that leveraging the best available 
information in making the floodplain determination can assist in 
accounting for climate-induced increases in precipitation and 
inundation. As explained above, FEMA plans to continue updating 
regulatory mapping products to address the commenter's concerns with 
dated data; however, floodplain determinations under part 9 are not 
solely predicated on existing FIRMs. FEMA will use best available 
information which may include information that is non-regulatory or 
FEMA preliminary flood hazard data. To be designated as the best 
available information, it must be at least as restrictive as 
information provided by effective FIRMs. FEMA does not believe 
implementation of the FFRMS will hinder restoration of natural and 
beneficial floodplain functions. Rather, it is also the policy of FEMA 
to restore and preserve the natural and beneficial values served by 
floodplains in part 9.
    Comment: One commenter requested clarification on how allowing the 
use of other data beyond the data found in FIRMs or FIS would affect 
the CLOMR, LOMR, No Adverse Effect, No Rise processes.
    FEMA Response: This rulemaking does not have any impact on the 
current CLOMR, LOMR, or no rise processes. FEMA does not have a no 
adverse effect process.
Interagency Tools
    Comments: Some commenters requested additional information 
regarding the interagency tools FEMA will utilize to depict the FFRMS 
floodplain. A commenter wrote in support of developing a decision 
support tool to facilitate the implementation of the FFRMS, requesting 
the tool be narrowly focused, integrating and avoiding duplication of 
existing Federal tools and data portals. The commenter also requested 
the tool incorporate local data wherever possible and that FEMA use the 
tool to highlight data gaps preventing the wider use of CISA to 
encourage development of such data in those areas. Another commenter 
wrote requesting FEMA work closely with NOAA, the White House Office of 
Science and Technology Policy, and other appropriate departments to 
ensure that States, communities, and the public can readily access 
information about what data sources meet the criteria for climate-
informed science and are considered current and credible at a point in 
time. Two commenters noted appreciation for FEMA's work with the Flood 
Resilience IWG on developing an online mapping tool to assist in 
determining the FFRMS floodplain, including the CISA and requested 
prioritizing these efforts.
    FEMA Response: FEMA appreciates the commenters' support of the 
agency's interagency collaboration and is continuing to work with IWG 
to support the FFRMS and CISA implementation. FEMA also appreciates the 
commenters' statements on developing additional tools to support the 
FFRMS implementation across the Federal government. FEMA agrees with 
the commenter that a tool to facilitate FFRMS implementation is an 
important component to the success of the FFRMS, and the agency 
published on the public docket with this rulemaking the FFRMS Job Aid 
as an initial resource. FEMA anticipates leveraging the FFRMS Job Aid 
for determining the FFRMS floodplain when the final rule is 
implemented. FEMA will continue to collaborate across the Federal 
government to develop tools to facilitate the implementation of CISA 
and the FFRMS. The IWG recently released a beta version of the Federal 
Flood Standard Support Tool (FFSST), a novel interactive, map-based 
tool that incorporates new data to help users identify if a Federally 
funded project is in the FFRMS floodplain, for comment.\212\ FEMA will 
also continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: Guidance on 
the Use of Available Flood Hazard Information,\213\ and the Revised 
Guidelines in determining whether CISA and flood hazard data is 
available and actionable.
---------------------------------------------------------------------------

    \212\ 89 FR 25674 (Apr. 11, 2024).
    \213\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf 
(last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

Flooding Characteristics
    Comment: One commenter requested FEMA retain the requirement that 
Regional Administrators identify additional flooding characteristics in 
the locations of proposed actions. The commenter noted FEMA's changes 
in 44 CFR 9.7(b)(3) from ``shall'' to ``may'' identify such flooding 
characteristics, ``as appropriate'' and requested ``shall'' be 
retained, as the flooding characteristics identified included important 
factors to consider when minimizing harm to floodplains and wetlands. 
The commenter stated there was no adequate rationale for allowing the 
Regional Administrator to ignore any or all of the flooding 
characteristics. The commenter also requested FEMA include ``evacuation 
and migration corridors for wildlife, including threatened and 
endangered wildlife'' in the list of flooding characteristics.
    FEMA Response: FEMA appreciates the commenter's concerns but does 
not believe this language change is a change impacting how FEMA will 
review the flooding characteristics. Rather, the edit from ``shall'' to 
``may'' is a clarifying edit. As explained in the preamble to the NPRM, 
the term ``shall'' suggests a mandatory requirement for the Regional 
Administrator to identify all of the additional flooding 
characteristics listed, yet the current qualifying ``as appropriate'' 
language suggests the identification was not mandatory. FEMA's current 
practices do not mandate a review of each of the flooding 
characteristics but rather only those that are appropriate. FEMA 
updated this language to reflect the Regional Administrator's 
discretion in identifying the appropriate flooding characteristics 
consistent with current practices.
    FEMA also appreciates the importance of wildlife and the 
commenter's concerns about their habitats and evacuation and migration 
corridors; however, wildlife concerns are currently part of the 
flooding characteristics considered when determining the floodplain. 
The definition of ``natural and beneficial values of floodplains and 
wetlands'' addresses wildlife considerations, and FEMA does not believe 
the additional language proposed by the commenter is required to ensure 
this analysis.
    Comment: Another commenter requested FEMA give local communities a 
voice in the method used to determine the appropriate vertical flood 
elevation stating Federal agencies may not be familiar with the local 
conditions. The commenter gave an example of areas with flash floods 
requiring an appropriately short rainfall interval be

[[Page 56977]]

evaluated to avoid missing the storm peak.
    FEMA Response: FEMA has and will continue to consider flooding 
characteristics such as those listed by the commenter consistent with 
Sec.  9.7. FEMA notes that communities provide input into the 
floodplain determination for part 9 and the agency coordinates with 
applicants and State and local officials as appropriate throughout the 
8-step process. As explained above, pursuant to 44 CFR 9.11(d)(6), a 
more restrictive Federal, State, or local standard will be used. This 
includes the use of local CISA data and methods that have been adopted 
by a community for use in floodplain management, as long as such data 
results in a more restrictive standard. Projects subject to the FFRMS 
will continue to be designed to meet local needs as appropriate.
Best Available Information
    Comment: Four commenters requested FEMA recognize the value of 
Indigenous Knowledge and Tribal resources in the 8-step process. One 
commenter supported the proposed range of data sources to ensure FEMA 
relies on the best available information when determining flood risk 
but requested FEMA incorporate Indigenous Knowledge when considering 
best available information for determining flood risk. The commenter 
noted the Biden Administration's guidance to Federal agencies to 
increase reliance on Indigenous Knowledge to inform Federal decision-
making and recommended FEMA incorporate the use of such information in 
the final rule. Specifically, the commenter requested FEMA revise Sec.  
9.7(c)(3)(ix) to read ``State, Regional, and Tribal Agencies or 
governing bodies,'' add a new Sec.  9.7(c)(3)(xi) to identify 
Indigenous Knowledge as another source of high-quality information and 
seek opportunities for engagement and promotion of best practices to 
include Indigenous Knowledge in FEMA decision making. A second 
commenter provided similar feedback, supporting the expanded inclusion 
of diverse data sources and requesting FEMA integrate Indigenous 
Knowledge into the final rule while also continuing to collaborate with 
Tribal Nations and Indigenous Peoples to incorporate Indigenous 
Knowledge into FEMA policies. A third commenter supportive of 
incorporating Indigenous Knowledge into the 8-step process recommended 
the final rule direct FEMA to seek input from local Indigenous 
communities when developing alternatives to an action and assessing 
impacts. This commenter noted that these communities may have unique, 
proven methods for reducing flood risk and incorporating this knowledge 
would recognize Indigenous connections to the land and help produce 
better-informed decisions.
    Another commenter requested FEMA align with States and Tribes on 
data practices. Consistent with other commenters above, this commenter 
requested FEMA consider State, Tribal, territorial, or local CISA-based 
elevation standards data that met or exceeded standards developed using 
Federal data. The commenter stated FEMA should apply the higher, 
locally-available standards if reasonable. The commenter provided an 
example of State SLR guidance using State data, requesting that FEMA 
allow us of this data so long as it met or exceeded the Federal data. 
The commenter stated that Federal data should act as a floor for CISA 
calculation under the FFRMS and that if reasonable, locally available 
data meets or exceeds the floor set by Federal data, then it should be 
accepted for implementation consistent with FEMA's proposed approach to 
leverage the best available data to inform flood risk. The commenter 
noted the incorporation of local data and methods can provide 
opportunities to achieve higher resolution data and in-depth 
understanding of contextual climate impacts. The commenter requested 
FEMA encourage intergovernmental and interstate collaboration to share 
and improve best practices for underlying local data collection, 
including agency guidance on expanding locally available data.
    FEMA Response: As one commenter stated, President Biden issued 
Federal government-wide guidance on recognizing and including 
Indigenous Knowledge in Federal research, policy, and decision 
making.\214\ FEMA agrees with the commenters on the importance of 
Indigenous Knowledge in the 8-step process. FEMA agrees with the 
commenter to ensure Tribes are specifically incorporated into Sec.  
9.7(c)(3)(ix) and is updating this final rule to state, ``Agencies of 
State, Regional, and Indian Tribal Governments.'' This edit will ensure 
consideration of Indian Tribal government data in the floodplain 
determination. FEMA believes the current language in Sec.  9.7(c)(3)(x) 
regarding local sources covers those Tribes that are not considered to 
be an Indian Tribal government under 42 U.S.C. 5122(6).
---------------------------------------------------------------------------

    \214\ See ``Implementation of Guidance for Federal Departments 
and Agencies on Indigenous Knowledge,'' Nov. 30, 2022, found at 
https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/ (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA supports the inclusion of Tribal and Indigenous knowledge into 
the FFRMS process. As requested by the second commenter, FEMA is 
integrating Indigenous Knowledge into the FFRMS policy accompanying 
this rule. The agency will collaborate with Tribal Nations and 
Indigenous Peoples to incorporate Indigenous Knowledge into FEMA 
policies consistent with the guidance referenced above. FEMA further 
agrees with the third commenter that local Indigenous communities may 
have methods for reducing flood risk that recognize Indigenous 
connections to the land and help produce better-informed decisions. To 
ensure input from local communities, FEMA follows the process for early 
and final public notices in the 8-step process. See Sec. Sec.  
9.8(c)(4) and 9.12. The current regulatory text incorporates notice to 
Tribes when effects may occur on Tribal lands in the early public 
notice process. See Sec.  9.8(c)(4)(ii). The final public notice 
includes notification to any entity that received early public notice. 
See Sec.  9.12(a). These notifications give Tribal communities the 
ability to provide input on alternatives and impacts in the 8-step 
process. This ensures consideration of Tribal and Indigenous Peoples 
throughout the 8-step process.
    Finally, FEMA agrees with the fourth commenter that Federal data 
should act as a floor for CISA calculations under the FFRMS. FEMA will 
apply higher, locally available standards consistent with Sec.  
9.11(d)(6) that requires a more restrictive Federal, State, or local 
standard be used. This includes the use of local CISA data and methods 
that have been adopted by a community for use in floodplain management, 
as long as such data results in a more restrictive standard. FEMA 
agrees with the commenter that locally available data can provide 
valuable input into the area's climate impacts and will leverage those 
higher standards adopted by communities. FEMA values additional input 
from SLTT partners and the public in the 8-step process and will 
continue to engage by providing additional resources and technical 
assistance as the FFRMS is implemented.
    Comment: One commenter requested FEMA include examples of ``other 
sources'' in Sec.  9.7(c)(iii).
    FEMA Response: FEMA provides a list of other sources in Sec.  
9.7(c)(3)(i)-(x) of this final rule. As explained above, the agency 
will provide additional resources and technical assistance to

[[Page 56978]]

SLTTs and the public as part of the FFRMS implementation.
Other Data Concerns
    Comment: One commenter requested FEMA provide additional guidance 
on how to identify the appropriate lifecycle for a proposed action that 
uses CISA to determine the FFRMS floodplain. The commenter noted that 
FEMA used a default 50-year lifecycle analysis (in the regulatory 
impact analysis) and stated that would not be appropriate for all 
actions. The commenter requested FEMA provide information on how the 
50-year lifecycle timeline was determined, as well as guidelines on how 
to determine the appropriate lifecycle on a case-by-case basis.
    FEMA Response: FEMA's regulatory impact analysis was based on a 
report defaulting to a 50-year lifecycle, but FEMA intends to determine 
the appropriate service life on a case-by-case basis for each action. 
The FFRMS Job Aid provides additional information on service life and 
how FEMA will make those individual determinations.\215\
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    \215\ See FFRMS Job Aid, pg. 14.
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J. FFRMS Implementation

    FEMA received several comments regarding implementation of the 
FFRMS. Commenters raised general process concerns with compliance with 
and enforcement of the FFRMS, and costs and delays with implementing 
the FFRMS. Commenters also inquired as to how FEMA would coordinate 
with other Federal agencies when implementing the FFRMS, how FEMA would 
effectively complete outreach to ensure effective implementation of the 
FFRMS, and how FEMA would resolve environmental justice concerns.
1. Generally
    Comment: A commenter stated raising individual properties or a 
group of properties could not be done without considering potential for 
impounding water on neighboring properties and roadways. The commenter 
recommended a holistic approach with local land use agencies, 
municipalities, and DOTs that identify the best path forward for a 
roadway corridor.
    FEMA Response: FEMA appreciates the commenter's concerns regarding 
the impact of elevation on neighboring properties and roadways. FEMA 
takes a holistic approach through the 8-step process as the agency 
considers the impacts within or affecting floodplains and wetlands. 
FEMA applicants propose actions based on their needs and planning 
efforts to protect life and property. Where FEMA provides funding for 
applicable actions, the FFRMS will help ensure resilience to structures 
and facilities against both current and future flood risks, including 
roadway corridors referenced by the commenter. Section G.2 of the FFRMS 
policy provides additional details on the application of the FFRMS 
resilience standard to facilities such as roadway corridors.
    Comment: A commenter stated that FEMA's framework, while seeking to 
retain flexibility and be easily understood and consistently applied, 
would complicate understanding and implementation on the ground, as the 
framework created a confusing inundation of floodplain definitions--
each of which could be used differently depending on the program and/or 
situation for which it is being used and/or applied.
    This commenter noted the majority of structures and facilities 
impacted by the rulemaking were not residential in nature but stated 
concerns about implementation and difficulties of confusing and 
burdensome requirements. The commenter stated FEMA's proposed FFRMS 
floodplain definition and the vagueness of its depiction would generate 
countless unique floodplain definitions for programs. The commenter 
stated concern that once adopted and implemented for a very small 
number of Federally-funded residential projects, the Federal government 
would seek to expand the FFRMS applicability to all structures and that 
such a move would significantly impact housing affordability across the 
country.
    The commenter noted the 1 percent annual exceedance probability 
(AEP) was set as the basis for the NFIP in the 1960s, and the 1 percent 
AEP was considered a fair balance between protecting the public and 
overly stringent regulation. The commenter stated that Executive Order 
11988 has been historically and purposely tied to the 1 percent annual 
chance floodplain and that the Federal government had relied on the 1 
percent annual chance floodplain when determining the extent of its 
authority and reach for most of its related programs, including the 
NFIP, FIRMs, and the mandatory flood insurance purchase requirements. 
The commenter stated this was no longer the case under the proposed 
rule.
    The commenter stated that during the 1978 Guidelines drafting, 
concerns were raised about the need to provide a higher degree of 
protection for certain activities, and the 1978 Guidelines bifurcated 
the definition of floodplain for critical and non-critical actions. The 
commenter noted that FEMA was taking a similar approach for the FFRMS 
floodplain per the Revised Guidelines, separating the definition 
further depending on the type of action and data availability. The 
commenter stated that unlike the revision made in the 1978 Guidelines 
where the 1 percent annual chance floodplain and the 0.2 percent annual 
chance floodplain were relatively well-known recurrence intervals and 
elevation levels that could be calculated, while the FFRMS floodplain 
is a ``mystery.'' The commenter stated that with the FFRMS floodplain, 
the public would be faced with another set of regulatory definitions, 
creating inconsistencies and further confusing the various programs and 
their applicability and requirements. The commenter provided an example 
stating the higher flood risk standard for certain applications 
generated inconsistencies with the NFIP and the countless State and 
local regulations tied to the 1 percent annual chance floodplain. With 
what the commenter categorized as competing floodplain definitions, the 
commenter stated that Federal agencies, SLTTs, and the public would be 
left wondering which definition was the ``real'' definition--the 
climate-informed science definition, the freeboard definition, or the 
0.2 annual chance floodplain definition. The commenter stated it would 
not always be clear which definition to follow under different 
circumstances and that while it may be beneficial for more people to 
understand their flood risk, the regulatory uncertainty and 
unpredictability of so many floodplain definitions would only multiply.
    FEMA Response: FEMA disagrees that the framework to implement the 
FFRMS will create a confusing inundation of floodplain definitions--
each of which could be used differently depending on the program and/or 
situation for which it is being used and/or applied. Consistent with 
current practice, FEMA will continue to make the floodplain 
determination as part of the action taken, reducing the burden on 
applicants in the process. As outlined in the FFRMS Policy, FFRMS 
requirements are consistent across FEMA's programs for those actions 
that are subject to the FFRMS. FEMA does not anticipate countless 
inconsistent floodplain determinations resulting from the 
implementation of this rulemaking for FEMA's programs as the 
appropriate floodplain definition is clearly outlined in the FFRMS 
Policy. FEMA notes that while other Federal agencies have their own 
implementing procedures for the

[[Page 56979]]

FFRMS, FEMA will coordinate with other agencies to avoid applying 
conflicting standards on the same action pursuant to Section H of the 
FFRMS policy.
    FEMA agrees with the commenter that the majority of structures and 
facilities subject to FEMA's FFRMS implementation will not be 
residential in nature. FEMA does not believe the commenter's concerns 
are warranted regarding expansion of the FFRMS's applicability. As 
explained above, FEMA defines ``action subject to the FFRMS'' as ``any 
action where FEMA funds are used for new construction, substantial 
improvement, or to address substantial damage to a structure or 
facility'' in this rulemaking, and the FFRMS applies to grants for 
projects funding the new construction, substantial improvement, or 
repair of substantial damage under FEMA's grant programs and does not 
extend to all structures. FEMA's final rule is clear that FFRMS is 
limited in applicability to those Federally-funded actions.
    Rather than bolstering the arguments against utilizing the FFRMS, 
FEMA believes the commenter's statements regarding the 1 percent AEP 
demonstrate a need to update the agency's floodplain determinations 
under part 9 to meet changing conditions and better ensure Federal 
investments are protected from flood damage, and that the natural 
values of floodplains are preserved. More than 45 years have passed 
since Executive Order 11988 and flooding continues to increase \216\ 
and impact Federal investments.\217\ FEMA believes the updates made to 
part 9 in this final rule are an important step forward to improve 
resilience and better protect Federal investments from flood damage 
than the standards set over almost a half a century ago. FEMA disagrees 
with the commenter that the FFRMS approaches result in confusion for 
Federal agencies, SLTTs, or the public. The FFRMS Job Aid provides the 
methodology and process for FEMA to determine the FFRMS floodplain 
under each approach, and FEMA's FFRMS policy explains how each approach 
will be applied to specific actions based on the type and criticality 
of the action involved, the availability and actionability of data, and 
equity concerns. FEMA believes these resources provide sufficient 
clarity for implementation. To the extent stakeholders have questions 
after reviewing these resources, FEMA intends to provide SLTT partners 
and the public with additional resources to assist them in applying for 
FEMA-funded assistance programs.
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    \216\ As a result of climate change, flood events are on the 
rise. Climate change is increasing flood risk through (1) more 
``extreme'' rainfall events,'' caused by a warmer atmosphere holding 
more water vapor and changes in regional precipitation patterns; and 
(2) sea-level rise. See Rob Bailey, Claudio Saffioti, and Sumer 
Drall, Sunk Costs: The Socioeconomic Impacts of Flooding 3 and 8, 
Marsh McLennan (2021).
    \217\ Federal Budget Exposure to Climate Risk. OMB Assessment 
found https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA further disagrees with the commenter that the agency's FFRMS 
policy approach is inconsistent with the NFIP minimum standards and 
other Federal, State, local, Tribal, and territorial standards. Rather, 
the FFRMS is generally a higher standard. Further, Sec.  9.11(d)(6) of 
the final rule states a more restrictive Federal, State, or local 
floodplain management standard will be applied if higher than the 
FFRMS. FEMA believes the commenter's concerns regarding confusion 
between different floodplain approaches are unwarranted. The floodplain 
determination in part 9 has always been distinct from the NFIP minimum 
floodplain management standards. While FEMA understands that the FFRMS 
approaches provide additional optionality, the FFRMS policy helps 
clarify which approach is applicable to those actions subject to the 
FFRMS.
    Comment: Another commenter stated the application of the FFRMS 
should be in progressive and adaptive fashion and requested additional 
guidance on how the FFRMS would be applied.
    FEMA Response: As explained in Sec.  9.5(a)(3), FEMA will apply the 
FFRMS only to new FEMA-funded actions involving new construction, 
substantial damage, or substantial improvement for which assistance is 
made available pursuant to declarations under the Stafford Act that are 
commenced on or after the effective date of the final rule, and new 
FEMA-funded actions involving new construction, substantial damage, or 
substantial improvement for which assistance is made available, 
pursuant to notices of funding opportunity that publish on or after the 
effective date of the final rule. Ongoing projects will not be impacted 
by this final rule.\218\ FEMA will continue to analyze the 
effectiveness of the agency's FFRMS policy as part of the FFRMS 
implementation, and the policy will be reviewed, revised, extended, 
and/or rescinded within four years of the issue date.
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    \218\ Note that FEMA first partially implemented the FFRMS by 
policy with respect to covered projects in existing floodplains in 
its Public Assistance and Hazard Mitigation Assistance programs. See 
FEMA Policy 104-22-003, ``Partial Implementation of the Federal 
Flood Risk Management Standard for Public Assistance (Interim),'' 
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implementation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Program,'' Dec. 
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA 
actions may be subject to these partial implementation policies; 
however, those actions would not be subject to this final rule or 
policy.
---------------------------------------------------------------------------

    Comment: The same commenter inquired as to how the final rule would 
impact the current way FEMA-regulated floodplains were handled during 
the NEPA process.
    FEMA Response: FEMA's integrated reviews under E.O. 11988 and NEPA 
are unchanged by the final rule.
Compliance/Enforcement
    Comments: Two commenters sought clarification on how FEMA would 
ensure compliance with the rule. One commenter stated the rule did not 
address how FEMA would ensure compliance and enforcement of the FFRMS. 
The commenter noted FEMA would monitor and evaluate the implementation 
of the FFRMS by Federal agencies and recipients of Federal funds but 
did not specify how FEMA would do so. The commenter asked FEMA to 
provide more information and procedures on what mechanisms FEMA would 
use to verify that Federal actions complied with the FFRMS, what 
consequences FEMA would impose for non-compliance, and how FEMA would 
handle disputes or appeals regarding compliance. Another commenter also 
stated the rule did not include monitoring, evaluating, or compliance.
    FEMA Response: FEMA currently leverages the 8-step process detailed 
in 44 CFR part 9 as the mechanism to implement Executive Order 11988, 
as amended and will continue to use the 8-step process to monitor and 
verify compliance with the FFRMS. To monitor and evaluate the 
implementation of the FFRMS, FEMA will continue to rely on step 8 of 
the 8-step process. Step 8 of the process found at 44 CFR 9.6(b)(8) 
requires FEMA to review the implementation and post-implementation 
phases of the proposed action to ensure that the requirements stated in 
Sec.  9.11 are fully implemented. Oversight responsibility is 
integrated into existing processes for each grant program. For each 
approved action, grant assistance is generally conditioned to follow 
the requirements determined

[[Page 56980]]

during the 8-step process. FEMA is not making changes to paragraph 
(b)(8) of Sec.  9.6 in the final rule and will continue to use the 
current process to ensure compliance with the FFRMS. To address 
commenters' concerns regarding how the agency would address non-
compliance, FEMA will rely on the provisions of 2 CFR part 200. 2 CFR 
200.339 also allows FEMA to take action to remedy a recipient's 
noncompliance with federal requirements, including those required by 44 
CFR part 9, such as imposing new conditions on the award or 
deobligating funding for the award if a recipient does not adhere to 
the requirements set forth during the part 9 review process. Disputes 
regarding compliance would follow the specific grant program's appeals 
process.\219\
---------------------------------------------------------------------------

    \219\ FEMA's appeals and arbitrations process for PA can be 
found at 44 CFR 206.206 and HMGP's appeals process can be found at 
44 CFR 206.440.
---------------------------------------------------------------------------

Costs and Delays
    Comments: Some commenters had questions regarding the costs 
associated with FFRMS implementation and whether or not implementation 
would result in delaying actions subject to the FFRMS. Some of these 
commenters raised specific concerns about increased costs. One 
commenter stated there would be a significantly increased cost of 
compliance for Federally funded projects as a result of the rule and 
stated the Federal government should bear the full cost of FFRMS 
implementation. The commenter also asked whether the FFRMS would be 
adopted for FEMA funding only or for all Federal agencies and whether 
the FFRMS would apply to Federally funded projects that are focused on 
flood damage reduction projects. Another commenter stated the FFRMS 
implementation, through higher vertical elevation or floodproofing, or 
other mitigation mandates, could significantly alter and raise the cost 
of water resource projects and ongoing operations and maintenance for 
water resources infrastructure systems, which were paid for by the 
local taxpayers. The commenter asked how the FFRMS would interface with 
other Federal agencies and impact non-Federal sponsor responsibilities 
for projects. A third commenter stated concern for the increased costs 
of meeting heightened standards and recommended FEMA identify 
opportunities to expand the agency's grants and otherwise reduce local 
costs to help ensure the new resilience standard did not prevent 
projects from going forward.
    Two commenters raised concerns regarding equity and costs. One 
commenter stated the rule would increase the costs of Federally-funded 
projects and that while the higher standards would help decrease costs 
to the community and residents in the long term, the higher short-term 
costs could have the unintended effect of making needed projects 
infeasible, especially for communities of low-to middle-class incomes 
and taxbases. This commenter recommended FEMA work to increase funding 
to implement FFRMS through increasing grant funding cap ceilings, 
expanding funding opportunities, and lowering cost share requirements. 
Another commenter stated both the rule and FFRMS policy would 
potentially raise costs associated with Federal actions and implement 
ambiguous standards ill-suited to rural areas. The commenter stated the 
rule and FFRMS policy raised design standards for Federal actions, 
which would affect mitigation and public assistance projects for post-
disaster recovery. The commenter stated the elevated design standards 
would increase project costs and these increased costs would be 
absorbed into applications and proposals for these projects. The 
commenter wrote that these projects already had limited available 
funding and were often prohibitively competitive for rural communities, 
creating an additional burden on these applicants.
    FEMA Response: FEMA appreciates the commenters' concerns on the 
increased costs of projects and the commenter's requests to expand 
grant funding and grant funding caps, as well as lowering cost-share 
requirements. The cost of compliance with the FFRMS will be included in 
the total project costs and will be funded at each program's applicable 
cost-share. Some FEMA programs are capped in funding each year, thus, 
the additional costs of FFRMS requirements would not add to the total 
funding for these programs. The effects of the FFRMS requirements would 
be distributional within the existing funding caps and would not 
constitute new spending by FEMA. For disaster programs where funding is 
not capped, the application of the FFRMS will increase the total amount 
of funding provided under the program, and each project will be subject 
to the applicable cost-share. Cost-share requirements are determined 
consistent with specific grant program requirements.
    As explained above, the FFRMS is only applicable to actions 
involving the use of Federal funds for new construction, substantial 
improvement or to address substantial damage to a structure or 
facility. This rulemaking is applicable only to FEMA-funded projects 
for FEMA programs such as IA, PA, and HMA, and grants processed by 
FEMA's GPD. This includes some flood damage reduction projects.
    FEMA has always incorporated social concerns and economic aspects 
into the 8-step process as part of the practicability analysis. FEMA's 
revisions to part 9 reflect consideration of the type and criticality 
of the action involved, the availability and actionability of the data, 
and equity concerns in the implementation of Executive Order 11988, as 
amended. FEMA also has an agency-wide initiative focused on reducing 
barriers and increasing opportunities so all people, including those 
from vulnerable and underserved communities, can get help when they 
need it.\220\ FEMA reviews all proposed FEMA-funded actions for 
potential disproportionate and adverse human health and environmental 
effects on communities with environmental justice concerns using a 
standardized environmental justice compliance review process.
---------------------------------------------------------------------------

    \220\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA disagrees with the commenter's suggestion that the FFRMS is 
ill-suited to rural areas, as disasters impact all areas and flooding 
continues to increase across the United States, including in rural 
areas.\221\ Rather, these areas can benefit from Federal investments 
that are more resilient to flooding. FEMA believes the FFRMS will 
ensure that Federal funding will result in more resilient rural 
communities, without overly burdening these communities as they seek to 
recover. While FEMA acknowledges some of the agency's grant programs 
have cost share requirements and that competition exists for FEMA 
funding, the agency has programs in place to assist rural and other 
disadvantaged communities.\222\
---------------------------------------------------------------------------

    \221\ Information on FEMA disaster and other declarations, see 
https://www.fema.gov/disaster/declarations (last accessed Mar. 27, 
2024). For FEMA disaster and other declarations specific to the 
commenter, see https://www.fema.gov/disaster/declarations?field_dv2_declaration_date_value%5Bmin%5D=2019&field_dv2
_declaration_date_value%5Bmax%5D=2024&field_dv2_declaration_type_valu
e=All&field_dv2_incident_type_target_id_selective=All&field_dv2_state
_territory_tribal_value%5B%5D=MT (last accessed Mar. 27, 2024).
    \222\ For example, see FEMA, Press Release, Biden-Harris 
Administration Announces Nearly $2 Billion in Available Funding to 
Increase Climate Resilience Nationwide, https://www.fema.gov/press-release/20231012/biden-harris-administration-announces-nearly-2-billion-available-funding (last accessed Mar. 27, 2024) (``As part 
of the Administration's Justice40 initiative, the BRIC and FMA 
programs aim to deliver 40 percent of their overall benefits to 
disadvantaged communities that are marginalized, overburdened by 
pollution, and underserved . . . FEMA is providing up to 90 percent 
federal cost share for FMA in disadvantaged communities, relative to 
a standard cost share of 75 percent. Designated Community Disaster 
Resilience Zones (CDRZs) are eligible for up to 90 percent federal 
cost share for BRIC, relative to a standard cost share of 75 percent 
. . . FEMA continues to not require a Benefit-Cost Analysis as a 
condition to apply for an Economically Disadvantaged Rural 
Community, federally recognized tribal government, or a subapplicant 
with a hazard mitigation project within or primarily benefiting a 
Community Disaster Resilience Zone. FEMA will review the hazard 
mitigation project subapplications that are eligible for selection 
and may assist such communities with developing a BCA.'').

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[[Page 56981]]

    Comment: Two commenters stated concerns with delays. One commenter 
stated concerns with project delays regarding FEMA making the final 
decision on the information the applicant would use and making the 
final decision on how permitting agencies were processing and 
permitting federal actions. Another commenter raised similar concerns 
regarding permitting, stating the proposed rule and policy would create 
separate permitting standards for some Federal and non-Federal actions, 
adding complexity that necessitated additional expertise when 
administering local floodplain programs and disproportionately 
impacting rural communities that already lacked sufficient staffing and 
funding to administer these programs. This commenter also stated the 
proposed rule and policy would also lengthen project timelines for 
Federal actions. The commenter stated that FEMA making the decisions on 
both the information the applicant is using and how permitting agencies 
would process and permit Federal actions. The commenter stated this 
would add time, documentation, and coordination between local 
communities, project proponents, stakeholders, and even FEMA, for 
critical mitigation projects and urgent post-disaster recovery efforts 
that required expedience. The commenter requested that FEMA minimize 
red tape and expense for communities seeking to implement projects, as 
the proposed rule adds bureaucracy and increases the resources required 
to successfully implement meaningful projects.
    Another commenter raised concerns regarding both costs and delays, 
requesting further clarification on whether the FFRMS allowed for FEMA 
funding to cover expenses associated with making necessary improvements 
and enhancements to roadways, bridges, and culverts or if the funding 
was only for the in-kind replacement of structures. The commenter 
stated additional funding should be considered for the delay in project 
delivery due to the application of the FFRMS.
    FEMA Response: FEMA appreciates the commenters' concerns regarding 
project delays and costs. FEMA notes the determination on the 
information the applicant is using under part 9 has always been made by 
the agency and thus, FEMA does not anticipate administrative delays 
with projects as a result of that aspect of FFRMS implementation. The 
time taken to complete the 8-step process will be project specific. 
Additional time, documentation, and coordination may be necessary for 
projects subject to the FFRMS (i.e., actions that involve new 
construction, substantial damage, or substantial improvement as they 
are typically the most complex types of actions that FEMA funds). As 
part of the final rule, FEMA adjusted for inflation certain thresholds 
that determine which actions are exempt from, or subject to, an 
abbreviated 8-step process. FEMA will also establish a procedure for 
future annual adjustments of these thresholds. The thresholds enable 
FEMA to exempt or expedite the requirements of 44 CFR part 9 by 
streamlining the process for those actions that offer little 
opportunity for alternate locations or actions, or minimization, due to 
practicability. These changes may mitigate, as to smaller projects, 
timing concerns raised by the commenters.
    Regarding permitting actions, FEMA will provide additional guidance 
for the public and SLTT partners identifying what the FFRMS is, and how 
the agency will implement the updates to part 9 to assist applicants 
for FEMA-funded assistance programs. FEMA's regional offices will also 
provide technical assistance as part of the rule's implementation. For 
those SLTT entities that may be permitting actions, as explained above, 
FEMA's role under 44 CFR part 9 has not changed with this rule. The 
changes made in this final rule are to implement updates to Executive 
Order 11988, as amended, and to otherwise update the 8-step process. 
Changes related to the floodplain determination implementing the FFRMS 
will only be applicable to those actions subject to the FFRMS as 
defined in the rule. FEMA notes this final rule does not apply to a 
local community's permitting processes under the NFIP's floodplain 
management regulations. Those regulations are found at 44 CFR part 59 
et seq.
    FEMA understands the final commenter's concerns regarding 
applicability of this rulemaking to improvements and enhancements to 
roadways, bridges, and culverts, as well as in-kind replacement of 
structures. In each scenario presented by the commenter, FEMA's funding 
is based on actual project costs for any FEMA-funded project. FEMA 
understands that any project may be delayed due to a variety of 
factors, and increased costs associated with those delays are generally 
part of the actual project costs. Additional costs incurred to comply 
with FFRMS would be eligible for FEMA funding.
Timing
    Comment: Two commenters commented on the timing for implementing 
the rule. One commenter stated concern that the proposed changes could 
significantly restrict ongoing work. The commenter stated the proposed 
rule and policy did not identify when it would become effective, or how 
it would affect projects related to ongoing recovery efforts. The 
commenter requested the effective date be clarified and implemented so 
as to not disrupt ongoing recovery efforts. The other commenter 
requested FEMA consider ``grandfathering'' clause similar to the one 
provided in Executive Order 11988.
    FEMA Response: FEMA is issuing this final rule with an effective 
date of September 9, 2024. As explained in Sec.  9.5(a)(3), FEMA will 
apply the FFRMS only to new actions for which assistance is made 
available pursuant to declarations under the Stafford Act that are 
commenced on or after the effective date of the final rule, and new 
actions for which assistance is made available pursuant to notices of 
funding opportunity that publish on or after the effective date of the 
final rule. Ongoing projects will not be impacted by this final 
rule.\223\ FEMA does not believe a grandfathering clause is needed for 
this rulemaking.
---------------------------------------------------------------------------

    \223\ Note that FEMA first partially implemented the FFRMS by 
policy with respect to covered projects in existing floodplains in 
its Public Assistance and Hazard Mitigation Assistance programs. See 
FEMA Policy 104-22-003, ``Partial Implementation of the Federal 
Flood Risk Management Standard for Public Assistance (Interim),'' 
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Program,'' Dec. 
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA 
actions may be subject to these partial implementation policies; 
however, those actions would not be subject to this final rule or 
policy.

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[[Page 56982]]

Metrics
    Comments: Two commenters requested FEMA develop metrics for the 
rule and policy implementation. One commenter stated that creating 
metrics was essential. The commenter noted that the proposed policy 
outlined objectives but lacked specific metrics to gauge progress 
towards achieving them. The commenter stated the absence of suitable 
metrics guaranteed a transition into subjective assessments, making it 
impossible to balance trade-offs among objectives. The commenter 
recommended that FEMA establish appropriate metrics to ensure objective 
evaluation and avoid subjective interpretations. The commenter 
requested that FEMA include measurable metrics in the policy statement, 
allowing for a quantifiable assessment of advancement toward achieving 
well-defined and substantiated objectives.
    Another commenter agreed that the policy statement establishes 
objectives without setting metrics for measuring progress towards those 
objectives. The commenter wrote the proposal was unbalanced, as it was 
confined almost exclusively to restrictions on floodplain occupancy and 
use, with no policy objective promoting economic development or even 
economic development rationally constrained by other considerations. 
The commenter stated that it is difficult to understand how the 
proposed regulation would be useful given the proposal's narrow focus 
on constraints and restrictions. The commenter wrote that although FEMA 
stated that the FFRMS would promote resilience, the NPRM apparently 
reflected FEMA's perspective that economic development had no place in 
resilience. The commenter recommended that the proposal be modified to 
establish the objective of economic efficiency in floodplain use and 
occupancy, while giving appropriate weight to the constraints on 
efficiency and development already inherent in the policy statement. 
Similar to the other commenter, this commenter stated that the proposal 
should be modified to express the metrics that would be used in 
establishing quantifiable progress toward clear and supported 
objectives. The commenter wrote that failing to establish appropriate 
metrics assured the effort would devolve into subjective evaluations 
where trade-offs among objectives became impossible.
    FEMA Response: FEMA understands the commenters' concerns regarding 
measuring the effectiveness of the rule and policy; however, the agency 
disagrees that measurable metrics must be included in the regulation or 
policy to do so. FEMA disagrees that the absence of such metrics will 
result in subjective interpretations for the effectiveness of the rule 
and policy, as well as the FFRMS implementation for each action. FEMA's 
8-step process and the results of the process are documented, and each 
applicant receives this information as part of the agency's compliance 
process.\224\ FEMA will evaluate the effectiveness of the rule and 
policy as part of the agency's role in the IWG to reassess the FFRMS.
---------------------------------------------------------------------------

    \224\ See Environmental Planning and Historic Preservation 
Responsibilities and Program Requirements, available at https://www.fema.gov/sites/default/files/2020-07/fema_ehp_requirements_2018.pdf (last accessed Mar. 27, 2024).
---------------------------------------------------------------------------

    FEMA disagrees with the commenter that the rule and policy do not 
consider economic development. Consistent with Executive Order 
14030,\225\ the FFRMS will prioritize Federal investment and conduct 
prudent financial management of Federal government resources to 
mitigate climate-related financial risk, while accounting for and 
addressing equity considerations and economic impacts. For individual 
actions, FEMA identifies and evaluates practicable alternatives to 
carrying out a proposed action in floodplains or wetlands. In 
determining the practicability of the alternatives, social concerns and 
economic aspects are considered in Sec.  9.9. These requirements ensure 
that FEMA's approach to floodplain use entails consideration of 
specific community needs.
---------------------------------------------------------------------------

    \225\ ``Climate-Related Financial Risk,'' 86 FR 27967 (May 20, 
2021).
---------------------------------------------------------------------------

    Finally, FEMA disagrees with the commenter that the agency does not 
consider economic development, as the 8-step process requires a 
practicability analysis that considers factors including economic 
aspects. FEMA thus does not believe the agency needs to revise the 
FFRMS policy's principles or the rule's policy statements to ensure 
economic aspects are considered.
Appeals Process
    Comments: Three commenters requested FEMA provide an appeals 
process. Two commenters wrote there was no viable process available to 
non-Federal entities to seek a review and adjudication of decisions 
made under the FFRMS. The commenters stated the impacts of the FFRMS 
would not be confined to the Federal government but would have far-
reaching impacts on non-Federal public entities and the private sector. 
The commenters noted that Federal taxpayers should be protected from a 
Federal standard likely to impose costs without being subject to a 
benefits justification. The commenters recommended an appeals process 
be made available to non-Federal entities to review and adjudicate 
decisions made under the FFRMS. The third commenter requested an 
appeals process for communities that disagreed with a determination 
using the FFRMS. The commenters stated an appeals process would provide 
transparency and enable communities to have a voice in these important 
decisions that significantly impact them.
    FEMA Response: FEMA does not believe a separate appeals process is 
required under part 9. FEMA conducts the 8-step process collaboratively 
with participation from applicants and grant program staff, with 
applicants having responsibility to provide information and participate 
in the process.\226\ This collaborative process allows for resolution 
of disagreements and for FEMA to provide technical assistance on the 
requirements of 44 CFR part 9. FEMA hopes to be able to resolve 
disagreements during this process so that a project may be made 
eligible. However, if a grant applicant disagrees with the application 
of the FFRMS and is subsequently denied funding for the project, the 
applicant should be able to avail itself of FEMA's existing appeals 
processes for its grant programs.\227\ FEMA understands the commenter's 
concern regarding community participation but believes the current 8-
step process sufficiently engages the public. FEMA will continue to 
notify the public at the earliest possible time of the intent to carry 
out an action in a floodplain or wetland and involve the affected and 
interested public in the decision-making process, as detailed further 
in Sec.  9.8. Further, communities provide input into the floodplain 
determination for part 9. Pursuant to 44 CFR 9.11(d)(6), if there is a 
more restrictive Federal, State, or local standard, it will be used. 
This includes the use of local CISA data and methods that have been 
adopted by a community for use in floodplain management, as long as 
such data results in a more

[[Page 56983]]

restrictive standard. FEMA values additional input from SLTT partners 
and the public in the 8-step process.
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    \226\ See 44 CFR 9.16, 9.17.
    \227\ See, e.g., 2 CFR 200.339 and 200.342; see also 44 CFR 
206.206 (appeals and arbitration process for PA), 44 CFR 206.115 
(appeals process for IA), 44 CFR 206.440 (HMGP and HMGP Post-Fire's 
appeals process); and ``Hazard Mitigation Assistance Program and 
Policy Guide,'' pg. 211-216, 229-234, 240-241, and 247 available at 
https://www.fema.gov/sites/default/files/documents/fema_hma_guide_08232023_v1.pdf (last accessed April 2, 2024) 
(appeals process for HMGP, HMGP Post-Fire, BRIC, and FMA), ``Public 
Assistance Program and Policy Guide, pgs. 39-41 available at https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf (last accessed Mar. 12, 2024).
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    Regarding cost concerns, FEMA completed an analysis of the economic 
impact of this rulemaking, and the agency believes that the benefits of 
preventing property damage and potentially saving lives justify the 
costs of the rule. These benefits are a result of the improved 
protection of structures and facilities due to increased elevation and 
floodproofing standards in FEMA's implementation of the FFRMS. This 
rule will help to ensure that Federal investments are better protected 
from flood damage, and that the natural values of floodplains are 
preserved.
Other Implementation Concerns
    Comments: One commenter requested the rule require consideration of 
ways to prevent groundwater contamination when managing floodwater for 
use in water supply storage. The commenter suggested that the rule 
include provisions to pretreat or avoid the injection of ``the first 
flush of stormwater runoff (generally the first runoff from 1.5 inches 
of rainfall), which can contain potential pollutants. The commenter 
also requested the rule acknowledge that MAR-related activities could 
be subject to other State and/or Federal regulations. Another commenter 
stated certain requirements for minimum conveyance, storage, and design 
criteria would be needed for all regional projects and watershed 
projects to ensure Federal funding eligibility with FFRMS 
implementation.
    FEMA Response: FEMA understands the commenters' concerns but 
disagrees that any changes to the rule are required to ensure 
consideration of these issues. As previously explained, impacts are 
considered during the 8-step process including those referenced by the 
commenters. These considerations are not changing as part of this final 
rule and will continue to be utilized by FEMA when completing the 
analysis.
    Further, Part 9 applies only to FEMA actions, and the FFRMS applies 
only to those actions where FEMA funds are used for new construction, 
substantial improvement, or to address substantial damage to a 
structure or facility for FEMA programs such IA, PA, and HMA, and 
grants processed by FEMA's GPD. Where applicants seek FEMA funding 
through these programs for the actions the commenters reference, part 9 
applies.
    Regarding a need to adapt design criteria, the FFRMS is a 
resilience standard that is applicable to structures and facilities. 
When considering design criteria, and particularly in cases where 
elevation as a minimization measure may not be feasible or appropriate 
for facilities, the FFRMS floodplain, determined according to the 
process described in section C of the FFRMS policy, establishes the 
level to which a structure or facility must be resilient. Resilience 
measures include using structural or nonstructural methods to reduce or 
prevent damage; elevating a structure; or, where appropriate, designing 
it to adapt to, withstand and rapidly recover from a flood event. To 
the extent practicable and in accordance with applicable grant program 
requirements, projects for facilities located within a FFRMS floodplain 
must be designed to help ensure resilience against flooding up to the 
flood elevation of the FFRMS floodplain.
    Comment: A commenter requested the exception process for the FFRMS 
allow for appropriate balancing of the community's overall public 
health and safety priorities in project decisions. The commenter gave 
an example of a hospital being limited in making critical improvements 
because of the cost to incorporate the FFRMS as an example of where the 
community's overall well-being might be impacted.
    FEMA Response: FEMA disagrees that a separate exception process is 
needed given the flexibility of the 8-step process. For individual 
actions, FEMA identifies and evaluates practicable alternatives to 
carrying out a proposed action in floodplains or wetlands. In 
determining the practicability of the alternatives, social concerns and 
economic aspects such as those raised by the commenter are considered 
in Sec.  9.9.
    FEMA will continue to notify the public at the earliest possible 
time of the intent to carry out an action in a floodplain or wetland 
and involve the affected and interested public in the decision-making 
process, as detailed further in Sec.  9.8. FEMA values additional input 
from SLTT partners and the public in the 8-step process to help ensure 
FEMA actions meet community needs. FEMA notes any increased costs are 
generally eligible for funding under FEMA's assistance programs subject 
to cost share requirements.
2. Coordination With Other Federal Agencies
    Commenters had questions about how FEMA would coordinate with other 
Federal agencies when implementing the FFRMS. Commenters raised 
questions and concerns with how FEMA would work with other Federal 
agencies to implement the FFRMS and the interaction between the FFRMS 
and other programs such as the NFIP.
    Comments: Commenters requested FEMA provide more information on how 
FEMA would complete coordination with other Federal agencies. A 
commenter requested clarification on how the agency would coordinate 
with other Federal agencies, and State and local governments to ensure 
consistent implementation of the FFRMS. One commenter asked how the 
primary agency would be determined and stated that many local agencies 
would not have the capability and capacity to navigate through 
different federal agencies with differing requirements for FFRMS 
implementation. Another commenter requested the proposed rule reconcile 
which agency's FFRMS procedures would be applied for projects with more 
than one Federal funding source. This commenter stated the NPRM did not 
provide a process to reconcile difference in requirements from 
different agencies and stated the differences between agencies that 
have already published FFRMS proposals. The commenter requested FEMA 
assure harmonization in the FFRMS criteria application across the 
Federal government. One commenter stated FEMA must also account for the 
central role that SLTT governments play in floodplain management, 
including designing climate resilience actions and implementing 
regulations. The commenter wrote consistent that expectations and 
procedures would benefit all sides by expediting interagency 
coordination and reducing confusion, delays, and accidental 
noncompliance.
    FEMA Response: FEMA understands the concerns associated with 
consistent application of the FFRMS, and FEMA's FFRMS policy provides 
details on how FEMA will coordinate with other agencies when 
implementing actions in the same area as another Federal agency. See 
Section H, page 9. Specifically, FEMA's FFRMS policy states that when 
coordinating with other Federal agencies, FEMA will generally default 
to the FFRMS policy approach in FEMA's FFRMS policy, as appropriate. In 
addition, per 44 CFR 9.11(d)(6), actions must be consistent with the 
NFIP, as well as any more restrictive Federal, State, or local 
floodplain management standards. Those floodplain management standards 
may include a more restrictive application of another Federal agency's 
FFRMS approach.
    Additionally, FEMA's interagency consultative role in the broader 
implementation of the FFRMS across the Federal government, through the

[[Page 56984]]

agency's participation in the Interagency Working Groups and the FIFM-
TF helps ensure consistent and effective implementation across the 
Federal government. FEMA's work in that context is intended to address 
the types of concerns raised in the comment regarding harmonizing 
application of the FFRMS criteria across the Federal government. 
Executive Order 11988, as amended, further establishes the process by 
which the FFRMS will be reassessed in an interagency manner in 
conjunction with the WRC, the MitFLG, and the FIFM-TF. See Section 4(a) 
and (b).
    FEMA understands the concerns raised by the commenters regarding 
local capability and capacity, and the agency will distribute 
additional resources to SLTT partners and the public identifying what 
the FFRMS is, and how the agency will implement the Executive Orders to 
assist applicants of FEMA-funded assistance programs. FEMA will also 
provide technical assistance through the agency's regional offices to 
support the FFRMS implementation. Additionally, FEMA notes the agency 
does consider the central role that SLTTs play in floodplain 
management. FEMA conducts the 8-step process collaboratively with 
participation from SLTT partners and grant program staff, with 
responsibilities and requirements for applicant participation in the 8-
step process outlined in the long-standing requirements of 44 CFR 9.17. 
FEMA also recognizes the role played by SLTTs in setting floodplain 
management standards for their communities. Pursuant to 44 CFR 
9.11(d)(6), a more restrictive Federal, State, or local standard will 
be used. FEMA believes the final rule and FFRMS policy outline 
consistent expectations and procedures for application of the 8-step 
process, minimizing confusion, delays, and accidental noncompliance.
Coordination With Specific Agencies
    Comments: Some commenters encouraged FEMA to engage with specific 
agencies when implementing FFRMS. One commenter encouraged FEMA to 
coordinate with other Federal agencies, such as HUD, SBA, USDA, DOE, 
DoD, to improve application and effectiveness of national floodplain 
standards. Another commenter suggested Federal agencies, including 
FEMA, NRCS, FWS, and others examine the efforts of Federal agencies to 
restore floodplains. The commenter stated their understanding that even 
for Federal agencies responsible for addressing water, soil, and 
habitat concerns, floodplain regulations are a significant barrier to 
restoration. The commenter stated the review of floodplain restoration 
efforts should not only cover the multi-million-dollar projects, but 
also include smaller-scale projects, as there are plenty of 
opportunities for small scale, impactful restoration projects that 
become too costly when implemented consistent with a regulatory 
process.
    Another commenter requested that FEMA take a leadership role in 
tracking floodplain development on a national scale. The commenter 
stated there was no meaningful Federal commitment to track gains or 
losses in floodplain functions in the same way wetlands are tracked 
through the National Wetlands Inventory. The commenter referenced an 
estimate that 70 percent of the nation's floodplains had poor integrity 
due to development and alterations that limited floodplain 
functionality. The commenter noted this estimate provides a snapshot, 
but that it is essential to have nationwide statistics that allowed 
decision makers to understand and communicate floodplain loss. The 
commenter stated that floodplains are not broadly recognized by the 
public or decision makers for the valuable benefits they provide, and 
the lack of comprehensive, nationally-led data and analysis for 
floodplain functions has resulted in disjointed and unstable efforts 
focused on policy, funding, and communication in support of protecting 
and restoring floodplains in the United States, as well as a lack of 
data that allows an analysis of the impact that Executive Order 11988 
has played. The commenter requested that FEMA, as the lead Federal 
agency charged with implementing a national floodplain management 
strategy, take a leadership role in tracking loss of functional 
floodplains as a component of the 8-step process when implementing 
Executive Orders 11988 and 13690. The commenter encouraged FEMA to work 
with HUD, the United States Geological Survey, the USACE, and other 
Federal agencies to track and quantify the effectiveness of the 
Executive Orders in avoiding floodplain development and preserving and 
restoring the natural and beneficial values of functional floodplains.
    FEMA Response: FEMA's interagency consultative role in the broader 
implementation of the FFRMS across the Federal government, through the 
agency's participation in the Interagency Working Groups and the FIFM-
TF helps ensure consistent and effective implementation. In this role, 
FEMA has coordinated, and will continue to coordinate, with other 
Federal agencies, including those listed by the commenters, on the 
FFRMS. Executive Order 11988, as amended, further establishes the 
process by which the FFRMS will be reassessed in an interagency manner 
in conjunction with the WRC, the MitFLG, and the FIFM-TF.\228\ See 
Section 4(a) and (b).
---------------------------------------------------------------------------

    \228\ 80 FR 6425 (Feb. 4, 2015).
---------------------------------------------------------------------------

    For individual actions subject to the FFRMS, FEMA will continue to 
coordinate with other agencies to expedite and unify the floodplain 
management review process, as detailed in the FFRMS policy. FEMA 
appreciates the commenter's concerns regarding floodplain restoration, 
but notes that the commenter's request for multiple Federal agencies to 
do a retrospective review of their efforts to restore floodplains is 
beyond the scope of this rulemaking, which involves updates to FEMA 
floodplain management regulations to implement the FFRMS. FEMA's 
regulations at part 9 address the commenter's concerns regarding the 
need to protect floodplains. Specifically, Sec.  9.2 discusses the 
agency's policy to ``restore and preserve the natural and beneficial 
values served by floodplains.'' The final rule strengthens this policy 
by requiring the use of nature-based solutions when identified as a 
practicable alternative during the 8-step process as outlined in 44 CFR 
9.9(b)(2). Further, Sec.  9.11(b) discusses how FEMA will take action 
to restore and preserve floodplains and wetlands. FEMA understands the 
need to include smaller-scale projects and the commenter's concerns 
regarding costs when complying with regulatory requirements but 
believes the rule and FFRMS policy helps address these considerations. 
The rule and FFRMS policy require FEMA to consider the type of 
criticality of the action involved, the availability and actionability 
of data, and equity concerns. Actions are only subject to the FFRMS if 
FEMA funds are used for new construction, substantial improvement, or 
to address substantial damage to a structure or facility.
    FEMA understands the commenter's concerns regarding tracking 
floodplain development and the lack of a national inventory for 
floodplains similar to the National Wetlands Inventory. FEMA agrees 
that nationwide statistics could better support decision makers and 
encourages other Federal agencies to look across the spectrum of 
floodplain impacts for their own agency activities. However, FEMA has 
no statutory authority to mandate the more structured tracking system 
the commenter requests across the Federal government.

[[Page 56985]]

    FEMA completed that analysis for the FFRMS consistent with its 
requirements under OMB Circular A-4. FEMA considered the costs and 
benefits associated with this rule, including the overall increased 
costs of FEMA projects, in the regulatory impact analysis provided on 
the public docket for this rulemaking.\229\ FEMA believes that the 
benefits of preventing property damage and potentially saving lives 
justify the costs of the rule. These benefits are a result of the 
improved protection of structures and facilities due to increased 
elevation and floodproofing standards in FEMA's implementation of the 
FFRMS. This rule will help to ensure that Federal investments are 
better protected from flood damage, and that the natural values of 
floodplains are preserved.
---------------------------------------------------------------------------

    \229\ See https://www.regulations.gov/document/FEMA-2023-0026-0013.
---------------------------------------------------------------------------

    Pursuant to OMB Circular A-4, agencies are required to monetize 
quantitative estimates whenever possible; however, if monetization is 
impossible, the agency must explain why and present all available 
quantitative information. An agency should also provide a description 
of the unquantified effects and the strengths and limitations of the 
qualitative information. FEMA requested public comments throughout the 
RIA because it was aware of the limitations of the data used to 
estimate the costs and benefits of the rule. FEMA's intention was to 
give the public the opportunity to submit data that was not available 
to FEMA at the time of publication of the NPRM but could help improve 
the estimates made for the final rule.
    FEMA recognized in both its NPRM and RIA that there was a lack of 
actionable climate data for the FFRMS. FEMA expects that more data will 
be available as agencies implement the FFRMS, and that will be 
incorporated into interagency tools. FEMA further recognized that there 
was a limited amount of data available on the monetized benefits of 
freeboard that would be affected by the rule and requested comments 
from the public about whether there was available data that could be 
used for such estimates. FEMA conducted a quantitative benefits 
analysis for PA. Due to the limited quantitative analysis, FEMA also 
completed a qualitative analysis to meet its obligations under OMB 
Circular A-4 with respect to benefits by including the following: (1) 
literature reviews on the benefits of flood mitigation activities; (2) 
reports which analyzed potential savings from damage avoidance 
associated with including freeboard in the construction of new 
residential structures in coastal areas at various freeboard levels; 
and (3) a description of qualitative benefits which included the 
potential for lives saved, savings in time and money from a reduced 
recovery period after a flood, increased safety of individuals, 
increased public safety, reduced personal and community impacts, and 
reduction in future health issues related to flooding.
    With respect to the overall costs for the rule, FEMA met its 
obligations under OMB Circular A-4 by producing qualitative and 
quantitative measurements of the cost of the application of the FFRMS 
by each grant program. FEMA notes any increased costs for FEMA actions 
are generally eligible for funding under FEMA's assistance programs 
subject to cost share requirements.
    Comment: One commenter raised several questions about the 
implementation of FFRMS for roadways, bridges, and culverts and how 
FEMA would engage with other Federal and non-Federal agencies. The 
commenter raised several questions about how the FHWA and the 
Department of Transportation (DOT) regulations would interact with 
FEMA's FFRMS implementation and requested FHWA regulations apply to 
these actions. The commenter raised questions on the use of State 
regulations and asked how the FFRMS would impact scour calculations and 
designs. The commenter asked how FEMA would determine when a nature-
based approach would be used, stating that FHWA and many States had 
their own guidance for the use of nature-based approaches. The 
commenter also stated all of the FFRMS approaches indicated higher 
vertical flood elevations and an expanded horizontal floodplain and 
inquired as to whether elevating a structure would also include 
potential roadway grade changes and raising a bridge structure if 
viable for resilience as some locations.
    FEMA Response: As explained previously, this rulemaking only 
applies to actions where FEMA funds are used for new construction, 
substantial improvement, or to address substantial damage to a 
structure or facility under FEMA programs such as IA, PA, and HMA 
programs, and grants processed by FEMA's GPD. FEMA does not fund 
repairs or improvements to Federal-aid roads, and this rulemaking would 
not be applicable to those roads. Rather, as the commenter states, the 
FHWA regulations would govern those actions. Where FEMA may provide 
funding, FEMA's FFRMS policy provides details on how FEMA will 
coordinate with other agencies when implementing actions in the same 
area as another Federal agency. See Section H, page 9. When 
coordinating with other Federal agencies, FEMA will generally default 
to the FFRMS policy approach in FEMA's FFRMS policy, as appropriate. 
Where FEMA provides funding for these activities, FFRMS applies to 
improve resilience to facilities against both current and future flood 
risks.
    Section 9.11(d)(6) of the final rule states that even when FEMA is 
providing funding, a more restrictive Federal, State, or local 
floodplain management standard will be applied. States with more 
restrictive standards continue to govern these actions. Section G.2 of 
FEMA's FFRMS policy further discusses flood risk minimization for 
facilities and clarifies that FEMA would allow any specific method to 
be used to help ensure resilience against flooding up to the flood 
elevation of the FFRMS floodplain in conjunction with any other 
applicable codes and standards.
    In response to the commenter's concerns regarding nature-based 
approaches and conflicts with other Federal and State requirements, 
Section A.2 of FEMA's FFRMS policy states ``Applicability: The Natural 
Features and Nature-Based Solutions requirements of this policy apply 
to all Actions subject to the full 8-step decision-making process.'' As 
explained in Section F, it should be used where possible.\230\
---------------------------------------------------------------------------

    \230\ See Section F of the FFRMS Policy, ``Where possible, the 
Agency shall use natural systems, ecosystem processes, and nature-
based solutions.''
---------------------------------------------------------------------------

    To address the commenters inquiry on whether roadway grade changes 
and raising a bridge structure would be required, FEMA begins any 
analysis by confirming applicability. As defined in Sec.  9.4, a 
``structure'' means walled and roofed buildings, including a temporary 
housing unit (manufactured housing) or a gas or liquid storage tank. 
The example provided by the commenter is not a structure under part 9 
but rather a facility. As section G.2 of FEMA's FFRMS policy states, 
``[t]he FFRMS is a resilience standard. Particularly in cases where 
elevation may not be feasible or appropriate for facilities, the FFRMS 
floodplain, determined according to the process described in section C 
of this policy, establishes the level to which a structure or facility 
must be resilient. Resilience measures include using structural or 
nonstructural methods to reduce or prevent damage; elevating a 
structure; or, where appropriate,

[[Page 56986]]

designing it to adapt to, withstand and rapidly recover from a flood 
event.'' \231\
---------------------------------------------------------------------------

    \231\ See https://www.regulations.gov/document/FEMA-2023-0026-0005.
---------------------------------------------------------------------------

Coordination With Non-Federal Agencies
    Comments: A commenter recommended FEMA engage through comprehensive 
consultations with local governments, non-Federal stakeholders, and 
regional experts to gather insights and refine the currently proposed 
national approach to ensure that policies aligned with regional 
differences and addressed specific challenges identified by 
stakeholders. The commenter also recommended FEMA develop a robust 
communication strategy to clarify the integration of local government 
systems and policy implementation with non-Federal stakeholders, while 
also creating a means of providing feedback throughout the FFRMS 
implementation process.
    The commenter further stated that the roles, responsibilities, and 
authorities of non-Federal sponsors of actions might not align with 
FEMA's FFRMS proposed policy and requested FEMA clarify how non-Federal 
sponsors and other stakeholders would engage with and be affected by 
the rule. The commenter noted collaboration between non-Federal 
sponsors, communities, the USACE, and FEMA can yield significant 
benefits, but stated the collaboration was contingent on a clear, 
justified, and achievable delineation of agency and stakeholder roles 
and responsibilities. The commenter stated the FFRMS proposed rule and 
policy failed to address the roles of non-Federal stakeholders, which 
could significantly hinder non-Federal stakeholders' understanding of 
their responsibilities within the FFRMS framework. The commenter stated 
the FFRMS lacked an explanation of how the policy aligns with other 
floodplain-related policies. The commenter stated that this oversight 
might burden local non-Federal sponsors with additional 
responsibilities related to addressing property damage and new 
construction, potentially creating confusion and additional workload, 
and importantly, likely forcing non-Federal sponsors to assume duties 
outside their legal authorities and core competencies, and expose them 
to potential liability.
    The commenter recommended that FEMA provide greater clarity on the 
roles of State and local government and other non-Federal stakeholders. 
The commenter requested that FEMA consider and accommodate the resource 
and legal boundaries of non-Federal stakeholders, ensuring that 
policies and directives were realistic and compatible with their 
authorities and available resources and tailoring requirements that 
align with the authorities of non-Federal stakeholders. The commenter 
stated this entailed revising policies to avoid mandating actions that 
fall outside the legal jurisdiction of non-Federal stakeholders.
    FEMA Response: FEMA disagrees with the commenter that additional 
engagement to refine the FFRMS is required. In addition to the comment 
period in 2023, FEMA completed outreach regarding FFRMS in 2015 as part 
of the development and publication of the Revised Guidelines, as well 
as the agency's prior NPRM in 2016.\232\
---------------------------------------------------------------------------

    \232\ Established by the 2013 Climate Action Plan, the Climate 
Task Force met with stakeholders from State, local, Tribal, and 
territorial governments; private businesses; trade associations; 
academic organizations; civil society; and other stakeholders to 
develop and provide recommendations in November 2014. President's 
State, Local, and Tribal Leaders Task Force on Climate Preparedness 
and Resilience, Recommendations to the President, (2014), available 
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA, 
acting on behalf of the MitFLG and consistent with Executive Order 
13690, published a draft of the Revised Guidelines for notice and 
comment on February 5, 2015 at 80 FR 6530. During the public comment 
period, over 25 meetings were held across the country with State, 
local, and Tribal officials and interested stakeholders to discuss 
the Revised Guidelines. There were also 9 public listening sessions 
across the country that were attended by over 700 participants from 
State, local, and Tribal governments, and other stakeholder 
organizations to discuss the Revised Guidelines. The final Revised 
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA 
published a notice of proposed rulemaking to implement FFRMS 
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice 
of availability and request for comment on a FFRMS policy at 81 FR 
56558 (Aug. 22, 2016) and a notice of availability regarding a draft 
report at 81 FR 64403 (Sept. 20, 2016).
---------------------------------------------------------------------------

    FEMA understands the commenter's concern regarding the role of non-
Federal partners, but that role in the 8-step process remains unchanged 
as a result of this rulemaking. FEMA values the collaboration and 
coordination with SLTT and other non-Federal partners in the 8-step 
process and will continue to engage with stakeholders and the public 
throughout the 8-step process to meet the needs of communities and 
stakeholders impacted by FEMA actions subject to this rulemaking. 
Specifically for applicants for federal financial assistance, 44 CFR 
9.17 outlines the specific roles and responsibilities that exist for 
them in the 8-step process.
    Comment: The same commenter stated the rule lacked clarity on 
integration with local government systems and communications regarding 
policy implementation with non-Federal stakeholders. The commenter 
stated this oversight raised doubts about adaptability and alignment 
with existing regional policies, potentially leading to conflicts and 
inefficiencies in implementation. The commenter raised concerns 
regarding the removal of Flood Hazard Boundary Maps (FHBM) stating that 
the removal resulted in a lack of clear alternatives or specific 
evaluation methodologies tailored to different regions and thus failed 
to ensure region-specific evaluations and risks in applying standards 
uniformly across diverse regions. The commenter stated a ``one-size-
fits-all approach'' overlooked the complexity of regional flood 
dynamics and other variabilities, leaving critical questions 
unanswered. The commenter stated a tailored, regionally sensitive 
strategy was imperative to ensure diverse regional needs and variations 
were appropriately considered and integrated into any proposed 
policies.
    FEMA Response: FEMA understands the commenter's interest in 
ensuring effective integration with local government systems and 
communications with non-Federal stakeholders but disagrees that the 
agency's rulemaking and FFRMS policy are lacking. Rather, the rule at 
Sec.  9.11(d)(6) ensures the use of any local standard that may be 
higher than that required under part 9 allowing for local differences 
to be considered and implemented. The commenter further misunderstands 
FEMA's edits to remove the term FHBM from the regulatory text. FEMA is 
not eliminating FHBMs from the 8-step process. As explained in the 
preamble to the NPRM, FEMA offers a range of flood risk products under 
the NFIP and categorizes these products as ``regulatory'' or ``non-
regulatory.'' Regulatory flood risk products are created subject to 
procedural due process requirements, contain basic flood information, 
and are used for official actions such as identifying properties 
subject to mandatory flood insurance purchase requirements, or 
enforcing minimum building standards for construction in a floodplain 
in NFIP participating communities. Non-regulatory flood risk products 
are not tied to mandatory enforcement or compliance requirements for 
the NFIP and expand upon basic flood hazard information. References to 
FEMA's regulatory products under the NFIP, such as the FHBM, FIRM, and 
FIS are being eliminated in the regulatory text to allow flexibility to 
encompass the full range of NFIP products (both regulatory and non-
regulatory) available for use with the 8-step process. For example,

[[Page 56987]]

the existing Sec.  9.7(c) prescribes a sequence of steps to obtain the 
floodplain, flood elevation, and other information needed.
    FEMA has made, and will continue to make, floodplain determinations 
partnering with applicants in the 8-step decision-making process. As 
explained in the NPRM, FEMA will use best available information, which 
may include information that is non-regulatory or FEMA preliminary 
flood hazard data. To be designated as the best available information, 
the information must be at least as restrictive as the information 
provided by effective FIRMs. FEMA published the FFRMS Job Aid to 
further explain how the agency will make these determinations with the 
implementation of FFRMS.
    Further, as previously explained, SLTTs can provide input into the 
determination. As explained above, FEMA will use a more restrictive 
Federal, State, or local standard for actions under part 9. This 
includes the use of local CISA data and methods that have been adopted 
by a community for use in floodplain management, as long as such data 
results in a more restrictive standard. Allowing the use of local data 
helps resolve the commenter's concerns that FEMA is not considering 
regional flood dynamics and other variabilities.
3. Outreach
    Comments: Two commenters discussed outreach associated with the 
rulemaking process. One of the commenters expressed support for the 
extensive public outreach completed between 2015 and 2021 on the FFRMS. 
The other commenter requested FEMA reengage with States and local 
communities on the FFRMS proposed rule and policy. The commenter noted 
the floodplain program is administered at the local level and stated 
FEMA failed to conduct sufficient outreach or even hold a single public 
meeting to help explain the elaborate and expansive changes. The 
commenter stated local administrators and community officials deserved 
sufficient time to understand the proposed rule and policy changes and 
develop informed comments on how it might affect their programs. The 
commenter asked that FEMA perform additional outreach to educate local 
floodplain administrators, elected officials, and emergency managers on 
the proposed rule and policy.
    Some commenters requested FEMA provide additional outreach, 
training, technical assistance, and community engagement as part of the 
FFRMS implementation. One commenter requested training, outreach, and 
coordination at the program, departmental, interagency, and 
intergovernmental levels for successful implementation of FFRMS. The 
commenter requested FEMA provide technical resources including 
comprehensive guidance, maps and resources, and technical assistance. 
Another commenter requested FEMA provide guidance and training 
materials to stakeholders to ensure a comprehensive understanding and 
consistent application of the FFRMS. One commenter requested FEMA 
develop accessible guidance and tools to facilitate and improve the 
benefit-cost analysis for both nature-based solutions and hybrid green-
gray infrastructure approaches. Another commenter recommended FEMA 
conduct virtual and in-person workshops and listening sessions to 
explain the FFRMS, changes to 44 CFR part 9 (including the 8-step 
process), including applications for FEMA grants under HMGP, FMA and 
BRIC. Another commenter stated appreciation for FEMA's plans to assist 
applicants with FFRMS and the 8-step process and encouraged the agency 
to seek sufficient funding to adequately staff such an effort.
    FEMA Response: As one commenter noted, FEMA completed significant 
outreach and stakeholder engagement during the course of the FFRMS 
development and rulemaking processes. FEMA believes those outreach 
efforts were sufficient and additional public meetings for this 
rulemaking were not required.\233\ FEMA disagrees with one commenter 
requesting the agency complete additional outreach to allow for public 
comment. Local administrators and community officials had an 
opportunity to submit comments on the proposed rule and policy changes, 
and FEMA notes some communities did submit comments on this rulemaking. 
FEMA will perform additional outreach to SLTT partners, stakeholders, 
and the public, including distribution of additional resources to 
assist in FFRMS implementation.
---------------------------------------------------------------------------

    \233\ Established by the 2013 Climate Action Plan, the Climate 
Task Force met with stakeholders from State, local, Tribal, and 
territorial governments; private businesses; trade associations; 
academic organizations; civil society; and other stakeholders to 
develop and provide recommendations in November 2014. President's 
State, Local, and Tribal Leaders Task Force on Climate Preparedness 
and Resilience, Recommendations to the President, (2014), available 
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA, 
acting on behalf of the MitFLG and consistent with Executive Order 
13690, published a draft of the Revised Guidelines for notice and 
comment on February 5, 2015 at 80 FR 6530. During the public comment 
period, over 25 meetings were held across the country with State, 
local, and Tribal officials and interested stakeholders to discuss 
the Revised Guidelines. There were also 9 public listening sessions 
across the country that were attended by over 700 participants from 
State, local, and Tribal governments, and other stakeholder 
organizations to discuss the Revised Guidelines. The final Revised 
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA 
published a notice of proposed rulemaking to implement FFRMS 
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice 
of availability and request for comment on a supplementary policy at 
81 FR 56558 (Aug. 22, 2016) and a notice of availability regarding a 
draft report at 81 FR 64403 (Sept. 20, 2016).
---------------------------------------------------------------------------

    FEMA agrees that successful implementation will require training, 
outreach and interagency coordination and appreciates the commenters' 
suggestions on ways to achieve effective outreach. FEMA participated in 
the IWG on Flood Resilience to support the implementation of the FFRMS. 
FEMA continues to collaborate with the IWG and other interagency groups 
consistent with Executive Order 11988, as amended, and the Revised 
Guidelines. FEMA will distribute additional resources to the public and 
SLTT partners identifying what the FFRMS is, and how the agency will 
implement the Executive Orders, and these resources will help 
applicants as they apply for FEMA-funded assistance programs. FEMA will 
also provide technical assistance through the agency's regional offices 
in support of FFRMS implementation. FEMA will also further consider the 
outreach options shared by the commenters as the agency begins FFRMS 
implementation after this rulemaking.
4. Equity and Environmental Justice
    Comments: Commenters provided feedback on incorporating equity and 
environmental justice into the 8-step process. While commenters 
indicated support for FEMA's rule and FFRMS policy as a means of 
bolstering the agency's commitment to addressing equity and 
environmental justice when addressing flood risks, others requested 
additional clarification or provided recommendations on ways FEMA could 
further advance equity and environmental justice in the rule and FFRMS 
policy. Commenters requested the agency incorporate social, economic, 
and environmental concerns into the 8-step process. These commenters 
also requested more outreach to underserved communities and ways to 
address the increased costs of actions subject to the FFRMS.
    One commenter stated that flood impacts are not experienced equally 
across communities in the United States, referencing policies such as 
redlining and lower tax rates as forcing underserved populations into 
flood-prone areas and resulting in those

[[Page 56988]]

communities facing disproportionately high risk from flooding. The 
commenter stated these communities have also been disproportionately 
impacted by the environmental degradation resulting from floodplain 
development, underscoring the relationship between floodplain 
management and environmental justice. The commenter stated underserved 
communities have faced inequities in the distribution of flood risk 
reduction resources, partially because of reduced capacity and 
opportunity to respond to flood hazards compared to more well-resourced 
communities. The commenter stated that, based on these inequities, any 
proposal to update floodplain management standards would have an 
outsized effect on underserved communities. The commenter requested 
that FEMA consider the implicit connections between the FFRMS and 
environmental justice and the potential impact on Federally-protected 
treaty rights to floodplain resources. The commenter also requested 
FEMA consider the long-term benefits--including economic benefits--that 
can result from stricter floodplain management standards and upfront 
investments to ensure more resilient development projects.
    This commenter further recommended a regular environmental justice 
and Tribal treaty rights assessment to review unforeseen burdens or 
missed opportunities with environmental justice communities and Tribal 
treaty rights-holders, consistent with Justice40 after the rule takes 
effect. The commenter requested FEMA include a structure to ensure that 
Tribal, low-income, and frontline communities and communities of color 
would be elevated in refining how the FFRMS is used and updated over 
time. The commenter requested FEMA explore technical assistance 
opportunities to ensure support for low-capacity communities. The 
commenter requested FEMA incorporate FFRMS into the agency's Justice40 
efforts and prioritize funding to Tribes and underserved communities to 
increase flood resilience, stating this prioritization was particularly 
important in places where a more protective standard for the floodplain 
could raise upfront project costs and impact affordability for low-
income communities, taxpayers, and rate payers. Another commenter 
raised similar concerns regarding equity, environmental justice, and 
community engagement. The commenter stated that FEMA has the 
opportunity to explicitly advance and promote environmental justice 
within the rule and, consistent with Executive Order 14096, FEMA should 
provide opportunities for the meaningful engagement of persons and 
communities with environmental justice concerns who are potentially 
affected by Federal activities. Quoting Executive Order 14096, the 
commenter requested FEMA provide timely opportunities for members of 
the public to share information or concerns and participate in the 
decision-making processes; fully consider public input provided as part 
of the decision making processes; seek out and encourage the 
involvement of persons and communities potentially affected by Federal 
activities; and provide technical assistance, tools, and resources to 
assist in facilitating meaningful and informed public participation. 
The commenter recognized FEMA's actions to incorporate meaningful 
engagement with environmental justice communities, but requested FEMA 
recommit to that engagement through this rulemaking.
    Two commenters recommended FEMA revise the rule to ensure it 
explicitly addresses environmental justice concerns. One of these 
commenters stated that despite FEMA's statement that the proposed rule 
would not have adverse impacts on communities with environmental 
justice concerns, experience along with scientific and policy analysis 
found that Federal policies such as the FFRMS would have distributional 
impacts across sectors and communities, especially overburdened and 
underserved communities. The commenter cited to specific studies 
reflecting the level of flood risk increase for some disadvantaged 
communities and stated FEMA should ensure the final rule advanced 
environmental justice by requiring the consideration of 
disproportionate and adverse effects on communities with environmental 
justice concerns. Another commenter stated similar concerns with FEMA's 
statement in the proposed rule that the agency did not expect the rule 
to have a disproportionate and adverse human health or environmental 
effect on communities with environmental justice concerns and requested 
FEMA explicitly advance and promote environmental justice 
considerations in the final rule. The commenter stated that equity and 
environmental justice concerns must be acknowledged and weighed in the 
analysis of all FEMA-funded projects. This commenter requested 
guidance, tools, and resources to ensure best practices are used in 
project planning and design. The commenter stated flood-prone land 
tended to be cheaper, disregarding hidden long-term costs and 
recommended FEMA strengthen transparency in the public's awareness of 
flooding risks in any community development and prioritize long-term 
safety over initial cost savings. Another commenter shared the concern 
raised by these commenters that FEMA did not consider environmental 
justice issues when drafting the rule and recommended FEMA actively 
promote environmental justice in the final rule. This commenter also 
referenced Executive Order 14096 and stated that climate-driven flood 
hazards were expected to disproportionately impact Black communities in 
the South. The commenter further stated some estimates indicated the 
Southeast stood to suffer the most economic damage due to climate 
change with incalculable social costs. The commenter provided 
additional statistics regarding flood risks and referenced a specific 
seawall project as an example of common failures to adequately consider 
environmental justice concerns in the context of floodplain adaptation.
    FEMA Response: FEMA appreciates the commenters' concerns on the 
increased costs of projects, equity, environmental justice, and 
community engagement. FEMA is committed to meaningful engagement on 
environmental justice and understands that flood impacts are not always 
experienced equally across communities in the United States. The agency 
has always incorporated natural environment, social concerns, and 
economic aspects into the 8-step process as part of the practicability 
analysis, and this rulemaking will not change that practice. FEMA's 
revisions to part 9 reflect consideration of the type and criticality 
of the action involved, the availability and actionability of the data, 
and equity concerns in the implementation of Executive Order 11988, as 
amended. FEMA also has an agency-wide initiative focused on reducing 
barriers and increasing opportunities so all people, including those 
from vulnerable and underserved communities, can get help when they 
need it.\234\
---------------------------------------------------------------------------

    \234\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
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    FEMA reviews all proposed FEMA-funded actions for potential 
disproportionate and adverse human health and environmental effects on 
communities with environmental justice concerns using a standardized 
environmental justice compliance review process. This final rule will 
not

[[Page 56989]]

change that process. As an environmental justice review takes place on 
all FEMA proposed actions, FEMA does not believe an additional 
assessment is needed in conjunction solely with this final rule. 
Further, FEMA and the applicant may consider potential impacts on 
Tribal treaty rights, where applicable, when evaluating the 
practicability of alternatives in the 8-step process. As this would 
occur for all actions that potentially impact Tribal treaty rights, 
FEMA does not believe an additional assessment is needed in conjunction 
with this final rule.
    Regarding the commenter's request that FEMA provide a way for these 
communities to engage on updates to the FFRMS, FEMA notes the agency is 
not solely responsible for revisions to the FFRMS or the Revised 
Guidelines. The MitFLG in consultation with the FIFM-TF will reassess 
the FFRMS annually, after seeking stakeholder input, and provide 
recommendations to the WRC to update the FFRMS, if warranted based on 
accurate and actionable science that takes into account changes to 
climate and other changes in flood risk. The WRC shall issue an update 
to the FFRMS at least every 5 years.\235\ Consistent with the 
requirements of Executive Order 11988, as amended, the interagency will 
engage with SLTTs and the public, including Tribal communities for any 
updates to the FFRMS.
---------------------------------------------------------------------------

    \235\ Revised Guidelines, pg. 20.
---------------------------------------------------------------------------

    As noted by the commenter, there are connections between the FFRMS 
and environmental justice. The FFRMS seeks to continue to improve the 
resilience of communities, including communities with environmental 
justice concerns, and help preserve the natural values of floodplains. 
Likewise, under the 8-step process, FEMA and the applicant may consider 
potential impacts on Tribal treaty rights, where applicable, when 
evaluating the practicability of alternatives. FEMA appreciates the 
commenter's request to consider economic benefits from stricter 
floodplain management standards and upfront investments, and the agency 
did consider the costs and benefits associated with this rule, 
including the overall increased costs of FEMA projects,\236\ in the 
regulatory impact analysis provided on the public docket for this 
rulemaking.\237\ FEMA believes that the benefits of preventing property 
damage and potentially saving lives justify the costs of the rule. 
These benefits are a result of the improved protection of structures 
and facilities due to increased elevation and floodproofing standards 
in FEMA's implementation of the FFRMS. This rule will help to ensure 
that Federal investments are better protected from flood damage, and 
that the natural values of floodplains are preserved.
---------------------------------------------------------------------------

    \236\ For example, FEMA found that for a project with a 75% 
FEMA/25% applicant cost share, the cost to an applicant to elevate a 
structure above the BFE to meet FEMA's FFRMS requirements using the 
FVA+2 (1.91 percent of construction cost) represented less than 0.5% 
of the total project cost, or an average of an additional $4,775 in 
applicant cost share on an original total project cost of 
$1,000,000. See A Benefit Analysis of Increased Freeboard for Public 
and Nonresidential Buildings in Riverine and Coastal Floodplains, 
posted to the public docket of this rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0003.
---------------------------------------------------------------------------

    Regarding the commenters' concerns that FEMA provide opportunities 
for engagement and participation in the decision-making process, FEMA 
completed significant outreach in 2015 as part of the development and 
publication of the Revised Guidelines. That outreach included over 25 
meetings across the country with State, local, and Tribal officials and 
interested stakeholders to discuss the Revised Guidelines and 9 public 
listening sessions that were attended by over 700 participants from 
State, local, and Tribal governments, and other stakeholder 
organizations to discuss the Revised Guidelines.\238\ FEMA believes 
those outreach efforts were sufficient.\239\ FEMA notes that, in 
addition to engagement on the FFRMS and rulemaking, FEMA's 8-step 
process incorporates community engagement into the process. FEMA will 
continue to notify the public at the earliest possible time of the 
intent to carry out an action in a floodplain or wetland and involve 
the affected and interested public in the decision-making process, as 
detailed further in Sec.  9.8, as well as provide the public notice 
with a statement documenting the outcome of the 8-step process as 
detailed in Sec.  9.12. Beyond all of the foregoing, FEMA also provides 
public notice for proposed actions under NEPA and other environmental 
planning and historic preservation laws and executive orders. This 
rulemaking will not change those requirements.
---------------------------------------------------------------------------

    \238\ Public meetings were held at a range of locations across 
the country at varied times to maximize participation. Meetings were 
held in Fairfax, VA; Seattle, WA; Dallas, TX; New York, NY; Ames, 
IA; Biloxi, MS; Sacramento, CA; and Hampton Roads, VA. See generally 
Guidelines for Implementing Executive Order 11988, Floodplain 
Management non-rulemaking docket available at https://www.regulations.gov/docket/FEMA-2015-0006/document for the public 
meeting notices and transcripts from the meetings.
    \239\ Established by the 2013 Climate Action Plan, the Climate 
Task Force met with stakeholders from State, local, Tribal, and 
territorial governments; private businesses; trade associations; 
academic organizations; civil society; and other stakeholders to 
develop and provide recommendations in November 2014. President's 
State, Local, and Tribal Leaders Task Force on Climate Preparedness 
and Resilience, Recommendations to the President, (2014), available 
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA, 
acting on behalf of the MitFLG and consistent with Executive Order 
13690, published a draft of the Revised Guidelines for notice and 
comment on February 5, 2015 at 80 FR 6530. The final Revised 
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA 
published a notice of proposed rulemaking to implement FFRMS 
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice 
of availability and request for comment on a supplementary policy at 
81 FR 56558 (Aug. 22, 2016) and a notice of availability regarding a 
draft report at 81 FR 64403 (Sept. 20, 2016).
---------------------------------------------------------------------------

    Additionally, to further engage with communities in the FFRMS 
implementation, FEMA will distribute resources identifying what the 
FFRMS is, and how the agency will implement the Executive Orders. These 
resources will help applicants as they apply for FEMA-funded assistance 
programs. FEMA's regional offices will also provide technical 
assistance in support of FFRMS implementation. FEMA anticipates these 
resources could be used in project planning and design, as requested by 
one of the commenters. Furthermore, FEMA has staff dedicated to 
assisting with implementation of environmental justice planning and 
compliance, and will develop further resources to assist in 
implementing environmental justice requirements.
    FEMA agrees with the commenters that flood risk is not uniformly 
distributed. However, the agency does not believe changes to the 
regulatory text or policy are required to help ensure consideration of 
disproportionate and adverse effects on communities with environmental 
justice concerns. FEMA currently reviews all proposed actions in the 8-
step process to identify and address any disproportionate and adverse 
human health or environmental effects on communities with environmental 
justice concerns to advance environmental justice. This process will 
not change as a result of this rulemaking.
    Additionally, through the 8-step process, FEMA identifies impacts 
such as the flooding risks associated with the occupancy or 
modification of floodplains and wetlands and the potential direct and 
indirect support of floodplain and wetland development that could 
result from the proposed action. FEMA understands the commenter's 
concerns regarding potential hidden long-term costs of flood-prone land 
purchases. FEMA believes the agency's flood risk mapping efforts 
increase transparency in the public's awareness of flooding risks, and 
the agency's floodplain management

[[Page 56990]]

programs further advance understanding of the impacts of development in 
floodplains.
    FEMA appreciates the final commenter's information and example of 
challenges of failing to consider environmental justice concerns in 
Federal projects. FEMA acknowledges that the project described by the 
commenter was not a FEMA-funded project, but values the input provided 
by the commenter on the challenges faced when failing to consider 
environmental justice. FEMA is committed to meaningful engagement on 
environmental justice and seeking public input on proposed actions. As 
explained above, FEMA seeks input from the public as part of its 
reviews under Executive Orders 11988, 11990, 12898 and 14096, as well 
as NEPA, among other environmental planning and historic preservation 
laws and executive orders and has dedicated staff and a commitment to 
additional resources on environmental justice specifically.
    Comment: Three commenters requested edits to the regulatory text to 
advance environmental justice with two suggesting specific edits. One 
commenter requested FEMA revise Sec.  9.2(d) to identify environmental 
justice and avoid disproportionate effects to communities with 
environmental justice concerns as policy priorities. Another commenter 
requested FEMA revise Sec.  9.6(b)(2) by adding language consistent 
with HUD's proposed rule to state that ``when the proposed activity is 
located in or affects a community with environmental justice concerns 
under Executive Order 12898, public comment and decision making under 
this part shall be coordinated with consultation and decision making 
under HUD policies implementing 24 CFR 58.5(j) or 50.4(l).'' The 
commenter also requested FEMA revise the principles in the proposed 
FFRMS policy to include a new principle on environmental justice to 
state that FEMA would work to reduce adverse impacts on communities 
with environmental justice concerns and engage communities in decision-
making processes if the Federal action is a concern to these 
communities. This commenter requested FEMA revise Sec.  9.11 to ensure 
FEMA would promote mitigation and minimization measures to address any 
disproportionate and adverse flood risks affecting these communities. 
Another commenter requested FEMA revise Sec.  9.10 to require 
consideration of disproportionate and adverse effects on communities 
with environmental justice concerns, whether direct, indirect, or 
cumulative. That commenter requested FEMA encourage proactive community 
engagement and community-led planning within the final rule and 
recommended FEMA reassess part 9 and incorporate language to codify the 
agency's commitments to environmental justice and community engagement.
    FEMA Response: FEMA does not believe the proposed edits to the 
regulatory text or FFRMS policy are necessary to address the 
commenters' environmental justice concerns. As explained above, FEMA 
has always incorporated natural environment, social concerns, and 
economic aspects into the 8-step process as part of the practicability 
analysis. FEMA's revisions to part 9 in this rulemaking reflect 
consideration of the type and criticality of the action involved, the 
availability and actionability of the data, and equity concerns in the 
implementation of Executive Order 11988, as amended. FEMA also has an 
agency-wide initiative focused on reducing barriers and increasing 
opportunities so all people, including those from vulnerable and 
underserved communities, can get help when they need it.\240\ Further, 
as explained above, FEMA reviews all proposed FEMA-funded actions for 
potential disproportionate and adverse human health and environmental 
effects on communities with environmental justice concerns using a 
standardized environmental justice compliance review process. This 
final rule will not change that process.
---------------------------------------------------------------------------

    \240\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    FEMA does not believe the specific changes requested to revise 
Sec.  9.2(d) to identify environmental justice and avoid 
disproportionate effects to communities with environmental justice 
concerns as policy priorities are necessary, given the agency's 
consideration of natural environment, social concerns, and economic 
aspects in the 8-step process and the agency's review of all proposed 
FEMA-funded actions under Executive Order 12898 and 14096. FEMA further 
does not believe specific regulatory text is required to implement 
Executive Orders 12898 and 14096, as the agency already implements 
these requirements through other FEMA policies and processes.\241\ As 
with the changes requested to Sec.  9.2(d), FEMA does not believe that 
adding an additional principle to the FFRMS policy is necessary, given 
the agency's consideration of social concerns, which may include 
equity, and other factors under Sec.  9.9(c), and environmental justice 
reviews conducted under Executive Orders 12898 and 14096 for proposed 
actions.
---------------------------------------------------------------------------

    \241\ See ``Instructions on Implementation of the Environmental 
Planning and Historic Preservation Responsibilities and Program 
Requirements,'' pgs. 4 and 15, available at https://www.fema.gov/sites/default/files/2020-07/fema_ehp_instructions_implementation_2018.pdf (last accessed Apr. 
22, 2024).
---------------------------------------------------------------------------

    In Sec.  9.11, FEMA details the requirements when actions must be 
located within or will affect a floodplain or wetland. The provisions 
of that section, as proposed, can be used to address flood risks 
affecting communities, including any disproportionate and adverse flood 
risks. FEMA is also required to address any disproportionate and 
adverse human health or environmental effects of actions on communities 
with environmental justice concerns, to the greatest extent practicable 
and permitted by law.
    FEMA believes that the wording in Sec.  9.10 is sufficient without 
further edits to enable the Agency to identify potential direct and 
indirect adverse impacts associated with the occupancy and modification 
of floodplains and wetlands and the potential direct and indirect 
support of floodplain and wetland development that could result from 
the proposed action. In Step 4, FEMA considers a wide variety of 
factors in identifying potential impacts of an action that may be of 
relevance to communities with environmental justice concerns, including 
pollution, public health, safety, and welfare, and numerous others.
    FEMA is not updating significant portions of the public notice 
process in this rulemaking with respect to public comment and community 
engagement, as FEMA does not believe the current notice process is 
inadequate. However, FEMA did update Sec.  9.8(c)(4)(i) to incorporate 
notice through the internet or another comparable method. When notice 
is provided electronically, FEMA will also provide links to electronic 
versions of relevant maps. FEMA will continue to notify the public at 
the earliest possible time of the intent to carry out an action in a 
floodplain or wetland and involve the affected and interested public in 
the decision-making process, as detailed further in Sec.  9.8.

K. Emphasis on Nature-Based Approaches

1. General Support
    Comments: Several commenters expressed specific support for FEMA's 
revisions to part 9 and the FFRMS policy to further incorporate nature-
based solutions into the 8-step process.

[[Page 56991]]

Commenters stated that the emphasis on natural features and nature-
based approaches was important as these were innovative, sustainable 
solutions and aligned with other Federal, State, and local goals. 
Commenters requested FEMA implement these changes as soon as possible. 
Some commenters also requested that FEMA develop additional resources 
for nature-based solutions. One commenter recommended that FEMA require 
consideration of nature and nature-based approaches early in the 8-step 
process. The commenter stated that doing so was critical to protecting 
floodplain values, minimizing impacts to natural areas, ESA-listed 
species, and Tribal treaty rights, and effectively building resilience 
to flood impacts. The commenter requested that FEMA consider nature-
based solutions in step 2 during public notice and that FEMA continue 
to provide and publish the best examples of where nature-based 
approaches were applied and led to flood risk reduction benefits. A 
commenter, while supporting FEMA's requirement to use natural features 
and nature-based approaches where possible, recommended that FEMA 
clearly assert the criteria that would satisfy the use of natural 
features and nature-based approaches either in the final rule or 
additional guidance.
    FEMA Response: FEMA appreciates the commenters' discussion of the 
importance of natural features and nature-based approaches and agrees 
that it is important to implement these changes with this final rule in 
a swift manner. FEMA's policy will be reassessed on a four-year cycle 
to ensure the approach continues to meet the goals of Executive Order 
11988, as amended.
    Regarding the commenter's request for consideration of nature-based 
solutions early in the 8-step process, FEMA's process at step 2 is to 
solicit any pertinent input from the public after the location 
determination for the proposed action and before the agency has made 
any decisions regarding practicable alternatives. Step 2 allows the 
public to provide information on potential alternatives, including 
nature-based solutions. FEMA notes the proposed action in step 1 may 
also incorporate nature-based approaches, which the public can comment 
on in step 2. FEMA does not believe the language of the regulatory text 
needs revision to address the concerns raised by the commenter as the 
agency's practice already incorporates the process outlined.
    FEMA's FFRMS policy provides more information on the criteria to 
satisfy the use of natural features and nature-based approaches. FEMA 
plans to provide resources that will incorporate additional examples of 
nature-based approaches and will coordinate with other Federal agencies 
regarding the use of nature-based solutions as part of the FFRMS 
implementation and beyond. FEMA will distribute these and other 
resources for the public and SLTT partners to help applicants for FEMA-
funded assistance programs. FEMA's regional offices will also provide 
technical assistance in support of the final rule's implementation.
2. Implementation of Nature-Based Solutions
    Comment: A commenter requested FEMA further amend part 9 to clarify 
that that nature-based solutions must be considered in all cases, and 
documentation should be provided where such approaches were ultimately 
found to be not practicable.
    FEMA Response: FEMA believes that the final rule addresses the 
commenter's concerns as nature-based solutions must be considered in 
all instances where alternatives can be considered in the 8-step 
process. FEMA's procedures for review of its actions under part 9 
include documenting the 8-step process and will incorporate 
documentation of nature-based solution consideration as part of that 
process.
    Comments: Two commenters requested FEMA remove ``where 
appropriate'' under Step 5, proposed Sec.  9.6(b)(5), which stated that 
FEMA would integrate natural systems, ecosystem services, and nature-
based approaches ``where appropriate.'' In contrast, two commenters 
requested FEMA recognize situations where nature-based solutions would 
not be appropriate. A commenter wrote because Executive Order 11988, as 
amended, recognized nature-based approaches were not always possible or 
practical, that FEMA's rule must recognize situations where nature-
based approaches were infeasible. The commenter stated that while 
nature-based approaches might be preferred, they might not always 
provide the optimal or even the most cost-effective solutions and 
recommended that FEMA incorporate language into part 9 requiring the 
agency to recognize the role of State and local agencies in ultimately 
approving nature-based approaches for addressing impacts to wetlands 
and floodplains when determining the practicability of the alternatives 
set out. Another commenter stated while nature-based and hybrid 
approaches could be prioritized, they may not be feasible to protect 
all infrastructure.
    FEMA Response: The language ``where appropriate'' is important, as 
not all actions can integrate natural systems, ecosystem services, and 
nature-based approaches. FEMA funds a range of actions, and not all of 
those actions can utilize nature-based approaches. For example, FEMA 
funds structure repairs, and those types of repairs generally could not 
utilize a nature-based approach as an alternative.
    FEMA's regulation and policy require the incorporation of nature-
based approaches into the development of alternative actions to the 
extent possible, consistent with Executive Order 11988, as amended. In 
addition, FEMA's FFRMS policy clarifies that nature-based approaches 
can also be incorporated as minimization measures where they are not 
possible as a practicable alternative. However, nature-based approaches 
will only be implemented where appropriate. Nature-based approaches are 
subject to the practicability analysis which relies on the factors 
identified in Sec.  9.9(c). Those factors include legal constraints 
such as where state or local law is conflicting. For an alternative to 
be considered practicable, it must meet the need of the action FEMA is 
taking. Additionally, Sec.  9.11(d)(6) requires FEMA to utilize any 
higher Federal, State, or local standards in the 8-step process.
    Nature-based solutions apply to any FEMA-funded action that 
requires an analysis of alternatives, not just those that are subject 
to the FFRMS (new construction, substantial damage, or substantial 
improvement). The FFRMS applies to grants for certain projects under 
FEMA programs such as IA, PA, and HMA programs, and grants processed by 
FEMA's GPD. All Federal agencies will utilize the Revised Guidelines 
for their own FFRMS implementation.
    Additionally, FEMA disagrees that additional language is required 
in part 9 to recognize the role of State and local agencies in the 
process for determining when nature-based solutions may be practicable 
for a particular action. FEMA conducts the 8-step process 
collaboratively with participation from SLTT partners and grant program 
staff, with responsibilities and requirements for applicant 
participation in the 8-step process outlined in the long-standing 
requirements of 44 CFR 9.17. FEMA will work with SLTTs to determine 
what practicable alternatives may exist, including nature-based 
solutions.
    Comment: A commenter recommended that FEMA apply nature-based 
approaches beyond the practicable alternatives analysis. The

[[Page 56992]]

commenter stated that the underlying assumption of the proposed rule 
was that nature-based approaches offered an alternative to reduce the 
effects of a traditional development project. While supporting the 
requirement to avoid floodplains and wetlands impacts, the commenter 
requested the rule also acknowledge that floodplains and wetlands 
restoration is an important flood risk reduction strategy in its own 
right. The commenter stated that Federal, State, and non-profit 
entities are focused on restoration efforts and that their investments 
are needed to accelerate the use of nature-based flood risk reduction 
strategies such as wetland and floodplain restoration. The commenter 
acknowledged that some of their comments may be outside the scope of 
the rulemaking, but stated that they submitted such comments because 
floodplain regulations and management are critical to whether we have 
more, less, or an indifferent amount of federal investments in nature-
based approaches to floodplain restoration across the nation. The 
commenter stated that the nation desperately needs more floodplain 
restoration if we're going to move from reacting to disasters to being 
proactive and delivering on the multitude of co-benefits that healthy 
floodplains provide.
    FEMA Response: FEMA appreciates the commenter's concerns but as 
explained in the preamble to the NPRM, 44 CFR part 9 only applies to 
FEMA actions. The FFRMS applies to grants for projects under FEMA 
programs such as IA, PA, and HMA, and grants processed by FEMA's GPD. 
All Federal agencies have their own requirements to implement the 8-
step process and will utilize the Revised Guidelines for their own 
FFRMS implementation.
    FEMA values the commenter's focus on the importance of nature-based 
approaches and will integrate these approaches where appropriate in 
actions under the 8-step process. FEMA-funded actions largely are 
identified by State and local applicants who design projects to meet 
their own communities' needs, which may include floodplain and wetland 
restoration. However, FEMA's mission extends beyond these actions, and 
the agency cannot eliminate the need to consider other types of actions 
such as the repair and replacement of public structures and facilities, 
such as schools and roadways. When evaluating such actions, FEMA will 
consider the practicability of nature-based approaches consistent with 
this rule.
    Comment: One commenter also stated support for FEMA's use of 
nature-based solutions in the rule but stated the lack of examples and 
lack of a clear hierarchy when choosing among available solutions could 
diminish the impact of the agency's requirement. The commenter 
recommended FEMA require that alternatives protect and/or restore 
natural features and ecosystem processes to the maximum extent possible 
before resorting to other means; that nature-based approaches be 
incorporated to the maximum extent possible after maximizing protection 
and/or restoration of natural features and ecosystem processes; and 
allowing use of grey infrastructure only after nature-based options 
were deployed to the maximum extent possible. Another commenter wrote 
that where avoidance was not possible, landscape-level resilient design 
including green infrastructure and nature-based solutions should be 
incorporated meaningfully, even for activities that may not adversely 
impact floodplain function, to benefit and improve the resilience of 
surrounding communities. A third commenter recommended FEMA encourage 
and incentivize higher functioning nature-based approaches on acquired 
properties, stating that mitigation project applicants were often 
encouraged to simply grade and seed a parcel leaving ongoing 
maintenance concerns with only a minimal natural benefit. This 
commenter also requested that FEMA require documentation on the nature-
based approaches considered and justification for the inclusion or 
exclusion. Finally, another commenter recommended that FEMA incorporate 
more information on when and why nature-based solutions would be 
appropriate alternatives to consider in Steps 3 and 6 and highlight 
best practices, such as wetlands preservation. The commenter added that 
part 9 should more specifically and clearly promote these approaches to 
ensure that FEMA consistently identified and pursued opportunities to 
restore natural and beneficial floodplain functions within or near the 
project site as a part of potential risk mitigation strategies. The 
commenter recommended FEMA add a subsection to Sec.  9.11 discussing 
the benefits of these measures and specifying approaches that could be 
incorporated into project plans.
    Two commenters recommended FEMA revise Sec.  9.9(b)(2) to 
specifically identify wetlands restoration and preservation as a 
uniquely valuable complement or alternative to grey infrastructure. 
Another commenter requested FEMA incorporate stronger language on when 
and how to apply nature-based solutions and to highlight best 
practices, such as wetlands preservation.
    FEMA Response: FEMA does not believe the final rule requires 
revision. FEMA's actions are focused on protection of life, safety, and 
improved property and FEMA does not typically fund actions that solely 
protect natural features and ecosystems. As such, FEMA is not 
necessarily taking actions where alternatives to protect natural 
features and ecosystem processes to the maximum extent possible are 
appropriate before resorting to other means. FEMA believes the 
commenter's concerns regarding wetlands preservation are already 
addressed in this final rule. Wetland conservation and restoration 
would be included under natural systems, ecosystem processes, and 
nature-based approaches provided in Sec.  9.9(b)(2) as amended in this 
final rule. Additionally, the existing practicability factors set forth 
in Sec.  9.9(c), including the natural environment factor, is 
sufficient to address the commenter's concerns.
    FEMA prefers not to limit the regulatory text and instead provide 
additional information through FFRMS implementation resources to 
address the commenter's concerns. As explained above, the FFRMS policy 
does provide more information on the criteria to satisfy the use of 
natural features and nature-based approaches and FEMA plans to provide 
additional resources. These resources will incorporate additional 
examples of and information on nature-based approaches, such as the 
value of Indigenous knowledge and Traditional Ecological Knowledge 
(TEK). Where both a nature-based solution and a grey infrastructure 
solution are practicable, FEMA plans to generally prioritize the 
nature-based solution over a grey infrastructure solution as the 
commenter recommends. In addition, FEMA's FFRMS policy clarifies that 
nature-based approaches can also be incorporated as minimization 
measures where they are not possible as a practicable alternative. 
Further, as explained above, FEMA's procedures for review of its 
actions under part 9 include documenting the 8-step process and will 
incorporate documentation of nature-based solutions considered as part 
of that process. FEMA will distribute additional resources for the 
public and SLTTs as detailed above to further assist applicants when 
applying for FEMA programs.
    Comment: Another commenter asked how FEMA would determine when 
nature-based solutions should be used. The commenter stated the FHWA 
and many State DOTs were developing or

[[Page 56993]]

had developed their own guidance for these items for riverine and tidal 
environments and that those agencies should be allowed to use their 
policies to fit specific projects.
    FEMA Response: FEMA appreciates the commenter's concerns but as 
explained in the preamble to the NPRM, 44 CFR part 9 only applies to 
FEMA actions. The FFRMS applies to grants for projects under FEMA 
programs such as IA, PA, and HMA, and grants processed by FEMA's GPD. 
All Federal agencies have their own requirements to implement the 8-
step process and will utilize the Revised Guidelines for their own 
FFRMS implementation.
    FEMA's approach for facilities is meant to be flexible. As section 
G.2 of FEMA's FFRMS policy states ``[t]he FFRMS is a resilience 
standard . . . Resilience measures include using structural or 
nonstructural methods to reduce or prevent damage; elevating a 
structure; or, where appropriate, designing it to adapt to, withstand 
and rapidly recover from a flood event.'' \242\
---------------------------------------------------------------------------

    \242\ See FFRMS policy, pg. 8.
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    Comment: A commenter wrote to commend FEMA for incorporating 
reduced discount rates in the cost-benefit analysis of nature-based 
solutions. The commenter requested FEMA continue bolstering 
accountability in the assessment process by requiring practitioners to 
clearly describe the nature-based alternatives that were considered, 
and in cases where they are ultimately deemed not practicable, to 
provide an explanation and analysis for their reasoning as part of the 
final rule.
    FEMA Response: FEMA appreciates the commenter's support and will 
continue to provide guidance to help communities recognize and capture 
the long-term benefits of nature-based solutions and all resilience 
actions in evaluating practicable alternatives and analyzing projects 
for cost-effectiveness.
    FEMA's regulation and policy require the incorporation of nature-
based approaches to the extent possible. In addition, FEMA's FFRMS 
policy clarifies that nature-based approaches can also be incorporated 
as minimization measures where they are not possible as a practicable 
alternative. As explained above, FEMA's procedures for review of its 
actions under part 9 include documenting the 8-step process and will 
incorporate documentation of nature-based solution consideration as 
part of that process.
    Comment: A commenter requested FEMA more explicitly emphasize the 
protection and restoration of floodplain functions and nature-based 
alternatives when taking Federal actions in the floodplain by adopting 
rules that define the values of floodplains, the ecosystem processes or 
functions of floodplains that generate those values, and the attributes 
that are necessary for a floodplain to be ``functional.'' The commenter 
stated FEMA's rule failed to adequately describe the bio-geomorphology 
of a functional floodplain and the physical attributes of the 
floodplain necessary to obtain those values.
    FEMA Response: FEMA appreciates the commenter's suggestion to 
integrate bio-geomorphology and attributes of functional floodplains 
into the regulation but does not believe additional changes are 
appropriate to the final rule or FFRMS policy based on the commenter's 
concerns. FEMA's definition of the floodplain in this rule is generally 
consistent with the definition of floodplain in the NFIP and with FEMA 
and other agencies' historic approach to such definitions and is 
intentionally broad to help ensure the agency can meet the needs of the 
action and protecting floodplains and wetlands consistent with 
Executive Order 11988, as amended. For application of the FFRMS, FEMA 
defines specific floodplains in part 9 as using one of the approaches 
detailed in the FFRMS policy.
    Concurrently, FEMA conducts other environmental and historic 
preservation reviews to determine whether proposed actions could have 
other impacts to or within floodplains and wetlands. FEMA is 
incorporating nature-based solutions into resilience efforts where 
appropriate and believes the final rule will help accomplish this goal. 
FEMA's regulation and policy do require the incorporation of nature-
based approaches to the extent possible. In addition, FEMA's FFRMS 
policy clarifies that nature-based approaches can also be incorporated 
as minimization measures where they are not possible as a practicable 
alternative.
    Comment: A commenter stated nature-based design elements and 
nature-based solutions allowed a structure to actively provide carbon 
sequestration, decrease the magnitude and frequency of maintenance 
leading to increased structural lifespan. The commenter recommended 
FEMA incorporate this alternative to traditional concrete as a nature-
based solution to serve as a mitigation measure and design alternative.
    FEMA Response: FEMA will use a range of nature-based solutions 
where possible and on a case-by-case basis depending on the project. 
Project location, including whether coastal or not, will be a factor in 
determining the types of available nature-based solutions FEMA may 
implement.

L. Other 8-Step Process Comments

1. Generally
    Comments: One commenter provided recommendations to encourage 
resilient design. The commenter supported FEMA's proposed changes to 
Sec. Sec.  9.9 and 9.11, which in the commenter's view would increase 
climate resilience, but recommended FEMA require that the alternatives 
analysis process incorporate the consideration of an array of flood 
mitigation practices and feedback from state and local leaders. The 
commenter requested changes to Sec. Sec.  9.9 and 9.11 to emphasize the 
effectiveness and benefits of landscape-level methods as effective 
alternatives to increase flood resilience and as mitigation for 
projects with no practical alternatives outside of the floodplain and 
incorporate landscape-level design strategies in developing 
alternatives. The commenter requested FEMA consider existing State, 
local, and non-governmental resilient design guidelines for the 
agency's own guidance and requested FEMA work with other Federal 
agencies to develop case studies and examples of projects that achieve 
appropriate resilience metrics in lieu of or in addition to elevation. 
Another commenter requested FEMA look for impacts beyond the project 
boundaries and requested FEMA consider off-site impacts and mitigation 
measures. The commenter recommended the rule's implementation and 
guidance emphasize the effectiveness and benefits of landscape-level 
practices that encompass the full property, not just the physical 
building site, to mitigate flood impacts for projects with no practical 
alternatives outside of the FFRMS floodplain. The commenter requested 
FEMA offer guidance to include development practices, such as No 
Adverse Impact or low-impact development, and landscape features and 
that any guidance should encourage projects to assess opportunities to 
restore the natural and beneficial functions of the floodplain and 
wetlands within or near the project site as a part of potential risk 
mitigation strategies.
    FEMA Response: FEMA agrees that the rule will increase climate 
resilience. FEMA's current alternatives analysis process incorporates 
consideration of a range of flood mitigation practices. FEMA considers 
the following alternatives: (a) no action; (b) alternative locations; 
and (c) alternative actions, including alternative actions that use 
natural features or nature-based

[[Page 56994]]

solutions. Where possible, nature-based solutions, including those at 
the landscape-level, shall be used. Where natural features and nature-
based solutions are not practicable as an alternative on their own to 
meet the needs of FEMA applicants, natural features and nature-based 
solutions may be incorporated into actions as minimization measures.
    As explained above, the flood minimization measures found in Sec.  
9.11 are reliable methods of providing resilience to structures. FFRMS 
flood resilience measures consider both current and future flood risks 
to better protect Federal investments. The elevation requirement in 
Sec.  9.11(d)(3) applies to structures and also allows floodproofing 
for non-residential structures. The FFRMS policy provides further 
explanation that structures that must be located within the FFRMS 
floodplain must be elevated or floodproofed to the FFRMS flood 
elevation. Additionally, the policy clarifies further that facilities 
can use elevation or any other appropriate minimization measure to 
protect the facility against the FFRMS flood elevation.
    FEMA does not believe the final rule requires edits to address the 
commenters' concerns. As the commenter notes, FEMA's policy provides 
more detail on how the agency will implement nature-based solutions, 
and FEMA believes this level of detail is best provided in policy and 
additional resources rather than directly in the regulatory text.
    As explained above, communities provide input into the floodplain 
determination for part 9. Pursuant to 44 CFR 9.11(d)(6), a more 
restrictive Federal, State, or local standard will be used. This 
includes the use of local CISA data and methods that have been adopted 
by a community for use in floodplain management, as long as such data 
results in a more restrictive standard. FEMA values additional input 
from SLTT partners and the public in the 8-step process. Projects 
subject to FFRMS are frequently designed by such partners and will 
continue to be designed to meet local needs as appropriate.
    FEMA will distribute additional resources for the public and SLTT 
partners identifying what the FFRMS is, and how the agency will 
implement the Executive Orders. These resources will help applicants as 
they apply for FEMA-funded assistance programs. FEMA will also provide 
technical assistance through the agency's regional offices in support 
of FFRMS implementation.
    Comment: A commenter requested FEMA consider the life of the 
project when making flood risk protection decisions and emphasize the 
life of the project in the 8-step process, not just in the footprint of 
the project but its impact on the surrounding area. The commenter also 
requested the analysis of practicable alternatives result in an 
adequate assessment and documentation of the life cycle impacts of 
nature-based approaches and natural features.
    FEMA Response: As explained further in the FFRMS Job Aid,\243\ 
service life is considered in the determination of the FFRMS floodplain 
using CISA. Additionally, in the 8-step decision-making process FEMA 
considers whether a proposed action would be located within and whether 
it would affect a floodplain or wetland; FEMA avoids Federal actions in 
floodplain and wetland locations unless they are the only practicable 
alternatives and are able to minimize harm to and within floodplains 
and wetlands.
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    \243\ Available at https://www.regulations.gov/document/FEMA-2023-0026-0004 and https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last 
accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    Further, the service life of the project is considered as part of 
the practicability analysis, including consideration of maintenance 
requirements. FEMA's procedures for review of its actions under part 9 
include documenting the 8-step process and will incorporate 
documentation of nature-based solution consideration as part of that 
process.
2. Wetlands Identification and Floodplain and Wetlands Preservation
    Comments: Some commenters requested additional clarification or 
provided recommendations regarding how FEMA identifies and preserves 
wetlands as part of the 8-step process. Four commenters requested FEMA 
improve wetlands identification in the 8- step process. One commenter 
noted that FEMA reviewers currently consulted additional sources of 
information only if other listed sources provide inadequate 
information, which could mean a FEMA reviewer would stop the assessment 
after consulting the National Wetlands Inventory (``NWI''). The 
commenter stated the NWI was only one imperfect source and could not 
provide a definitive determination, as the NWI documented only the 
presumed presence of wetlands on a site and did not accurately capture 
the full delineation of wetlands at ground-scale. Two of the commenters 
requested FEMA update the regulatory text by directing reviewers to 
conclude the assessment of whether or not an action was in a wetland 
after consulting each of the four sources of information. Two other 
commenters agreed stating the determination of the presence or absence 
of a wetland in the project site should not be based solely on the NWI 
because of the NWI's tendency to underestimate actual wetland areas. 
Those commenters recommended FEMA encourage consulting various sources 
beyond NWI. One commenter noted that involving a trained wetland 
delineator to assess wetland indicators (soil, vegetation, hydrology) 
and delineate wetland boundaries was crucial to prevent the loss of 
critical wetlands, especially considering their role in flood water 
storage.
    FEMA Response: FEMA did not change the existing regulation or 
process for identifying wetlands. FEMA relies on the NWI to identify 
wetlands for the purposes of applying the 8-step process under 44 CFR 
part 9 but will also accept other determinations as provided by 
regulatory agencies or applicants. FEMA does utilize information from 
on-site evaluations, including for locations not included in the NWI; 
however, requiring an on-site evaluation of the presence of wetlands 
for every potential action would severely delay the provision of 
disaster assistance to impacted communities.
    FEMA is not changing the current process in step 4 in this 
rulemaking and the implementation of the FFRMS would only expand the 
floodplain of consideration in step 4 of the 8-step process. FEMA did 
not eliminate consultation with the edits made to Sec.  9.10. The edits 
made to Sec.  9.10 are to the factors used to identify the impacts to 
proposed actions. Those edits were made for consistency with other 
edits made in the rule. Specifically, FEMA defines ``natural and 
beneficial values of floodplains and wetlands'' to mean the features or 
resources that provide environmental and societal benefits. FEMA added 
additional clarification that water and biological resources are often 
referred to as ``natural functions of floodplains and wetlands'' and 
also incorporated additional clarifying examples of water resource 
values, living resource values, cultural resource values, and 
cultivated resource values for more consistency with the Revised 
Guidelines and Executive Order 11988, as amended. FEMA also edited 
paragraph Sec.  9.10(d)(2) for consistency with edits made in Sec.  9.4 
defining the natural and beneficial values of floodplains and wetlands.
    Comment: One commenter requested FEMA take action to preserve 
wetlands

[[Page 56995]]

in this rulemaking, requesting FEMA prioritize wetlands preservation 
and prevent harm to wetlands to the greatest extent of the agency's 
authorities. The commenter recommended FEMA prioritize policy solutions 
that incentivize and fund the preservation of all remaining wetlands 
and look to climate-smart wetland restoration to maximize benefits. 
Noting the recent Supreme Court decision in Sackett v. EPA,\244\ the 
commenter requested FEMA act through this rulemaking to provide 
whatever protection it can for wetlands. The commenter explained the 
permitting process under section 404 of the Clean Water Act prior to 
the Supreme Court decision for filling wetlands and stated the Sackett 
v. EPA decision \245\ limited the scope of section 404.
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    \244\ Sackett v. EPA, 598 U.S. 651 (2023).
    \245\ Sackett v. EPA, 598 U.S. 651 (2023).
---------------------------------------------------------------------------

    The commenter requested FEMA incorporate prohibitions on certain 
types of activities in wetlands similar to prohibitions on certain 
types of activities in floodplains and provided the example of 
prohibiting HMA funding for new construction or substantial 
improvements in a floodway or new construction in a coastal high hazard 
area unless the action constituted a functionally dependent use or 
facilitates an open space use. The commenter suggested FEMA add 
language to Sec.  9.11(d)(1) to prohibit new construction and 
substantial improvement in a wetland, except for a functionally 
dependent use; or a structure or facility which facilitates an open 
space use and also requested FEMA amend the HMA and PA Policy and 
Program Guides to reflect these changes.
    Two commenters requested FEMA add language to the regulatory text 
regarding the agency's requirement to restore and preserve both 
floodplains and wetlands. One commenter wrote this requirement was 
implemented in Sec.  9.11(f), where FEMA established that if an action 
harmed or degraded a floodplain or wetland, the agency must implement 
measures to restore the natural and beneficial values; however, the 
commenter stated FEMA did not provide direction on the measures to be 
used and the extent to which the natural and beneficial values must be 
restored. The commenter recommended FEMA provide the criteria that 
would satisfy the restore and preserve requirement in the regulatory 
text or in associated guidance. The commenter also recommended FEMA 
require federal actions result, as fully as possible, in no net loss of 
both acreage and function for floodplains and wetlands. The commenter 
recommended FEMA require the type and extent of mitigation that 
applicants must undertake to satisfy the ``restore and preserve'' 
language where floodplains and wetlands were known to be negatively 
impacted. Another commenter requested FEMA add ``or restore'' after 
``preserve'' in all the appropriate places in the regulatory text.
    FEMA Response: FEMA believes the commenters' regarding wetlands 
preservation concerns are addressed by the existing regulation. As 
stated in Sec.  9.2(d) and Sec.  9.11(e), FEMA's policy is to preserve 
and enhance the natural values of floodplains and wetlands when the 
agency has the opportunity to do so. FEMA's longstanding requirements 
in the final rule at 44 CFR 9.11(e) outline the agency's requirements 
to restore and preserve the natural and beneficial values served by 
floodplains and wetlands. FEMA does not believe additional changes to 
the regulatory text or FFRMS policy are needed to achieve the 
commenters' goal of wetlands preservation.
    FEMA did not propose to change the way that the 8-step process is 
applied to wetlands, and is not doing so in this final rule. FEMA notes 
the definition of wetlands in 44 CFR 9.4 has always been much broader 
than that under the Clean Water Act (CWA). Thus, under current practice 
the 8-step process has been applied to wetlands regardless of their 
jurisdictional status under the CWA. FEMA believes this commenter's 
concerns are already addressed by the existing regulation.
    Additionally, FEMA understand the first commenter's desire to 
prohibit certain actions in wetlands but again believes the current 8-
step process adequately addresses the commenter's concerns. In the 8-
step decision-making process, wetland sites are avoided where possible. 
FEMA takes no action in a wetland unless the importance of the wetland 
site clearly outweighs the requirements to \246\:
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    \246\ See 44 CFR 9.9(e)(3).
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    (i) Avoid the destruction or modification of the wetlands;
    (ii) Avoid direct or indirect support of new construction in 
wetlands;
    (iii) Minimize the destruction, loss or degradation of wetlands; 
and
    (iv) Preserve and enhance the natural and beneficial values of 
wetlands.
    FEMA notes the 8-step process governs FEMA actions and the Sackett 
case does not apply in this context. While FEMA does consider new 
construction in wetlands, to include the placement of fill, and will 
also consider alternatives, the 8-step process is not an authorization 
or permitting process. Additionally, FEMA notes the process is only 
applicable to actions funded or performed by FEMA and not more broadly 
applicable to actions performed by SLTTs or individuals using non-
Federal funding.
    The revisions to part 9 in this final rule do not change FEMA's 
long-standing requirement as part of FEMA's implementation of Executive 
Order 11988, as amended, and Executive Order 11990 to only perform or 
fund actions within or affecting wetlands if those actions are the only 
practicable alternative. FEMA considers alternative locations, 
alternative actions, nature-based solutions, and the no action 
alternative under the practicability analysis and will only perform or 
fund the action when there are no practicable alternatives. FEMA will 
minimize any adverse impacts when doing so. FEMA believes the 
commenter's concerns requesting revisions to Sec.  9.11(d)(1) to add 
prohibitions on specific actions in wetlands are unwarranted given the 
agency's long-standing process that is not changing as a result of the 
changes made in this final rule or FFRMS policy.
    FEMA's mission is to help people before, during and after 
disasters. While this focus on saving life and property allows for the 
restoration and preservation of the natural and beneficial values 
served by floodplains and wetlands, that is not the primary mission of 
the agency. Accordingly, the majority of FEMA's actions within 
floodplain or wetlands for repairs, replacement, or mitigation of risk 
to existing structures and facilities. Requiring no net loss in area or 
function of floodplains or wetlands would limit the agency's ability to 
assist disaster-impacted communities, as well as reduce risk within 
those communities. Additionally, requiring mitigation from disaster-
impacted communities may prolong or inhibit their recovery process. 
FEMA instead relies on the alternatives analysis required by 44 CFR 
part 9 and takes no action within floodplains or wetlands unless there 
is no practicable alternative.
    FEMA recognizes the concerns of commenter seeking edits to the 
regulation and guidance to provide criteria to satisfy the restore and 
preserve requirement, but again disagrees that such edits are necessary 
in regulatory text or the FFRMS policy to achieve the goals of 
floodplain and wetlands restoration and preservation. FEMA notes that 
in this rulemaking the agency did not make changes to the restore and 
preserve requirements in former Sec.  9.11(e) other than updating the

[[Page 56996]]

numbering (this rule moves former Sec.  9.11(f) to Sec.  9.11(e)). FEMA 
will provide additional information and implementation resources to 
SLTT partners, stakeholders, and the public as part of the FFRMS 
implementation and will consider the commenter's suggestions regarding 
additional information on the criteria to satisfy the requirements of 
new Sec.  9.11(e) when finalizing those resources. FEMA will also 
consider issuing further guidance through the agency's grant programs 
on this point.
    Regarding another commenter's request to add ``or restore'' after 
``preserve'' throughout the regulatory text, FEMA notes that the 
regulatory text is consistent with the long-standing policy outlined in 
44 CFR 9.2. Specifically, it is the agency's policy to ``restore and 
preserve the natural and beneficial values served by floodplains'' and 
``preserve and enhance the natural values of wetlands.'' Where 
floodplains are addressed in the regulatory text, ``restore and 
preserve'' is used, whereas ``preserve'' is used for wetlands, except 
for Sec.  9.11(e)(3), which combines the two priorities more broadly in 
relation to natural and beneficial values of floodplains and wetlands. 
This language is consistent with Executive Order 11988, as amended, 
which directs agencies to ``restore and preserve the natural and 
beneficial values served by floodplains,'' and Executive Order 11990, 
which directs agencies to ``preserve and enhance the natural and 
beneficial values of wetlands.'' FEMA notes that the language in 
Executive Order 11990 omits ``restore'' in connection to wetlands.
3. Public Notice
    Comments: Some commenters requested additional edits to the public 
notice requirements of the 8-step process. One commenter requested more 
specific guidance about the types and amount of information the notice 
would provide and the extent to which impacts will be identified and 
explained to the public and recommended FEMA revise the regulation to 
require FEMA to make site maps electronically available with the rest 
of its public notice. Two commenters requested the rule encourage 
community engagement and community-led planning by requiring early 
engagement with affected communities to understand the parameters of 
risks and vulnerabilities with engagement extending into the project 
design and implementation. The commenter requested public engagement go 
beyond the existing notice requirements to mandate proactive and 
meaningful outreach to affected communities, allowing communities to 
provide input that engineers and developers may not have and improving 
the overall flood risk knowledge of communities. A third commenter 
recommended FEMA incorporate language to Sec.  9.6 and Sec.  9.8 to 
codify an emphasis on environmental justice by providing notice to 
individuals with limited English proficiency and individuals with 
disabilities, as well as communities or groups of people who are 
potentially affected and who are not regular participants in Federal 
decision-making. Two other commenters agreed with the recommendation 
for access to individuals with limited English proficiency.
    FEMA Response: FEMA is not updating significant portions of the 
public notice process in this rulemaking, as FEMA does not believe the 
current notice process is inadequate. However, FEMA did update Sec.  
9.8(c)(4)(i) to incorporate notice through the internet or another 
comparable method. During the public notice process, FEMA will also 
provide links to electronic versions of relevant maps.
    FEMA does accept public comments on proposed actions during both 
the early and final public notice periods, addressed in Sec. Sec.  9.8 
and 9.12. Early public notice allows the public to provide initial 
input on alternatives to be considered and potential issues with a 
proposed action, which may include specific measures to minimize flood 
risk. The final public notice allows for the public to review the 
decision-making process conducted by the agency and provide any input 
before the action is taken. FEMA notes community planning, such as 
hazard mitigation planning, can inform the 8-step process.
    FEMA notes this final rule does not apply to a local community's 
permitting processes under the NFIP's floodplain management 
regulations. Those regulations are found at 44 CFR part 59 et seq. FEMA 
defines ``action subject to the FFRMS'' as ``any action where FEMA 
funds are used for new construction, substantial improvement, or to 
address substantial damage to a structure or facility.'' The FFRMS 
applies to grants for projects funding the new construction, 
substantial improvement, or repair of substantial damage under FEMA 
programs such as IA, PA, and HMA programs, and grants processed by 
FEMA's GPD.
    FEMA routinely translates agency materials into languages other 
than English as appropriate \247\ and consistent with FEMA's Language 
Access Policy.\248\ Specifically incorporating this policy into the 
rulemaking is not necessary, as FEMA's process is set forth in the 
Language Access Policy.\249\ That policy governs how the agency would 
handle written translations, as appropriate and consistent with 
Executive Order 13166, Improving Access to Services to Persons with 
Limited English Proficiency, the DHS Language Access Plan, and Section 
308 of the Stafford Act, 42 U.S.C. 5151, as applicable. In accordance 
with those existing requirements, FEMA ensures appropriate translations 
of public notices for the 8-step process.\250\ FEMA also ensures 
individuals with disabilities have effective communication access to 
FEMA programs and activities, consistent with requirements under 
sections 504 and 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794, 
794d, and FEMA's Section 504 Implementation Plan.\251\
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    \247\ FEMA's website has information and materials available in 
languages other than English, including Spanish, French, German, 
Arabic, Hausa, Vietnamese, Portuguese, Chinese, Japanese, Hindi, 
Myanmar (Burmese), Korean, Nepali, Somali, Swahili, Tagalog, Tongan, 
Creole, Fijian, and Russian. See https://www.fema.gov/disaster/recover/languages (last accessed Mar. 28, 2024).
    \248\ FEMA Policy FP-256-23-001, available at https://www.fema.gov/sites/default/files/documents/fema_policy-language-access.pdf (last accessed Mar. 27. 2024).
    \249\ FEMA's Language Access Policy requires the agency to have 
processes in place to regularly identify and assess the language 
assistance needs of the public and requires written translation of 
vital documents in languages other than English based on assessments 
of need and capacity. See Principles A. and C. of the policy 
available at https://www.fema.gov/sites/default/files/documents/fema_policy-language-access.pdf (last accessed Mar. 27. 2024).
    \250\ See e.g. ``FEMA Public Notice: 4618-DR-PA-Pennsylvania 
Individual Assistance, Public Assistance and HMGP'' available at 
https://www.fema.gov/disaster/4618/publicnotice (last accessed June 
11, 2024); ``DR-4673-FL EHP Public Notice 001'' available at https://www.fema.gov/disaster-federal-register-notice/dr-4673-fl-ehp-public-notice-001 (last accessed June 11, 2024).
    \251\ FEMA Section 504 Implementation Plan, available at https://www.fema.gov/sites/default/files/2020-06/fema_section-504-implementation-plan.pdf (last accessed Mar. 27, 2024).
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    Comment: One commenter requested FEMA implement a public tracking 
system of all FEMA actions that are subject to part 9. The commenter 
stated a tracking system would ensure the public could assess the 
cumulative impacts of a proposed action. The commenter also requested 
FEMA accept public comment on proposed actions.
    FEMA Response: FEMA does accept public comments on proposed actions 
during both the early and final public notice periods, addressed in 
Sec. Sec.  9.8 and 9.12. Early public notice allows the public to 
provide initial input on alternatives to be considered and potential 
issues with a proposed action.

[[Page 56997]]

The final public notice allows for the public to review the decision-
making process conducted by the agency and provide any input before the 
action is taken. The agency has updated the rule to allow for 
electronic notification of public notices to increase accessibility to 
the public.
    FEMA appreciates the commenter's suggestion that the agency provide 
a public tracking system for part 9. FEMA provides data on actions 
taken by the agency through the OpenFEMA Data Sets.\252\ FEMA is not 
proposing any additional systems of record with this rulemaking.
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    \252\ See FEMA, OpenFEMA Data Sets, https://www.fema.gov/about/openfema/data-sets (last accessed Mar. 25, 2024).
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4. Impacts to Floodplains and/or Wetlands
    Commenters provided feedback on FEMA's review of and requirements 
regarding impacts to floodplains and/or wetlands in part 9. While one 
commenter provided support for the rule's prohibition against locating 
a proposed action in a floodplain or wetland if a practicable 
alternative exists outside the floodplain or wetland in proposed 
Sec. Sec.  9.6(b)(3) and 9.9(d)-(e) and agreed with FEMA's approach of 
first avoiding impacts, then minimizing any impacts that must occur, 
and restoring impacted areas, other commenters provided recommendations 
for additional edits to the regulatory text.
    Comment: One commenter requested FEMA revise Sec.  9.10 to require 
consideration of disproportionate and adverse effects on communities 
with environmental justice concerns, whether direct, indirect, or 
cumulative.
    FEMA Response: FEMA appreciates the commenter's concerns regarding 
equity and environmental justice. The agency incorporates natural 
environment, social concerns, and economic aspects into the 8-step 
process as part of the practicability analysis (addressed in 44 CFR 
9.9). FEMA's revisions to part 9 reflect consideration of the type and 
criticality of the action involved, the availability and actionability 
of the data, and equity concerns in the implementation of Executive 
Order 11988, as amended. FEMA also has an agency-wide initiative 
focused on reducing barriers and increasing opportunities so all 
people, including those from vulnerable and underserved communities, 
can get help when they need it.\253\
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    \253\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
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    The impact analysis addressed in Sec.  9.10 focuses on impacts to 
and from floodplains and wetlands associated with a proposed action. As 
part of the evaluation of impacts, FEMA considers the impacts addressed 
in Sec.  9.10(d), which include factors that evaluate the impact of 
flooding on public health, safety, and welfare. In addition to this 
evaluation of flood hazard, FEMA reviews all proposed FEMA-funded 
actions for potential disproportionate and adverse human health and 
environmental effects on communities with environmental justice 
concerns using a standardized environmental justice compliance review 
process. FEMA believes these current practices address the commenter's 
concern, and revisions to the final rule are not necessary.
    Comment: One commenter requested FEMA identify both the impacts on 
the floodplain and also the watershed in Step 4. The commenter noted 
that the subsequent steps in the process described consideration of 
this. The commenter also requested FEMA articulate and follow a ``no 
adverse impact'' principle. The commenter requested FEMA specifically 
address cumulative impacts of an action, as this is especially 
important when assessing flood impacts, as development actions and land 
use changes in a watershed would alter the floodplain.
    FEMA Response: FEMA is not changing the current process in step 4 
in this rulemaking. The implementation of the FFRMS would only expand 
the floodplain of consideration in step 4 of the 8-step process. The 
changes made in Sec.  9.10 are intended as clarifying edits for 
consistency with other FFRMS implementing edits and are not substantive 
policy changes. FEMA did not propose the policy changes suggested by 
the commenter, and FEMA may take them under consideration in the 
future. Note that under step 1, FEMA considers whether proposed actions 
can impact or be impacted by a floodplain or wetland, not just whether 
or not the proposed action is located in a floodplain or wetland. This 
provision addresses the commenter's concerns regarding actions in the 
watershed impacting floodplains and wetlands.
    Comment: Another commenter requested FEMA retain the language in 
current Sec.  9.10(c) stating that ``Regional Offices of the U.S. Fish 
and Wildlife Service may be contacted to aid in the identification and 
evaluation of potential impacts of the proposed action on natural and 
beneficial floodplain and wetland values.'' The commenter stated that 
given USFWS's particular expertise in understanding coastal and wetland 
ecosystems, and the importance of maintaining the natural beneficial 
values of these habitats, the commenter recommended retaining the 
consultation language ``rather than merely stepping it down to 
guidance.''
    The commenter further recommended FEMA strengthen the language and 
require FEMA at least contact the USFWS when making any such evaluation 
in case the USFWS had concerns about or special understanding of the 
values of those habitats, including for threatened and endangered 
species.
    FEMA Response: FEMA is not changing the current process in step 4 
in this rulemaking and the implementation of the FFRMS would only 
expand the floodplain of consideration in step 4 of the 8-step process. 
This rule does not eliminate consultation with the edits made to Sec.  
9.10, as the existing regulatory text merely states the agency ``may'' 
contact the USFWS for impact identification on the natural and 
beneficial values of floodplains and wetlands. The edits made to Sec.  
9.10 removes this optional, internal U.S. government process from the 
regulation; the process will be further outlined in guidance. FEMA 
notes this section did not address FEMA's consultation requirements 
under the Endangered Species Act.
    In this final rule, FEMA updates the definition of ``natural and 
beneficial values of floodplains and wetlands'' to include 
consideration of features or resources that provide environmental and 
societal benefits. The definition also includes examples of what 
``natural functions of floodplains and wetlands'' means. FEMA does not 
believe additional edits to the final rule are required to address the 
commenter's concerns regarding coastal and wetland ecosystems and 
habitats for threatened and endangered species, because these concerns 
are addressed in the definition at 44 CFR 9.4. The definition provides 
some examples but is not all inclusive, and FEMA will consider 
providing additional examples in guidance to further clarify and 
address the commenter's concerns.
    FEMA edited Sec.  9.10(d)(2) for consistency with edits made in 
Sec.  9.4 defining the natural and beneficial values of floodplains and 
wetlands. Specifically, the edits to Sec.  9.10(d)(2) add providing 
habitats and enhancing biodiversity under the living resource values 
FEMA will consider in step 4 of the 8-step process. In step 4, FEMA 
determines impacts to the floodplain, which include changes to the 
hydraulics and hydrology of the floodplain which informs potential 
impacts to protected species and their critical habitats. FEMA

[[Page 56998]]

will continue to perform Section 7 consultation under the Endangered 
Species Act as required. FEMA reviews all applicable actions under the 
Endangered Species Act, and such reviews are coordinated with the 8-
step decision-making process.
    Comment: While a commenter expressed appreciation of FEMA's 
recognition of the processes of storing floodwater and groundwater 
recharge, the commenter recommended the rule clarify that floodwater 
storage and groundwater recharge may have functions that extend beyond 
the time and area of a flood (such as the base flood). The commenter 
stated floodwater storage and groundwater infrastructure placed in the 
floodplain may result in continued inundation of floodplain areas. 
However, those types of infrastructure may be required to convey stored 
floodwater to groundwater recharge sites, minimizing impacts of 
flooding within the floodplain.
    FEMA Response: Through the 8-step process, FEMA considers the 
impacts to and from the floodplain including the natural and beneficial 
functions of the floodplain and actions which may support development 
within the floodplain. Additional clarifications are not required in 
the regulatory text to address the commenter's concerns as the 8-step 
process resolves these concerns overall.
Avoidance
    Comments: Some commenters requested FEMA prioritize avoidance of 
floodplains and wetlands as part of this rulemaking and FFRMS policy. 
Two commenters wrote a primary intent of Executive Orders 11988, as 
amended, and 11990 was avoidance of floodplains and wetlands 
development and stated avoidance was the most effective risk reduction 
strategy. Some commenters recommended FEMA issue guidance, with one 
comment recommending the guidance describe how regional offices should 
review projects post-Sackett v. EPA,\254\ and strengthen the 
practicable alternatives analysis. Another commenter requested that the 
agency incorporate FFRMS guidance into PA and HMA guidance.
---------------------------------------------------------------------------

    \254\ Sackett v. EPA, 598 U.S. 651 (2023).
---------------------------------------------------------------------------

    One commenter wrote the FFRMS was a process to assess the siting 
and design of a proposed action, rather than a mere elevation standard 
and requested FEMA promote avoidance as the preferred alternative to 
actions that would modify or occupy floodplains or wetlands. The 
commenter stated FEMA must consider design alternatives in Step 3 of 
the 8-step process at Sec.  9.9. Three commenters wrote elevation and 
floodproofing were often prioritized instead and requested FEMA 
prioritize avoidance as the first alternative to actions that would 
modify or compromise floodplain function as the most effective risk 
reduction strategy, rather than using elevation or floodproofing as 
first design alternatives. Two commenters agreed that FEMA should 
strengthen Step 3 in Sec.  9.9 to emphasize avoiding federal actions in 
floodplains and wetlands where practicable.
    FEMA Response: While FEMA made edits to Sec.  9.2(d) to reorder the 
agency's actions to prioritize minimizing the impact of floods on human 
health, safety, and welfare in this part, those edits do not change 
FEMA's long-standing requirement as part of implementation of Executive 
Order 11988, as amended, to only perform or fund actions within or 
affecting floodplains if those actions are the only practicable 
alternative. See, e.g., new 44 CFR 9.9(d). Through the 8-step process, 
FEMA will consider alternative locations, alternative actions, nature-
based solutions, and the no action alternative under the practicability 
analysis. If there is no practicable alternative, FEMA may perform or 
fund the action and will minimize any adverse impacts when doing so. 
FEMA believes the commenters' concerns are unwarranted given this long-
standing process that is not changing as a result of the changes made 
in this final rule.
    FEMA agrees with one of the commenters that FFRMS is not merely an 
elevation standard. As section G.2 of FEMA's FFRMS policy states 
``[t]he FFRMS is a resilience standard. Particularly in cases where 
elevation may not be feasible or appropriate for facilities, the FFRMS 
floodplain, determined according to the process described in section C 
of this policy, establishes the level to which a structure or facility 
must be resilient. Resilience measures include using structural or 
nonstructural methods to reduce or prevent damage; elevating a 
structure; or, where appropriate, designing it to adapt to, withstand 
and rapidly recover from a flood event.'' \255\
---------------------------------------------------------------------------

    \255\ See FFRMS policy, pg. 8.
---------------------------------------------------------------------------

    As explained above, FEMA has not proposed changes to the way that 
the 8-step process is applied to wetlands. FEMA notes the definition of 
wetlands in 44 CFR 9.4 has always been much broader than that under the 
Clean Water Act (CWA). Thus, under current practice the 8-step process 
has been applied to wetlands regardless of their jurisdictional status 
under the CWA. However, the 8-step process does not have the same 
requirements of Section 404 of the Clean Water Act. While FEMA does 
consider new construction in wetlands, to include the placement of 
fill, and consider alternatives, the 8-step process is not an 
authorization or permitting process.
    As previously explained, FEMA will distribute resources for the 
public and SLTT partners and the public identifying what the FFRMS is, 
and how the agency will implement the Executive Orders to further 
assist applicants for FEMA-funded assistance programs. FEMA will also 
provide technical assistance through the agency's regional offices in 
support of FFRMS implementation. FEMA notes while the PA and HMA 
guidance documents are instructive to applicants, FEMA's regulations at 
44 CFR part 9 control the agency's actions for all of FEMA's programs.
5. Zero/No Rise
    Comments: Some commenters requested FEMA implement a ``zero-rise'' 
or ``no rise'' standard in the 8-step process. Four commenters stated 
that FEMA should require a ``zero rise'' standard for Federal actions 
where a regulatory floodway had not been designated. The commenters 
noted FEMA's edits to Sec.  9.11 but recommended an additional edit to 
not permit any increase in flood levels when a regulatory floodway had 
not been designated.
    Another commenter raised concerns about these requirements in the 
FFRMS policy. The commenter stated that the requirement for FEMA-
regulated floodplains without a floodway in the FFRMS policy was 
unreasonable. The commenter wrote the requirement to include all 
anticipated development was challenging for applicants, as anticipated 
development might never happen or substantially change due to the 
project approval process and recommended limits be placed on what was 
included in the anticipated development to make the standard more 
reasonable.
    FEMA Response: The changes made to Sec.  9.11(d)(4) provide 
clarification that the agency will continue to require the NFIP's 
minimum standard (currently 1-foot rise) or, consistent with Sec.  
9.11(d)(6), a more restrictive standard adopted by a community. This 
has been a long-standing requirement of the NFIP.\256\ FEMA's edits 
help ensure consistency with the NFIP's minimum standard while allowing 
the flexibility to utilize

[[Page 56999]]

a community's own more restrictive standards.
---------------------------------------------------------------------------

    \256\ 44 CFR 60.3(c)(10).
---------------------------------------------------------------------------

    FEMA did not propose to prohibit any increase in flood levels when 
a regulatory floodway has not been designated, and prefers not to make 
such a change at this stage of the rulemaking. The current process for 
determining increases in floodplains when a regulatory floodway has not 
been designated is consistent with the requirements of the NFIP and of 
many communities throughout the country. FEMA may take the commenter's 
suggestion under consideration in the future.
6. Prohibiting the Use of Fill
    Comments: Some commenters also requested FEMA prohibit the use of 
fill for elevation in the 8-step process. Commenter requested FEMA 
consider the impacts of using fill to achieve elevation requirements. 
One commenter stated elevation could have damaging impacts if 
implemented without considering stormwater runoff and that using fill 
dirt to achieve floodplain elevation requirements could push stormwater 
onto surrounding areas and worsen or create flooding problems for 
adjacent properties. Another commenter stated that while intended to 
reduce flood risk, using fill dirt to achieve floodplain elevation 
requirements could exacerbate flooding in the surrounding area. This 
commenter also noted that placing fill in floodplains could severely 
impact floodplain and wetland ecosystems that are critical habitat for 
endangered species. Some commenters referenced a recent TMAC report 
that identified several concerns and perverse incentives from the use 
of fill to achieve elevation and recommended FEMA discourage the use of 
fill. Commenters requested FEMA revise Sec.  9.11 to prohibit the use 
of fill to achieve elevation requirements in the FFRMS floodplain. 
Where fill is unavoidable, commenters requested FEMA require that a 
project retain the volume of water onsite that is equivalent to the 
volume of fill used or have adequate compensatory flood storage 
requirements. One commenter requested that in the Special Flood Hazard 
Area, FEMA require elevation to meet FFRMS requirements to be on an 
open foundation. Another commenter recommended that where the use of 
fill was necessary as a last resort, added measures should be required 
to replace the on-site ecosystem benefits of disturbed wetlands.
    FEMA Response: FEMA appreciates the commenters' concerns regarding 
the use of fill and agrees that the impacts of its use must be 
considered. As part of Step 4 where FEMA identifies impacts, the agency 
identifies any impacts to the floodplain which would include increasing 
flood risks to adjacent areas. In Sec.  9.11(d)(4) and (d)(6), FEMA's 
minimization requirements ensure that fill within regulatory floodways 
or floodplains where no regulatory floodway is designated will 
generally not increase flood levels within the community. These 
minimization requirements ensure consistency with the NFIP or any more 
restrictive Federal, State, or local requirements. Until a regulatory 
floodway is designated, no fill is permitted within the base floodplain 
unless it is demonstrated that the cumulative effect of the proposed 
development, when combined with all other existing and anticipated 
development, will not increase the water surface elevation of the base 
flood more than the amount designated by the NFIP or the community, 
whichever is most restrictive.\257\ Under Sec.  9.11(d)(4), fill is 
also prohibited within a designated regulatory floodway that would 
result in any increase in flood elevation within the community during 
the occurrence of the base flood discharge. FEMA prioritizes elevation 
on open works over elevation on fill in Sec.  9.11(d)(7), requiring 
elevation on open works rather than on fill in coastal high hazard 
areas and elsewhere, as practicable.
---------------------------------------------------------------------------

    \257\ 44 CFR 9.11(d)(4).
---------------------------------------------------------------------------

    The substance of the requirements in Sec.  9.11(d) was not changed 
as part of this final rule. FEMA did not propose to prohibit elevation 
on fill as suggested by some of the commenters, and prefers not to 
implement such a change at this stage of the rulemaking. FEMA will 
remain cognizant of the potential impacts of use of fill as part of the 
project approval process as described above in the 8-step process, and 
may take the comments under consideration for further action at a 
future date.
    The revisions to part 9 do not change FEMA's long-standing 
requirement as part of implementation of Executive Order 11988, as 
amended, to only perform or fund actions within or affecting 
floodplains and wetlands if those actions are the only practicable 
alternative. See, e.g., new 44 CFR 9.9(d). No further edits are 
required to part 9 to address the commenter's concerns regarding fill 
in wetlands. As FEMA's current part 9 process currently prohibits 
actions in wetlands where there is a practicable alternative, fill and 
dredge practices to achieve elevation or to construct buildings/
facilities in wetlands would only be allowed in those instances where 
there were no alternatives and the need to perform the action 
outweighed agency's requirements outlined in 44 CFR 9.9(e)(2). New 
Sec.  9.11(e) (current Sec.  9.11(f)) requires restoration where 
applicable.
    FEMA appreciates the commenters' reference to the recent TMAC 
recommendations on the use of fill. The TMAC recommended FEMA 
consolidate and clarify fill requirements for the NFIP in 44 CFR 60.3 
and consider prohibiting the use of fill as an elevation technique for 
residential and commercial structures in the SFHA (both coastal and 
riverine); prohibiting fill as a floodproofing technique; and allowing 
a limited amount of fill for bridges, dams, and wastewater treatment 
facilities along with other uses functionally dependent on proximity to 
water. The TMAC also recommended that FEMA (1) require communities 
participating in the NFIP to quantify and put on file the impacts of 
proposed fill and other development on flood stages and the environment 
prior to issuing fill permits and (2) require notice to property owners 
and appropriate environmental agencies when increases in flood 
elevation or potential negative consequences were found and could not 
be mitigated.\258\ These recommendations are clearly focused on the 
NFIP, not the 8-step process in part 9 in this rulemaking. As described 
above, the 8-step process contains sufficient flexibility to allow FEMA 
to address concerns related to use of fill during Steps 4 and 5 of the 
process. While FEMA is considering these recommendations consistent 
with the NFIP requirements, the agency notes TMAC recommendations are 
not binding on FEMA.
---------------------------------------------------------------------------

    \258\ See TMAC 2023 Interim Report, available at https://www.fema.gov/sites/default/files/documents/fema_rm-tmac-2023-interim-report-30OCT2023.pdf (last accessed Mar. 28, 2024).
---------------------------------------------------------------------------

    Comment: One commenter wrote requesting that FEMA eliminate Letter 
of Map Change (LOMC) exceptions for sites. The commenter cited HUD's 
proposed rule and stated that an exception could incentivize adding 
fill in a floodplain, which could lead to a reduced floodplain 
function, as well as increased flood risk to surrounding properties.
    FEMA Response: FEMA's regulation does not specifically except areas 
or sites where FEMA has issued a Letter of Map Change (LOMC) from the 
8-step process. In their original regulation, HUD did have a specific 
exception for any non-wetland site in a floodplain for which FEMA had 
issued a final Letter of Map Amendment (LOMA), final

[[Page 57000]]

Letter of Map Revision (LOMR), or a final Letter of Map Revision Based 
on Fill (LOMR-F) that removed the property from a FEMA-designated 
floodplain. The exception under HUD's original regulation also included 
conditional LOMAs, LOMRs, or LOMR-Fs if HUD or the responsible entity's 
approval was subject to the requirements and conditions of the 
conditional LOMA or LOMR.\259\ FEMA notes that HUD removed these 
exceptions from 24 CFR 55.12(c)(8)(i) and(ii) in recent updates to 
their regulation.\260\ As FEMA did not except those areas in the 
regulation, the FEMA rule does not require revision for the FFRMS 
floodplain to apply and for FEMA to conduct the 8-step process if those 
areas are determined to be within the expanded floodplain. FEMA notes 
the changes to part 9 in this final rule do not apply to the NFIP's 
regulations on mapping and changes to FEMA maps. Those regulations are 
found at 44 CFR part 70 et seq.
---------------------------------------------------------------------------

    \259\ See 24 CFR 55.12(c)(8)(i) and (ii) as of March 28, 2024.
    \260\ 89 FR 30850 (Apr. 23, 2024).
---------------------------------------------------------------------------

7. Practicability
    Commenters also recommended changes to the practicability analysis 
in the 8-step process.
    Comments: A commenter stated concern that actions in floodplains 
and wetlands would be allowed only as a last resort under the rule and 
recommended that FEMA revise the regulations to more strongly clarify 
to officials implementing the regulations that actions in floodplains, 
especially those on already urbanized lands, could be allowed, provided 
flood resilience measures were employed. Conversely, another commenter 
recommended that FEMA prioritize avoidance as the first alternative to 
actions that would modify or compromise floodplain function as the most 
effective risk reduction strategy. The commenter recommended that where 
avoidance cannot be achieved, resilient design should be incorporated 
meaningfully. A third commenter stated the feasibility analysis should 
consider whether right-of-way is not available and condemnation is 
required.
    FEMA Response: The revisions to part 9 do not change FEMA's long-
standing requirement as part of implementation of Executive Order 
11988, as amended, to only perform or fund actions within or affecting 
floodplains if those actions are the only practicable alternative. See, 
e.g., new 44 CFR 9.9(d). This rule does not alter the 8-step process 
requirement to evaluate practicable alternatives, which includes 
consideration of locations outside of the floodplain or wetlands. 
Through the 8-step process, FEMA considers alternative locations, 
alternative actions, nature-based solutions, and the no action 
alternative under the practicability analysis. If there is no 
practicable alternative, FEMA will perform or fund the action and will 
minimize any adverse impacts when doing so. FEMA believes the 
commenters' concerns are unwarranted, given this long-standing process 
that is not changing as a result of the changes made in this final 
rule. Further, the practicability factors, which are outlined in 44 CFR 
9.9(c), include the consideration of legal constraints, which would 
generally encompass the acquisition of right-of-way for proposed 
actions.
    Comment: A commenter requested specific revisions to Sec.  9.9 to 
include ``the presence of threatened or endangered species or their 
critical habitat'' as an example under ``natural environment.'' The 
commenter also requested FEMA include ``the presence, absence, and/or 
effectiveness of local or state land management plans to conserve 
natural values of the floodplains and wetlands at issue.'' Finally, 
this commenter requested FEMA include ``participation of the impacted 
community or communities in the Community Rating System program'' when 
analyzing the practicability of alternatives to proposed actions in 
floodplains or wetlands. The commenter requested FEMA edit Sec.  9.9 to 
include examples of floodplain values, including ``wildlife habitat and 
connectivity, including for threatened and endangered species'' in 
Sec.  9.9(e)(2)(iv) and Sec.  9.9(e)(3)(iv).
    FEMA Response: FEMA respectfully declines the commenter's request, 
as the agency believes many of these examples would be covered under 
the existing regulatory text, and no edits are required in this final 
rule to address these concerns. Specifically, the final rule lists 
``natural environment'' and includes ``habitat,'' which addresses the 
commenter's concerns about the inclusion of threatened and endangered 
species or their critical habitat. ``Social concerns'' includes ``land 
patterns;'' under these factors, FEMA does consider local or state land 
management plans when considering practicability. FEMA appreciates the 
commenter's interest in the agency's Community Rating System (CRS) 
program. FEMA notes that the commenter's concerns regarding threatened 
and endangered species and their critical habitats is addressed in the 
CRS program through credits for communities that protect threatened and 
endangered species.\261\ A community's participation in the CRS program 
does not impact an action's practicability under part 9. Updating part 
9 to incorporate the CRS program is inappropriate, as the CRS program 
provides discounts to individual policyholders in NFIP participating 
communities and as explained above, part 9 applies only to Federally-
funded actions.
---------------------------------------------------------------------------

    \261\ See CRS Coordinator's Field Manual 2017 and 2021 Addendum, 
available at https://www.fema.gov/floodplain-management/community-rating-system (last accessed Apr. 4, 2024).
---------------------------------------------------------------------------

    Further, FEMA's regulatory text is consistent with the Revised 
Guidelines. Wildlife habitat and connectivity are already incorporated 
into the rule in the definition of ``natural and beneficial values of 
floodplains and wetlands.'' Specifically, that definition references 
``Living Resource Values'' as ``providing habitats and enhancing 
biodiversity for fish, wildlife, and plant resources.'' This language 
encompasses the wildlife habitat and connectivity requested by the 
commenter, and no edits are required to the final rule.

M. Other Comments

    Comments: Two comments offered alternatives to the 8-step process 
outlined in part 9. One commenter recommended retreating a mile from 
every coast, river, and flood area and making those areas public lands, 
swamps, or flood zones and that FEMA prohibit rebuilding when buildings 
are destroyed due to sea level rise and convert those areas into their 
suggested publicly owned buffer. Another commenter recommended using 
eminent domain to reclaim flood damaged structures and reclaim lands, 
wetlands, swamps, and other properties, allowing these areas to 
naturally buffer and absorb flooding. The commenter stated private 
property rebuilding should not take place in a flood zone using 
taxpayer dollars, subsidies, grants, or any form of tax revenue.
    FEMA Response: FEMA did not propose, and does not believe it would 
be appropriate to implement, a standard that categorically prohibits 
rebuilding within one mile of every coast, river, and flood area.
    Comment: Another commenter stated there would likely be instances 
where the cost of floodproofing or elevating Federal and non-Federal 
buildings with the new FFRMS floodplain would be found to be 
unreasonable. The commenter recommended against any kind of automatic 
seizure or destruction in those instances, but rather suggested 
developing a process in which factors

[[Page 57001]]

could be considered in determining the future disposition of such 
buildings and encouraged the ability to grandfather-in some buildings 
so they could maintain their functionality until such a time as they 
actually suffered flood damage.
    FEMA Response: Part 9 only applies to FEMA actions and the FFRMS 
only applies to FEMA actions that are subject to the FFRMS. FEMA 
defines ``action subject to the FFRMS'' as ``any action where FEMA 
funds are used for new construction, substantial improvement, or to 
address substantial damage to a structure or facility.''
    Where part 9 applies, FEMA has always incorporated natural 
environment, social concerns, and economic aspects into the 8-step 
process as part of the practicability analysis. Specifically, if the 
minimization measures for a proposed action were found to be 
``unreasonable,'' that may fall under the economic aspect of the 
practicability analysis. In these instances, FEMA has not proposed 
automatic seizure or destruction procedures in the regulatory text or 
policy. FEMA also works with program applicants to consider the 
appropriate service life for the action during the 8-step decision-
making process to better understand the flood risks and safety 
prioritization for individual actions.
    Comment: A commenter asked if FFRMS would be used as a selection 
tool for grant projects. The commenter noted that FEMA has previously 
considered a project's scope or service area for funding and stated the 
increase in floodplains from NOAA Atlas 14 revised flood maps would 
limit federal funding for some projects due to previous design criteria 
used on the downstream channels or development.
    FEMA Response: FEMA will not use the FFRMS flood elevation as a 
selection tool for grant projects; rather, it is a design requirement 
for grant projects. Issues related to or impacting a project's scope or 
service area remain unchanged. Finally, FEMA disagrees with the 
commenter's statement that revised flood maps would limit federal 
funding for some projects. Revised flood maps where the floodplains 
increase would have no effect on project eligibility.
    Comment: One commenter inquired whether the agency's findings would 
be beneficial to the ``central Arizona project'' given the dangers of 
flooding to the canal.
    FEMA Response: FEMA appreciates the commenter's interest in this 
regulation. The FFRMS CISA State of the Science Report provides a 
review and update of the best-available, actionable science that can 
support application of the Climate-Informed Science Approach 
(CISA).\262\ FEMA respectfully refers the commenter to the State of the 
Science Report and other tools to determine whether the FFRMS policy 
initiative more broadly may have an impact on a local project of 
interest. FEMA's part 9 controls the agency's implementation of 
Executive Order 11988, as amended, and Executive Order 11990.
---------------------------------------------------------------------------

    \262\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24, 
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last 
accessed Jan. 24, 2024), and posted to the public docket for this 
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
---------------------------------------------------------------------------

    Comments: Some commenters requested FEMA consider implementing the 
FFRMS for the NFIP. Another commenter requested FEMA require disclosure 
of past flood damages for FEMA-funded residential projects.
    FEMA Response: As explained above, FEMA cannot accommodate the 
commenter's request to integrate the FFRMS into the minimum floodplain 
management standards for the NFIP because it is beyond the scope of 
this rulemaking. The NFIP is a program through which property owners in 
participating communities can purchase Federal flood insurance as a 
protection against flood losses. In exchange, a community must adopt 
and enforce floodplain management regulations that incorporate NFIP 
minimum floodplain management criteria developed by the Administrator. 
Further information regarding FEMA's minimum floodplain management 
standards for the NFIP can be found at 44 CFR part 59 et seq. Any 
update to those standards would require a rulemaking to revise the 
appropriate regulatory sections of the CFR. By contrast, the FFRMS, as 
implemented by this rulemaking, only applies to actions where FEMA 
funds are used for new construction, substantial improvement, or 
repairs to address substantial damage to structures and facilities.
    Requiring disclosure of past flood damage for FEMA-funded 
residential projects is beyond the scope of this rulemaking. However, 
FEMA notes disclosure of prior flood damage, flood claims or losses, 
and the status of repetitive loss properties is important, and FEMA is 
pursuing options to require such disclosure, as evidenced in FEMA's 
2023 legislative proposal submitted to the 118th Congress.\263\
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    \263\ See https://www.fema.gov/flood-insurance/rules-legislation/congressional-reauthorization/legislative-proposals 
(last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

N. Accessibility

    In the NPRM, FEMA requested specific comment on accessibility 
issues. FEMA sought public comments on the impact of the proposed 
elevation requirement on the accessibility of covered facilities under 
the Fair Housing Act, the Americans with Disabilities Act (ADA), the 
Architectural Barriers Act (ABA), and section 504 of the Rehabilitation 
Act of 1973. FEMA invited comments on strategies the agency could 
employ to ensure accessibility requirements were met for properties 
that would be impacted by the rule. Additionally, FEMA invited comments 
on the cost and benefits of such strategies, including data that 
supported the costs and benefits. FEMA received five comments on 
accessibility. Some commenters provided FEMA with recommendations on 
strategies regarding accessibility, while other expressed concerns with 
potential increased costs of accessibility and elevation along with 
potential conflicts regarding accessibility laws.
    Comments: One commenter recommended FEMA consider accessibility 
concerns as a factor in favor of selecting alternatives that minimize 
residential and essential structures within the floodplain. The 
commenter also stated projects should be designed to maximize both 
access and resilience by practicing avoidance to the extent 
practicable, consistent with Executive Order 11988. Another commenter 
recommended FEMA issue design and regulatory guidance to address 
concerns or challenges over the effects of proposed elevations on 
accessibility of covered facilities, particularly those intended for 
use by disabled and elderly populations and stated guidance could 
ensure that floodproofing would not hinder accessibility. A third 
commenter noted that elevating structures was not always feasible, 
practical, or advisable and that seeking to meet both elevation and 
accessibility requirements created even more challenges and increased 
costs, sometimes rendering certain projects infeasible. Referencing 
HUD's Fair Housing Act's guidance on BFE challenges, the commenter 
recommended FEMA recognize the impracticability of requiring elevation 
in certain situations consistent with HUD's guidance. The commenter 
cited increased cost concerns and unintended consequences on 
individuals who rely on accessible housing.
    Some commenters stated FEMA's request for comment on accessibility 
concerns indicated a conflict with implementation of the FFRMS and laws

[[Page 57002]]

governing accessibility. One commenter stated FEMA admitted the rule 
could potentially conflict with several acts aimed at protecting 
vulnerable populations such as the disabled and elderly. Another 
commenter stated the agency indicated the proposed rule threatened to 
violate the Fair Housing Act, the Americans with Disabilities Act, the 
Architectural Barriers Act, and section 504 of the Rehabilitation Act 
of 1973 and recommended FEMA identify and either exclude or limit these 
scenarios when applying the proposed standard.
    FEMA Response: Through the final rule, FEMA seeks to prioritize 
minimizing the impact of floods on human health, safety, and welfare, 
including those of vulnerable populations. FEMA's request for comment 
in this area focused on ways the agency could further reduce or 
mitigate the impacts of the FFRMS implementation on these populations. 
Accessibility concerns would generally fall under social concerns and 
legal constraints in assessing practicability in the 8-step process. 
FEMA considers both the accessibility of a structure and the 
accessibility to community resources for those impacted. FEMA only 
takes action in the floodplain if there is no practicable alternative. 
Further, if an alternative would render a building inaccessible, it 
would not be a practicable alternative. FEMA agrees with one of the 
commenters that proper guidance can help reduce the impacts of 
elevation on accessibility. FEMA's existing guidance documents address 
concerns associated with the effects of elevation on accessibility. 
FEMA may address any additional specific concerns regarding FFRMS 
implementation as they arise on a case-by-case basis or via additional 
guidance.\264\
---------------------------------------------------------------------------

    \264\ See e.g. ``Hazard Mitigation Assistance Guidance,'' pgs. 
59-60 available at https://www.fema.gov/sites/default/files/documents/fema_hma_guide_08232023_v1.pdf (last accessed April 2, 
2024), ``Public Assistance Program and Policy Guide, pg. 151 
available at https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf (last accessed Mar. 
12, 2024).
---------------------------------------------------------------------------

    FEMA appreciates the importance of providing affordable, accessible 
housing. FEMA believes that the agency's policy approach provides 
flexibility to address these concerns. For example, construction of 
ADA-compliant access facilities or ramps is an eligible cost for FEMA's 
HMA structure elevation and mitigation reconstruction projects for 
homes. FEMA considered the costs and benefits associated with this 
rule, including the overall increased costs of FEMA projects, in the 
regulatory impact analysis provided on the public docket for this 
rulemaking.\265\ FEMA believes that the benefits of preventing property 
damage and potentially saving lives justify the costs of the rule. 
These benefits are a result of the improved protection of structures 
and facilities due to increased elevation and floodproofing standards 
in FEMA's implementation of the FFRMS. This rule will help to ensure 
that Federal investments are better protected from flood damage, and 
that the natural values of floodplains are preserved. FEMA notes any 
increased costs are generally eligible for funding under FEMA's 
assistance programs subject to cost share requirements, including 
accessibility needs.
---------------------------------------------------------------------------

    \265\ See https://www.regulations.gov/document/FEMA-2023-0026-0013. Specifically, see section 7.11.5 ``Elevation Requirement 
Impacts on THUs.''
---------------------------------------------------------------------------

    Regarding other conflicting laws, the commenters do not accurately 
state FEMA's position. FEMA sought comment on how the implementation of 
FFRMS may interact with specific legislation and strategies FEMA could 
employ to ensure accessibility needs were met. FEMA's policy approach 
provides flexibility to accommodate the specific needs of the 
vulnerable populations the commenter references, and FEMA believes the 
8-step process requirements, specifically in considering the 
practicability of an action and potential impacts from the action, 
detailed above help resolve accessibility concerns.

O. Regulatory Impact Analysis Comments

    FEMA received several comments specific to the agency's RIA 
associated with the rulemaking.
1. Alternatives
    Comment: Commenters requested additional clarification and 
recommended edits to the alternatives detailed in the RIA. 
Specifically, two commenters stated FEMA should consider alternatives 
to the proposed standard and the various FFRMS approaches. The 
commenters stated that analyzing alternatives would include identifying 
cases where imposing the standard would create new risks and costs 
greater than the risk the standard sought to mitigate. The commenters 
further requested FEMA delay the final rule until these analyses were 
completed.
    FEMA Response: Executive Order 11988, as amended, directs agencies 
to perform or fund actions within or affecting floodplains only if 
those actions are the only practicable alternative. Through the 8-step 
process for individual actions, FEMA considers alternative locations, 
alternative actions, nature-based solutions, and the no action 
alternative under the practicability analysis. If there is no 
practicable alternative, FEMA will perform or fund the action and will 
minimize any adverse impacts when doing so.
    On a project basis, FEMA has consistently leveraged benefit-cost 
analysis in grant programs requiring evaluation of cost effectiveness, 
such as those programs under Hazard Mitigation Assistance, and will 
continue to do so along with minimum standards for floodplain 
management across the agency's programs to help ensure that Federally 
funded projects are both cost-effective and result in more resilient 
communities. Additionally, during the 8-step process, FEMA will also 
evaluate the impacts from the proposed action (in Step 4) when 
determining the appropriate resilience or minimization measures in Step 
5. The flexibility of the 8-step process allows FEMA to work with SLTTs 
to select the appropriate minimization measure for the action. FEMA 
requires that only practicable means to minimize harm to or within the 
floodplain are required for compliance with 44 CFR 9.11, including 
consideration of economic aspects. If, in the course of implementation, 
FEMA identifies categories of projects for which the standard proves to 
be generally impracticable, FEMA may take appropriate action--such as 
issuing further guidance--at that time.
    FEMA believes that the benefits of preventing property damage and 
potentially saving lives justify the costs of the rule. These benefits 
are a result of the improved protection of structures and facilities 
due to increased elevation and floodproofing standards in FEMA's 
implementation of the FFRMS. This rule will help to ensure that Federal 
investments are better protected from flood damage, and that the 
natural values of floodplains are preserved.
    Comment: A commenter stated the RIA did not present information on 
the population at risk, or the residual risk to human life associated 
with each FFRMS approach. The commenter stated that FEMA should follow 
the requirements of the Principles and Requirements for Federal 
Investments in Water Resources (March 2013) and accompanying 
Interagency Guidelines \266\ to provide information to

[[Page 57003]]

owners and residents of flood-prone property the residual flood risk 
and availability of flood insurance. The commenter recommended that 
FEMA provide an estimate of the population at risk by FFRMS approach 
and an estimate as to how this would change by approach.
---------------------------------------------------------------------------

    \266\ Available at https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf (last 
accessed Jan. 24, 2024) and https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf 
(last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

    The commenter also requested information on FEMA's statements in 
the RIA regarding potential for lives saved by the rulemaking. The 
commenter stated that FEMA provided statistics on the number of 
fatalities from flash and river flooding but was unable to estimate how 
many of those fatalities would be avoided if the rulemaking were 
implemented. The commenter also stated that FEMA did not provide a 
quantification that would allow for a comparison among the FFRMS 
approaches. The commenter wrote that FEMA did not clarify whether the 
CISA would be safer than the FVA or 0.2PFA or whether elevating and 
floodproofing properties were necessarily safer than the no action 
alternative. The commenter further stated that floodproofing and 
elevation could instill a false sense of security that encouraged 
people to not evacuate or delay their departure in a flood. The 
commenter recommended that FEMA provide additional information in the 
RIA on this topic and include non-quantified costs to acknowledge it 
was conceivable that elevation and floodproofing could result in an 
increase in lives lost if those efforts provide a false sense of safety 
to the public.
    FEMA Response: FEMA is leveraging Executive Order 11988, as 
amended, and the Revised Guidelines for the FFRMS rulemaking and the 
FFRMS implementation. The Principles and Requirements for Federal 
Investments in Water Resources and the accompanying Interagency 
Guidelines (PR&G) do not generally apply to this rulemaking; rather, 
those requirements apply to actions associated with water development 
projects.\267\ FEMA will apply the PR&G requirements to those specific 
actions as applicable, namely those actions where FEMA is taking an 
action associated with a water development project. Although the PR&G 
does not generally apply to this rulemaking, FEMA notes that the 8-step 
process includes public notice requirements detailed for steps 2 and 7, 
as further detailed in part 9.
---------------------------------------------------------------------------

    \267\ See ``Principles and Requirements for Federal Investments 
in Water Resources at pg. 1, (Mar. 2013) available at https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf (last accessed Apr. 
29, 2024) (``It is intended that these Principles and the supporting 
Requirements and Guidelines be applied to a broad range of Federal 
investments that by purposes, either directly or indirectly, affect 
water quality or water quantity''); see also and ``Interagency 
Guidelines,'' available at https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf 
(last accessed Apr. 29, 2024).
---------------------------------------------------------------------------

    Regarding the commenter's comment about how FEMA did not provide a 
quantification that would allow for a comparison among the FFRMS 
approaches, FEMA showed the comparison in Tables ES-12 and ES-13 within 
the RIA. These tables present the cost, transfer payments, and benefit 
estimates by FFRMS approach--where available data allow--and also 
present estimates of costs, transfers, and benefits by grant program 
for CISA, FEMA's primary approach.
    FEMA added more text to the qualitative analysis within the 
benefits section of the RIA accompanying this final rule to further 
address the commenter's concerns regarding risk to human life and 
whether elevating or floodproofing properties under any of the FFRMS 
approaches is safer than taking no action. FEMA included a description 
of qualitative benefits, which included the potential for lives saved, 
savings in time and money from a reduced recovery period after a flood, 
increased safety of individuals, increased public safety, reduced 
personal and community impacts, and reduction in future health issues 
related to flooding. FEMA does not believe that it would be appropriate 
to refrain from taking this action based on the commenter's suggestion 
that the rule could instill a false sense of security. The commenter 
provided no evidence on this point, and FEMA does not believe it would 
be appropriate to fund less resilient projects in an effort to avoid 
making people feel secure in the event of a flood.
    As explained in the NPRM, the CISA is FEMA's preferred policy 
approach, as FEMA believes it has the potential to be the best and most 
well-informed approach to building resilience in an equitable manner 
and ensuring a reduction in disaster suffering. CISA is designed to 
meet current and future estimates of flood risks unique to the location 
and thus provide the best overall resilience, cost effectiveness, and 
equity.
    With regard to the commenter's recommendation that FEMA provide an 
estimate of the population at risk by FFRMS approach, FEMA cannot 
correlate population risk by floodplain expansion. FEMA could not use 
Geographical Information System (GIS) data, as the database identifies 
whether a project was in the floodplain, but because it did not 
categorize projects according to their location, FEMA was not able to 
distinguish projects located in coastal areas from those located in 
non-coastal areas. Additionally, the dataset does not break out 
multiple project worksites.
    FEMA notes the agency's current alternatives analysis process 
incorporates consideration of a range of flood mitigation practices. 
FEMA considers the following alternatives: (a) no action; (b) 
alternative locations; and (c) alternative actions, including 
alternative actions that use natural features or nature-based 
solutions. When practicable, FEMA avoids actions within the floodplain. 
The flood minimization measures found in Sec.  9.11 are reliable 
methods of providing resilience to structures. FFRMS flood resilience 
measures consider both current and future flood risks to better protect 
Federal investments. The elevation requirement in Sec.  9.11(d)(3) 
applies to structures and also allows floodproofing for non-residential 
structures. The FFRMS policy provides further explanation for 
structures that must be located within the FFRMS floodplain must be 
elevated or floodproofed to the FFRMS flood elevation. Additionally, 
the policy clarifies facilities can use elevation or any other 
appropriate minimization measure to protect the facility against the 
FFRMS flood elevation. Minimization can include measures such as 
ensuring the impacted public knows their flood risk and has awareness 
of flood evacuation procedures.
2. Discount Rates
    Comment: Two commenters requested FEMA implement the revised 2 
percent discount rate from OMB Circular A-4 for this rulemaking to 
represent future benefits more accurately. Another commenter requested 
clarification on the discount rates used in the RIA. That commenter 
recommended FEMA state that the analysis was conducted using the 
prescribed 7 percent discount rate and requested FEMA provide a 
sensitivity analysis using a 3 percent discount rate and a 10 percent 
discount rate if appropriate.
    FEMA Response: The new OMB Circular A-4 discount rate is effective 
March 1, 2024, for regulatory analyses received by OMB in support of 
proposed rules, interim final rules, and direct final rules, and 
January 1, 2025, for regulatory analyses received by OMB in support of 
other final rules. The

[[Page 57004]]

FFRMS proposed rule was published on October 2, 2023. Given this 
timing, FEMA is using the previously established discount rate and is 
not applying the new OMB Circular A-4 discount rate to this final rule. 
For the RIA, FEMA provided discounted values using both 3 percent 
(social rate of time preference) and 7 percent (opportunity cost of 
capital) based on the version of OMB Circular A-4 that was in place at 
the time of publication of the NPRM.
    Comment: A commenter requested several clarifications on the 
discount rates that were used within the RIA, including the discount 
rate used to generate the figures in Appendix E (Benefits). The 
commenter questioned why both the 3 and 7 percent discount rate for 
benefits were used within the analysis when the 50-year present value 
benefit uses a single 7 percent discount rate. And they sought 
clarification on how the 7 percent discount rate was used for benefits.
    FEMA Response: FEMA utilizes a 7 percent discount rate for 
benefits, while the table(s) referenced uses both 3 and 7 percent 
discount rates. The benefits per structure consist of a 50-year stream 
of benefits, discounted to the year that the structure is constructed 
using a 7 percent discount rate. Since the RIA estimates 10 years' 
worth of projects, those benefits must be discounted again from the 
year of construction to the present (i.e., to the beginning of Year 1) 
and annualized for comparison with 10 years' worth of costs. FEMA 
conducted its discounting from the year of construction to the 
beginning of Year 1 and conducted its annualization using both 3 and 7 
percent discount rates, per the version of OMB Circular A-4 that was in 
effect at the time of publication.\268\ FEMA has clarified this in this 
RIA.
---------------------------------------------------------------------------

    \268\ OMB Circular A-4, Regulatory Analysis, September 17, 2003, 
pages 33-34. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------

3. Costs
    Comment: A commenter requested clarifications and provided 
recommendations regarding administrative costs in the RIA. 
Specifically, the commenter asked for clarification on the 
administrative costs in tables 85 and 86 of the RIA, which summarize 
the low and high estimated impacts of the rule, stating these costs 
were shown as being the same for all of the alternatives in those 
tables while the RIA stated a range for the administrative costs. The 
commenter also requested clarification on table ES-12 and other tables 
that omitted administrative costs from the undiscounted total dollar 
figures while those costs were included in the undiscounted costs in 
tables 64-69 which show total costs by FFRMS approach. The commenter 
requested FEMA reconcile the issue. The commenter stated FEMA 
acknowledged there would be annual administrative costs but only 
included those costs in the economic analysis for the first 10 years of 
the period of the analysis. The commenter recommended FEMA either 
include annual administrative costs as they apply after the initial 10-
year period or explain why they would no longer be included.
    FEMA Response: The administrative costs are different in tables 85 
and 86 in the RIA provided with the NPRM. FEMA created a range for 
estimating the administrative costs for two circumstances: (1) if all 
projects used the interagency Federal flood standard support tool (low 
estimate, as represented in Table 85) and (2) if all projects used the 
Job Aid (high estimate, as represented in Table 86) for the first 10 
years under the CISA. In reality, the administrative costs will likely 
fall somewhere between the low and high estimates. These tables are 
still tables 85 and 86 in the RIA. Further, tables 64-69 show the costs 
of the three different approaches (CISA, FVA, and 0.2PFA), which 
include the administrative costs to show the total cost under each 
approach.
    Table ES-12 is a summary table that shows the costs of each 
approach so that the reader can see the various options next to each 
other. The administrative cost is separated out because if FEMA added 
the administrative cost to each approach, it may be misinterpreted as 
triple counting. To address the commenter's concerns, FEMA included 
footnotes in Table ES-12 and Table ES-13. FEMA also removed the term 
``total'' from the costs section within Table ES-12 and Table ES-13 as 
they are not the total cost as they do not include the administrative 
cost. The reader should add each individual approach to the FEMA 
administrative cost to obtain the total costs in Section 7.12. For 
example, CISA + FEMA administrative = total CISA cost.
    FEMA examined the number of projects that will be subject to the 
requirements in the first 10 years after the rule's publication. FEMA's 
analysis focuses on the costs, benefits, and transfer payments (i.e., 
impacts on FEMA grants) that will result over a 50-year period from the 
application of the requirements of the final rule to those projects, 
for a total period of analysis spanning 60 years. The costs and 
transfers occur in the first 10 years of the 60-year period because 
that is when the initial investment to elevate or floodproof those 
projects takes place. This is an upfront cost that occurs when the 
project is constructed. However, the benefits of the final rule are 
estimated over the 50-year useful life of the affected structures.
    Comment: A commenter recommended FEMA use a more general cost index 
such as the Gross Domestic Product-Implicit Price Deflator (GDP-IPD) or 
an appropriate construction cost index instead of the U.S. Department 
of Labor's Bureau of Labor Statistics Consumer Price Index (CPI) to 
establish a 2021 common dollar basis.
    FEMA Response: FEMA used CPI in majority of the analysis within the 
RIA, such as to adjust historical grant obligation amounts to constant 
dollars. However, FEMA used an Engineering News Record (ENR) 
Construction Costs \269\ factor to adjust the construction values to 
2021 costs within the NPRM RIA. The ENR was used to represent the 
change in costs from 2016 to 2021. The value selected was a national 
cost average. This value is consistent with the approach used to 
calculate the initial construction costs, which applied the national 
average square foot cost. The adjustment factor from 2016 to 2021 
applied was 1.17 or a 17% increase in construction costs over the 
period analyzed. FEMA used the same ENR data for the final rule's RIA 
but adjusted it to 2022 costs. While other sources indicated a larger 
range of construction cost increase, the ENR value was selected in the 
2022 report as a lower-bound approach to the benefits analysis.
---------------------------------------------------------------------------

    \269\ Construction Cost Index History. Engineering News Record 
(ENR). Available at: https://www.enr.com/economics/historical_indices/construction_cost_index_history (last accessed: 
Mar. 18, 2024).
---------------------------------------------------------------------------

    Comment: A commenter stated that FEMA acknowledged the costs of 
operating and maintaining elevation and floodproofing projects were not 
included in the RIA but instead were zeroed out. The commenter stated 
that while additional costs for operating and maintaining an elevated 
structure would be low, the costs for floodproofed structures could be 
substantial if floodproofing entailed generator/pumping stations. The 
commenter stated the omission was particularly glaring given the 50-
year design life of the project and recommended FEMA include some 
reasonable estimate of these costs rather than zeroing them out, though 
the commenter did not provide any such estimates. The commenter also 
stated the RIA was incomplete without information on the estimated 
costs of

[[Page 57005]]

improving the flood resilience of facilities; however, the commenter 
did not provide a data source to use for estimating the cost of 
increased flood resilience for facilities.
    FEMA Response: FEMA appreciates the commenter's concerns. FEMA 
requested available data that would assist FEMA in estimating the 
impact of the proposed increased flood resilience standards on specific 
types of facilities, including examples showing the cost of similar 
resilience measures, case studies, or other relevant information. FEMA 
did not receive any data. Instead, FEMA discusses the non-quantifiable 
costs within Qualitative Discussion of Additional Potential Costs 
section. FEMA was able to quantify the number of facilities that would 
be impacted by the rule as well as the incremental costs of applying 
the FFRMS to these facilities. FEMA conducted the analysis on 
facilities based on the best available information. FEMA acknowledges 
that there are lifecycle costs associated with floodproofing of 
structures, but these costs are unique to the type of structure and 
floodproofing methods used, and not generalizable across all potential 
projects nationwide. FEMA discusses these costs qualitatively in 
Section 7.11.3 of the RIA.
    FEMA included a qualitative summary of the impacts that could not 
be quantified, such as increased resilience standards for facility 
projects, additional costs for adding requirements to buildings with 
basements, diversion of projects out of the floodplain, lifecycle 
maintenance costs for floodproofing and project delays and forgone 
projects, within the executive summary and conclusion section.
    FEMA discusses facilities and the challenges with estimating 
economic impacts of the FFRMS. Because there are many methods for 
making facilities resilient, and due to the wide variety of projects 
considered facilities, FEMA could not make quantitative estimates of 
economic impacts for these projects that can be applied for all 
facility types nationwide.
    Comment: A commenter requested FEMA further explain the omission of 
specific quantifiable costs, such as the costs for projects that may be 
diverted out of the floodplain, impacts to projects with existing 
basements, project delays, or foregone projects, that would result from 
the rule. The commenter stated these costs vary in terms of data and 
method calculation ability. In particular, the commenter questioned why 
impacts to structures with basements were not quantified because data 
are available about, for instance, the prevalence of basements 
geographically and depth-damage functions for structures with 
basements, as well as information from the Census of Construction. The 
commenter also questioned whether diversion out of the floodplain is a 
cost of the rule because, presumably, a project would only be diverted 
if a project owner determined that net benefits would be higher without 
the project in the floodplain.
    FEMA Response: FEMA identified these as data limitations because 
the agency does not generally track the information referenced by the 
commenter. For example, FEMA does not track project applications where 
the applicant withdraws their application for Federal funding due to 
floodplain considerations.
    In addition, FEMA appreciates the commenter providing data sources 
for structures with basements and has considered this data. These data 
sources provide national-level summary statistics and geographic 
information on structures with basements. FEMA is unable to apply this 
data to FEMA's project level data, since FEMA databases do not include 
fields for structures with basements, and FEMA is unable to correlate 
the Census of Construction data with its own project-level data. 
Additionally, this data pertains to residential construction, and only 
a small number of FEMA actions subject to the FFRMS are residential 
construction.
4. Benefits
    Comment: A commenter requested clarification on the discrepancy on 
``Appendix E: Benefits Net Present Value'' heading on page 213, which 
would appear to indicate that Tables 1-18 display the Net Present 
Values, but the column headings in these tables are labeled ``. . . 
Present Value Benefits. . . .'' The commenter stated that the various 
values presented in said tables are elsewhere presented as Benefits 
rather than Net Benefit, as seen in a comparison of Table 84 with 
Tables 17 and 18 of Appendix E.
    FEMA Response: The tables referenced by the commenter show the 
Present Value of the benefit streams expected from implementation of 
this rule. FEMA updated the table headings and footnotes as 
appropriate.
    Comment: A commenter requested clarification on how the results of 
the analysis were presented in tables. Specifically, the commenter 
questioned the presentation of a single estimate for benefits the FFRMS 
approaches in the conclusion, the lack of monetization for benefits 
discussed qualitatively, how none of the FFRMS approaches have a 
positive net benefit, and how there was no rationale for not selecting 
0.2PFA as the preferred approach, as the commenter calculates it is the 
FFRMS approach with the greatest net benefit.
    FEMA response: The benefits are not the same for all of the FFRMS 
approaches. FEMA could not quantify every cost and benefit associated 
with this rule. However, FEMA was able to quantify the number of 
structures and facilities that would be impacted. FEMA quantified a 
portion of the benefits for the CISA for all PA Category E projects 
that are subject to the FFRMS. Specifically, FEMA estimates the present 
value benefits of one additional foot of freeboard for the 50-year 
useful life of PA Category E projects undertaken during the 10-year 
period of analysis, with the assumption that there will be a 59-inch 
SLR.
    FEMA was only able to estimate quantitative benefits for PA 
Category E projects affected using CISA. FEMA cannot compare 
quantitative benefits to the costs for IA or HMA, since FEMA does not 
have a reliable data source to estimate the benefits for projects 
covered by these programs; HMA data cannot be broken out by building 
types and IA data is limited to residential-related projects, which are 
not included in the 2022 report. The table that the commenter created 
making such a comparison to demonstrate that 0.2PFA is the FFRMS 
approach has the highest net benefits is not accurate. The present 
value of benefits using CISA is not the same as the present value of 
benefits using FVA or 0.2PFA, as the number of projects impacted by 
each approach varies. FEMA did estimate the impact on PA projects for 
FVA, 0.2PFA and CISA in sections 7.14.2.1 through 7.14.2.6 within the 
RIA. However, these estimates cannot be applied to IA and HMA projects 
for the reasons stated above. In addition, there are additional costs 
and benefits that FEMA could not quantify for this analysis so FEMA 
discussed them in a qualitative manner. For example, qualitative 
benefits include the potential for lives saved, savings in time and 
money from a reduced recovery period after a flood, increased safety of 
individuals, increased public safety, reduced personal and community 
impacts, and reduction in future health issues related to flooding.
    Accordingly, FEMA is unable to use the commenter's table to select 
the ``alternative with the greatest net benefits'' as the commenter 
stated, since the table is not inclusive of all of the rule's 
quantified and unquantified benefits.
    Comment: A commenter sought clarification about how FEMA

[[Page 57006]]

compared the costs and benefits within the RIA. The commenter stated 
that it appeared as if the costs pertaining to ``14,427 PA, IA, and HMA 
structures'' are being associated with, or charged to, the benefits 
associated with ``1,173 PA Category E projects.''
    The commenter also expressed confusion over how FEMA used +5-ft 
freeboard for costs and then used +1-ft freeboard for benefits. The 
commenter asserted that the statement ``FEMA does not have data to 
quantify the benefits of additional freeboard'' was confusing because 
depth-damage functions are available. They presumed that this would 
account for CISA's poor economic performance relative to the other 
approaches.
    FEMA Response: FEMA's quantitative benefit estimates are based on a 
2022 report that analyzed the benefits of 1 foot of additional 
freeboard for various building types. FEMA used this report to quantify 
the benefits of 1 foot of freeboard, as this was the only data that was 
available. This allowed FEMA to monetize the benefits of an additional 
foot of freeboard for non-residential PA projects (i.e., Category E 
projects). FEMA was unable to use the benefits study to estimate the 
benefits for HMA and IA projects, since HMA data cannot be broken out 
by building type, and IA data is limited to residential projects. 
Accordingly, FEMA's analysis acknowledges that when comparing the total 
monetized costs and benefits of the rule, it is an imperfect 
comparison: the total monetized costs are attributable to elevating or 
floodproofing PA, IA, and HMA structures between 1 and 5 feet 
(depending on the FFRMS approach used and the location of the project), 
while the total monetized benefits are attributable to elevating or 
floodproofing PA projects one additional foot.
    FEMA does not claim that the benefits to PA Category E projects are 
associated with, or charged to, any of the other projects in this 
analysis. FEMA was able to estimate costs for PA, HMA, and IA, but only 
able to quantify benefits for PA Category E. FEMA expects benefits for 
all types of projects but does not have sufficient data for a 
quantitative estimate.
    FEMA could not apply depth-damage functions to these projects, 
since they are only applicable to elevation or floodproofing at 
specified levels above the base flood elevation for specified flood 
zones. FEMA's project databases only identify whether a project is in 
the 1 percent annual chance floodplain and do not show what flood zone 
a project is located in. Because of this, FEMA cannot apply depth-
damage functions to individual projects to determine the benefits from 
elevation or floodproofing.
    FEMA supplements the monetized benefits with a qualitative 
discussion of additional benefits that FEMA could not monetize. 
Specifically, FEMA identified qualitative benefits, including 
reductions in damage to properties and contents from future floods, 
potential lives saved, public health and safety benefits, reduced 
recovery time from floods, and increased community resilience to 
flooding.
    Comment: A commenter requested clarification about how FEMA would 
determine the necessary height to maximize net benefits for a given 
project under CISA. Specifically, the commenter asked what assumptions 
FEMA would use (e.g., a 59-inch SLR, an 8.5 RCP) to determine 
elevations that result from ``using the best-available, actionable 
hydrologic and hydraulic data and methods.''
    FEMA Response: In the RIA, FEMA provided a summary of the estimated 
benefits per building type for PA projects. The analysis included both 
mitigation types (elevation and floodproofing) for 8-inch, 39-inch, and 
59-inch SLR and both mitigation types for 4.5 and 8.5 RCP. For FEMA's 
primary estimate, FEMA used 59 inches of SLR due to it being the 
closest SLR option to the vertical rise, in accordance with FEMA's 
CISA+5-ft assumption. CISA is the preferred approach for the FFRMS if 
the data are available. Since 5 feet is equivalent to 60 inches (5 x 12 
inches per foot), 59-inch SLR is the closest SLR option that FEMA had 
available for this portion of the analysis.
    However, in practice, FEMA's FFRMS policy sets minimum elevation 
requirements to account for possible changes in future flood hazards 
and therefore, under the CISA, the elevation or floodproofing height 
would vary by location and criticality of the project. As explained 
above, FEMA is relying on the FFRMS CISA State of the Science Report to 
determine what CISA data is actionable and available and will use the 
FFRMS Job Aid methodology to determine the CISA, FVA, and 0.2PFA for 
FFRMS actions. The FFRMS CISA State of the Science Report \270\ 
discusses the SLR scenarios and what factors to consider when selecting 
the appropriate SLR projection. The FFRMS Job Aid recommends using the 
intermediate SLR scenarios for non-critical actions and intermediate-
high SLR scenarios for critical actions.\271\ As part of initial 
implementation, FEMA intends to leverage the FFRMS Job Aid as explained 
above.
---------------------------------------------------------------------------

    \270\ FFRMS CISA State of the Science Report, pg. 22, available 
at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text 
(last accessed April 4, 2024). The report recommends that agencies 
use the latest interagency Federal guidance for regionally-based SLR 
projections. The underlying SLR science reported used for the report 
is based on the IPCC AR6 which uses shared socioeconomic pathways 
(SSPs) rather than the older Representative Concentration Pathways 
(RCPs). The five SLR scenarios described in Sweet et al. (2022), 
page 10, are based on global mean sea level (GMSL) target values at 
2100. These sea level scenarios are related to but distinct from the 
emissions pathway scenarios in the IPCC AR6. The intermediate SLR 
scenario corresponds to a GMSL target value in 2100 of 1m and the 
intermediate-high SLR corresponds to GMSL target value in 2100 of 
1.5M.
    \271\ FFRMS Job Aid, pg. 21.
---------------------------------------------------------------------------

    Comment: A commenter requested clarification regarding a footnote 
in the RIA's Executive Summary, in which FEMA explains the scope of its 
analysis is limited to impacts from affected projects in the initial 10 
years. The commenter questioned the validity of the analysis under the 
assumption that the analysis relied on a sample of a larger set and 
recommended that FEMA coordinate with water resource agencies for 
additional data on elevation and floodproofing.
    FEMA Response: This commenter is misinterpreting the footnote. The 
footnote is explaining why FEMA has limited the analysis to impacts 
from projects in only the initial 10 years of the rule's 
implementation. It is not saying that the cost analysis is relying on a 
sample (the first ten years of implementation) of a larger set (the 
period of time in which the regulation would be in effect) as 
suggested.
    Comment: One commenter wrote that the rule increased the efficiency 
and financial benefits of Federal investments and that it would be 
irresponsible to continue spending taxpayer dollars based on a 
backwards-looking assessment of flood risk. The commenter agreed with 
FEMA's assessment that the benefits of the rule justified the rule's 
costs. The commenter requested FEMA provide a more comprehensive and 
accurate accounting of benefits in the RIA and quantify and monetize a 
wider range of benefits, although the commenter did not provide any 
specific suggestions for doing so. The commenter noted that many of the 
RIA's unquantified benefits were of profound importance to communities 
and families residing in the floodplain, including lives saved, access 
to evacuation routes and essential services, better long-term health 
outcomes, and reduced recovery times. Additionally, the commenter 
recommended FEMA

[[Page 57007]]

place greater emphasis on describing, quantifying, and monetizing the 
benefits of conserving floodplains and wetlands and encouraging nature-
based solutions. Finally, the commenter suggested FEMA consider a more 
nuanced approach to the final rule's distributional effects by 
assessing how the rule's benefits might be distributed across 
populations.
    FEMA Response: While monetizing the reduction in damages that is 
anticipated from the rule would be a useful way to show the rule's 
benefits, not all of the benefits can be effectively monetized with 
available data. FEMA thoroughly researched methods to quantify and 
monetize as many benefits as possible for the proposed rule but did not 
find adequate sources to reliably quantify or monetize most benefits. 
FEMA continues to research methods and data for quantifying benefits, 
but since publication of the proposed rule, has not found data sources 
that would enable FEMA to further quantify the benefits of incremental 
amounts of freeboard. In addition, FEMA did not receive any data or 
methods from commenters that would allow FEMA to quantify what it found 
to be unquantifiable impacts. Accordingly, consistent with direction by 
OMB Circular A-4 for costs and benefits that are difficult to quantify, 
FEMA provided a literature review of relevant benefits that could be 
realized from flood mitigation, an analysis of benefits quantified for 
the rule, a qualitative description of additional benefits that could 
be realized from the rule, and a discussion of why FEMA was unable to 
quantify such benefits.
    Regarding the commenter's recommendation to assess how the rule's 
benefits might be distributed across populations, FEMA agrees that 
ensuring equal access to FEMA funding for PA, IA, and HMA projects is 
important. The projects affected by this rule will be a subset of--only 
new construction or substantial improvement--projects currently funded 
through these programs. Accordingly, current FEMA initiatives address 
these concerns. For example, FEMA has an agency-wide initiative focused 
on reducing barriers and increasing opportunities so all people, 
including those from vulnerable and underserved communities, can get 
help when they need it. Additionally, FEMA reviews all proposed FEMA-
funded actions for potential disproportionate and adverse human health 
and environmental effects on communities with environmental justice 
concerns using a standardized environmental justice compliance review 
process.
5. Benefit Cost Analysis (BCA)
    Comment: A commenter sought clarification of the term ``cost-
effective'' within the RIA.
    FEMA Response: FEMA added the definition of cost-effectiveness used 
within the RIA as ``any alternative or measure whose discounted 
benefits are greater than its discounted costs'' within the RIA to 
clarify this. FEMA acknowledges that it is possible define cost-
effectiveness as ensuring the most efficient use of a given amount of 
resources, but notes that the definition in the RIA is consistent with 
BCA principles applicable to some FEMA grant programs.
    Comment: A commenter stated that the gross omissions in the ``BCA'' 
render it useless, if not misleading as a BCA. The commenter referenced 
guidelines at both 40 CFR 1502.22 and Chapter III of Principles, 
Requirements and Guidelines for Water and Land Related Resources 
Implementation Studies (PR&G). The commenter did not provide data that 
would allow FEMA to fill the stated ``omissions.''
    FEMA Response: The commenter appears to be using the term ``BCA'' 
to refer generally to FEMA's regulatory impact analysis pursuant to 
E.O. 12866 and comparing the analysis to NEPA guidelines and PR&G. To 
the extent the commenter is referring generally to FEMA's regulatory 
impact analysis, FEMA recognizes that it has limitations based on 
available data, and provided qualitative analysis where it could not 
complete a quantitative analysis. OMB Circular A-4--the operating 
guidance for regulatory analysis conducted pursuant to E.O. 12866--
acknowledges that it may not be possible to express in monetary units 
all of the important benefits and costs.\272\ Circular A-4 directs that 
if monetization is not possible, agencies should explain why and 
present all available quantitative information, and if agencies are not 
able to quantify the effects they should also present a description--
along with strengths and limitations--of the unquantified effects.
---------------------------------------------------------------------------

    \272\ OMB Circular A-4, Regulatory Analysis, September 17, 2003, 
pages 33-34. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------

    FEMA adhered to this guidance. Although FEMA could not estimate the 
cost of the rule for facilities due to the highly project-specific 
nature of facilities projects, and the numerous options for making them 
resilient, FEMA was able to quantify the number of impacted facilities 
and explained why monetization was not possible. FEMA was unable to 
estimate the number of projects that would use each FFRMS approach per 
FEMA's policy, and so FEMA conducted an analysis assuming each FFRMS 
approach was the only one to demonstrate the range of possible costs. 
For benefits, FEMA acknowledged that the quantified estimates--where 
data allowed for quantification--represent only a portion of the 
increased risk reduction that will be achieved through this rule and 
discussed qualitatively other important benefits of the rule. When 
considering the total costs of the rule, FEMA noted that its choice of 
CISA as its preferred approach will use the best available and 
actionable scientific data to tailor future flooding risk to each 
project, ensuring that projects are built only to the elevation 
necessary and thus maximizing net benefits.
    Comment: A commenter stated that the RIA did not comply with 
Circular A-4's requirements to present the net benefits for the 
different alternatives and provide a threshold or incremental analysis 
supporting the selection of FEMA's preferred alternative.
    FEMA Response: As discussed above, Circular A-4 acknowledges that 
it may not be possible to express in monetary units all of the 
important benefits and costs. It notes that when important benefits and 
costs cannot be expressed in monetary terms, the calculation of net 
benefits is less useful, and ``can even be misleading,'' because in 
such cases, the calculation of net benefits do not provide a full 
evaluation of all of the relevant benefits and costs. Instead, Circular 
A-4 advises that in such circumstances agencies should exercise 
``professional judgment'' in determining how important the non-
quantified benefits and costs may be in the context of the overall 
analysis.\273\
---------------------------------------------------------------------------

    \273\ OMB Circular A-4, Regulatory Analysis, September 17, 2003, 
page 10. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------

    As the commenter points out, Circular A-4 acknowledges that 
agencies ``should also consider conducting a threshold analysis to 
understand the potential significance of these factors to the overall 
analysis.'' FEMA considered including a threshold analysis, but such an 
analysis still would not have provided insight into the difference 
between the benefits of CISA, FVA, and 0.2PFA as data available to 
estimate quantitative benefits was limited to only one foot of 
freeboard for PA structure projects. The difference in unquantified 
impacts between the FFRMS approaches would result in comparison of 
thresholds comprising different sets of impacts. Accordingly, FEMA used 
its

[[Page 57008]]

professional judgment to determine that CISA is the best policy 
decision because it is meant to ensure that amount of additional flood 
protection for each project is determined by the best available, 
actionable hydrologic and hydraulic data and methods that integrate 
current and future changes in flooding based on climate science.
    Comment: A commenter stated that the FFRMS RIA does not comply with 
the requirements for a Cost-Effectiveness Analysis (CEA) as detailed in 
OMB Circular A-4.
    FEMA Response: FEMA recognizes it has limitations in the available 
data and agrees the RIA was not intended to be a CEA, as defined by OMB 
Circular A-4. FEMA notes that OMB Circular A-4 provides agencies with a 
choice of analytical approaches for regulatory analysis and does not 
require agencies to perform a CEA.\274\ As mentioned above, FEMA 
provided qualitative analysis where it could not complete a 
quantitative analysis, as allowable under OMB Circular A-4. FEMA was 
unable to conduct a CEA because FEMA only had data available to 
estimate quantitative benefits of only 1 foot of freeboard for 
structures under the PA program. FEMA did not have data available to 
conduct the same quantitative analysis for projects under the IA and 
HMA grant programs or for additional levels of freeboard as applicable 
under each of the FFRMS approaches. Therefore, FEMA completed a Benefit 
Cost Analysis as it is more appropriate for this rulemaking given the 
wide range of unquantifiable benefits expected to accrue from each 
alternative.
---------------------------------------------------------------------------

    \274\ OMB Circular A-4, Regulatory Analysis, September 17, 2003, 
pages 9-10. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------

6. Other RIA Comments
    Comment: FEMA requested public comment on any available data, 
examples showing the costs of similar resilience measures, case 
studies, or other relevant information that would assist FEMA in 
estimating the magnitude of the impact of the FFRMS on specific types 
of facilities. A commenter recommended contacting the ``four water 
resource agencies'' identified as ``USACE, BuRec, DOE-TVA, and NRCS,'' 
to what information in their current databases or relevant studies 
might be useful.
    FEMA Response: FEMA appreciates this suggestion. FEMA has engaged 
with the U.S. Army Corps of Engineers (USACE), the Bureau of 
Reclamation (BuRec), the Tennessee Valley Authority (TVA),\275\ and the 
National Resources Conservation Service (NRCS), and none of the 
agencies had relevant data or studies in relation to facilities that 
FEMA could use for this economic analysis. While such agencies--like 
FEMA--have access to some information on making facilities more 
resilient to flooding,\276\ it is still not possible to use this 
information to generate estimates of the likely marginal cost of FFRMS 
implementation across FEMA-funded facility projects. The variety of 
projects, and unique characteristics of construction and repair of 
these projects does not allow FEMA to make estimates that can be 
broadly applied.
---------------------------------------------------------------------------

    \275\ FEMA assumed the reference to DOE-TVA is to the Tennessee 
Valley Authority although FEMA notes that TVA is not a component of 
the Department of Energy.
    \276\ For example, USACE has a suite of resources on its website 
related to its implementation of CISA in its Civil Works Programs 
which detail how project delivery teams must consider the effects of 
sea level change when formulating, selecting, and evaluating project 
alternatives, and how to characterize potential project 
vulnerabilities to the effects of climate change on inland 
hydroclimatology. See https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/. 
However, this information did not include relevant data that FEMA 
could use in its economic analysis related to the costs of 
implementation for facilities.
---------------------------------------------------------------------------

    Comment: A commenter stated that the RIA is subject to the 
Principles and Requirements for Federal Investments in Water Resources 
March 2013. The commenter stated the RIA was inconsistent with the 
requirements of that document and supporting PR&G. Specifically, the 
commenter stated the RIA did not make any representation as to any 
alternatives that maximize public benefits relative to costs and failed 
to provide any representation of net public benefits. The commenter 
also stated the preferred alternative was not clearly defined and the 
commenter recommended FEMA disclose assumptions made and address 
uncertainties associated with the composition of the preferred 
alternatives consistent with the PR&G.
    FEMA Response: As explained above, the PR&G does not generally 
apply to this rulemaking; rather, the PR&G applies to actions 
associated with water development projects. FEMA will apply the PR&G 
only to those specific actions under part 9 that are actions associated 
with a water development project.
    Comment: One commenter noted that the baseline against which FEMA 
assessed the costs and benefits of this rule produced a ``subjective 
assessment of the proposed rule's costs and benefits.'' Specifically, 
the commenter stated that because FEMA said it was unable to conduct an 
analysis of the rule's effects separate from the effects of FEMA's 
recently implemented partial interim policies for Public Assistance 
(PA) and Hazard Mitigation Assistance (HMA) that the pre-guidance 
baseline it used was a ``less-representative'' analysis of the rule's 
costs and benefits.
    FEMA Response: FEMA conducted its analysis under the pre-guidance 
baseline that considered the holistic effects of the partial interim 
policies for PA and HMA, as well as the proposed rule. At the time the 
Notice of Proposed Rulemaking (NPRM) RIA was conducted, these partial 
implementation policies had been in place for less than 2 years, which 
is an insufficient period to provide adequate data for analysis. These 
policies were issued as temporary, partial implementation of the FFRMS 
until FEMA could implement it through this rulemaking. FEMA conducted 
the Regulatory Impact Analysis against a pre-statutory baseline to 
capture the economic impacts of the FFRMS and more accurately measure 
the impacts of the rule against the world without the interim PA and 
HMA policies. Therefore, FEMA was unable to complete an in-depth 
analysis of the impact of these interim policies. Accordingly, FEMA 
used a pre-guidance baseline for this final rule to measure the impacts 
of the rule against the world without the interim PA and HMA policies.
    Comment: A commenter provided several clarification edits.
    FEMA Response: FEMA thanks the commenter for these suggestions. 
FEMA has added these clarifications to the RIA and updated the language 
as suggested.
    Comment: A commenter suggested rounding dollar figures to an 
appropriate level of significance.
    FEMA Response: FEMA appreciates this suggestion. FEMA adjusted the 
figures in the analysis, where feasible and appropriate.
    Comment: A commenter stated that for the CISA floodplain analysis, 
the mid-point of +1' and +10' is +5.5' would round to 6'. They 
recommend against characterizing the +5-ft CISA level as the mid-point.
    FEMA Response: FEMA updated the RIA to clarify this was rounded 
down to 5-ft.
    Comment: A commenter recommended deleting the ``minimum, moderate, 
and maximum'' for the SLR qualifiers throughout the document as the 
reader could come to a misunderstanding that the totality of the range 
for SLR rise is encompassed by the 8'' and 59'' figures.

[[Page 57009]]

    FEMA Response: FEMA removed the terms minimum, moderate and maximum 
from 8-inch, 36-inch, and 59-inch, respectively as suggested.
    Comment: A commenter stated that a footnote in the Executive 
Summary of the RIA could be misleading, as it stated that ``the United 
States has suffered more than $1.7 trillion in flood-related damages 
over an approximately 40-year period.'' The commenter noted that FEMA 
included tropical cyclones as a flood-related damage and stated that 
tropical cyclones entailed substantial wind making the $1.7 trillion 
figure potentially misleading.
    FEMA Response: FEMA clarified within the footnote that severe 
storms can include wind-related damages, but the data does not separate 
these damages out.
    Comment: A commenter sought clarification on the use of ``Federal 
Investments,'' stating that FEMA's use of the term might encompass 
actions taken by other agencies such as water resource agencies.
    FEMA Response: FEMA's rule only applies to projects it funds under 
its grant programs. All other Federal agencies will implement the FFRMS 
using their own processes and procedures. FEMA made clarifications in 
the RIA to clarify use of the term ``federal investments.''
    Comment: A commenter suggested editorial changes to refer to 
``9.11'' as 44 CFR 9.11 as it was unclear when it is standing alone.
    FEMA Response: FEMA appreciates this clarification. FEMA made this 
change to 44 CFR 9.11.
    Comment: A commenter suggested editorial changes to Table ES-14.
    FEMA Response: FEMA appreciates this suggestion. FEMA edited the 
RIA to reflect the commenter's requested changes.
    Comment: A commenter corrected miscited footnotes.
    FEMA Response: FEMA appreciates this suggestion. FEMA updated the 
footnotes as suggested by the commenter.
    Comment: A commenter suggested removing page reference within a 
footnote as the footnote did not address avoided loss as stated in the 
RIA.
    FEMA Response: FEMA typically includes a page number so that the 
readers can easily find the referenced source. FEMA updated the page 
citation to properly reflect the location in the document.
    Comment: A commenter suggested reconciliation of different 
statements in the text in the bottom paragraph on page 17, Table ES-1, 
and the text in the second paragraph in the RIA regarding how FEMA 
analyzed the impact of each FFRMS expansion option as they are not 
consistent with one another.
    FEMA Response: FEMA appreciates this suggestion. FEMA edited the 
document for consistency as suggested.
    Comment: A commenter recommended re-titling Table ES-1 within the 
RIA since it was not consistent with its introductory text in the last 
paragraph on page 17.
    FEMA Response: FEMA appreciates this suggestion. FEMA clarified the 
title to table ES-1.
    Comment: A commenter recommended editorial changes to Table ES-3 
within the RIA so that the rows were properly aligned.
    FEMA Response: FEMA appreciates this suggestion. FEMA corrected 
this for the final rule.
    Comment: A commenter recommended making editorial changes to the 
RIA and to use quotations around statements that were verbatim from an 
outside source.
    FEMA Response: FEMA appreciates this suggestion. FEMA has gone 
through the document and made the recommended changes.
    Comment: A commenter recommended FEMA edit a statement of present 
values, as present values are discounted by definition.
    FEMA Response: FEMA appreciates this suggestion. FEMA removed the 
term undiscounted from the benefit statements for clarity purposes.
    Comment: A commenter recommended FEMA edit the RIA to avoid 
confusion between discount rates and annual increases, providing an 
example within the Executive Summary of the RIA.
    FEMA Response: FEMA clarified the wording to prevent confusion on 
the discount rates with annual increases.
    Comment: A commenter pointed out inconsistency with the annualized 
CISA costs within Table ES-13 and ES-14.
    FEMA Response: FEMA updated all of the costs for the final rule and 
reconciled this discrepancy.
    Comment: A commenter requested FEMA delete an introductory sentence 
in RIA section 6.14 that states flooding is ``by far the most common 
natural disaster type in the United States.'' \277\ The commenter noted 
that NOAA distinguishes flooding as a category separate from tropical 
cyclones and storms which were both identified as having greater 
frequencies than flooding. The commenter also opined that storm damages 
are more properly associated with wind damage than with flooding.
---------------------------------------------------------------------------

    \277\ FEMA-2023-0026-0018.
---------------------------------------------------------------------------

    FEMA Response: FEMA appreciates the commenter's concerns and 
deleted the sentence. Categorizing and calculating damage for different 
disaster types can be quite complex; however, the methodology set forth 
in the benefits section of the RIA is not dependent on resolution of 
these complexities. Further, it is not necessary to prove that flooding 
is the most common natural disaster type to state, as FEMA has in 
section 6.14 of the RIA, that there are benefits to mitigating against 
flooding.
    Comment: A commenter requested rationale on why FEMA selected a 10-
year period for the RIA. The commenter also recommended FEMA change 
language in the RIA to state that the agency limited the dollar-
valuation to the projects impacted in the first 10 years following the 
rule's publication or expand the analysis to reflect economic concerns 
over the expected life of the regulation. The commenter stated 
additional discussion was needed regarding future effects and provided 
a number of questions around those effects including whether 
development within the floodplain would be progressively more likely to 
be diverted outside the floodplain over time and whether the costs of 
elevating or floodproofing would be expected to decline over time in 
real terms as contractors and architects adapt to the new requirements. 
The commenter asked whether it would be most appropriate to simply 
state that the first 10 years of the analysis was viewed as being a 
sample for the entire period or if the use of the maximum 8.5 RCP and 
the 59-inch SLR indicated a 50-year life for the regulation was 
suspected and that a shorter period of analysis was in order.
    FEMA Response: FEMA appreciates the commenter's concerns regarding 
the analysis period. FEMA has clarified language throughout the RIA to 
further address the commenter's concerns. FEMA conducted the regulatory 
analysis using its standard 10 years of historical data and, based on 
this data, estimated the number of affected projects for the first 10 
years after implementation of the rule. Circular A-4 directs that the 
timeframe for an agency's analysis ``should cover a period long enough 
to encompass all the important benefits and costs likely to result from 
the rule.'' FEMA believes estimating the number of affected projects 
over the initial 10 years and benefits over their 50-year useful life 
captures all the important benefits (protection from flooding) and 
costs (construction costs) likely to result from

[[Page 57010]]

the rule because FEMA does not expect a change in the types of costs or 
benefits after this time period. FEMA acknowledges that flooding is 
widely expected to increase in frequency and severity in the 
future,\278\ so estimating the number of affected projects and their 
associated benefits farther into the future would become increasingly 
inaccurate as conditions change and the expected frequency and severity 
of disasters increases. However, due to increased flooding frequency 
and severity, FEMA believes that the benefits of increasing the 
protection of structures in the future is expected to continue to 
justify the cost of doing so beyond the 10-year timeframe that FEMA 
used for this analysis.
---------------------------------------------------------------------------

    \278\ The Third National Climate Assessment. https://nca2014.globalchange.gov, (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------

    Regarding other future effects such as diversion of projects 
outside of the floodplain, FEMA notes that this is discussed within the 
RIA in the Qualitative Discussion of Additional Potential Costs 
section. The effect of the rule could be to divert some projects out of 
the floodplain. However, it is not possible to state with a reasonable 
degree of certainty how many projects this will affect, or the costs or 
benefits associated with diverting these projects out of the 
floodplain, as FEMA does not currently track this information. The 
costs and benefits, and the decision to build inside or outside of the 
floodplain, will be dependent on the specific location or 
characteristics of a property or project.
    Comment: A commenter stated that they could not find the ``2022 
Benefits Analysis of Increased Freeboard for Public and Nonresidential 
Buildings in Riverine and Coastal Floodplains'' file at regulations.gov 
under docket ID FEMA-2023-0026.
    FEMA Response: FEMA verified that all of the supporting documents 
were listed on the site during the comment period, including the report 
referenced.\279\
---------------------------------------------------------------------------

    \279\ FEMA, A Benefits Analysis of Increased Freeboard for 
Public and Nonresidential Buildings in Riverine and Coastal 
Floodplains, July 2002, available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
---------------------------------------------------------------------------

    Comment: A commenter pointed out confusion with the footnote ``25 
FEMA's project level data for IA, PA, and HMA delineate whether 
projects are in the Special Flood Hazard Area (1 percent annual chance 
floodplain) but do not show whether they are in the 0.2 percent chance 
floodplain'' because FIRMs characteristically identify both the 1 
percent annual chance floodplain and the 0.2 percent annual chance 
floodplain.
    FEMA Response: FEMA agrees that the 0.2 percent annual chance 
floodplain, in locations where that floodplain is mapped, is available 
on FIRMs. However, the data availability issue noted in the footnote is 
that FEMA's project databases (e.g., IA, PA, HMA) do not include FIRM 
data, so FEMA is not able to accurately determine whether a project is 
in the 0.2 percent chance floodplain. FEMA's project level data only 
indicate whether a project is located in the SFHA in most cases. 
Project databases do not contain accurate geolocation data, and 
addresses on file are for the recipient's address, which may not be the 
project location, so FEMA was unable to locate projects on a FIRM, or 
determine which flood zone a project was located in.
    Comment: A commenter stated that FEMA's preferred policy approach 
is not clearly defined, as it consists of an unidentified mixture of 
CISA, FVA, and 0.2PFA, which requires the reader to speculate and make 
assumptions about the composition in order to draw conclusions. The 
commenter suggested FEMA discuss the uncertainty associated with the 
composition of the FFRMS approaches that comprise FEMA's preferred 
policy approach.
    FEMA Response: FEMA selected CISA as the preferred policy approach, 
since FEMA believes it has the potential to be the best and most well-
informed approach to building resilience in an equitable manner and 
ensuring a reduction in disaster suffering. CISA is designed to meet 
current and future estimates of flood risks unique to the location and 
thus provide the best overall resilience, cost effectiveness, and 
equity. FEMA added clarification on what the primary approach is 
earlier in the RIA.
    FEMA acknowledges that its policy--which requires use of FVA and 
0.2PFA when CISA data are not available and actionable--will result in 
an unknown mixture of projects using CISA, FVA, and 0.2PFA. OMB 
Circular A-4 suggests using central estimates ``where such information 
exists'' but authorizes the use of upper and lower bounds where it does 
not, together with any available information that might help in 
qualitatively determining which scenario is most likely to occur. FEMA 
conducted its analysis to consist of a range of potential costs, 
benefits, and transfers. FEMA analyzed the impact of the FVA, 0.2PFA, 
and CISA for each of the programs, PA, IA, and HMA, as if each approach 
were the only FFRMS expansion option. FEMA discussed that because the 
composition of applied FFRMS approaches will continue to change with 
the addition of CISA data over time, there is significant uncertainty 
in any such estimates. Accordingly, FEMA estimated the costs of the 
requirements for each of the approaches separately to create upper and 
lower bounds estimates of the possible outcomes. In addition, as 
discussed above, FEMA presents CISA as the primary estimate for the 
impacts of the rule because it is FEMA's preferred FFRMS approach and 
therefore, over time, it will become the most widely used FFRMS 
approach.
    Comment: A commenter disagreed with FEMA's statement about how 
``RCP 4.5 and 8.5 are widely accepted scenarios that represent medium 
and low efforts to curb emissions, respectively.'' They suggested 
better explaining the definitions of RCP 4.5 and 8.5 based on the EPA's 
language about RCPs.
    FEMA Response: FEMA appreciates this suggestion. FEMA updated the 
use of RCP 4.5 and 8.5 and the definitions for the Final Rule RIA.
    Comment: A commenter suggested explaining the terms ``low 
estimate'' and ``high estimate'' earlier in the RIA. They also 
suggested that instead of using a range, FEMA should present a best 
estimate for these values and discuss the uncertainty associated with 
such values in the Risk and Uncertainty section of the document. They 
also requested a sensitivity analysis showing how the decision might be 
affected if the values used proved to be unduly high or low. The 
commenter suggested that because of the number of variables 
contributing to the ranges (e.g., discount rate, high and low), the 
presentation of information would be clearer if single, best-estimate, 
rounded values were used in the analysis.
    FEMA Response: OMB Circular A-4 suggests using central estimates 
``where such information exists'' but authorizes the use of upper and 
lower bounds where it does not. In the instances where FEMA uses a 
range, it is because FEMA does not have adequate justification for a 
single best estimate. FEMA conducted its analysis to consist of a range 
of potential costs, benefits, and transfers. For example, as discussed 
above, FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for each 
of the programs, PA, IA, and HMA, as if each approach were the only 
FFRMS expansion option because it is unknown exactly how many projects 
will be subject to the FVA, 0.2PFA, or CISA requirements under the 
final rule, and how use of CISA will change as more data become 
available over time. Because FEMA analyzed each approach

[[Page 57011]]

separately, it is unable to provide a primary estimate, and instead had 
to rely on a range of possible impacts. In addition, FEMA does not have 
data to estimate whether certain non-residential new construction 
projects will elect to floodproof or elevate and therefore also used a 
range for the cost of meeting the rule's increased construction 
standards.
    FEMA appreciates that the presentation of the range of impacts may 
not be as clear as a single point estimate. FEMA presents this 
information in tables, to help more clearly convey the information, and 
has also reviewed the language and streamlined for increased clarity.
    Comment: A commenter provided editorial suggestions to the 
statement: ``CISA is the only approach that ensures projects are 
designed to meet current and future flood risks unique to the location 
and thus provides the best overall resilience, cost effectiveness, and 
equity.'' The commenter suggested the claim that CISA makes such an 
assurance is an overstatement of the risk reduction from the CISA.
    FEMA Response: FEMA appreciates this suggestion. FEMA accepted this 
change in part: ``CISA is designed to meet current and future estimates 
of flood risks unique to the location and thus provide the best overall 
resilience, cost effectiveness, and equity.''
    Comment: A commenter provided suggested edits to FEMA's statement 
regarding whether the action was a significant regulatory action under 
Executive Order 12866, as amended by Executive Order 14094.
    FEMA Response: This is standard language that FEMA uses in RIAs. 
FEMA provided footnotes to this statement clarifying the relevant 
sections of Executive Order 12866.
    Comment: A commenter recommended presenting the CISA-only analysis 
as an alternative or explaining why it was found to be unreasonable and 
including it in the section of the document on alternatives considered 
but not selected. If FEMA found a CISA-alone approach to be 
unreasonable, the commenter recommended changing all blanket statements 
in the document that describe CISA as the best approach for achieving 
overall resilience, cost effectiveness, and equity.
    FEMA Response: The CISA is one of three approaches available under 
the FFRMS, and FEMA's preferred approach. However, because the CISA 
data is not available nationwide, a CISA-only approach is not currently 
feasible, and other FFRMS approaches are needed for areas where the 
CISA is not available. FEMA's implementation of the FFRMS allows for 
the use of the most appropriate approach depending on the data 
available for a given project. Although FEMA estimated the impacts of 
the CISA for affected programs as if it were the only FFRMS expansion 
option, just as it did for the FVA and 0.2PFA, FEMA was unable to use 
actual CISA estimates, as they are not yet available nation-wide and 
instead used an estimate. As the CISA data becomes more available, FEMA 
expects it to be the more widely-adopted. FEMA made clarifying edits to 
statements describing the CISA as the preferred approach.
    Comment: A commenter encouraged FEMA to consider implications of 
FEMA's FFRMS policy on benefit-cost analyses for flood mitigation 
assistance grants.
    FEMA Response: FEMA appreciates the commenter's concerns. FEMA's 
FFRMS policy will generally not change BCA requirements for FEMA 
programs. Certain Hazard Mitigation Assistance programs and Public 
Assistance projects are subject to a Benefit-Cost Analysis prior to 
approval, where the mitigation action must be determined to be cost-
beneficial using FEMA's BCA tool. For FEMA's FMA program, the costs of 
additional elevation above the base flood elevation will be considered 
as part of the BCA. Currently, the BCA tool includes pre-calculated 
benefits that streamline the cost-effectiveness determination for 
structure elevation projects are limited to structures where some part 
of the structure is within the 1 percent annual chance floodplain. For 
an elevation project where the entire structure footprint is outside 
the 1 percent annual chance floodplain, FEMA will also require a BCA to 
show cost-effectiveness. For FEMA's PA program, cost-effectiveness 
requirements apply only to Hazard Mitigation measures on projects to 
restore disaster damaged structures and facilities. FEMA notes that any 
increased costs are generally eligible for funding under FEMA's 
assistance programs subject to cost share requirements. FEMA 
acknowledges that FFRMS requirements may impact individual BCA results, 
with the potential to cause some projects to pass that otherwise 
wouldn't, and vice-versa, but is not able to predict this for future 
individual projects because project-level analysis is not generalizable 
nationwide. For structures, FEMA estimates the marginal cost of 
implementing FFRMS to be relatively low, ranging from 0.32 percent (1 
foot of elevation for new construction) to 8.07 percent (4 feet of dry 
floodproofing for a building retrofit) of total project cost, depending 
on the elevation required and the type of project. Given available 
evidence showing relatively small costs and even positive increases in 
Benefit-Cost Ratio in connection with additional elevation for studied 
residential buildings, FEMA does not expect FFRMS requirements to 
adversely affect the BCR for a large volume of 
projects.280 281
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    \280\ National Institute of Building Sciences. Multi-Hazard 
Mitigation Council. ``Natural Hazard Mitigation Saves.'' 2019. 
https://www.nibs.org/files/pdfs/NIBS_MMC_MitigationSaves_2019.pdf 
(last accessed Apr. 29, 2024). See, for example, Table 5: BCRs for 
various heights above BFE for new coastal V-zone buildings and Table 
2-2: Summary BCR results for sampled counties susceptible to 
riverine flooding.
    \281\ A Benefits Analysis of Increased Freeboard for Public and 
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA. 
Draft, July 2022, pg. 16, available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
---------------------------------------------------------------------------

    Comment: A commenter questioned the baseline data used for the 
floodplain expansion analysis in Appendix A. The commenter stated that 
FEMA should have compared the 1' freeboard measured to the ``Effective/
Preliminary 1 percent annual chance floodplain'' instead of the 
``replotted'' 1 percent annual chance floodplain.
    FEMA Response: The goal of the floodplain expansion analysis 
performed by FEMA is to estimate the number of additional projects that 
would be affected by a requirement for a higher vertical elevation, and 
thus horizontal expansion, of the floodplain. When FEMA calculated the 
FFRMS floodplains for different freeboard values, FEMA used the latest 
high-accuracy ground elevation data. The original 1 percent annual 
chance floodplain boundaries were likely calculated using older ground 
elevation data. For consistency, FEMA compared the FFRMS freeboard-
based floodplains to a 1 percent annual chance floodplain redrawn using 
the new ground elevation data. This approach provides the most 
consistent comparison of the difference in area between the 1 percent 
annual chance floodplain and the FFRMS floodplain (i.e., specific 
levels of freeboard added to the 1 percent annual chance flood 
elevations). This approach does not account for differences between the 
redrawn 1 percent annual chance floodplain boundaries and the original 
1 percent annual chance floodplain boundaries. Since the goal is to 
produce a statistical estimate of the impact of freeboard, FEMA assumed 
the differences between the original 1 percent annual chance boundaries 
and the redrawn 1 percent annual chance boundaries would be largely 
random and not essential to the goal of the estimate.
    Comment: A commenter assessed that FEMA's statements that a study 
upon

[[Page 57012]]

which it relied considered various levels of SLR ``by 2100'' is 
problematic, as the study does not extend as far as the year 2100, and 
it actually only extends some 60 years into the future. The commenter 
sought clarification.
    FEMA Response: FEMA would like to distinguish between the coastal 
and riverine flood studies used within the 2022 Report.\282\ The 
riverine analysis considered two climate change scenarios to evaluate 
the amount of increase or decrease in riverine flood elevations over 
the next 50 years. These evaluated two widely accepted scenarios of the 
Representative Concentration Pathways (RCP) 4.5 and 8.5, which 
represent medium and low efforts to curb emissions.
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    \282\ A Benefits Analysis of Increased Freeboard for Public and 
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA. 
Draft, July 2022, pg. 16, available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
---------------------------------------------------------------------------

    The coastal study within the 2022 Report considered 12 different 
locations along a hypothetical coastal transect to evaluate the impact 
of various wave conditions in Zone A (areas with wave heights less than 
1.5 feet) subject to coastal storm surge. The sea level rise conditions 
replicated a 2016 evaluation considered 8-inch, 20-inch, 39-inch, and 
59-inch sea level rise by 2100.\283\ The sea level rise assumptions are 
explained in the 2022 report. Specifically, when evaluating the 
increases in flood depths, the rise scenarios were considered in 10-
year increments from 2022 to 2100, but the evaluation of the benefits 
is limited to the 50-year useful life of a project (i.e., from 2022-
2072). The assumed increase in flood depths is shown in Table 1 of the 
report in 10-year increments.
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    \283\ FEMA, 2016 Evaluation of the Benefits of Freeboard for 
Public and Nonresidential Buildings in Coastal Areas. Available at: 
https://www.regulations.gov/document/FEMA-2015-0006-0379.
---------------------------------------------------------------------------

    Consistent with FEMA's BCA guidance,\284\ FEMA selected the 50-year 
project useful life which is the timeframe evaluated to determine the 
cost-effectiveness for a public building and is consistent with the 
assumption in the FEMA BCA Toolkit. FEMA's analysis focuses on the 
costs, benefits, and transfer payments (i.e., impacts on FEMA grants), 
that will result over a 50-year period from the application of the 
requirements of the final rule to those projects, for a total period of 
analysis spanning 60 years. For example, if a structure is built in 
Year 10, the analysis covers 50 years of costs, benefits, and transfers 
for that structure starting in Year 10. However, if a structure is 
built in Year 11, that is outside of the first 10 years, and so the 
analysis does not consider the costs, benefits, or transfers of the 
FFRMS requirements on that structure.\285\
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    \284\ BCA Reference Guide, Appendix D. Project Useful Life 
Summary (June 2009). Available at: https://www.fema.gov/sites/default/files/2020-04/fema_bca_reference-guide.pdf (last accessed 
May 15, 2024).
    \285\ If FEMA limited the analysis to only 10 years of impacts, 
it would consider all of the costs and transfers but only a small 
portion of the benefits from additional protection from flood events 
because the life of the structure is more than 10 years. After year 
10, the final rule would continue to impact FEMA projects funding 
new construction, substantial improvements or repairs to fix 
substantial damage. To estimate the future number of impacted 
structures, FEMA used the average number of projects that would have 
been affected by this rule had it been in place over the past 10-
year period, assuming the next 10 years would look largely like the 
past 10 years. FEMA chose to limit the analysis to 10 years of 
affected structures because estimating the number of affected 
projects and their associated benefits further into the future--that 
is, further from historical disaster data would become less accurate 
as conditions change and the expected frequency and severity of 
major disasters increases. Accordingly, FEMA's analysis focuses on 
the 50-year impacts of the rule on projects that take place in the 
initial 10-year period, for a total period of analysis spanning 60 
years.
---------------------------------------------------------------------------

III. Discussion of Changes

    This rule makes changes to the NPRM in response to comments 
received, as well as minor technical edits. Specifically, in Sec.  
9.7(c)(3), FEMA made a clarifying edit by adding the words 
``information from'' before the colon, such that the sentence reads 
``In obtaining the best available information, FEMA may consider other 
FEMA information as well as other available information, such as 
information from:''
    FEMA also edited Sec.  9.7(c)(3)(iv) to include the National Park 
Service as an agency within the Department of the Interior where FEMA 
obtains information. FEMA also edited Sec.  9.7(c)(3)(ix) to include 
Indian Tribal governments; as revised, this paragraph now reads, 
``Agencies of State, Regional, and Indian Tribal governments.'' While 
FEMA always considered Tribal information, the edits further confirm 
the agency's commitment to doing so. The changes made to Sec.  
9.7(c)(3) clarify that FEMA considers certain relevant and appropriate 
data in making the floodplain determination under part.
    FEMA is also making minor technical edits in Sec.  9.7(c)(1)(i)(C) 
and Sec.  9.11(d)(3)(ii). In Sec.  9.7(c)(1)(i)(C), FEMA is adding 
appropriate hyphenation to state ``0.2-Percent-Annual-Chance Flood 
Approach (0.2PFA): The 0.2 percent annual chance flood'' for 
consistency with the Revised Guidelines. In Sec.  9.11(d)(3)(ii), FEMA 
is correcting a grammatical error from ``water tight'' to 
``watertight.''
    FEMA's FFRMS policy is also being finalized with the publication of 
this rule and will be effective with the rule's implementation. FEMA is 
making minor clarifying edits to the FFRMS policy consistent with 
commenters' suggestions by further clarifying the use of the 0.2PFA in 
coastal areas and making other technical edits to the document for 
readability. Specifically, FEMA is making technical formatting and 
grammatical edits on pages 1, 2, 3, 4, 7, 8, and 13. FEMA is adding 
clarifying language in section C. In section C.2, FEMA is eliminating 
the reference to wave action in coastal areas at the end of the 
paragraph. In section C.3.a, FEMA is adding the following clarifying 
text in footnote 14: ``In coastal areas Flood Insurance Rate Maps 
(FIRMs) and Flood Insurance Studies (FISs) provide 1 percent AC flood 
elevations that account for the effects of wave action. However, 0.2 
percent AC flood elevations are generally stillwater elevations that do 
not account for the effects of wave action. In coastal areas, if the 
0.2 percent AC flood elevation does not account for the effects of wave 
action, the FVA flood elevation must be used.'' FEMA is further 
eliminating section C.3.c consistent with these edits. FEMA also edited 
Figure 1 in the FFRMS policy to clarify ``AC'' means ``annual chance'' 
at a commenter's request and reflect the clarifications to C.3 
referenced above. Additionally, FEMA updated section G.2 to reflect 
``Flood Risk Mitigation for Facilities.'' FEMA removed the term ``non-
structure'' in that section because commenters expressed confusion 
about the term.

IV. Regulatory Analyses

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

    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review), and 13563 
(Improving Regulation and Regulatory Review), directs 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 costs 
and benefits, reducing costs, harmonizing rules, and promoting 
flexibility. The Office of Management and Budget (OMB) has designated 
this

[[Page 57013]]

rule a ``significant regulatory action'' as defined under section 3(f) 
of Executive Order 12866, as amended by Executive Order 14094, but it 
is not significant under section 3(f)(1) because its annual effects on 
the economy do not exceed $200 million in any year of the analysis. 
Accordingly, OMB has reviewed this rule.
    This analysis provides an assessment of the potential costs, 
benefits, and transfer payments from the Updates to Floodplain 
Management and Protection of Wetlands Regulations to Implement the 
Federal Flood Risk Management Standard (FFRMS) Final Rule. For further 
detail please refer to the Regulatory Impact Analysis (RIA) in the 
docket accompanying this rule.
    FEMA is amending 44 CFR part 9 Floodplain Management and Protection 
of Wetlands and issuing a supplementary policy \286\ to implement the 
FFRMS and update the agency's 8-step decision-making process used to 
determine whether an action would be located within or affect a 
floodplain, and if so, whether and how to continue with, or modify, the 
action.
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    \286\ The final rule and policy contain content that is 
interrelated but not identical. For purposes of this analysis, FEMA 
considers both documents as a single proposal.
---------------------------------------------------------------------------

    The FFRMS is a flood resilience standard that is required for 
Federally funded projects and provides a flexible framework to increase 
resilience against flooding and to help preserve the natural values of 
floodplains and wetlands. A floodplain is any land area that is subject 
to flooding and refers to geographic features with undefined 
boundaries. FEMA will incorporate the FFRMS into its existing processes 
to ensure that the floodplain for an action subject to the FFRMS is 
expanded from the current 1 percent annual chance (100-year) floodplain 
based on the one percent annual chance elevation \287\ to a higher 
vertical elevation and corresponding horizontal floodplain; and that, 
where practicable, natural systems, ecosystem processes, and nature-
based approaches will be considered when developing alternatives to 
locating Federal actions in the floodplain.
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    \287\ The one percent annual chance elevation refers to the 
elevation to which floodwater is anticipated to rise during the 1 
percent annual chance flood (also known as the base or 100-year 
flood). Under Executive Order 11988, non-critical actions must be 
elevated or floodproofed to at least the one percent annual chance 
elevation (or base flood elevation). Critical actions must be 
elevated or floodproofed to at least the 0.2 percent annual chance 
flood (or 500-year) elevation.
---------------------------------------------------------------------------

    Under current FEMA regulations set out in 44 CFR part 9, the 
floodplain is defined as the 100-year floodplain (1 percent annual 
chance) for non-critical actions and the 500-year floodplain (0.2 
percent annual chance) for critical actions. New construction or 
substantial improvement of structures located in a floodplain must be 
elevated to or above the 1 percent annual chance (100-year) flood level 
or base flood elevation (BFE). For critical actions, the new 
construction or substantial improvement of structures must be elevated 
to or above the 0.2 percent annual chance (500-year) flood level. Non-
residential structures may be appropriately floodproofed rather than 
elevated to meet the applicable flood level.
    This rule will implement the supplemental FFRMS policy in the 
expanded floodplain and codify implementation of the supplemental FFRMS 
policy in the current floodplain. FEMA has interim policies for PA and 
HMA that partially implement FFRMS, as discussed in further detail 
below. Depending on the program, these programs apply the supplemental 
FFRMS policy either to the base floodplain, or to both the 100-year 
(base floodplain) and 500-year floodplain (for critical actions). 
Following guidance in OMB Circular A-4, FEMA assessed each impact of 
this rule against a pre-guidance baseline. The pre-guidance baseline is 
an assessment against what the world would be like if the relevant 
guidance (i.e., the partial interim policies for PA and HMA) were not 
implemented.
    At the time the Notice of Proposed Rulemaking (NPRM) RIA was 
conducted, these partial implementation policies had been in place for 
less than 2 years. These policies were issued as temporary, partial 
implementation of the FFRMS until FEMA could implement it through this 
rulemaking. FEMA conducted this Regulatory Impact Analysis against a 
pre-statutory baseline to capture the economic impacts of the FFRMS and 
more accurately to measure the impacts of the rule against the world 
without the interim PA and HMA policies.
    Under the final rule, the Climate-Informed Science Approach (CISA) 
would result in a flood elevation and corresponding horizontal 
expansion floodplain determination utilizing the best-available, 
actionable hydrologic and hydraulic data and methods that integrate 
current and future changes in flooding based on climate science. The 
CISA is FEMA's preferred policy approach, as FEMA believes it has the 
potential to be the best and most well-informed approach to building 
resilience in an equitable manner and ensuring a reduction in disaster 
suffering. CISA is designed to meet current and future estimates of 
flood risks unique to the location and thus provide the best overall 
resilience, cost effectiveness, and equity. The FFRMS requires FEMA to 
consider the criticality of the action involved, the availability and 
actionability of data, and equity concerns, as further explained in the 
supplementary policy. As actionable climate data are not currently 
available for all locations, FEMA will utilize the Freeboard Value 
Approach (FVA) and 0.2-Percent-Annual-Chance Flood Approach (0.2PFA) 
alternatives in the absence of actionable CISA data. Specifically:
     For critical actions: \288\ FEMA will use the higher of 
the +3-foot FVA floodplain or the 0.2PFA floodplain.\289\ Where the 
0.2PFA data is not available, the +3-foot FVA will be utilized.
---------------------------------------------------------------------------

    \288\ A critical action is any activity for which even a slight 
chance of flooding would be too great. A non-critical action is any 
activity not considered a critical action.
    \289\ For all projects in coastal areas, if the 0.2 percent 
annual chance flood elevations do not account for the effects of 
wave action, the appropriate FVA must be used to determine the FFRMS 
floodplain.
---------------------------------------------------------------------------

     For non-critical actions: FEMA will use the lower of the 
+2-foot FVA or 0.2PFA.\290\
---------------------------------------------------------------------------

    \290\ While application of the 0.2PFA may provide a more 
consistent reduction of flood risk as it is probability based, the 
relationship to the FVA varies depending on topography (i.e., in 
some instances the 0.2PFA may result in a lower flood elevation than 
the FVA). Application of only the 0.2PFA without a comparison to the 
FVA may result in building to a higher resilience standard than is 
necessary.
---------------------------------------------------------------------------

    The floodplain established by the FVA is the equivalent of the 1 
percent annual chance floodplain (also known as the 100-year flood), 
plus either 2 or 3 feet of vertical elevation, as applicable based on 
criticality, and a corresponding increase in the horizontal extent of 
the floodplain. The increased horizontal extent will not be the same in 
every case. When the same vertical increase is applied in multiple 
actions subject to the FFRMS in different areas, the amount of the 
increase in the horizontal extent of the respective floodplains will 
depend upon the topography of the area surrounding the proposed 
location of the action.
    The term 0.2PFA refers to the elevation to which floodwater is 
anticipated to rise during the 0.2 percent annual chance flood (also 
known as the 500-year flood) and the associated floodplain. The 0.2PFA 
generally covers a larger area than the 1 percent annual chance 
floodplain.

[[Page 57014]]

    Projects that are located near a Special Flood Hazard Area 
(SFHA),\291\ but not in it, may be in the FFRMS floodplain. At the time 
the NPRM was published, there were no FEMA products depicting the 
boundary of the FFRMS floodplain. For this reason, FEMA and its 
interagency partners have developed and are continuing to develop 
various tools, including the FFRMS Floodplain Determination Job Aid 
published on FEMA's website and in the public docket with this 
rulemaking and a web-based decision support tool, Federal Flood 
Standard Support Tool (FFSST), that will provide the agency with guides 
to determine which FFRMS floodplain approach has available and 
actionable data, in map form, thus should be used for each project. The 
FFRMS Job Aid helps Federal agencies and their non-federal partners 
(including potential Federal financial aid recipients) conduct a 
screening to determine if a proposed Federally funded action will be 
located within an FFRMS floodplain, based on any of the three 
approaches in accordance with Sec. 2(a)(1) of Executive Order 11988, as 
amended. FEMA will leverage the FFRMS Job Aid for determining the FFRMS 
floodplain when the final rule is implemented. FEMA will continue to 
collaborate across the Federal government to continue to develop the 
FFSST to facilitate the implementation of the CISA and the FFRMS.
---------------------------------------------------------------------------

    \291\ The Special Flood Hazard Area is the area designated on 
FEMA regulatory mapping products depicting a 1 percent annual chance 
floodplain.
---------------------------------------------------------------------------

    FEMA developed a flexible approach to implementing the FFRMS to 
maximize the net benefits--quantified and unquantified--of the rule. 
Floods are expected to be more frequent and more severe over the next 
century due to the projected effects of changing 
conditions.292 293 The ocean has warmed, polar ice has 
melted, and porous landmasses have subsided.\294\ The global sea level 
has risen by about 8 inches since reliable record keeping began in 
1880.\295\ It is projected to rise upwards of 1 to 4 feet by 2100, 
affecting many coastal areas.296 297 298 Floods are costly 
natural disasters; between 1980 and 2022, the United States suffered 
more than $2.0 trillion (in 2022 dollars) in flood-related 
damages.\299\ This final rule will help protect FEMA funded investments 
from future floods and will help minimize harm in floodplains by 
changing the standards used to determine future risk for FEMA-funded 
new construction and substantial improvement, and/or to address 
substantial damage to Federally funded projects.
---------------------------------------------------------------------------

    \292\ National Oceanic and Atmospheric Administration. U.S. 
Department of Commerce. ``Climate change impacts.'' https://www.noaa.gov/education/resource-collections/climate/climate-change-impacts. Last accessed February 15, 2022.
    \293\ U.S. Global Change Research Program (2014). Climate Change 
Impacts in the United States: The Third National Climate Assessment. 
Available at: https://repository.library.noaa.gov/view/noaa/19485. 
Page 20. Last accessed: April 16, 2024.
    \294\ Ibid [page 21].
    \295\ Ibid [page 21].
    \296\ Global Change Research Program (2014). Climate Change 
Impacts in the United States: The Third National Climate Assessment. 
Available at: https://repository.library.noaa.gov/view/noaa/19485. 
Page 20. Last accessed: April 16, 2024.
    \297\ Environmental Protection Agency (EPA). Supplementary 
Material for the Regulatory Impact Analysis for the Supplemental 
Proposed Rulemaking. ``Standards of Performance for New, 
Reconstructed, and Modified Sources and Emissions Guidelines for 
Existing Sources: Oil and Natural Gas Sector Climate Review.'' Page 
36. https://www.epa.gov/system/files/documents/2022-11/epa_scghg_report_draft_0.pdf. Last accessed: September 14, 2023.
    \298\ The EPA uses the Framework for Assessing Changes To Sea-
level (FACTS) and Building Blocks for Relevant Ice and Climate 
Knowledge (BRICK) sea-level rise models for their projections.
    \299\ Climate.gov. ``U.S. billion-dollar weather and climate 
disasters.'' https://www.ncei.noaa.gov/access/billions/summary-stats/US/1980-2022. Last accessed October 31, 2023. Flood related 
damages are from flooding, severe storms, and tropical cyclones. 
Data is CPI adjusted. Severe storms can include wind-related 
damages, but the source does not separate data out by type of 
damage.
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    The requirements of this rule will apply to grants under FEMA 
programs such as Individual Assistance (IA), Public Assistance (PA), 
and Hazard Mitigation Assistance (HMA), as well as grants processed by 
FEMA's Grants Programs Directorate (GPD) (involving grants for 
preparedness activities), for projects funding new construction, 
substantial improvement, or repair of substantial damage. The primary 
focus of this analysis is to estimate the costs and benefits resulting 
from a higher vertical elevation and associated horizontal expansion of 
the floodplain for specific projects paid for with Federal funds. The 
expected impacts of this final rule primarily result from the cost of 
the increase in elevation or floodproofing requirements of structures 
in the FFRMS floodplain. The majority of these costs will be funded by 
FEMA through several grant programs. For the grant programs that have a 
cost-share requirement, FEMA grant recipients typically will bear about 
25 percent of the elevation and floodproofing project costs. 
Additionally, FEMA expects to incur costs for administration of the 
FFRMS requirements, including training FEMA personnel.
    To estimate the number of projects that will be subject to the 
requirements of this rule, FEMA used historical PA, IA, and HMA data. 
First, FEMA estimated the number of past new construction, substantial 
improvement, or repairs to substantial damage projects that are in the 
existing floodplain. Next, FEMA relied upon data from samples of 
floodplain expansion at varying levels of freeboard in inland and 
coastal areas to estimate an average percentage expansion of the 
floodplain under each of the three FFRMS approaches. FEMA then 
multiplied the expansion percentages by the estimated number of 
projects in the current floodplain to estimate the number of projects 
that will be in the expanded floodplain under each of the FFRMS 
approaches.
    To estimate the cost of the FFRMS elevation requirements, FEMA used 
reports from the National Flood Insurance Program (NFIP) to determine 
the increased cost per square foot associated with elevation and 
floodproofing. FEMA presents the costs as a range because of 
uncertainty about whether new construction projects would choose to 
floodproof or elevate.
    Finally, to present the total impacts of the final rule, FEMA 
analyzed the impact of the FVA, 0.2PFA, and CISA for each of the 
programs, PA, IA, and HMA, as if each approach were the only FFRMS 
expansion option. This is because it is unknown exactly how many 
projects will be subject to the FVA, 0.2PFA, or CISA requirements under 
the final rule, as it will continue to change with the addition of CISA 
data over time. Accordingly, FEMA estimated the costs of the 
requirements for each of the approaches separately. This allows FEMA to 
create a range for each approach. FEMA is opting to use this 
methodology because it allows for estimation of the highest and lowest 
probable costs, transfers, and benefits associated with each of the 
FFRMS expansion options for each of the programs.
    FEMA limited its dollar-valuation to the projects impacted in the 
first 10 years after the rule's effective date.\300\ FEMA's analysis 
focuses on the costs, benefits, and transfer payments (i.e., impacts on 
FEMA grants), that will result over a 50-year period \301\ from the 
application of the requirements of the final rule to those projects, 
for a total period of analysis spanning 60 years. For example, if a 
structure is built in Year 10, the analysis covers 50 years of

[[Page 57015]]

costs, benefits, and transfers for that structure starting in Year 10. 
However, if a structure is built in Year 11, that is outside of the 
first 10 years and so the analysis does not consider the costs, 
benefits, or transfers of the FFRMS requirements on that 
structure.\302\ The costs and transfers occur in the first 10 years of 
the 60-year period because that is when the initial investment to 
elevate or floodproof those projects takes place. This is an upfront 
cost that occurs when the project is constructed. However, the benefits 
of the final rule are estimated over the 50-year useful life of the 
affected structures.
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    \300\ FEMA used an average of the number of affected projects 
during the prior 10-year period to estimate the average annual 
impacts of the future 10-year period.
    \301\ The 50-year period is based on the 2022 Report, which 
assumed 50-year useful life for public buildings. Therefore, FEMA 
estimated such benefits over a 50-year period. Please see section 
7.14.2 of the RIA for more information.
    \302\ If FEMA limited the analysis to only 10 years of impacts, 
it would consider all of the costs and transfers but only a small 
portion of the benefits from additional protection from flood events 
because the life of the structure is more than 10 years. After year 
10, the final rule would continue to impact FEMA projects funding 
new construction, substantial improvements or repairs to fix 
substantial damage, but FEMA chose to limit the analysis to 10 years 
of affected structures because it used 10 years of historical data, 
and due to changing conditions, projecting impacts past 10 years 
would become less accurate due to an expected increase in the 
frequency and severity of major disasters. Accordingly, FEMA's 
analysis focuses on the 50-year impacts of the rule on projects that 
take place in the initial 10-year period, for a total period of 
analysis spanning 60 years.
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    The table below provides the estimated number of structures and 
facilities that will be affected by the final rule over the first 10 
years, assuming that each approach is the only expansion option. 
Structures that are walled and roofed buildings, will comply with the 
FFRMS through elevating or floodproofing to the required height. 
Facilities, which are any human-made or human-placed items other than 
structures, such as roads and bridges, will require different 
mitigation measures in order to comply with the increased resiliency 
standard of the final rule. The monetized impacts of this rule are 
representative of the floodproofing and elevation mitigation measures 
that will be required of structures. However, for reasons explained in 
more detail later, FEMA was unable to monetize the impacts of the rule 
for facilities.
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    \303\ From 2013-2022, for PA, FEMA funded a total of 199,993 
projects for $172.6 billion (CPI adjusted to 2022 dollars). Of that 
total number of projects, FEMA funded $22.8 billion (CPI adjusted to 
2022 dollars) for all PA Category E projects, which is about 13.2 
percent ($22.8 billion / $172.6 billion) of the total FEMA PA 
funding. For PA Category E projects within the floodplain, FEMA 
funded $1.2 billion (CPI adjusted to 2022 dollars) which is about 
0.7 percent ($1.2 billion / $172.6 billion) of all FEMA PA funding 
or 2,437 projects which is about 1.2 percent (2,437 projects / 
199,993 projects) of all FEMA PA projects.
    From 2013-2022, for HMA, FEMA funded a total of 8,761 projects. 
There are no data fields that show whether a project is located in a 
floodplain. Therefore, FEMA used the assumption that all HMA 
projects were located in the floodplain. This may lead to an 
overestimate in the costs associated with HMA projects.
    From 2013-2022, for IA, FEMA funded a total of 13,576 THU and 
184 PHC projects. FEMA assumed that 11.1 percent of IA PHC and THU 
projects would be located in the floodplain, based on PA project 
data. Accordingly, FEMA estimated a 20 (184 PHC projects x 11.1 
percent) PHC projects and 1,507 (13,576 THU projects x 11.1 percent) 
THU projects in the current floodplain in years 1-10 of the 
analysis.
    \304\ These counts are based on the number of closed or 
obligated projects at the time of analysis. It can take several 
years for a project to close out or reach the obligation status 
after the disaster year.
[GRAPHIC] [TIFF OMITTED] TR11JY24.003

    The final rule will increase construction and resiliency standards 
for FFRMS-affected structures and facilities. FEMA considers 
implementing these standards, whether through higher vertical 
elevation, floodproofing, or other mitigation measures, to be new 
economic activity that will result from this rule. Accordingly, these 
compliance activities are categorized as costs of this rule.
    FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for each of 
the programs, PA, IA, and HMA, as if each approach were the only FFRMS 
expansion option. FEMA selected the CISA as the primary approach as it 
is the preferred option. Using the CISA as the primary approach, FEMA 
has estimated that this final rule will affect 13,476 PA, IA, and HMA 
structures over the first 10 years. The low estimate \305\ cost will be 
between $134.0 million and $110.4 million, discounted at 3 and 7 
percent respectively, with a 60-year annualized cost between $4.8 
million and $7.9 million, discounted at 3 and 7 percent. The high 
estimate cost will be between $169.8 million and $139.9 million, 
discounted at 3 and 7 percent respectively, with a 60-year annualized 
cost between $6.1 million and $10.0 million, discounted at 3 and 7 
percent respectively. These costs include additional training for FEMA 
staff, as well as the total cost for additional elevation and 
floodproofing. FEMA is unable to quantify the cost for increased 
resiliency standards for an estimated 26,985 affected facility projects 
over the first 10-year period of the analysis. Additionally, FEMA is 
unable to quantify the cost for projects that may be diverted out of 
the floodplain, impacts to projects with existing basements, project 
delays, or forgone projects that may result from this rule.
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    \305\ FEMA estimated a range of possible costs since it was not 
able to accurately estimate the number of new construction projects 
that would elect to elevate versus those that would elect to 
floodproof, so estimates are provided for both the cost of elevating 
all new construction projects and the costs of floodproofing all new 
construction projects.
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    Because the cost to implement the FFRMS mitigation measures will be 
shared between FEMA and grant recipients according to statutory cost 
shares, there are also important distributional impacts. The majority 
of these costs will be borne by FEMA through additional grants (a 
transfer from FEMA to grant recipients). Grant recipients will bear the 
remaining costs. Using the CISA as the primary approach, FEMA estimates 
that this final rule will affect 13,476 structures in the first 10 
years. FEMA presents the change in transfer payments from FEMA to grant 
recipients as a range because of uncertainty regarding whether new 
construction projects would be floodproofed or elevated. The low 
estimate ranges between $104.7 million and $86.2 million, discounted at 
3 and 7 percent respectively, with a 60-year increase in transfers 
between $3.8 million and $6.1 million annually, discounted at 3 and 7 
percent respectively. The high estimate ranges between $134.2 million 
and $110.5 million, discounted at 3 and 7 percent

[[Page 57016]]

respectively, with a 60-year increase in transfers between $4.8 million 
and $7.9 million annually, at 3 and 7 percent respectively.
    Grant recipients will be responsible for between $22.6 million and 
$18.6 million, discounted at 3 and 7 percent respectively, with a 60-
year annualized amount between $0.8 million and $1.3 million, at 3 and 
7 percent respectively for the low estimate. The high estimate ranges 
between $27.8 million and $22.9 million, discounted at 3 and 7 percent 
respectively, with a 60-year annualized amount of $1.0 million and $1.6 
million, at 3 and 7 percent respectively. Not included in these 
estimates are the additional grants FEMA will provide or the additional 
costs recipients will incur for their portion of the cost share, for 
any of the elevation and floodproofing costs that FEMA is unable to 
monetize.
    FEMA has been able to quantify benefits for a small portion of 
projects affected by the rule. Using CISA as the primary approach, FEMA 
estimates that 1,154 PA Category E (Public Buildings) \306\ projects 
will be subject to the FFRMS in the first 10 years. Assuming a 59-inch 
Sea Level Rise,\307\ FEMA estimates that the present value benefits of 
one additional foot of freeboard for the 50-year useful life of 
projects undertaken during the 10-year period of analysis ranges at the 
low end between $56.1 million and $46.2 million, discounted to the 
beginning of Year 1 at 3 and 7 percent respectively, with a 60-year 
annualized benefit between $2.0 million and $3.3 million. The high 
estimate ranges between $66.1 million and $54.4 million, discounted to 
the beginning of Year 1 at 3 and 7 percent respectively, with a 60-year 
annualized benefit between $2.4 million and $3.9 million. These 
quantified benefits include estimates of avoided physical damage, 
avoided displacement, and avoided loss of function for the 1,154 PA 
Category E projects over their 50-year useful life. In addition, 
unquantified benefits of this final rule include the reduction in 
damage to 12,322 affected IA and HMA structures and their contents from 
future floods, 26,985 PA and HMA facilities, potential lives saved, 
public health and safety benefits, reduced recovery time from floods, 
and increased community resilience to flooding.
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    \306\ FEMA Public Assistance. https://www.fema.gov/fact-sheet/fema-public-assistance-0. Accessed April 23, 2024.
    \307\ For FEMA's primary estimate, FEMA used 59 inches of SLR, 
due to it being the closest SLR option to FEMA's +5-ft assumption 
for CISA. CISA is the preferred approach for FFRMS if the data are 
available. Since 5 ft is equivalent to 60 inches (5 x 12 inches per 
foot), 59-inch SLR is the closest SLR option that FEMA has available 
to use for this portion of the analysis.
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    Table 5 shows the summary of the total costs, benefits, and 
distributional impacts of the final rule.

[[Page 57017]]

[GRAPHIC] [TIFF OMITTED] TR11JY24.004


[[Page 57018]]


[GRAPHIC] [TIFF OMITTED] TR11JY24.005

PA Projects
    FEMA provides PA grants to public and certain non-profit entities 
for the rebuilding, replacement, or repair of public and non-profit 
structures and facilities damaged by disasters. PA projects that 
involve new construction, substantial improvement, or repairs to 
address substantial damage are affected by this rule. FEMA divides its 
PA work into categories A-G.\308\ Projects that get funding under PA 
Categories C (Roads and Bridges), D (Water Control Facilities), E 
(Public Buildings), F (Utilities), and G (Parks, Recreational Areas, 
and Other Facilities) are affected by this rule, but FEMA is only able 
to provide estimates of costs associated with Category E (Public 
Buildings). FEMA has adequate data to estimate the additional costs for 
structures subject to the FFRMS, so monetized impacts are only 
available for Category E projects. The remaining PA categories fund 
facilities that are not subject to the same elevation and floodproofing 
requirements as buildings.
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    \308\ PA Category A-Debris Removal and Category B-Emergency 
Protective Measures do not fund building or repair of structures and 
are not subject to the FFRMS.
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    44 CFR part 9 classifies projects as either structures or 
facilities. Under this rule, a structure is a walled and roofed 
building, including mobile homes and gas or liquid storage tanks. 
Structures will be subject to freeboard requirements to floodproof or 
elevate to a certain level above the BFE. Freeboard is the additional 
height above the BFE to which the structure is floodproofed or elevated 
for the purpose of reducing the risk of flood damage.
    In contrast, facilities are any human-made or human-placed item 
other than a structure, including roads, bridges, power lines, water 
control facilities, and other types of infrastructure. Facility 
mitigation measures are more varied and highly project-specific. For 
example, damage to roads during flood events can be caused by numerous 
events, such as erosion and scour, inundation by floodwater, or debris 
blockage. Likewise, the mitigation measures to address the damages can 
include a variety of approaches, such as installing low water 
crossings, increasing culvert size, installing a relief culvert, adding 
riprap to a road embankment, and many others.\309\
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    \309\ FEMA. ``FEMA B-797 Hazard Mitigation Field Book: 
Roadways.'' 2010. Available at https://www.fema.gov/sites/default/files/2020-07/b797_hazmit_handbook.pdf.
---------------------------------------------------------------------------

    Due to the highly project-specific nature of facilities projects, 
and the numerous options available for making them resilient, FEMA 
cannot estimate the costs of improving flood resiliency of facilities. 
Where FEMA provides funding for facilities to complete new 
construction, substantial improvement, or repairs to address 
substantial damage, the projects must incorporate minimization measures 
that will consider the FFRMS flood elevation. However, floodproofing 
and elevation to a specific height may not be appropriate as a 
minimization measure for facilities, depending on the facility. FEMA 
cannot estimate the cost due to the variability of those measures, 
which may include a variety of approaches. Facilities that are already 
located in the 1 percent annual chance floodplain for non-critical 
actions or 0.2 percent annual chance floodplain for critical actions 
must take resilience measures under current regulations. Based on 2013-
2022 data, FEMA estimates that about 1,036 Category C projects, 120 
Category D projects, 208 Category F projects, and 314 Category G 
projects may be affected by the FFRMS each year.
    For PA Category E projects, if the FVA is the only expansion 
option, FEMA estimates the final rule will affect 899 projects over the 
first 10 years. The costs

[[Page 57019]]

would be incurred in the first 10 years of the 60-year period because 
that is when the investment in those projects takes place. Accordingly, 
FEMA estimated that the average annual costs in years 1-10 will range 
between $4.3 million and $5.5 million. The average Federal cost share 
for PA projects from 2013-2022 was 85.0 percent. Accordingly, FEMA 
estimates that it will cover 85.0 percent of the cost to elevate or 
floodproof PA projects, for a total of between $3.6 million and $4.7 
million in additional grants per year for the first 10 years. Grant 
recipients will bear the remaining cost of between $0.6 million and 
$0.8 million per year for the first 10 years.
    For PA Category E projects, if 0.2PFA is the only expansion option, 
FEMA estimates the final rule will affect 688 projects over the first 
10 years. Because these costs are incurred in the first 10 years, FEMA 
estimated the average annual costs in years 1-10 will range between 
$2.5 million and $3.2 million. Using the historical average 85.0 
percent Federal cost share, FEMA estimates that it will cover 85.0 
percent of the cost to elevate or floodproof PA projects, for a total 
of between $2.1 million and $2.8 million in additional grants per year 
for the first 10 years. Grant recipients will bear the remaining costs 
of approximately $0.4 million and $0.5 million per year for the first 
10 years.
    For PA Category E projects, if CISA is the only expansion option, 
FEMA estimates the final rule will affect 1,154 projects over the first 
10 years. Because these costs are incurred in the first 10 years, FEMA 
estimated the average annual costs in years 1-10 will range between 
$10.4 million and $14.5 million. Using the historical average 85.0 
percent Federal cost share, FEMA estimates that it will cover 85.0 
percent of the cost to elevate or floodproof PA projects, for a total 
of between $8.9 million and $12.3 million in additional grants per year 
for the first 10 years. Grant recipients will bear the remaining cost 
of between $1.6 million to $2.2 million per year for the first 10 
years.
[GRAPHIC] [TIFF OMITTED] TR11JY24.006

IA Projects
    Individual Assistance (IA) grants are provided to individuals who, 
as a direct result of a disaster, have necessary expenses and serious 
needs that they are unable to meet through other means. IA funding is 
divided into Housing Assistance and Other Needs Assistance. Other Needs 
Assistance under IA provides financial assistance for medical, dental, 
childcare, funeral, personal property, transportation, or other 
necessary expenses or serious needs and is not subject to FFRMS 
requirements. Under Housing Assistance, FEMA may provide temporary 
housing assistance (financial assistance or direct assistance in the 
form of temporary housing units), a capped amount of financial 
assistance for the repair or replacement of disaster-damaged private 
residences; and, in rare circumstances, financial or direct assistance 
to construct permanent or semi-permanent housing.
    The financial caps on housing repair or replacement assistance 
means IA grants do not generally fund new construction or substantial 
improvements. However, two types of IA grants are affected by the final 
rule: IA Permanent Housing Construction (PHC) projects, and sales and 
disposal of temporary housing units (THUs). PHC is Federal assistance 
that FEMA provides under IA for the purpose of constructing permanent 
housing where alternative housing resources are unavailable or scarce. 
IA also includes the sale and disposal of THUs such as mobile housing 
units and recreational vehicles; THUs located in the FFRMS floodplain 
will be subject to the requirements of this rule. FEMA regulations 
prohibit the floodproofing of residential structures at or below the 
BFE, and so elevation is the only option.\310\
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    \310\ See 44 CFR 60.3.
    See also Floodproofing. FEMA. Available at: https://www.fema.gov/glossary/floodproofing. Last accessed: January 11, 
2023.
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    FEMA has calculated the cost of elevating PHC structures, depending 
on FFRMS approach and location and type of project.\311\ FEMA then 
subtracted certain costs that it determined to be part of the baseline. 
Specifically, numerous States and localities have existing freeboard 
requirements that will result in elevation costs and benefits 
regardless of this rule, so costs and benefits for these areas have 
been reduced based on existing requirements.
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    \311\ Projects outside of the 1 percent annual chance 
floodplain, but below the required level will need to be elevated to 
the required level. These projects require elevations of different 
levels, depending on the structure's current elevation. FEMA assumes 
that half of the projects will need to be elevated 1-ft and the 
other half or projects will need to be elevated 2-ft. This 
assumption was made because FEMA is unsure of the actual number of 
projects that will need to be elevated by 1-ft or 2-ft and so 
assumed that it will be an even proportion for each height. IA 
projects is all considered non-critical actions and will not require 
a 3-ft level.
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    For IA, if the FVA is the only expansion option, FEMA estimates 
that the final rule will affect 1,434 structures over the first 10 
years. These costs would be incurred in the first 10 years of the 60-
year period because that is when the investment in those projects takes 
place. Accordingly, FEMA estimates average annual costs of $57,343 in 
years 1-10. Since there is no cost share for IA, FEMA will fund the 
entire cost of elevating IA projects through grants.
    For IA, if the 0.2PFA is the only expansion option, FEMA estimates 
that the final rule will affect 1,434 structures

[[Page 57020]]

over the first 10 years. Because these costs would be incurred in the 
first 10 years of the analysis, FEMA estimates the average annual cost 
in years 1-10 is $57,343. Since there is no cost share for IA, FEMA 
will fund the entire cost of elevating IA projects through grants.
    For IA, if the CISA is the only expansion option, FEMA estimates 
that the final rule will affect 1,924 projects over the first 10 
years.\312\ Because these costs would be incurred in the first 10 years 
of the analysis, FEMA estimates that the average annual cost in years 
1-10 is $168,174. Since there is no cost share for IA, FEMA will fund 
the entire cost of elevating IA projects through grants.
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    \312\ For analysis purposes, FEMA calculated the expanded 
floodplain using the mid-point (and rounded down) to +5-ft CISA 
which would expand the floodplain by 26 percent. FEMA opted for the 
mid-point for CISA because this is the best approach with available 
data. Please see further explanation in the appropriate CISA 
sections: 7.4.3, 7.5.3, and 7.6.3.
[GRAPHIC] [TIFF OMITTED] TR11JY24.007

HMA Projects
    FEMA provides Hazard Mitigation Assistance (HMA) grants to States, 
territories, Federally-recognized Tribes, and local communities for the 
implementation of hazard mitigation measures to increase resiliency to 
disasters. Hazard mitigation is defined as any action taken to reduce 
or eliminate long-term risk to people and property from natural 
hazards. HMA projects related to flood mitigation mainly include 
elevation of structures, floodproofing of structures, and acquisition 
of properties that are at a high risk of damage from flooding. HMA also 
funds various other types of projects such as minor flood control, 
property acquisition, and generators, but FEMA is unable to estimate 
the potential costs associated with these projects because the manner 
in which each applicant meets the resiliency standards will be fact-
specific and dependent upon the nature of the design and purpose of the 
project. HMA grant program includes Hazard Mitigation Grant Program 
(HMGP), HMGP Post Fire, Pre-Disaster Mitigation (PDM), Building 
Resilient Infrastructure and Communities (BRIC), and Flood Mitigation 
Assistance (FMA). Between 2010 and 2019, FEMA funded a total of 841 
minor flood control and generators projects, for an average of 84 such 
projects per year. Additional minor mitigation measures will have to be 
taken for these projects, if located in the expanded FFRMS floodplain.
    FEMA used data from HMA grant approvals for projects that include 
the elevation or floodproofing of structures from 2010-2019 and a 
multi-step process to estimate the range of costs for elevating or 
floodproofing these structures to the FFRMS.
    For HMA, if the FVA is the only expansion option, FEMA estimated 
the final rule will affect 7,755 structures over the first 10 years. 
These costs would be incurred in the first 10 years of the 60-year 
period because that is when the investment in those projects would take 
place. Accordingly, FEMA estimates average annual costs in years 1-10 
of $1.8 million. Using the 75 percent Federal cost share, FEMA 
estimates that it will cover 75 percent of the cost to elevate or 
floodproof HMA projects, for a total of $1.4 million in additional 
grants per year in years 1-10. Grant recipients will bear the remaining 
cost of $0.5 million per year.
    For HMA, if the 0.2PFA is the only expansion option, FEMA estimated 
that the final rule will affect 7,712 structures in the first 10 years. 
Because these costs would be incurred in the first 10 years of the 
analysis, FEMA estimates the average annual cost in years 1-10 will be 
$1.8 million. Using the 75 percent Federal cost share, FEMA estimates 
that it will cover 75 percent of the cost to elevate or floodproof HMA 
projects, for a total of $1.4 million in additional grants per year in 
years 1-10. Grant recipients will bear the remaining cost of $0.5 
million per year.
    For HMA, if the CISA is the only expansion option, FEMA estimated 
that the final rule will affect 10,398 structures over the first 10 
years. Because these costs would be incurred in the first 10 years, 
FEMA estimates that the average annual cost in years 1-10 is $4.3 
million. Using the 75 percent Federal cost share, FEMA estimates that 
it will cover 75 percent of the cost to elevate or floodproof HMA 
projects, for a total of $3.2 million in additional grants per year. 
Grant recipients will bear the remaining cost of $1.1 million per year.
[GRAPHIC] [TIFF OMITTED] TR11JY24.008


[[Page 57021]]


Need for Regulation
    Executive Order 11988, as amended, requires agencies to improve the 
resilience of communities and Federal assets against the impacts of 
flooding. The FFRMS is a flood resilience standard that provides a 
flexible framework to increase resilience against flooding and help 
preserve the natural values of floodplains and wetlands. Incorporating 
the FFRMS ensures FEMA expands flood risk management from the current 
base flood elevation to a higher vertical elevation and corresponding 
horizontal floodplain to address current and future flood risk and 
ensure that projects funded with taxpayer dollars last as long as 
intended.
Affected Population
    The affected population is FEMA grant recipients whose projects are 
located in the current and the expanded FFRMS floodplain. Grant 
recipients will be required to comply with the new standard by 
elevating or floodproofing projects located in the expanded FFRMS 
floodplain. Specific grant programs include PA, IA, and HMA. PA grant 
recipients include public and certain non-profit entities, IA grant 
recipients include individuals, and HMA grant recipients include 
States, territories, Federally-recognized Tribes, and local 
communities.
    The implementation of the FFRMS will have negligible impacts on 
community property values, tax bases and the distribution of real 
income. Additionally, FEMA expects the impacts on affordable housing 
for low to moderate income households and disadvantaged communities to 
be minimal since most actions subject to FFRMS requirements are non-
residential. FEMA only funds residential construction in the IA and HMA 
programs; FEMA funds 153 residential IA projects and 268 HMA 
residential projects per year on average.
Baseline
    Under current FEMA regulations set out in 44 CFR part 9, the base 
floodplain is defined as the 100-year floodplain (1 percent annual 
chance), or for critical actions, defined as the 500-year floodplain 
(0.2 percent annual chance). New construction or substantial 
improvement of structures located in the base floodplain must be 
elevated to or above the 1 percent annual chance flood level or Base 
Flood Elevation (BFE) or floodproofed below the BFE. Critical actions 
located within either the 1 percent annual chance floodplain or the 0.2 
percent annual chance floodplain must be elevated or floodproofed up to 
the corresponding elevation for the 0.2 percent annual chance 
floodplain where it is mapped.\313\
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    \313\ FEMA's project level data for IA, PA, and HMA delineate 
whether projects are in the Special Flood Hazard Area (1 percent 
annual chance floodplain) but do not show whether they are in the 
0.2 percent chance floodplain. For critical actions, FEMA was unable 
to determine the baseline number of critical actions that are 
located in the 0.2 percent chance floodplain. Regardless of which 
floodplain the project is in, a critical action must be elevated at 
or above the 0.2 percent annual chance flood level.
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    FEMA has interim policies for PA and HMA that partially implement 
FFRMS and ASCE 24 standards in some areas, discussed in further detail 
below. Depending on the criticality of the action, these programs apply 
the supplemental FFRMS policy either to the base floodplain, or to both 
the 100-year and 500-year floodplains for critical actions. At the time 
the NPRM RIA was conducted, these partial implementation policies had 
been in place for less than 2 years. These policies were issued as 
temporary, partial implementation of the FFRMS until FEMA could 
implement it through this rulemaking. FEMA conducted this Regulatory 
Impact Analysis against a pre-statutory baseline to capture the 
economic impacts of the FFRMS and more accurately to measure the 
impacts of the rule against the world without the interim PA and HMA 
policies. Likewise, data on projects that adhered to the ASCE 24 
standards is not available. Accordingly, FEMA used a pre-guidance 
baseline for this final rule to measure the impacts of the rule against 
the world without these policies and in accordance with the current 
requirements of 44 CFR part 9.
PA Interim Policy
    The June 3, 2022 PA interim partial implementation policy \314\ 
provides elevation requirements for critical and non-critical actions 
involving structures located in a designated floodplain. The policy 
established requirements for elevating and floodproofing structures 
funded under the PA program. The interim policy set forth principles at 
its issuance that ensure that communities affected by future flooding 
are less vulnerable to losses of life and property, that investment of 
PA program funds for projects in the floodplain are spent to protect 
structures from flood risk, that structures are elevated or 
floodproofed to address current and future flood risk, and that the 
policy is implemented in a consistent and equitable manner.
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    \314\ Partial Implementation of the Federal Flood Risk 
Management Standard for Public Assistance (Interim). FEMA Policy 
104-22-0003. Available at: https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf. Last accessed: July 20, 2022.
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    This policy is being applied to structures (walled or roofed 
buildings, including mobile homes and gas or liquid storage tanks) in a 
mapped or established 1 percent annual chance floodplain or 0.2 percent 
annual chance floodplain \315\ that have a substantial damage \316\ 
determination, require substantial improvement,\317\ or involve new 
construction.\318\ This applies regardless of the cause of damage.
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    \315\ Under 44 CFR 9.4, Floodplain means the ``lowland and 
relatively flat areas adjoining inland and coastal waters including, 
at a minimum, that area subject to a one percent or greater chance 
of flooding in any given year. Wherever in this regulation the term 
floodplain is used, if a critical action is involved, floodplain 
shall mean the area subject to inundation from a flood having a 0.2 
percent chance of occurring in any given year (500-year floodplain). 
Floodplain does not include areas subject only to mudflow until FIA 
adopts maps identifying M Zones.''
    \316\ Under 44 CFR 59.1, Substantial Damage means ``damage of 
any origin sustained by a structure whereby the cost of restoring 
the structure to its before damaged condition would equal or exceed 
50 percent of the market value of the structure before the damage 
occurred.''
    \317\ Under 44 CFR 9.4, Substantial Improvement means ``any 
repair, reconstruction or other improvement of a structure or 
facility, which has been damaged in excess of, or the cost of which 
equals or exceeds, 50% of the market value of the structure or 
replacement cost of the facility (including all public facilities as 
defined in the Disaster Relief Act of 1974) (a) before the repair or 
improvement is started, or (b) if the structure or facility has been 
damaged and is proposed to be restored, before the damage occurred. 
If a facility is an essential link in a larger system, the 
percentage of damage will be based on the relative cost of repairing 
the damaged facility to the replacement cost of the portion of the 
system which is operationally dependent on the facility. The term 
substantial improvement does not include any alteration of a 
structure or facility listed on the National Register of Historic 
Places or a State Inventory of Historic Places.''
    \318\ Under 44 CFR 9.4, New Construction means ``the 
construction of a new structure (including the placement of a mobile 
home) or facility or the replacement of a structure or facility 
which has been totally destroyed.''
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HMA Interim Policy
    The August 26, 2021 HMA interim partial implementation policy \319\ 
sets forth the elevation requirements for the use of FEMA HMA for non-
critical actions involving structure elevation, dry floodproofing, and 
mitigation reconstruction projects in the 1 percent annual chance 
floodplain.320 321
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    \319\ Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Programs 
(Interim). FEMA Policy FP-206-21-0003. Available at: https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-0003-partial-mplementation-ffrms-hma-programs-interim.pdf. Last 
accessed: July 20, 2022.
    \320\ FEMA implemented an update to the HMA interim policy on 
December 2022. This updated interim policy provides updated 
elevation requirements for critical and non-critical actions 
involving structures as defined in 44 CFR part 9.4 located in a 
designated floodplain. The updated interim policy also provides 
updated requirements for elevating and floodproofing structures 
funded under HMA programs. The RIA does not address the changes in 
the updated HMA interim policy.
    \321\ The 1 percent annual chance floodplain is currently also 
defined as the Special Flood Hazard Area under the NFIP.

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[[Page 57022]]

    The updated HMA interim policy,\322\ which supersedes the initial 
HMA interim policy, provides elevation requirements for critical and 
non-critical actions involving structures (as defined in 44 CFR 9.4) 
located in a designated floodplain. This updated interim policy covers 
the additional flexibility for non-critical actions to select the lower 
of the 0.2PFA or +2-ft above the BFE and setting elevation requirements 
for critical actions involving structures.
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    \322\ Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Programs. FEMA 
Policy 206-21-003-0001. Available at: https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf. Last accessed: December 
30, 2022.
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    By partially implementing the FFRMS and requiring a higher vertical 
flood elevation for certain non-critical actions, FEMA is helping to 
ensure that communities affected by future flood disasters are less 
vulnerable to losses of life and property. This policy purpose is to 
improve the resilience of non-critical actions involving structure 
elevation, dry floodproofing, and mitigation reconstruction projects 
located in the SFHA against the impacts of flooding, which are 
anticipated to increase over time due to changing conditions and other 
threats; and to ensure such projects will last as long as intended.
Total Costs
    This final rule will increase costs for certain IA, PA, and HMA 
program projects, as well as result in administrative costs for FEMA. 
FEMA expects minimal effects on grants processed by FEMA's GPD because 
these programs involve grants for preparedness activities and generally 
do not fund new construction or substantial improvement projects. 
Future FEMA facilities that may be located within the FFRMS floodplain 
will also be subject to the requirements of the final rule.
    FEMA is unable to quantify the cost for increased resiliency 
standards for the 26,985 facility projects estimated to be affected in 
the first 10 years after this rule's publication. Additionally, FEMA is 
unable to quantify the cost for projects that may be diverted out of 
the floodplain, impacts to projects with existing basements, project 
delays, or forgone projects that may result from this rule.
    Using the CISA as the primary approach, FEMA estimates that the 
final rule will affect 13,476 PA, IA, and HMA structures over the first 
10 years. Those costs are incurred in the first 10 years of the 60-year 
period because that is when the investment in those projects takes 
place.\323\ Discounted over 60 years, the low estimate \324\ cost is 
between $134.0 million and $110.4 million, using 3 and 7 percent 
respectively, with a 60-year annualized cost of $4.8 million and $7.9 
million, using 3 and 7 percent respectively (see Table 9). Discounted 
over 60 years, the high estimate cost is between $169.8 million and 
$139.9 million, using 3 and 7 percent respectively, with a 60-year 
annualized cost of $6.1 million and $10.0 million, using 3 and 7 
percent (see Table 10). Monetized costs include additional training for 
FEMA staff as well as the cost for the additional elevation or 
floodproofing. FEMA is unable to quantify the cost for increased 
resiliency standards for an estimated 26,985 affected facility projects 
over the 10-year period of analysis. Additionally, FEMA is unable to 
quantify the cost for projects that may be diverted out of the 
floodplain, impacts to projects with existing basements, project 
delays, or forgone projects that may result from this rule.
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    \323\ FEMA limited its dollar-valuation to the projects impacted 
in the first 10 years after the rule's effective date. FEMA has 
considered the resulting costs, benefits, and transfer payments of 
the final rule on those projects over a 50-year period, for a total 
of 60 years. The costs and transfers occur in the first 10 years of 
the 60-year period because that is when the initial investment to 
elevate or floodproof them to meet the FFRMS requirements takes 
place. This is an upfront cost that occurs when the project is 
constructed. However, the benefits of the final rule are realized 
over the 50-year useful life of the affected structures.
    \324\ FEMA has created a range for the administrative costs: 
between if all projects used the FFSST (low estimate) and if all 
used the Job Aid (high estimate). FEMA acknowledges that there may 
be situations where a combination of the FFSST and Job Aid may be 
used. However, FEMA was unable to estimate how many would use the 
FFSST and how many would use the Job Aid since the FFSST is 
currently being improved. In reality, the administrative costs will 
likely fall somewhere within the low and high estimates.

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[GRAPHIC] [TIFF OMITTED] TR11JY24.010

Total Benefits
    FEMA believes that the benefits of the final rule will justify the 
costs. FEMA has identified qualitative benefits, including reductions 
in damage to properties and contents from future floods, potential 
lives saved, public health and safety benefits, reduced recovery time 
from floods, and increased community resilience to flooding. FEMA has 
also analyzed quantified benefits of one additional foot of freeboard 
for PA projects using the CISA.
    This final rule will result in savings in time and money from a 
reduced recovery period after a flood, as well as the increased safety 
of individuals. Generally, if properties are protected, there will be 
less damage, resulting in less recovery time. In addition, higher 
elevations will help to protect people, leading to increased safety. 
FEMA is unable to quantify these benefits but discusses them 
qualitatively in the Regulatory Impact Analysis.
    In support of these benefits, FEMA is using the 2022 Benefits 
Analysis of Increased Freeboard for Public and Nonresidential Buildings 
in Riverine and Coastal Floodplains \325\ (2022

[[Page 57024]]

report) that analyzed potential benefits (such as a reduction in 
damages, displacement, and loss of function, from increased flood 
protection requirements for public and nonresidential use buildings 
located in riverine and coastal SFHAs). This report's scope included 
six construction methods in coastal and riverine areas: Elementary 
School 1-Story, Hospital 2-3 Stories, Police Station 2-Stories, Office 
Building (Business) 1-Story, Office Building (Business) 3-Story, and 
Office Building (Government office) 1-Story. The riverine analysis 
considered locations along 14 rivers, while the coastal analysis 
considered 12 different locations along a hypothetical coastal 
transect; both only considered scenarios based on future conditions.
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    \325\ A Benefits Analysis of Increased Freeboard for Public and 
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA. 
Draft, July 2022. Available at: https://www.regulations.gov/document/FEMA-2023-0026-0003. Last accessed: March 22, 2024.
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    Future conditions for the riverine analysis included two climate 
change scenarios: the Representative Concentration Pathways (RCP) 4.5 
scenario and the RCP 8.5 scenario that represent various efforts to 
curb future emissions.\326\ The study used these two climate change 
scenarios to evaluate the amount of increase or decrease in riverine 
flood elevations over the next 50 years. For the coastal analysis, the 
study included the impact of various sea level rise conditions in areas 
with wave heights less than 1.5-ft (flood zones A) that are subject to 
coastal storm surge. The sea level rise conditions replicated a 2016 
evaluation considering 8-, 20-, 39- and 59-inch sea level rises by 
2100. FEMA has evaluated benefits associated with the rule using both 
RCP 4.5 and 8.5 scenarios, and three of the four sea level rise 
conditions: 8-, 39-, and 59-inches.
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    \326\ Representative Concentration Pathways (RCP) are projected 
future emissions and concentration trajectories for climate change 
models that account for the increase in greenhouse gas, aerosol, and 
chemically active gas emissions. According to the Environmental 
Protection Agency, they define RCP as the following. RCP 4.5: This 
scenario assumes a stabilization in GHG emissions shortly after 
2100. RCP 8.5: This scenario is characterized by increasing GHG 
emissions over time, and factors in the highest GHG concentration 
levels of all the scenarios by 2100.
    Changes Over Time. EPA. Available at: https://www.epa.gov/enviroatlas/changes-over-time. Last accessed: December 1, 2023.
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    The 2022 report used FEMA's BCA Toolkit to calculate benefits for 
each year between 2023 and 2072 and then used these projections to 
calculate the present value benefits for each scenario.\327\ The 
Toolkit used standard depth-damage functions (curves) to estimate 
damages from inundation and to calculate the benefits of mitigation 
that included avoided physical damage, avoided displacement (costs 
incurred while staying in a temporary location following an event), and 
avoided loss of function (the economic impact to a community due to a 
lack of critical services). The study also considered the potential 
avoided losses (or benefits) associated with either dry floodproofing 
or elevation of nonresidential and public use buildings.\328\ It 
compared existing freeboard requirements against one additional foot of 
freeboard; that is, the study evaluated the benefits of elevating or 
floodproofing to the BFE+2 from a current assumed height of BFE+1 for 
non-critical actions and to BFE+3 from a current assumed height of 
BFE+2 for critical actions.
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    \327\ FEMA developed the BCA Toolkit to perform an analysis of 
cost-effectiveness of mitigation projects. The BCA Toolkit uses 
Office of Management and Budget cost-effectiveness guidelines and 
FEMA-approved methodologies and tools to complete a benefit-cost 
analysis. The tool can be found here: https://www.fema.gov/grants/tools/benefit-cost-analysis#toolkit.
    \328\ 2016 Evaluation of the Benefits of Freeboard for Public 
and Nonresidential Buildings in Coastal Areas. https://www.regulations.gov/document/FEMA-2015-0006-0379. Page 4.
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    According to this report, for critical facilities in coastal SFHAs, 
such as police stations and hospitals, inclusion of one additional foot 
of freeboard will provide increased protection and continuity of 
operations and result in a quantifiable benefit. Elevating buildings 
would help to maintain community resiliency farther into the future. 
The riverine analysis indicated that despite the large variation in the 
flood data for the 14 sites, inclusion of one additional foot of 
freeboard would result in quantifiable average benefits. Critical 
actions and schools had the highest benefits across various riverine 
locations.
    FEMA has used this study to estimate the benefits of an additional 
foot of freeboard for non-residential PA projects. FEMA was unable to 
use the benefits study to estimate the benefits for HMA and IA 
projects, since HMA data cannot be broken out by building types and IA 
data is limited to residential-related projects.
    For FEMA's primary estimate, FEMA used 59 inches of SLR due to it 
being the closest SLR option to the vertical rise in FEMA's +5-ft 
assumption for CISA. CISA is the preferred approach for the FFRMS if 
the data are available. Since 5 feet is equivalent to 60 inches (5 x 12 
inches per foot), 59-inch SLR is the closest SLR option that FEMA had 
available for this portion of the analysis. Using CISA for all PA 
Category E projects that are subject to the FFRMS, with the assumption 
that there would be a 59-inch SLR, FEMA estimates that the present 
value benefits of one additional foot of freeboard for the 50-year 
useful life of 1,154 PA Category E projects undertaken during the first 
10 years after the rule's effective date will be between $56.1 million 
and $46.2 million (low estimate), discounted at 3 and 7 percent 
respectively, with a 60-year annualized benefit of $2.0 million and 
$3.3 million, at 3 and 7 percent (See Table 11) and between $66.1 
million and $54.4 million (high estimate), discounted at 3 and 7 
percent respectively, with a 60-year annualized benefit of $2.4 million 
and $3.9 million, at 3 and 7 percent. (See Table 12).
    Tables 11 and 12 show the number of projects constructed each year 
(column 2), the present value of the benefits as of the year in which 
they were constructed (column 3), and the present value of the benefits 
as of the beginning of Year 1, using a 3 percent and 7 percent discount 
rate (columns 3 and 4, respectively). For example, the benefits shown 
in Year 1 represent the present value of the benefits for the 115 
Category E projects constructed in Year 1 over their 50-year useful 
life (i.e., in Years 1-50 of the analysis). The analysis does not 
account for any benefits for Year 1 projects after their 50-year useful 
life. The benefits shown in Year 10 represent the present value of the 
benefits for projects constructed in Year 10 over their 50-year useful 
life, (i.e., in Years 11-60 of the analysis).
BILLING CODE 9111-66-P

[[Page 57025]]

[GRAPHIC] [TIFF OMITTED] TR11JY24.011

[GRAPHIC] [TIFF OMITTED] TR11JY24.012

Total Transfer Payments
    Because the cost to implement the FFRMS mitigation measures will be 
shared between FEMA and grant recipients according to the statutory 
cost share, there are also important distributional impacts. The 
majority of elevation and floodproofing costs will be borne by FEMA 
through additional grants (a transfer from FEMA to grant recipients). 
Grant recipients will bear the remaining cost. The below section shows 
the additional transfers from FEMA to grant recipients. Using CISA as 
the primary approach, FEMA estimates that this final rule will affect 
13,476 structures in the first 10 years resulting in an increase in 
transfer payments (i.e., grants) over the 60-year period of analysis. 
FEMA's low estimate of the increase in transfer payments is between 
$104.7 million and $86.2 million, with a 60-year transfer between $3.8 
million and $6.1 million annually, at 3 and 7 percent respectively (see 
Table 13). FEMA's high estimate of the increase in transfer payments is 
between $134.2 million and $110.5 million, with a 60-year transfer 
between $4.8 million and $7.9 million annually, at 3 and 7 percent 
discount rates, respectively (see Table 14).

[[Page 57026]]

[GRAPHIC] [TIFF OMITTED] TR11JY24.013

[GRAPHIC] [TIFF OMITTED] TR11JY24.014

    In Tables 15 and 16, FEMA presents the cost, transfer payments and 
benefit estimates by FFRMS approach. FEMA also presents estimates of 
costs, transfers, and benefits by grant program for CISA, FEMA's 
primary approach. The administrative cost estimate is not broken down 
by grant program because much of the cost will exist regardless of the 
program. Quantitative estimates of benefits are only available for 
projects under PA category E (Public Buildings). Due to the highly 
project-specific nature of facilities projects, and the numerous 
options for making them resilient, FEMA cannot estimate the costs of 
improving flood resiliency of facilities.\329\ Tables 15 and 16 show 
that the total 60-year benefits for non-residential PA Category E 
projects constructed in the first 10 years is $54.4 million (7 percent, 
high). This benefit is for adding one foot of freeboard, assuming a 59-
inch SLR. Although the cost for residential and non-residential PA 
Category E projects is $133.3 million (7 percent, high), this cost 
represents 5 feet of freeboard (FEMA's assumption for CISA).\330\ FEMA 
does not have data to quantify the benefits of additional freeboard, 
and thus the quantified benefits represent only a portion of the

[[Page 57027]]

increased risk reduction that will be achieved through this rule. 
Ensuring projects are built to the height necessary to avoid additional 
loss scenarios will provide additional unquantified benefits of avoided 
damages to the structure, decreased cleanup time and disruption to the 
community, and increased public health and safety. Moreover, FEMA's use 
of CISA as its preferred approach will use the best available and 
actionable scientific data to tailor future flooding risk to each 
project, ensuring that projects are built only to the height necessary 
and thus maximizing net benefits. Accordingly, FEMA believes the 
benefits of the rule--quantified and unquantified--will justify its 
costs.
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    \329\ Category E projects are public buildings and contents. See 
``Public Assistance Program and Policy Guide'' Page 51, at https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf.
    \330\ Costs for the FVA may be a better comparison because they 
represent 2 or 3 feet of freeboard, depending on criticality. 
However, the number of projects using FVA and CISA differ, making 
such a comparison difficult.
    \331\ To obtain the total costs as in Section 7.12, add each 
individual approach to the FEMA admin cost. For example, CISA + FEMA 
admin = total CISA cost.
[GRAPHIC] [TIFF OMITTED] TR11JY24.015


[[Page 57028]]


[GRAPHIC] [TIFF OMITTED] TR11JY24.016

    In Table 17, FEMA presents the OMB A-4 Accounting Statement. FEMA's 
analysis presents a range for costs and transfers of +5-ft of 
freeboard, and the benefits of +1-ft of freeboard. The range is due to 
uncertainty about whether new construction PA Category E projects will 
choose to floodproof or elevate.\333\ Accordingly, FEMA's PA minimum 
estimate assumes all new construction projects choose to floodproof and 
the maximum assumes all new construction projects choose to elevate. 
FEMA's analysis for HMA and IA projects do not have a range. Table ES-
14 shows the primary costs and transfers using the CISA approach only 
and the average of the ranges. FEMA has calculated the total benefits 
using the minimum and maximum estimates of PA benefits. FEMA has 
calculated the primary benefit estimates using the CISA approach with a 
59-inch SLR and then taking the average of this range.
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    \332\ To obtain the total costs as in Section 7.12, add each 
individual approach to the FEMA admin cost. For example, CISA + FEMA 
admin = total CISA cost.
    \333\ Because it is more expensive to elevate substantial repair 
projects than to floodproof them, FEMA assumes that all substantial 
repair projects will choose to floodproof.

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[[Page 57030]]


[GRAPHIC] [TIFF OMITTED] TR11JY24.018

BILLING CODE 9111-66-C

B. Regulatory Flexibility Act
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    \334\ FEMA has calculated the primary estimates by calculating 
the average of the minimum and the maximum estimates for respective 
each percent. For example, for the primary 3 percent benefits, FEMA 
calculated the average for 3 percent discount minimum and 3 percent 
discount maximum.
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    This section considers the effects that this rule will have on 
small entities as required by the Regulatory Flexibility Act (RFA, 5 
U.S.C. 601 et seq., Pub. L. 96-354) as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute, unless the agency 
certifies that the rule will not have a ``significant economic impact 
on a substantial number of small entities.'' 5 U.S.C. 605(b). Small 
entities include small businesses, small organizations, and small 
governmental jurisdictions.
    FEMA prepared a Final Regulatory Flexibility Analysis (FRFA) for 
this rule. This analysis is detailed in this section and represents 
FEMA's assessment of the impacts of this rule on small entities. 
Section 1 outlines FEMA's assessment of small entities that will be 
affected by the regulations. Section 2 presents FEMA's analysis and 
summarizes the steps taken by FEMA to comply with the FRFA.
1. Assessment of Small Entities Affected by the Regulations
    This rule will affect FEMA grant recipients that receive Federal 
funds under the PA, IA, and HMA programs for new construction, 
substantial improvement to structures, or to address substantial damage 
to structures and

[[Page 57031]]

facilities. Recipients of these grants are primarily States, Tribal 
governments, local governmental jurisdictions, and certain non-profit 
organizations. FEMA does not provide grants to for-profit businesses.
2. Analysis and Steps Taken To Comply With the Regulatory Flexibility 
Act
    The following addresses the below requirements of a FRFA:
    (1) a statement of the need for, and objectives of, the rule;
    (2) a statement of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
statement of the assessment of the agency of such issues, and a 
statement of any changes made in the proposed rule as a result of such 
comments;
    (3) the response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration in response 
to the proposed rule, and a detailed statement of any change made to 
the proposed rule in the final rule as a result of the comments;
    (4) a description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available;
    (5) a description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record;
    (6) a description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    2.1 Statement of the need for, and objectives of the rule.
    FEMA is responsible for publishing information on floodplain areas 
and identifying special hazards. FEMA is also responsible for several 
grant programs that use Federal funds to assist in construction or 
reconstruction following a disaster, as well as grants for hazard 
mitigation and recovery. These grants can potentially be used for 
locations within a floodplain.
    To meet the requirements of section 2(d) of Executive Order 11988, 
directing agencies to issue or amend existing regulations and 
procedures to implement the Executive Order, FEMA promulgated 
regulations located at 44 CFR part 9. FEMA is revising 44 CFR part 9 to 
reflect the changes to Executive Order 11988 made by Executive Order 
13690.
    The objective of the rule is to revise the regulations for locating 
actions subject to the FFRMS in an expanded floodplain to reduce the 
risk of flooding to those projects. In addition, for actions that are 
determined to be ``critical actions'' as defined by the rule, the rule 
will impose more stringent elevation and resilience requirements. This 
is necessary to protect actions where even a slight chance of flooding 
is too great.
    The rule will also require the use, where possible, of natural 
features and nature-based approaches when developing alternatives for 
consideration that will accomplish the same purpose as a considered 
action but have less potential to affect or be affected by the 
floodplain. Common examples of a nature-based approach will be 
replacing concrete drainage systems with natural drainage or covering 
an area with plants to absorb water and reduce runoff.
    Several programs exist to assist with flood mitigation or recovery 
efforts after a flood.\335\ IA and PA are disaster relief programs and 
primarily provide assistance after a disaster. HMA Grants are provided 
to increase resilience to hazards, and these have been shown to be very 
effective. By requiring recipients of FEMA funding to consider an 
expanded floodplain and build a higher level of flood resilience into 
their projects, the rule will reduce the likelihood of further damage 
and help prevent the loss of life in future flooding events. This will 
compel recipients of Federal funds to build to higher flood resilience 
standards and avoid repetitive loss situations.
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    \335\ In addition to the FEMA-administered grant programs 
discussed in this analysis (IA, PA, HMA, and programs administered 
by GPD), FEMA also provides flood insurance through the NFIP. FEMA 
does not apply 44 CFR part 9 to non-grant site specific actions 
under the NFIP.
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    2.2 Statement of the significant issues raised by the public 
comments in response to the Initial Regulatory Flexibility Analysis 
(IRFA), a statement of the assessment of the agency of such issues, and 
a statement of any changes made to the proposed rule as a result of 
such comments.
    FEMA did not receive any comments on the IRFA for this rule, and 
therefore did not make any changes to this FRFA due to public comments.
    2.3 The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) in 
response to the proposed rule, and a detailed statement of any change 
made to the final rule as a result of the comments.
    FEMA did not receive any comments on the proposed rule from the 
Chief Counsel for Advocacy of the SBA.
    2.4 Description of and an estimate of the number of small entities 
to which the rule will apply or an explanation of why no such estimate 
is available.
    This rule will affect certain recipients of FEMA grants. These will 
primarily be PA and HMA grant recipients, including States, Tribal 
governments, local governments, and certain non-profit organizations. 
The PA grant recipients will include Categories C, D, E, F, and G 
projects; however, FEMA is only able to provide reasonable estimates of 
the number of entities and costs associated with Categories E (public 
buildings) because Category E is for structures whereas projects funded 
under the remaining PA categories are for facilities. Facilities will 
not be required to floodproof or elevate but will instead need to be 
made resilient to the appropriate flood levels, which is highly 
project-specific in nature, and the lack of data for such projects 
makes it exceedingly difficult to estimate costs. Therefore, FEMA has 
included only estimates of the number of affected facility projects but 
was unable to estimate a corresponding cost. IA and GPD are not 
discussed in this analysis. IA provides grants directly to individuals, 
who are not small entities as defined in 5 U.S.C. 601(6). FEMA finds 
that this rule will likely have no effect on GPD grants because GPD 
projects are not typically substantial improvement or new construction.
    FEMA estimates that the FFRMS requirements will expand the 
floodplain between 5 percent and 43 percent based on a study \336\ 
conducted in 800 square miles of coastal and riverine areas 
representative of places where the FFRMS will apply. FEMA developed 
floodplain expansion estimates for two distinct areas of the country: 
coastal and riverine. The first estimate was for coastal areas where 
FEMA anticipates implementing the CISA approach using currently-
actionable sea level rise data. The second estimate was the area that 
represented the rest of the country, where 0.2PFA or FVA approaches 
will likely be applied. A total of 400 square miles of mapped flood 
zones were used as the baseline estimate for each of the two areas of 
the country. FEMA selected

[[Page 57032]]

a random sample of 40 coastal and riverine areas representative of the 
areas where the FFRMS will apply, with at least 10 square miles in each 
sampled area to ensure varying topography was captured. FEMA calculated 
the floodplain expansion in each sample at various levels of freeboard 
so that there was a total of 400 square miles of expansion information 
for each area.
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    \336\ This report is available at regulations.gov under docket 
ID FEMA-2023-0026.
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    FEMA selected the CISA as the primary approach for evaluating the 
impacts of this final rule, since it is the preferred approach and is 
designed to meet current and future estimates of flood risks unique to 
the location and thus provide the best overall resilience, cost 
effectiveness, and equity. FEMA does not have data detailed enough to 
estimate the average CISA level within the United States for this 
analysis. Instead, FEMA assumes CISA values will range from 1- to 10-ft 
of freeboard, based on the anticipated interagency tools that are 
currently in development. FEMA anticipates applying the CISA in those 
rounded amounts as ``climate-informed freeboard.'' The 10-foot ceiling 
will account for the highest levels of anticipated sea level rise along 
the Gulf and Atlantic coasts. Depending on location, under the CISA, 
some places may be required to elevate or floodproof to +1-ft above the 
1 percent annual chance plain, while other places may be required to 
use +10-ft above the 1 percent annual chance plain. However, FEMA does 
not have available data or research to estimate what the required 
levels or how many structures will be subject to the requirements. For 
analysis purposes, FEMA has calculated the expanded floodplain using 
the mid-point (rounded down), +5-ft CISA level, which FEMA estimates 
will expand the floodplain by 26 percent.
    FEMA considered using the minimum and maximum levels, but the 
minimum and maximum levels will not reflect the impacts of the rule 
accurately. FEMA did not use the minimum level for this approach 
because it will reflect a large number of structures that were not 
elevated or floodproofed to a high enough standard, when the rule may 
actually require them to be subject to a higher standard. If FEMA 
modeled all structures at the minimum standard, the costs would be 
underestimated compared to the actual impact of the rule. The benefits 
of protecting the structures from flood will also be underestimated 
because at the minimum level, many structures will be left vulnerable 
to devastating flood damage. Likewise, FEMA did not use the maximum 
level because it will reflect a large number of structures elevated or 
floodproofed to a standard too high compared to what the rule may 
require. If FEMA modeled all structures at the maximum standard, the 
costs would be overestimated compared to the actual impact. The 
benefits of protecting the structures from flood could potentially be 
overestimated as well, and not reflect the actual impact of the rule.
    PA provides grants to States, Tribal governments, local governments 
and certain non-profit organizations for rebuilding, replacement, or 
repair of public and non-profit facilities damaged by disasters. Where 
such rebuilding, replacement, or repair involves new construction, 
substantial improvement, and repair of substantial damage of structures 
in the expanded FFRMS floodplain, PA recipients will incur additional 
costs to comply with elevation and floodproofing requirements. From 
2013-2022, 916 individual PA Category E grant recipients received FEMA 
funding for substantial improvement floodproofing \337\ or new 
construction. Under the CISA, with the 26 percent expansion of the 
floodplain, an additional 238 PA Category E projects (916 x 26 
percent), for a total of 1,154 (916 + 238) projects, will be located in 
the 1 percent annual chance floodplain or expanded FFRMS floodplain 
over the 10-year period. FEMA randomly sampled 92 projects.\338\ Of the 
92 projects, 47 projects, or 51 percent (47 / 92), meet the definition 
of small entities under the Regulatory Flexibility Act.
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    \337\ The cost of elevating an existing structure is 
significantly higher than the cost of retrofitting the structure to 
be floodproofed, so FEMA assumed that substantial improvement 
projects would elect to floodproof rather than elevate.
    \338\ The population of PA Category E projects includes all 
``Public Buildings'' grants from 2013-2022 that received substantial 
improvement floodproofing or new construction funding. Because of 
the large population, FEMA used Slovin's formula and a 90 percent 
confidence interval to determine the sample size. Slovin's formula: 
n = N/(1+N*e [caret] 2). Therefore, 1,154/(1 + 1,154 x 0.1 [caret] 
2) = 92 (rounded).
---------------------------------------------------------------------------

    HMA provides mitigation grants to States, Tribal governments, local 
governments, and certain non-profit organizations to, among other 
things, relocate property outside of the floodplain, or to elevate or 
floodproof structures above the flood level. FEMA will apply the FFRMS 
to all actions subject to the FFRMS, and all structure elevation, 
mitigation reconstruction, and dry floodproofing projects. As noted in 
the Regulatory Impact Analysis, FEMA funded an average of about 50 HMA 
elevation, mitigation reconstruction, and floodproofing structure 
projects per year from 2020-2022.\339\ Unlike PA grants, most HMA 
grants are for projects located in the floodplain, so for this 
analysis, FEMA assumes that all HMA elevation, mitigation 
reconstruction, and dry floodproofing projects are in the floodplain. 
FEMA cannot estimate what projects might be considered actions subject 
to the FFRMS in addition to structure elevation, mitigation 
reconstruction, and dry floodproofing projects because HMA data does 
not distinguish whether projects are considered new construction, 
substantial improvement, or repairs to address substantial damage. 
However, structure elevation, mitigation reconstruction, and dry 
floodproofing are the primary HMA projects relating to flood 
mitigation.\340\
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    \339\ FEMA was unable to obtain 10-years of historical data from 
2013-2022 for HMA due to changes within the program's database. 
Therefore, FEMA used the best available data for years 2010 through 
2019 instead.
    \340\ The other project type related to flood mitigation is 
acquisition. Generally, acquisition projects are for open space 
purposes and restore the natural and beneficial functions of the 
floodplain. Property acquisitions that result in relocated 
structures would be subject to FFRMS elevation and floodproofing 
requirements if the structure is relocated within the FFRMS 
floodplain. HMA data does not break out relocation costs from 
acquisition costs, so FEMA is unable to estimate additional 
relocation expenses for acquisition projects.
---------------------------------------------------------------------------

    With the 26 percent expansion of the floodplain, an additional 13 
HMA projects per year (50 x 26 percent), for a total of 63 (50 + 13) 
projects, will be located in the 1 percent annual chance floodplain or 
expanded FFRMS floodplain. Assuming 51 percent \341\ of HMA grant 
recipients are small entities, approximately 32 (63 projects x 51 
percent) small entities receiving HMA grants will be affected per year.
---------------------------------------------------------------------------

    \341\ In FEMA's dataset, HMA recipients only included project 
titles and not the name of the grantee. This prevented FEMA from 
determining if a grant recipient was a small entity. Since PA and 
HMA provide funding to similar entities (States, Tribal governments, 
local governments, and certain non-profit organizations) for 
disaster related activity, FEMA used the percentages of small entity 
grant recipients found in PA Category E as a proxy for HMA small 
entities.
---------------------------------------------------------------------------

    Facilities will not be required to floodproof or elevate but will 
instead need to be made resilient to the appropriate FFRMS floodplain. 
Resilience measures for facilities are highly project-specific, and 
FEMA lacks data for such projects, making it exceedingly difficult to 
estimate costs. FEMA could not estimate the cost of this rule on small 
entities for facilities. However, FEMA conducted an analysis to 
estimate the number of small entities for affected facility projects 
based on historical data.
    In an average year, FFRMS will impact about 1,036 PA Category C

[[Page 57033]]

facilities. Based on a random sample of 91 projects,\342\ FEMA found 
that grant recipients for 71 of the projects, or 76.9 percent (70 / 
91), met the definition of small entities under the Regulatory 
Flexibility Act.
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    \342\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 1,036/(1 + 
1,036 x 0.1[caret]2) = 91 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS will impact about 120 PA Category D 
facilities. Based on a random sample of 55 projects,\343\ FEMA found 
that grant recipients for 37 of the projects, or 67.3 percent (37 / 
55), met the definition of small entities under the Regulatory 
Flexibility Act.
---------------------------------------------------------------------------

    \343\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 120/(1 + 
120 x 0.1[caret]2) = 55 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS will impact about 208 PA Category F 
facilities. Based on a random sample of 68 projects,\344\ FEMA found 
that grant recipients for 55 of the projects, or 80.9 percent (55 / 
68), met the definition of small entities under the Regulatory 
Flexibility Act.
---------------------------------------------------------------------------

    \344\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 208/(1 + 
208 x 0.1[caret]2) = 68 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS will impact about 314 PA Category G 
facilities. Based on a random sample of 76 projects,\345\ FEMA found 
that grant recipients for 40 of the projects, or 52.6 percent (40 / 
76), met the definition of small entities under the Regulatory 
Flexibility Act.
---------------------------------------------------------------------------

    \345\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 314/(1 + 
314 x 0.1[caret]2) = 76 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS will impact about 84 HMA grant recipients 
that received FEMA funding per year for minor flood controls and 
generator projects. Based on a random sample of 46 projects,\346\ FEMA 
found that grant recipients for 19 of the projects, or 41.3 percent (19 
/ 46), were small entities under the definition of small entities under 
the Regulatory Flexibility Act.
---------------------------------------------------------------------------

    \346\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 84/(1 + 84 
x 0.1[caret]2) = 46 (rounded).
---------------------------------------------------------------------------

    2.5 Description of the projected reporting, recordkeeping and other 
compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    FEMA will not be changing the application process for its grant 
programs. The majority of the costs for the increased elevation or 
floodproofing requirements of structures in the FFRMS floodplain will 
be funded by FEMA through several grant programs. Small entities, like 
all entities, will be subject to additional costs not covered by these 
grants for the floodproofing, elevation of structures, and flood 
resilience measures required by the rule. For the purposes of this 
analysis, and based on historical data, FEMA presents the costs such 
that all projects will choose to elevate because of the additional 
level of safety that elevation provides over floodproofing and a 
historically higher number of HMA projects that involved elevation as 
opposed to floodproofing.\347\ FEMA uses an NFIP report to estimate the 
cost of the elevation requirements.\348\ The report provides estimates 
for the cost of elevating structures as a percentage of total 
construction cost.
---------------------------------------------------------------------------

    \347\ According to historical HMA data, there have been an 
average of 63 elevation projects and only 4 floodproofing projects 
per year.
    \348\ FEMA, ``2008 Supplement to the 2006 Evaluation of the 
National Flood Insurance Program's Building Standards'' Table 3, 
available at https://www.fema.gov/sites/default/files/2020-07/fema_nfip_2008_freeboard_report_0.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------

    The cost of elevating an existing structure is considerably higher 
than the cost of retrofitting the structure to be floodproofed. 
Floodproofing involves sealing off areas below the flood level so that 
water cannot enter or altering the use of these areas so that flood 
waters may pass through without causing serious damage. Non-residential 
structures, where elevation is not feasible, may be floodproofed rather 
than elevated. Additionally, floodproofing existing properties may be 
less costly than elevating an existing property. So, where a project 
may floodproof rather than elevate, costs may be lower for some 
projects than the costs presented here. However, for existing 
properties that choose to elevate rather than floodproof, costs may be 
higher for some projects than the costs presented here because the NFIP 
report cost estimates are for when freeboard is included in the design 
of a structure. New buildings will be evaluated for both dry 
floodproofing (preventing the intrusion of floodwaters into the 
building by using a system of waterproofing and shields) and elevation 
(constructing higher), while existing buildings will only be evaluated 
for dry floodproofing.
    As established above, FEMA estimates this rule will impact 47 small 
entity PA Category E projects annually. Using CISA as the primary 
approach, FEMA estimates that the total cost for the elevation and 
floodproofing requirements of this rule for all PA Category E projects 
will be between $10,434,180 ($104,341,798 / 10 years) and $14,497,988 
($144,979,878 / 10 years) annually for 115 (1,154 PA Total FFRMS action 
Category E projects / 10 years) projects annually. Therefore, each 
project will cost between $90,732 ($10,434,180 / 115 projects) and 
$126,078 ($14,497,988 / 115 projects). There is an average of 47 small 
entity PA projects per year. Small entity projects will have a total 
average expected cost between $4,264,404 ($90,732 x 47 small entities 
PA projects) and $5,925,666 ($126,078 x 47 small entities PA projects) 
per year. The historical average cost share for PA Category E projects 
is 85.0 percent covered by FEMA and 15.0 percent covered by the 
recipients, with the majority of recipients receiving a 75 percent or a 
90 percent cost share, depending on the type of disaster declaration. 
FEMA estimates that, for PA Category E projects, each small entity will 
have an average expected cost (i.e., their portion of the cost share) 
of between $13,610 ($90,732 x 15.0 percent) and $18,912 ($126,078 x 
15.0 percent) per project.
    As established above, FEMA estimates that this rule will affect 
approximately 32 small HMA grant recipients per year. Using CISA as the 
primary approach, FEMA estimates that the total 10-year cost for the 
elevation and floodproofing requirements of this rule for HMA projects 
will be $4,319,206 ($43,192,063 / 10 years) annually for 1,040 (10,398 
HMA Total FFRMS action projects / 10 years) projects annually. There is 
an average of 32 small entities HMA projects per year. The average HMA 
project cost is $4,153 ($4,319,206 / 1,040 HMA projects) per project. 
The cost-sharing arrangement for HMA is 75 percent Federal and 25 
percent recipient, so HMA recipients will be required to fund 25 
percent of the costs to comply with the requirements of the rule. Each 
small entity cost share will have an average expected cost of $1,038 
($4,153 x 25 percent).
    Reporting and recordkeeping are not expected to change, with the 
exception of minor changes to FEMA's Mitigation Grant Program/e-Grants 
system. FEMA will continue to make the determination of whether a 
project will take place in an FFRMS floodplain.
    2.6 Description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated

[[Page 57034]]

objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    The standards in this rule represent FEMA's efforts to implement 
Executive Order 11988, as amended, which establishes executive branch-
wide policy in this area. Executive Order 13690 establishes the FFRMS. 
The policies established in these EOs do not consider exempting small 
entities from all or part of the standard; the purpose of the FFRMS is 
to ensure that agencies expand management from the current base flood 
level to a higher vertical elevation and corresponding horizontal 
floodplain to address current and future flood risk and help ensure 
that projects funded with taxpayer dollars last as long as intended. 
Accordingly, the FFRMS will apply to all affected FEMA projects, 
including small entities.
    As discussed previously, most of the cost of the mitigation 
standards required by this rule will be paid by FEMA in the form of 
additional PA, IA, or HMA grants. Cost sharing is required for most 
FEMA grant programs. For PA and HMA, affected small entities will be 
required to pay the recipient portion of the cost share, which is 25 
percent in most cases. There are, however, some exceptions and cost 
shares can be waived or set at a different level by Congress for PA. 
FEMA does not have the authority to adjust the cost share specifically 
for small entities.
    Executive Order 11988, as amended, allows several approaches to 
determine the FFRMS floodplain. Section F of this Final Rule, FEMA's 
Implementation of Executive Order 11988, as amended, and FFRMS, 
describes the FFRMS approaches allowed by Executive Order 11988, as 
amended, and FEMA's considerations when selecting between the FFRMS 
approaches. FEMA will, in its accompanying policy, use the CISA as the 
preferred approach. FEMA has chosen the CISA as its preferred approach 
because it is the only one that uses the best available climate science 
to help ensure projects are designed to meet current and future flood 
risks unique to the location and thus provides the best overall 
resilience, cost effectiveness, and equity. Accordingly, FEMA believes 
its preferred approach will minimize the risk that affected small 
entities incur more costs than necessary because of overprotection or 
incur preventable costs from future damage because of under protection.
    The CISA establishes the required vertical elevation and 
corresponding horizontal floodplain, through the best-available, 
actionable hydrologic and hydraulic data and methods that integrate 
current and future changes in flooding based on climate science, in 
accordance with the Revised Guidelines. When such data is not 
available, this rule and supplementary policy direct the use of other 
approaches depending on the criticality of the action. The rule also 
requires the use of natural systems, ecosystem processes, and nature-
based approaches where possible.
    The FFRMS is a flexible framework to increase resilience against 
flooding and help preserve the natural and beneficial values of 
floodplains. Incorporating the FFRMS into FEMA regulations will ensure 
that FEMA expands flood risk management from the current base flood 
elevation to a higher vertical elevation and corresponding horizontal 
floodplain to address current and future flood risk and helps ensure 
that projects funded with taxpayer dollars last as long as intended for 
all applicants, including small entities. FEMA considered a more 
protective approach for critical actions but did not select this 
approach. FEMA could have chosen a more protective approach in which it 
would determine the elevations established under CISA, FVA, and the 
0.2PFA for critical actions and only allow the applicant to use the 
highest of the three elevations. This approach would ensure that 
applicants were protecting these critical assets at the highest level. 
However, this approach may lead to overbuilding and not be the most 
cost-effective or equitable approach for applicants including small 
entities.
    FEMA also considered a more protective approach for all actions but 
did not select this approach. FEMA could have required use of the 
highest standard for all actions, regardless of criticality. While this 
approach would ensure that applicants, including small entities, were 
building all actions to the most protective level, this approach would 
likely lead to overbuilding and not be the most cost-effective, 
equitable approach, particularly for non-critical actions.
    Small entities affected by the rule, as with any entity affected by 
the rule, will have the option to relocate outside of the floodplain. 
This may be preferable in cases where property can be obtained and new 
facilities built for less cost than elevating or floodproofing to the 
FFRMS level in the floodplain, and the recipient has the ability to 
relocate.

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504, 
1531-1536, 1571, pertains to any rulemaking which is likely to result 
in the promulgation of any rule that includes a Federal mandate that 
may result in the expenditure by State, local, and Tribal governments, 
in the aggregate, or by the private sector, of $100 million (adjusted 
annually for inflation) or more in any one year. If the rulemaking 
includes a Federal mandate, the Act requires an agency to prepare an 
assessment of the anticipated costs and benefits of the Federal 
mandate. The Act also pertains to any regulatory requirements that 
might significantly or uniquely affect small governments. Before 
establishing any such requirements, an agency must develop a plan 
allowing for input from the affected governments regarding the 
requirements.
    FEMA has determined this rulemaking will not result in the 
expenditure by State, Territorial, local, and Tribal governments, in 
the aggregate, nor by the private sector, of $100,000,000 or more in 
any one year as a result of a Federal mandate, and it will not 
significantly or uniquely affect small governments.\349\ Therefore, no 
actions are deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.
---------------------------------------------------------------------------

    \349\ FEMA expects that increased costs to applicants will be 
minimal. For example, FEMA found that for a project with a 75% FEMA/
25% applicant cost share, the cost to an applicant to elevate a 
structure above the BFE to meet FEMA's FFRMS requirements using the 
FVA+2 (1.91 percent of construction cost) represented less than 0.5% 
of the total project cost, or an average of an additional $4,775 in 
applicant cost share on an original total project cost of 
$1,000,000. See A Benefit Analysis of Increased Freeboard for Public 
and Nonresidential Buildings in Riverine and Coastal Floodplains, 
posted to the public docket of this rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0003.
---------------------------------------------------------------------------

D. Paperwork Reduction Act of 1995

    As required by the Paperwork Reduction Act of 1995 (PRA), Public 
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.), 
FEMA may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless the collection of 
information displays a valid OMB control number. See 44 U.S.C. 3506, 
3507. This final rule calls for no new collections of information under 
the PRA. The final rule includes information currently collected by 
FEMA and approved in OMB information collections 1660-0072 (FEMA 
Mitigation Grant Programs) and 1660-0076 (Hazard Mitigation Grant

[[Page 57035]]

Program (HMGP) Application and Reporting). With respect to these 
collections, this final rule will not impose any additional burden and 
will not require a change to the forms, the substance of the forms, or 
the number of recipients who would submit the forms to FEMA.

E. Privacy Act

    Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must 
determine whether implementation of a proposed regulation would result 
in a system of records. A ``record'' is any item, collection, or 
grouping of information about an individual that is maintained by an 
agency, including, but not limited to, his/her education, financial 
transactions, medical history, and criminal or employment history and 
that contains his/her name, or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of 
records'' is a group of records under the control of an agency from 
which information is retrieved by the name of the individual or by some 
identifying number, symbol, or other identifying particular assigned to 
the individual. See 5 U.S.C. 552a(a)(5). An agency cannot disclose any 
record, which is contained in a system of records, except by following 
specific procedures.
    In accordance with DHS policy, FEMA completed a Privacy Threshold 
Analysis for this rule. This rule is covered by the following PIAs: 
DHS/FEMA/PIA-006 FEMA National Emergency Management Electronic Grants 
System, DHS/FEMA/PIA-025-Hazard Mitigation Grant Program (HMGP) System, 
DHS/FEMA/PIA-026 Operational Data Store and Enterprise Data Warehouse 
PIA, and DHS/FEMA/PIA-031 Authentication and Provisioning Services 
(APS). No updates to these PIAs are necessary. Further, this rule is 
covered under the following System of Records Notices (SORNs): DHS/
FEMA-009 Hazard Mitigation, Disaster Public Assistance, and Disaster 
Loan Programs, 79 FR 16015, Mar. 24, 2014; DHS/ALL-004 General 
Information Technology Access Account Records System (GITAARS), 77 FR 
70792, Nov. 27, 2012; and DHS/FEMA-008 Disaster Recovery Assistance 
Files. This final rule will not create a new system of records, and no 
updates to these SORNs are necessary.

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

    Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments,'' 65 FR 67249, Nov. 9, 2000, applies to agency 
regulations that have Tribal implications, that is, regulations that 
have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. Under this Executive Order, to the extent 
practicable and permitted by law, no agency shall promulgate any 
regulation that has Tribal implications, that imposes substantial 
direct compliance costs on Indian Tribal governments, and that is not 
required by statute, unless funds necessary to pay the direct costs 
incurred by the Indian Tribal government or the Tribe in complying with 
the regulations are provided by the Federal Government, or the agency 
consults with Tribal officials.
    FEMA reviewed this final rule under Executive Order 13175 and 
determined that this rule would not have a substantial direct effect on 
one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.
    Part 9 applies to FEMA disaster and non-disaster assistance 
programs, including IA, PA, and HMA programs, and grants processed by 
FEMA's GPD. Pursuant to section 8 of Executive Order 11988, part 9 does 
not apply to assistance provided for emergency work essential to save 
lives and protect property and public health and safety, performed 
pursuant to sections 403 and 502 of the Stafford Act, as amended (42 
U.S.C. 5170b and 5192).
    Indian Tribes have the same opportunity to participate in FEMA's 
grant programs as other eligible participants, and participation is 
voluntary. The requirements of this rule do not affect Tribes 
differently than other grant recipients. FEMA's edits in this final 
rule specifically provide for Indian Tribal government information as a 
resource when making the floodplain determination under part 9, 
consistent with comments received.

G. 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 determined this rulemaking does not have a substantial 
direct effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, and therefore 
does not have federalism implications as defined by the Executive 
Order.
    Part 9 applies to FEMA disaster and non-disaster assistance 
programs, including IA, PA, and HMA programs, and grants processed by 
FEMA's GPD. Pursuant to section 8 of Executive Order 11988, part 9 does 
not apply to assistance provided for emergency work essential to save 
lives and protect property and public health and safety, performed 
pursuant to section 403 and 502 of the Stafford Act, as amended (42 
U.S.C. 5170b and 5192). The final 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.

H. National Environmental Policy Act of 1969 (NEPA)

    Section 102 of NEPA (42 U.S.C. 4321 et seq.) requires Federal 
agencies to evaluate the effects of a proposed major Federal action to 
determine if it will significantly affect the human environment, 
consider alternatives to the proposed action, provide public notice and 
opportunity for comment, and properly document its analysis. See 40 CFR 
parts 1501, 1506.6. DHS and its component agencies analyze proposed 
actions to determine whether NEPA applies and, if so, what level of 
analysis and documentation is required. 40 CFR 1501.3. DHS Directive 
023-01, Rev. 01 and DHS Instruction Manual 023-01-001-01, Rev. 01 
(Instruction Manual) establish the policies and procedures DHS and its 
component agencies use to comply with NEPA and the Council on 
Environmental Quality (CEQ) regulations for implementing the procedural 
requirements of NEPA codified in 40 CFR parts 1500 through 1508. The 
CEQ regulations allow

[[Page 57036]]

Federal agencies to establish in their NEPA implementing procedures 
categories of actions (``categorical exclusions'') that normally do not 
have a significant effect on the human environment. Categorically 
excluded actions do not require preparation of an environmental 
assessment or environmental impact statement. 40 CFR 1501.4, 
1507.3(e)(2)(ii), 1508.1(d). The Instruction Manual, Appendix A, lists 
the DHS categorical exclusions. Under DHS NEPA implementing procedures, 
for an action to be categorically excluded, it must satisfy each of the 
following conditions: (1) the entire action clearly fits within one or 
more of the categorical exclusions; (2) the action is not a piece of a 
larger action; and (3) no extraordinary circumstances exist that create 
the potential for a significant environmental effect.
    The final rule updates the Floodplain Management and Protection of 
Wetland requirements to adopt the approaches outlined in Executive 
Order 11988, as amended. This involves establishing the floodplain, 
using the vertical elevation and corresponding horizontal extent, in 
the 8-step decision-making process FEMA follows in applying Executive 
Order 11988, as amended to its actions. FEMA's final rule amends 
regulations codified at 44 CFR part 9 to revise the definition of the 
floodplain based on the approaches in Executive Order 11988, as 
amended, consisting of the Climate-Informed Science Approach (CISA), 
the freeboard value approach (FVA), the 0.2-percent-annual-chance flood 
approach (0.2PFA), and any other method identified in updates. The 
final rule allows FEMA to select and prioritize among these approaches. 
The rule revises the 8-step decision-making process to incorporate 
consideration of the approaches in determining if the project is in the 
floodplain. The rule also adds a requirement, where possible, to use 
natural systems, ecosystem processes, and nature-based approaches in 
the development of alternatives for Federal actions in a floodplain. 
The result of redefining the floodplain and applying the approaches 
outlined in Executive Order 11988, as amended, may be that structures 
and facilities determined to be in the floodplain (``the FFRMS 
floodplain'') would be designed to be more resilient, and more 
structures and facilities--due to the corresponding horizontal 
expansion of the floodplain--might be subject to an elevation 
requirement and/or other mitigation measures. Further, with the 
expanded horizontal floodplain, and application of the 8-step decision-
making process, which allows for Federal actions in the floodplain only 
if there is no practicable alternative, it is possible some structures 
or facilities that otherwise would be constructed in a high-risk flood 
area, would be constructed elsewhere. This would result in better 
protection of people and their property, the floodplain and 
environment. When placing the action in the floodplain cannot be 
avoided, implementing mitigation measures to actions in the FFRMS 
floodplain will not only promote public safety and lessen flood risk, 
but may also reduce the impact of the action on the floodplain, and 
thereby contribute to preserving the natural and beneficial values of 
the floodplain per the mandate in E.O. 11988. Similarly, the 
requirement to use natural systems, ecosystem processes, and nature-
based approaches, where possible, in alternatives to the proposed 
action, would contribute to restoring and preserving the natural and 
beneficial values of the floodplain.
    FEMA has determined NEPA applies to the final rule because it fits 
the definition of a ``major federal action.'' CEQ's NEPA regulations 
define ``major federal action'' to include ``new or revised agency 
rules,'' regulations and policies. 40 CFR 1508.1(q)(2).
    FEMA analyzed the final rule and finds it meets the three DHS 
criteria for a categorical exclusion. FEMA has determined consistent 
with the first criterion, the rule clearly fits within the categorical 
exclusion found at A3 in the DHS Instruction Manual, Appendix A. 
Categorical exclusion A3 states ``promulgation of rules, issuance of 
rulings or interpretations, and the development and publications of 
policies'' may be categorically excluded if such actions ``interpret or 
amend an existing regulation without changing its environmental 
effect.'' Instruction Manual, Appendix A, A3(d). The final rule may 
result in requiring a structure or facility to have either higher 
elevation or floodproofing, or more resilient design. The rule provides 
for a higher resilience standard than the existing rule. It is possible 
the expanded horizontal floodplain may discourage placing a ``Federal 
action'' in the floodplain, as under the 8-step decision-making 
process, an action may be located in the floodplain only if there is no 
practicable alternative. In the event there is a practicable 
alternative, and new construction is consequently located outside the 
floodplain, the effect of the final rule would be to benefit the 
environment by contributing to restoring and preserving the values of 
the floodplain, as well as enhancing public safety. FEMA's 
environmental and historic preservation review would ensure that the 
agency takes into account other potential environmental impacts of 
locating outside the floodplain.
    If the Federal action must be located in the FFRMS floodplain, that 
is, there is no practicable alternative, it will be subject to one of 
the three approaches or a combination of them. FEMA's preferred 
approach is CISA. If the CISA is used, it could result in an estimated 
average of 5 feet of additional elevation for a structure (or 
floodproofing to that level). FEMA prefers the CISA because it uses the 
best actionable and available climate-informed science to determine the 
floodplain is the most effective way to make the action resilient. If 
the CISA data is not available and/or actionable, the final rule 
provides alternatives for determining the floodplain for critical 
actions and non-critical actions: for non-critical actions, the lesser 
of the freeboard value approach (2 or 3 feet above base flood 
elevation) or the 0.2 percent annual flood; and for critical actions, 
the higher of the freeboard value approach or 0.2 percent annual flood. 
Given the CISA or the combination of approaches may be used, the 
potential for the change in elevation (or floodproofing) levels varies. 
Further, if communities have stricter standards, which they are 
required to apply, the communities will still apply that standard, and 
thus, application of the FFRMS would not require a change in elevation. 
If the ``Federal action'' is substantial improvement or addresses 
substantial damage to a structure or facility, it would involve action 
in a pre-built environment, with the only change being the structure or 
facility might be elevated or floodproofed to the appropriate higher 
level. If design rather than elevation, or in addition to elevation, is 
used to comply with the FFRMS resilience standard, it is not 
anticipated it will significantly impact the environment. As part of 
implementing the FFRMS resilience standard, nature-based solutions are 
required in alternatives to the proposed action, where possible. When 
applied, they will benefit the environment by contributing to restoring 
and preserving the natural and beneficial values of the floodplain. 
None of the changes required by any of the combined FFRMS approaches 
are anticipated to change the environmental effects of application of 
the 8-step process. Categorical exclusion A3 applies to this regulatory 
action, however any of the Federally funded actions to which the FFRMS 
applies (new construction, substantial

[[Page 57037]]

improvement and repair of substantial damage) will undergo separate 
NEPA analysis.
    In addition to and apart from application of the decision process 
in this final rule, all Federal actions, new construction, substantial 
improvement, and actions addressing substantial damage, are subject to 
NEPA review and must comply with NEPA requirements. Each Federal action 
subject to the FFRMS will be evaluated on an individual basis under 
NEPA and related environmental laws, regulations, and executive orders. 
The Federal action will not be approved unless it meets all applicable 
environmental and historic preservation requirements. Further, the 
Federal actions subject to the proposed rule must comply with all 
applicable floodplain requirements. See 44 CFR 9.11(d)(6) (referring to 
requirement to be consistent with the criteria of the NFIP at 44 CFR 
part 59 et seq. or any more restrictive Federal, State, or local 
floodplain management standard).
    FEMA therefore concludes the final rule clearly fits within 
categorical exclusion A3. FEMA also finds the final rule meets the 
second and third DHS criteria for applying a categorical exclusion. The 
final rule is not a piece of a larger action, as it will be implemented 
independently of other FEMA actions and is a separate action unto 
itself. Furthermore, FEMA finds adopting the floodplain management and 
protection approaches outlined in Executive Order 11988, as amended, 
presents no extraordinary circumstances that increase the potential for 
significant environmental effects to the environment. Accordingly, the 
final rule is categorically excluded, and no further NEPA analysis or 
documentation is required.

I. Executive Orders 12898 and 14096 on Environmental Justice

    Under Executive Order 12898, ``Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' (59 FR 7629, Feb. 16, 1994); and Executive Order 14096, 
``Revitalizing Our Nation's Commitment to Environmental Justice for 
All'' (88 FR 25251, Apr. 26, 2023), FEMA incorporates environmental 
justice into its policies and programs. Executive Order 14096 charges 
agencies to make achieving environmental justice part of their 
missions, consistent with statutory authority, by identifying, 
analyzing, and addressing disproportionate and adverse human health and 
environmental effects and hazards of Federal activities, including 
those related to climate change and cumulative impacts of environmental 
and other burdens on communities with environmental justice concerns.
    This final rule will not have a disproportionate and adverse human 
health or environmental effect on communities with environmental 
justice concerns. FEMA addressed specific comments related to 
environmental justice above.

J. Executive Order 12630, Taking of Private Property

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

K. Executive Order 12988, Civil Justice Reform

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

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

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

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

    ``Voluntary consensus standards'' are standards developed or 
adopted by voluntary consensus standards bodies, both domestic and 
international. These standards include provisions requiring owners of 
relevant intellectual property to agree to make that intellectual 
property available on a non-discriminatory, royalty-free, or reasonable 
royalty basis to all interested parties. OMB Circular A-119 directs 
agencies to use voluntary consensus standards in their regulatory 
actions in lieu of government-unique standards, except where 
inconsistent with law or otherwise impractical. The policies in the 
Circular are intended to reduce to a minimum the reliance by agencies 
on government-unique standards.
    Consistent with then-President Obama's Climate Action Plan,\350\ 
the National Security Council staff coordinated an interagency effort 
to create a new flood risk reduction standard for Federally funded 
projects. The views of Governors, mayors, and other stakeholders were 
solicited and considered as efforts were made to establish a new flood 
risk reduction standard for Federally funded projects. The FFRMS is the 
result of these efforts.
---------------------------------------------------------------------------

    \350\ The White House, ``President Obama's Climate Action Plan, 
2nd Anniversary Progress Report--Continuing to cut carbon, 
pollution, protect American communities, and lead internationally.'' 
June 2015 found at https://obamawhitehouse.archives.gov/sites/default/files/docs/cap_progress_report_final_w_cover.pdf (last 
accessed Jan. 24, 2024).
---------------------------------------------------------------------------

N. Congressional Review of Agency Rulemaking

    Under the Congressional Review 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 certain 
actions under the Regulatory Flexibility Act and the Unfunded Mandates 
Reform Act; and any other relevant information or requirements under 
any other Act and any executive orders. FEMA has submitted this rule to 
the Congress and to GAO pursuant to the CRA. OMB has determined that 
this rule is not a ``major rule'' within the meaning of the CRA.

List of Subjects in 44 CFR Part 9

    Floodplains; Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Federal Emergency 
Management Agency (FEMA) is amending 44 CFR part 9 as follows:

PART 9--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS

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

    Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42 
U.S.C. 4321 et seq.; E.O. 11988 of May 24, 1977, 42 FR 26951, 3 CFR, 
1977 Comp., p. 117; E.O. 11990 of May 24, 1977, 42 FR 26961, 3 CFR, 
1977 Comp. p. 121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 FR 27967.


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


Sec.  9.1  Purpose.

    This part sets forth the policy, procedure, and responsibilities to 
implement and enforce relevant sections of the National Flood Insurance 
Act of 1968, as amended, and the Flood Disaster Protection Act of 1973, 
as

[[Page 57038]]

amended, 42 U.S.C. 4001 et seq., the National Environmental Policy Act 
of 1969, 42 U.S.C. 4321 et seq., as amended, and other relevant 
statutory authorities in conjunction with Executive Order 11988, 
Floodplain Management, as amended, and Executive Order 11990, 
Protection of Wetlands.

0
3. Amend Sec.  9.2 by revising paragraph (b) and adding paragraphs (c) 
and (d) to read as follows:


Sec.  9.2  Policy.

* * * * *
    (b) The Agency will provide leadership in floodplain management and 
the protection of wetlands, informed by the best available and 
actionable science, to bolster the resilience of communities and 
Federal assets against the impacts of flooding, which are anticipated 
to increase over time due to the effects of changing conditions which 
adversely affect the environment, economic prosperity, public health 
and safety, and national security.
    (c) The Agency shall integrate the goals of the Orders to the 
greatest possible degree into its procedures for implementing the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
    (d) The Agency shall:
    (1) Minimize the impact of floods on human health, safety, and 
welfare;
    (2) Avoid long- and short-term adverse impacts associated with the 
occupancy and modification of floodplains and the destruction and 
modification of wetlands;
    (3) Avoid direct and indirect support of floodplain development and 
new construction in wetlands wherever there is a practicable 
alternative;
    (4) Reduce the risk of flood loss;
    (5) Promote the use of nonstructural flood protection methods to 
reduce the risk of flood loss;
    (6) Minimize the destruction, loss, or degradation of wetlands;
    (7) Restore and preserve the natural and beneficial values served 
by floodplains;
    (8) Preserve and enhance the natural values of wetlands;
    (9) Involve the public throughout the floodplain management and 
wetlands protection decision-making process;
    (10) Adhere to the objectives of the Unified National Program for 
Floodplain Management; and
    (11) Improve and coordinate the Agency's plans, programs, 
functions, and resources so that the Nation may attain the widest range 
of beneficial uses of the environment without degradation or risk to 
health and safety.

0
4. Revise Sec.  9.3 to read as follows:


Sec.  9.3  Severability.

    Any provision of this part held to be invalid or unenforceable as 
applied to any action should be construed so as to continue to give the 
maximum effect to the provision permitted by law, unless such holding 
is that the provision of this part is invalid and unenforceable in all 
circumstances, in which event the provision should be severable from 
the remainder of this subpart and shall not affect the remainder 
thereof.

0
5. Amend Sec.  9.4 by:
0
a. Adding in alphanumeric order definitions for ``0.2 percent annual 
chance flood elevation'', ``0.2 percent annual chance floodplain'', ``1 
percent annual chance flood elevation'', and ``1 percent annual chance 
floodplain'';
0
b. Revising the definitions of ``Action'' and ``Actions Affecting or 
Affected by Floodplains or Wetlands'';
0
c. Adding in alphabetical order a definition for ``Action subject to 
the Federal Flood Risk Management Standard'';
0
d. Removing the definitions of ``Base Flood'' and ``Base Floodplain'';
0
e. Adding in alphabetical order a definition for ``Base flood 
elevation'';
0
f. Revising the definitions of ``Coastal High Hazard Area'', ``Critical 
Action'', and ``Emergency Actions'';
0
g. Adding in alphabetical order definitions for ``Federal Flood Risk 
Management Standard (FFRMS)'', ``Federal Flood Risk Management Standard 
(FFRMS) floodplain'', ``Federally funded project'', and ``FEMA 
Resilience'';
0
h. Removing the definitions of ``FIA'' and ``Five Hundred Year 
Floodplain'';
0
i. Revising the definition of ``Flood or flooding'';
0
j. Removing the definitions of ``Flood Fringe'', ``Flood Hazard 
Boundary Map (FHBM)'', ``Flood Insurance Rate Map (FIRM)'', and ``Flood 
Insurance Study (FIS)'';
0
k. Revising the definitions of ``Floodplain'', ``Functionally Dependent 
Use'', and ``Mitigation'';
0
l. Removing the definition of ``Mitigation Directorate'';
0
m. Adding in alphabetical order definitions for ``National security'', 
``Nature-based approaches'', ``Natural and beneficial values of 
floodplains and wetlands'', and ``Natural features'';
0
n. Removing the definition of ``Natural Values of Floodplains and 
Wetlands'';
0
o. Revising the definition of ``New Construction'';
0
p. Removing the definition of ``New Construction in Wetlands'';
0
q. Revising the definitions of ``Orders'', ``Practicable'', 
``Regulatory Floodway'', ``Restore'', ``Structures'', and ``Substantial 
Improvement'';
0
r. Adding in alphabetical order a definition for ``Support of 
floodplain and wetland development'';
0
s. Removing the definition of ``Support''; and
0
t. Revising the definition of ``Wetlands''.
    The additions and revisions read as follows:


Sec.  9.4  Definitions.

    0.2 percent annual chance flood elevation means the elevation to 
which floodwater is anticipated to rise during the 0.2 percent annual 
chance flood (also known as the 500-year flood).
    0.2 Percent annual chance floodplain means the area subject to 
flooding by the 0.2 percent annual chance flood (also known as the 500-
year floodplain).
    1 percent annual chance flood elevation--see the definition of base 
flood elevation in this section.
    1 percent annual chance floodplain means the area subject to 
flooding by the 1 percent annual chance flood (also known as the 100-
year floodplain or base floodplain).
    Action means
    (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.
    Actions affecting or affected by floodplains or wetlands means 
actions which have the potential to result in the long- or short-term 
impacts associated with:
    (1) The occupancy or modification of floodplains, and the direct or 
indirect support of floodplain development, or
    (2) The destruction and modification of wetlands and the direct or 
indirect support of new construction in wetlands.
    Action subject to the Federal Flood Risk Management Standard 
(FFRMS) means any action where FEMA funds are used for new 
construction, substantial improvement, or to address substantial damage 
to a structure or facility.
* * * * *
    Base flood elevation means the elevation to which floodwater is 
anticipated to rise during the 1 percent annual chance flood (also 
known as the base flood or 100-year flood). The terms ``base flood 
elevation,'' ``1 percent annual change flood elevation,'' and ``100-
year flood elevation'' are

[[Page 57039]]

synonymous and are used interchangeably.
    Coastal high hazard area means an area of flood hazard extending 
from offshore to the inland limit of a primary frontal dune along an 
open coast and any other area subject to high velocity wave action from 
storms or seismic sources.
    Critical action means any action for which even a slight chance of 
flooding is too great. Critical actions include, but are not limited 
to, those which create or extend the useful life of structures or 
facilities:
    (1) Such as those which produce, use or store highly volatile, 
flammable, explosive, toxic or water-reactive materials;
    (2) Such as hospitals and nursing homes, and housing for the 
elderly, which are likely to contain occupants who may not be 
sufficiently mobile to avoid the loss of life or injury during flood 
and storm events;
    (3) Such as emergency operation centers, or data storage centers 
which contain records or services that may become lost or inoperative 
during flood and storm events; and
    (4) Such as generating plants, and other principal points of 
utility lines.
* * * * *
    Emergency actions means emergency work essential to save lives and 
protect property and public health and safety performed under sections 
403 and 502 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act of 1988 (42 U.S.C. 5170b and 5192).
* * * * *
    Federal Flood Risk Management Standard (FFRMS) means the Federal 
flood risk management standard to be incorporated into existing 
processes used to implement Executive Order 11988, as amended.
    Federal Flood Risk Management Standard (FFRMS) floodplain means the 
floodplain established using one of the approaches described in Sec.  
9.7(c) of this part.
    Federally funded project--see the definition of Action subject to 
the Federal Flood Risk Management Standard in this section.
    FEMA Resilience means the organization within FEMA that includes 
the Federal Insurance and Mitigation Administration, the Grants Program 
Directorate, and the National Preparedness Directorate.
* * * * *
    Flood or flooding means the general and temporary condition of 
partial or complete inundation of normally dry land areas from the 
overflow of inland and/or tidal waters, and/or the unusual and rapid 
accumulation of runoff of surface waters from any source. 0.2 percent 
annual chance flood means the flood which has a 0.2 percent chance of 
being equaled or exceeded in any given year (also known as the 500-year 
flood). 1 percent annual chance flood means the flood which has a 1 
percent chance of being equaled or exceeded in any given year (also 
known as the 100-year flood or base flood). The terms ``base flood,'' 
``1 percent annual chance flood,'' and ``100-year flood'' are 
synonymous and are used interchangeably.
* * * * *
    Floodplain means any land area that is subject to flooding. The 
term ``floodplain,'' by itself, refers to geographic features with 
undefined boundaries. For the purposes of this part, the FFRMS 
floodplain shall be established using one of the approaches described 
in Sec.  9.7(c). See the definitions of 0.2 percent annual chance 
floodplain, 1 percent annual chance floodplain, and Federal Flood Risk 
Management Standard floodplain in this section.
* * * * *
    Functionally dependent use means a use which cannot perform its 
intended purpose unless it is located or carried out in close proximity 
to water.
* * * * *
    Mitigation means steps necessary to minimize the potentially 
adverse effects of the proposed action, and to restore and preserve the 
natural and beneficial floodplain values and to preserve and enhance 
natural values of wetlands.
* * * * *
    National security means:
    (1) A condition that is provided by either:
    (i) A military or defense advantage over any foreign nation or 
group of nations;
    (ii) A favorable foreign relations position; or
    (iii) A defense posture capable of successfully resisting hostile 
or destructive action from within or without, overt or covert.
    (2) National security encompasses both national defense and foreign 
relations of the United States.
    Nature-based approaches means the features (sometimes referred to 
as ``green infrastructure'') designed to mimic natural processes and 
provide specific services such as reducing flood risk and/or improving 
water quality. Nature-based approaches are created by human design (in 
concert with and to accommodate natural processes) and generally, but 
not always, must be maintained in order to reliably provide the 
intended level of service.
    Natural and beneficial values of floodplains and wetlands means 
features or resources that provide environmental and societal benefits. 
Water and biological resources are often referred to as ``natural 
functions of floodplains and wetlands.'' These values include, but are 
not limited to:
    (1) Water resource values (storing and conveying floodwaters, 
maintaining water quality, and groundwater recharge);
    (2) Living resource values (providing habitats and enhancing 
biodiversity for fish, wildlife, and plant resources);
    (3) Cultural resource values (providing open space, natural beauty, 
recreation, scientific study, historic and archaeological resources, 
and education; and
    (4) Cultivated resource values (creating rich soils for 
agriculture, aquaculture, and forestry).
    Natural features means characteristics of a particular environment 
(e.g., barrier islands, sand dunes, wetlands) that are created by 
physical, geological, biological, and chemical processes and exist in 
dynamic equilibrium. Natural features are self-sustaining parts of the 
landscape that require little or no maintenance to continue providing 
their ecosystem services (functions).
    New construction means the construction of a new structure or 
facility or the replacement of a structure or facility which has been 
totally destroyed. New construction includes permanent installation of 
temporary housing units. New construction in wetlands includes 
draining, dredging, channelizing, filling, diking, impounding, and 
related activities.
* * * * *
    Orders means Executive Order 11988, Floodplain Management, as 
amended, and Executive Order 11990, Protection of Wetlands.
    Practicable means capable of being done within existing 
constraints. The test of what is practicable depends on the situation 
and includes consideration of all pertinent factors, such as natural 
environment, social concerns, economic aspects, legal constraints, and 
agency authorities.
* * * * *
    Regulatory floodway means the area regulated by Federal, State, or 
local requirements to provide for the discharge of the base flood so 
the cumulative rise in the water surface is no more than a designated 
amount above the base flood elevation.
    Restore means to reestablish a setting or environment in which the 
natural functions of the floodplain can operate.

[[Page 57040]]

    Structure means a walled and roofed building, including a temporary 
housing unit (manufactured housing) or a gas or liquid storage tank.
    Substantial improvement means any repair, reconstruction or other 
improvement of a structure or facility, which has been damaged in 
excess of, or the cost of which equals or exceeds, 50 percent of the 
pre-disaster market value of the structure or replacement cost of the 
facility (including all ``public facilities'' as defined in the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act of 1988) 
before the repair or improvement is started, or if the structure or 
facility has been damaged and is proposed to be restored. Substantial 
improvement includes work to address substantial damage to a structure 
or facility. If a facility is an essential link in a larger system, the 
percentage of damage will be based on the cost of repairing the damaged 
facility relative to the replacement cost of the portion of the system 
which is operationally dependent on the facility. The term 
``substantial improvement'' does not include any alteration of a 
structure or facility listed on the National Register of Historic 
Places or a State Inventory of Historic Places.
* * * * *
    Support of floodplain and wetland development means to, directly or 
indirectly, encourage, allow, serve, or otherwise facilitate 
development in floodplains or wetlands. Development means any man-made 
change to improved or unimproved real estate, including but not limited 
to new construction, mining, dredging, filling, grading, paving, 
excavation or drilling operations, or storage of equipment or 
materials. Direct support results from actions within floodplains or 
wetlands, and indirect support results from actions outside of 
floodplains or wetlands.
    Wetlands means those areas which are inundated or saturated by 
surface or ground water with a frequency sufficient to support, or that 
under normal hydrologic conditions does or would support, a prevalence 
of vegetation or aquatic life typically adapted for life in saturated 
or seasonally saturated soil conditions, including wetlands areas 
separated from their natural supply of water as a result of 
construction activities such as structural flood protection methods or 
solid-fill road beds, and activities such as mineral extraction and 
navigation improvements. Examples of wetlands include, but are not 
limited to, swamps, fresh and salt water marshes, estuaries, bogs, 
beaches, wet meadows, sloughs, potholes, mud flats, river overflows, 
and other similar areas. This definition is intended to be consistent 
with the definition utilized by the U.S. Fish and Wildlife Service.

0
6. Amend Sec.  9.5 by revising paragraph (a)(3), the first sentence of 
paragraph (b)(1), and paragraphs (c) through (g) to read as follows:


Sec.  9.5  Scope.

    (a) * * *
    (3) The amendments to this part made on September 9, 2024 apply to 
new actions for which assistance is made available pursuant to 
declarations under the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act of 1988 on or after September 9, 2024 and new actions 
for which assistance is made available pursuant to notices of funding 
opportunities published on or after September 9, 2024. For ongoing 
actions for which assistance was made available prior to that date, 
legacy program regulations (available at http://www.fema.gov) shall 
apply.
    (b) * * *
    (1) Executive Order 11990, Protection of Wetlands, contains a 
limited exemption not found in Executive Order 11988, Floodplain 
Management, as amended. * * *
* * * * *
    (c) Decision-making involving certain categories of actions. The 
provisions set forth in this part are not applicable to the actions 
enumerated in paragraphs (c)(1) through (10) of this section except 
that the Regional Administrators shall comply with the spirit of 
Executive Order 11988, as amended, and Executive Order 11990 to the 
extent practicable. For any action which is excluded from the actions 
enumerated below, the full 8-step process applies (see Sec.  9.6) 
(except as indicated at paragraphs (d), (e), and (g) of this section 
regarding other categories of partial or total exclusion). The 
provisions of this part do not apply to the following (all references 
are to the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act of 1988, Public Law 93-288, as amended, except as noted):
    (1) Assistance provided for emergency work essential to save lives 
and protect property and public health and safety performed pursuant to 
sections 403 and 502;
    (2) Emergency Support Teams (section 303);
    (3) Emergency Communications (section 418);
    (4) Emergency Public Transportation (section 419);
    (5) Fire Management Assistance (section 420), except for hazard 
mitigation assistance under sections 404 and 420(d);
    (6) Community Disaster Loans (section 417), except to the extent 
that the proceeds of the loan will be used for repair of facilities or 
structures or for construction of additional facilities or structures;
    (7) The following Federal Assistance to Individuals and Households 
Program (section 408) categories of assistance:
    (i) Financial assistance for temporary housing (section 
408(c)(1)(A));
    (ii) Lease and repair of rental units for temporary housing 
(section 408(c)(1)(B)(ii)), except that Step 1 (Sec.  9.7) shall be 
carried out;
    (iii) Repairs (section 408(c)(2));
    (iv) Replacement (section 408(c)(3)); and
    (v) Financial assistance to address other needs (section 408(e)).
    (8) Debris clearance and removal (sections 403 and 502), except 
those grants involving non-emergency disposal of debris within a 
floodplain or wetland (section 407);
    (9) Actions under sections 406 and 407 of less than $18,000. Such 
$18,000 amount will be adjusted annually to reflect changes in the 
Consumer Price Index for All Urban Consumers published by the 
Department of Labor;
    (10) Placement of families in existing resources and Temporary 
Relocation Assistance provided to those families so placed under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980, Public Law 96-510.
    (d) Abbreviated decision-making process applying steps 1, 4, 5, and 
8. The Regional Administrator shall apply steps 1, 4, 5, and 8 of the 
decision-making process (Sec. Sec.  9.7, 9.10, and 9.11) to repairs 
under section 406 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act of 1988, Public Law 93-288, as amended, 
between $18,000 and $91,000. Such $18,000 and $91,000 amounts will be 
adjusted annually to reflect changes in the Consumer Price Index for 
All Urban Consumers published by the Department of Labor. For any 
action which is excepted from the actions listed below (except as 
otherwise provided in this section regarding other categories of 
partial or total exclusion), the full 8-step process applies (See Sec.  
9.6). The Regional Administrator may also require certain other 
portions of the decision-making process to be carried out for 
individual actions as is deemed necessary. Steps 1, 4, 5, and 8 of the 
decision-making process apply to actions under section 406 of the 
Stafford Act referenced above except for:

[[Page 57041]]

    (1) Actions in a floodway or coastal high hazard area; or
    (2) New construction, substantial improvement, or repairs to 
address substantial damage of structures or facilities; or
    (3) Facilities or structures which have previously sustained damage 
from flooding due to a major disaster or emergency or on which a flood 
insurance claim has been paid; or
    (4) Critical actions.
    (e) Abbreviated decision-making process applying steps 1, 2, 4, 5, 
and 8. The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 
of the decision-making process (Sec. Sec.  9.7, 9.8, 9.10, and 9.11, 
see Sec.  9.6) to certain actions under Section 406 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act of 1988, Public 
Law 93-288, as amended, provided in paragraphs (e)(1) and (2) of this 
section. Steps 3 and 6 (Sec.  9.9) shall be carried out except that 
alternative sites outside the floodplain or wetland need not be 
considered. After assessing impacts of the proposed action on the 
floodplain or wetlands and of the site on the proposed action, 
alternative actions to the proposed action, if any, and the ``no 
action'' alternative shall be considered. The Regional Administrator 
may also require certain other portions of the decision-making process 
to be carried out for individual actions as is deemed necessary. For 
any action which is excluded from the actions listed below (except as 
otherwise provided in this section regarding other categories of 
partial or total exclusion), the full 8-step process applies (see Sec.  
9.6). The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of 
the decision-making process (Sec. Sec.  9.7, 9.8, 9.10, and 9.11, see 
Sec.  9.6) to:
    (1) Replacement of building contents, materials, and equipment 
(section 406).
    (2) Repairs under section 406 to damaged facilities or structures, 
except any such action for which one or more of the following is 
applicable:
    (i) FEMA estimated cost of repairs is more than 50 percent of the 
estimated reconstruction cost of the entire facility or structure or is 
more than $364,000. Such $364,000 amount will be adjusted annually to 
reflect changes in the Consumer Price Index for All Urban Consumers 
published by the Department of Labor; or
    (ii) The action is located in a floodway or coastal high hazard 
area; or
    (iii) Facilities or structures which have previously sustained 
structural damage from flooding due to a major disaster or emergency or 
on which a flood insurance claim has been paid; or
    (iv) The action is a critical action.
    (f) Other categories of actions. Based upon the completion of the 
8-step decision-making process (Sec.  9.6), the Regional Administrator 
may find that a specific category of actions either offers no potential 
for carrying out the purposes of the Orders and shall be treated as 
those actions listed in paragraph (c) of this section, or has no 
practicable alternative sites and shall be treated as those actions 
listed in paragraph (e) of this section, or has no practicable 
alternative actions or sites and shall be treated as those actions 
listed in paragraph (d) of this section. This finding will be made in 
consultation with FEMA Resilience and the Council on Environmental 
Quality as provided in section 2(d) of Executive Order 11988, as 
amended. Public notice of each of these determinations shall include 
publication in the Federal Register and a 30-day comment period.
    (g) The National Flood Insurance Program (NFIP). (1) FEMA 
Resilience shall apply the 8-step decision-making process to program-
wide actions under the NFIP, including all regulations, procedures, and 
other issuances making or amending program policy, and the 
establishment of programmatic standards or criteria. FEMA Resilience 
shall not apply the 8-step decision-making process to the application 
of programmatic standards or criteria to specific situations. Thus, for 
example, FEMA Resilience would apply the 8-step process to a 
programmatic determination of categories of structures to be insured, 
but not to whether to insure each individual structure.
    (2) The provisions set forth in this part are not applicable to the 
actions enumerated below except that FEMA Resilience shall comply with 
the spirit of the Orders to the extent practicable:
    (i) The issuance of individual flood insurance policies and policy 
interpretations;
    (ii) The adjustment of claims made under the Standard Flood 
Insurance Policy;
    (iii) The hiring of independent contractors to assist in the 
implementation of the NFIP;
    (iv) The issuance of individual flood insurance maps, Map 
Information Facility map determinations, and map amendments; and
    (v) The conferring of eligibility for emergency or regular program 
(NFIP) benefits upon communities.

0
7. Revise Sec.  9.6 to read as follows:


Sec.  9.6  Decision-making process.

    (a) Purpose. This section sets out the floodplain management and 
wetlands protection decision-making process to be followed by the 
Agency in applying the Orders to its actions. The numbering of Steps 1 
through 8 does not require that the steps be followed sequentially. As 
information is gathered through the decision-making process, and as 
additional information is needed, reevaluation of lower numbered steps 
may be necessary.
    (b) Decision-making process. Except as otherwise provided in Sec.  
9.5 regarding categories of partial or total exclusion when proposing 
an action, the Agency shall apply the 8-step decision-making process. 
FEMA shall:
    (1) Step 1. Determine whether the proposed action is located in a 
floodplain and/or a wetland as established by Sec.  9.7; and whether it 
has the potential to affect or be affected by a floodplain or wetland 
(see Sec.  9.7);
    (2) Step 2. Notify the public at the earliest possible time of the 
intent to carry out an action in a floodplain or wetland, and involve 
the affected and interested public in the decision-making process (see 
Sec.  9.8);
    (3) Step 3. Identify and evaluate practicable alternatives to 
locating the proposed action in a floodplain or wetland (including 
alternative sites, actions, natural features, nature-based approaches, 
and the ``no action'' option) (see Sec.  9.9). If a practicable 
alternative exists outside the floodplain or wetland FEMA must locate 
the action at the alternative site.
    (4) Step 4. Identify the potential direct and indirect impacts 
associated with the occupancy or modification of floodplains and 
wetlands and the potential direct and indirect support of floodplain 
and wetland development that could result from the proposed action (see 
Sec.  9.10);
    (5) Step 5. Minimize the potential adverse impacts to or within 
floodplains and wetlands and minimize support of floodplain and wetland 
development identified under Step 4. Restore and preserve the natural 
and beneficial values served by floodplains, and preserve and enhance 
the natural and beneficial values served by wetlands. Integrate nature-
based approaches where appropriate (see Sec.  9.11);
    (6) Step 6. Reevaluate the proposed action to determine first, if 
it is still practicable in light of its exposure to flood hazards, the 
extent to which it will aggravate hazards to others, and its potential 
to disrupt floodplain and wetland values; and second, if alternatives 
preliminarily rejected at Step 3 are practicable in light of the 
information gained in Steps 4 and 5. FEMA shall not act in a floodplain 
or wetland unless it is the only practicable location (see Sec.  9.9);

[[Page 57042]]

    (7) Step 7. Prepare and provide the public with a finding and 
public explanation of any final decision that the floodplain or wetland 
is the only practicable alternative (see Sec.  9.12); and
    (8) Step 8. Review the implementation and post-implementation 
phases of the proposed action to ensure that the requirements stated in 
Sec.  9.11 are fully implemented. Oversight responsibility shall be 
integrated into existing processes.

0
8. Amend Sec.  9.7 by revising paragraphs (a), (b), (c), and (d)(3) and 
(4) to read as follows:


Sec.  9.7  Determination of proposed action's location.

    (a) Purpose. This section establishes Agency procedures for 
determining whether any action as proposed is located in or affects a 
floodplain established in paragraph (c) of this section or a wetland.
    (b) Information needed. (1) The Agency shall obtain enough 
information so that it can fulfill the requirements in this part to:
    (i) Avoid Federal action in floodplain and wetland locations unless 
they are the only practicable alternatives; and
    (ii) Minimize harm to and within floodplains and wetlands.
    (2) In all cases, FEMA shall determine whether the proposed action 
is located in a floodplain or wetland. Information about the floodplain 
as established by paragraph (c) of this section and the location of 
floodways and coastal high hazard areas may also be needed to comply 
with this part, especially Sec.  9.11.
    (3) The following additional current and future flooding 
characteristics may be identified by the Regional Administrator as 
applicable:
    (i) Velocity of floodwater;
    (ii) Rate of rise of floodwater;
    (iii) Duration of flooding;
    (iv) Available warning and evacuation time and routes;
    (v) Special problems:
    (A) Levees;
    (B) Erosion;
    (C) Subsidence;
    (D) Sink holes;
    (E) Ice jams;
    (F) Debris load;
    (G) Pollutants;
    (H) Wave heights;
    (I) Groundwater flooding;
    (J) Mudflow.
    (vi) Any other applicable flooding characteristics.
    (c) Floodplain determination. In the absence of a finding to the 
contrary, FEMA will determine that a proposed action involving a 
facility or structure that has been flooded previously is in the 
floodplain. In determining if a proposed action is in the floodplain:
    (1) FEMA shall determine whether the action is an action subject to 
the FFRMS as defined in Sec.  9.4.
    (i) If the action is an action subject to the FFRMS, FEMA shall 
establish the FFRMS floodplain area and associated flood elevation by 
using the process specified in (c)(3) of this section and one of the 
following approaches:
    (A) Climate-Informed Science Approach (CISA): Using a climate-
informed science approach that uses the best-available, actionable 
hydrologic and hydraulic data and methods that integrate current and 
future changes in flooding based on climate science. This approach will 
also include an emphasis on whether the action is a critical action as 
one of the factors to be considered when conducting the analysis;
    (B) Freeboard Value Approach (FVA): Using the freeboard value, 
reached by adding an additional 2 feet to the base flood elevation for 
non-critical actions and by adding an additional 3 feet to the base 
flood elevation for critical actions;
    (C) 0.2-Percent-Annual-Chance Flood Approach (0.2PFA): The 0.2 
percent annual chance flood; or
    (D) Any other method identified in an update to the FFRMS.
    (ii) FEMA may select among and prioritize the approaches in this 
paragraph (c)(1) by policy.
    (iii) FEMA may provide an exception to using the FFRMS floodplain 
and corresponding flood elevation for an action subject to the FFRMS 
and instead use the 1 percent annual chance (base) floodplain for non-
critical actions or the 0.2 percent annual chance floodplain for 
critical actions where the action is in the interest of national 
security, where the action is an emergency action, or where the action 
is a mission-critical requirement related to a national security 
interest or an emergency action.
    (2) If the action is not an action subject to the FFRMS as defined 
in Sec.  9.4, FEMA shall use, at a minimum:
    (i) The 1 percent annual chance (base) floodplain and flood 
elevation for non-critical actions; and
    (ii) The 0.2 percent annual chance floodplain and flood elevation 
for critical actions.
    (3) FEMA shall establish the floodplain and corresponding elevation 
using the best available information. The floodplain and corresponding 
elevation determined using the best available information must be at 
least as restrictive as FEMA's regulatory determinations under the NFIP 
where such determinations are available. In obtaining the best 
available information, FEMA may consider other FEMA information as well 
as other available information, such as information from:
    (i) Department of Agriculture: Natural Resources Conservation 
Service, U.S. Forest Service;
    (ii) Department of Defense: U.S. Army Corps of Engineers;
    (iii) Department of Commerce: National Oceanic and Atmospheric 
Administration;
    (iv) Department of the Interior: Bureau of Land Management, Bureau 
of Reclamation, National Park Service, U.S. Fish and Wildlife Service, 
United States Geological Survey;
    (v) Tennessee Valley Authority;
    (vi) Department of Transportation;
    (vii) Environmental Protection Agency;
    (viii) General Services Administration;
    (ix) Agencies of State, Regional, and Indian Tribal governments; or
    (x) Local sources such as Floodplain Administrators, Regional Flood 
Control Districts, or Transportation Departments.
    (4) If the sources listed in paragraph (c)(3) of this section do 
not have or know of the information necessary to comply with the 
requirements in this part, the Regional Administrator may seek the 
services of a professional registered engineer.
    (5) If a decision involves an area or location within extensive 
Federal or state holdings or a headwater area and FEMA's regulatory 
determinations under the National Flood Insurance Program are not 
available, the Regional Administrator shall seek information from the 
land administering agency before information and/or assistance is 
sought from the sources listed in paragraph (c)(3) of this section.
    (d) * * *
    (3) If the identified sources do not have adequate information upon 
which to base the determination, the Agency shall carry out an on-site 
analysis performed by a representative of the FWS or other qualified 
individual for wetlands characteristics based on the definition of a 
wetland in Sec.  9.4.
    (4) If an action constitutes new construction and is in a wetland 
but not in a floodplain, the provisions of this part shall apply. If 
the action is not in a wetland, the Regional Administrator shall 
determine if the action has the potential to result in indirect impacts 
on wetlands. If so, all potential adverse impacts shall be minimized. 
For actions which are in a wetland and the floodplain, completion of 
the decision-making process is required. (See Sec.  9.6). In such a 
case, the wetland will be considered as one of the natural and 
beneficial values of the floodplain.

0
9. Amend Sec.  9.8 by revising paragraphs (a) and (c)(1), the first 
sentence of

[[Page 57043]]

paragraph (c)(2), and paragraphs (c)(3) introductory text, (c)(3)(v), 
and (c)(4) and (5) to read as follows:


Sec.  9.8   Public notice requirements.

    (a) Purpose. This section establishes the initial notice procedures 
to be followed when the Agency proposes any action in or affecting 
floodplains or wetlands.
* * * * *
    (c) * * *
    (1) For an action for which an environmental impact statement is 
being prepared, the Notice of Intent to File an EIS constitutes the 
early public notice if it includes the information required under 
paragraph (c)(5) of this section.
    (2) For each action having national significance for which notice 
is being provided, the Agency at a minimum shall provide notice by 
publication in the Federal Register and shall provide notice by mail to 
national organizations reasonably expected to be interested in the 
action. * * *
    (3) The Agency shall determine whether it has provided appropriate 
notices, adequate comment periods, and whether to issue cumulative 
notices (paragraphs (c)(4), (6), and (7) of this section) based on 
factors which include, but are not limited to:
* * * * *
    (v) Anticipated potential impact of the action.
    (4) For each action having primarily local importance for which 
notice is being provided, notice shall be made in accordance with the 
criteria under paragraph (c)(3) of this section, and shall include, as 
appropriate:
    (i) Notice through the internet or another comparable method.
    (ii) Notice to Indian tribes when effects may occur on 
reservations.
    (iii) Information required in the affected State's public notice 
procedures for comparable actions.
    (iv) Publication in local newspapers.
    (v) Notice through other local media including newsletters.
    (vi) Notice to potential interested community organizations.
    (vii) Direct mailing to owners and occupants of nearby or affected 
property.
    (viii) Posting of notice on and off site in the area where the 
action is to be located.
    (ix) Public hearing.
    (5) The notice shall:
    (i) Describe the action, its purposes, and a statement of the 
intent to carry out an action affecting or affected by a floodplain or 
wetland;
    (ii) Based on the factors in paragraph (c)(3) of this section, 
include a map of the area and other identification of the floodplain 
and/or wetland areas which is of adequate scale and detail; 
alternatively, FEMA may state that such map is available for public 
inspection, including the location at which such map may be inspected 
and a telephone number to call for information or may provide a link to 
access the map online;
    (iii) Based on the factors in paragraph (c)(3) of this section, 
describe the type, extent, and degree of hazard involved and the 
floodplain or wetland values present; and
    (iv) Identify the responsible official or organization for 
implementing the proposed action, and from whom further information can 
be obtained.
* * * * *

0
10. Amend Sec.  9.9 by:
0
a. Revising paragraphs (a)(1), (b)(2), and (c)(1) through (4);
0
b. Adding paragraph (c)(5);
0
c. Revising paragraphs (d), (e)(1)(i), (iii), and (iv), (e)(2) 
introductory text, (e)(3) introductory text, and (e)(4); and
0
d. Lifting the suspension of paragraph (e)(6) and removing the 
paragraph.
    The revisions and additions read as follows:


Sec.  9.9  Analysis and reevaluation of practicable alternatives.

    (a) * * * *
    (1) This section expands upon the directives set out in Sec.  9.6 
of this part in order to clarify and emphasize the requirements to 
avoid floodplains and wetlands unless there is no practicable 
alternative.
* * * * *
    (b) * * *
    (2) Alternative actions which serve essentially the same purpose as 
the proposed action, but which have less potential to affect or be 
affected by the floodplain or wetlands. In developing the alternative 
actions, the Agency shall use, where possible, natural systems, 
ecosystem processes, and nature-based approaches; and
* * * * *
    (c) * * *
    (1) Natural environment (including, but not limited to topography, 
habitat, hazards, when applicable);
    (2) Social concerns (including, but not limited to aesthetics, 
historical and cultural values, land patterns, when applicable);
    (3) Economic aspects (including, but not limited to costs of space, 
technology, construction, services, relocation, when applicable);
    (4) Legal constraints (including, but not limited to deeds and 
leases, when applicable); and
    (5) Agency authorities.
    (d) * * *
    (1) The Agency shall not locate the proposed action in the 
floodplain as established by Sec.  9.7(c) or in a wetland if a 
practicable alternative exists outside the floodplain or wetland.
    (2) If no practicable alternative exists outside the floodplain or 
wetland, in order to carry out the action the floodplain or wetland 
must itself be a practicable location in light of the review required 
in this section.
    (e) * * *
    (1) * * *
    (i) The action is still practicable at a floodplain or wetland 
site, considering the flood risk and the ensuing disruption of natural 
values;
* * * * *
    (iii) The scope of the action can be limited to increase the 
practicability of previously rejected non-floodplain or wetland sites 
and alternative actions; and
    (iv) Harm to or within the floodplain can be minimized using all 
practicable means.
    (2) Take no action in a floodplain unless the importance of the 
floodplain site clearly outweighs the requirements to:
* * * * *
    (3) Take no action in a wetland unless the importance of the 
wetland site clearly outweighs the requirements to:
* * * * *
    (4) In carrying out this balancing process, give the factors in 
paragraphs (e)(2) and (3) of this section great weight.
* * * * *

0
11. Amend Sec.  9.10 by revising paragraph (a), the second sentence of 
paragraph (b), and paragraphs (c) and (d) to read as follows:


Sec.  9.10  Identify impacts of proposed actions.

    (a) This section ensures that the effects of proposed Agency 
actions are identified.
    (b) * * * Such identification of impacts shall be to the extent 
necessary to comply with the requirements of this part to avoid 
floodplain and wetland locations unless they are the only practicable 
alternatives to minimize harm to and within floodplains and wetlands.
    (c) This identification shall consider whether the proposed action 
will result in an increase in the useful life of any structure or 
facility in question, maintain the investment at risk and exposure of 
lives to the flood hazard or forego an opportunity to restore the 
natural and beneficial values served by floodplains or wetlands.

[[Page 57044]]

    (d) In the review of a proposed or alternative action, the Regional 
Administrator shall consider and evaluate: impacts associated with 
modification of wetlands and floodplains regardless of its location; 
additional impacts which may occur when certain types of actions may 
support subsequent action which have additional impacts of their own; 
adverse impacts of the proposed actions on lives and property and on 
natural and beneficial floodplain and wetland values; and the three 
categories of factors listed below:
    (1) Flood hazard-related factors. These include, but are not 
limited to, the factors listed in Sec.  9.7(b)(3);
    (2) Natural values-related factors. These include, but are not 
limited to: water resource values, as in storing and conveying 
floodwaters, maintaining water quality, and groundwater recharge; 
living resource values, as in providing habitats and enhancing 
biodiversity for fish and wildlife and plant resources; cultural 
resource values, as in providing open space, natural beauty, 
recreation, scientific study, historical and archaeological resources, 
and education; and cultivated resource values, as in creating rich 
soils for agriculture, aquaculture, and forestry.
    (3) Factors relevant to a proposed action's effects on the survival 
and quality of wetlands. These include, but are not limited to: 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.

0
12. Amend Sec.  9.11 by:
0
a. Revising paragraphs (a) and (c)(1);
0
b. Revising the first sentence of paragraph (d) introductory text and 
revising paragraphs (d)(1) introductory text, (d)(2) through (4), 
(d)(5) introductory text, and (d)(9);
0
c. Lifting the suspension of paragraph (e)(4) and removing paragraph 
(e); and
0
d. Redesignating paragraph (f) as paragraph (e) and revising it.
    The revisions read as follows:


Sec.  9.11  Mitigation.

    (a) Purpose. This section expands upon the directives set out in 
Sec.  9.6 of this part and sets out the mitigative actions required if 
the preliminary determination is made to carry out an action that 
affects or is in a floodplain or wetland.
* * * * *
    (c) * * *
    (1) Potential harm to lives and the investment from flooding based 
on flood elevations as established by Sec.  9.7(c);
* * * * *
    (d) Minimization standards. The Agency shall apply, at a minimum, 
the following standards to its actions to comply with the requirements 
of paragraphs (b) and (c) of this section (except as provided in Sec.  
9.5(c), (d), and (g) regarding categories of partial or total 
exclusion). * * *
    (1) There shall be no new construction or substantial improvement 
in a floodway and no new construction in a coastal high hazard area, 
except for:
* * * * *
    (2) For a structure which is a functionally dependent use or which 
facilitates an open space use, the following applies: Any construction 
of a new or substantially improved structure in a coastal high hazard 
area must be elevated on adequately anchored pilings or columns, and 
securely anchored to such piles or columns so that the lowest portion 
of the structural members of the lowest floor (excluding the pilings or 
columns) is elevated to or above the floodplain as established by Sec.  
9.7(c). The structure shall be anchored so as to withstand velocity 
waters and hurricane wave wash.
    (3) The following applies to elevation of structures:
    (i) There shall be no new construction or substantial improvement 
of structures unless the lowest floor of the structures (including 
basement) is at or above the elevation of the floodplain as established 
by Sec.  9.7(c).
    (ii) If the subject structure is nonresidential, instead of 
elevating the structure, FEMA may approve the design of the structure 
and its attendant utility and sanitary facilities so that the structure 
is watertight below the flood elevation with walls substantially 
impermeable to the passage of water and with structural components 
having the capability of resisting hydrostatic and hydrodynamic loads 
and effects of buoyancy.
    (iii) The provisions of paragraphs (d)(3)(i) and (ii) of this 
section do not apply to the extent that FEMA Resilience has granted an 
exception under Sec.  60.6(b) of this chapter, or the community has 
granted a variance which the Regional Administrator determines is 
consistent with Sec.  60.6(a) of this chapter. In a community which 
does not have a FEMA regulatory product in effect, FEMA may approve a 
variance from the standards of paragraphs (d)(3)(i) and (ii) of this 
section, after compliance with the standards of Sec.  60.6(a).
    (4) There shall be no encroachments, including but not limited to 
fill, new construction, substantial improvements of structures or 
facilities, or other development within a designated regulatory 
floodway that would result in any increase in flood elevation within 
the community during the occurrence of the 1 percent annual chance 
(base) flood discharge. Until a regulatory floodway is designated, no 
fill, new construction, substantial improvements, or other development 
shall be permitted within the 1 percent annual chance (base) floodplain 
unless it is demonstrated that the cumulative effect of the proposed 
development, when combined with all other existing and anticipated 
development, will not increase the water surface elevation of the 1 
percent annual chance (base) flood more than the amount designated by 
the NFIP or the community, whichever is most restrictive.
    (5) Even if an action is a functionally dependent use or 
facilitates open space uses (under paragraph (d)(1) or (2) of this 
section) and does not increase flood heights (under paragraph (d)(4) of 
this section), such action may only be taken in a floodway or coastal 
high hazard area if:
* * * * *
    (9) In the replacement of building contents, materials and 
equipment, the Regional Administrator shall require as appropriate, 
flood proofing and/or elevation of the building and/or elimination of 
such future losses by relocation of those building contents, materials, 
and equipment outside or above the floodplain as established by Sec.  
9.7(c).
    (e) Restore and preserve. (1) For any action taken by the Agency 
which affects the floodplain or wetland and which has resulted in, or 
will result in, harm to the floodplain or wetland, the Agency shall act 
to restore and preserve the natural and beneficial values served by 
floodplains and wetlands.
    (2) Where floodplain or wetland values have been degraded by the 
proposed action, the Agency shall identify, evaluate, and implement 
measures to restore the values.
    (3) If an action will result in harm to or within the floodplain or 
wetland, the Agency shall design or modify the action to preserve as 
much of the natural and beneficial floodplain and wetland values as is 
possible.

[[Page 57045]]


0
13. Amend Sec.  9.12 by:
0
a. Redesignating paragraphs (d) introductory text and (d)(1) through 
(6) as paragraphs (d)(1) introductory text and (d)(1)(i) through (vi), 
respectively; and
0
c. Designate the undesignated text after newly redesignated paragraph 
(d)(1)(vi) as paragraph (d)(2) and revise it.
    The revision reads as follows:


Sec.  9.12   Final public notice.

* * * * *
    (d) * * *
    (2) When a damaged structure or facility is already being repaired 
by the State or local government at the time of the project 
application, the requirements of Steps 2 and 7 (Sec.  9.8 and this 
section) may be met by a single notice. Such notice shall contain all 
the information required by both sections.

0
14. Revise Sec.  9.13 to read as follows:


Sec.  9.13  Particular types of temporary housing.

    (a) This section sets forth the procedures whereby the Agency will 
provide certain specified types of temporary housing at a private, 
commercial, or group site.
    (b) Prior to providing the temporary housing described in paragraph 
(a) of this section, the Agency shall comply with the provisions of 
this section. For temporary housing not enumerated above, the full 8-
step process (see Sec.  9.6) applies.
    (c) The actions described in paragraph (a) of this section are 
subject to the following decision-making process:
    (1) The temporary housing action shall be evaluated in accordance 
with the provisions of Sec.  9.7 to determine if it is in or affects 
the 1 percent annual chance (base) floodplain or wetland.
    (2) No temporary housing unit may be placed on a site in a floodway 
or coastal high hazard area.
    (3) An individual or family shall not be housed in the 1 percent 
annual chance (base) floodplain or wetland unless the Regional 
Administrator has complied with the provisions of Sec.  9.9 to 
determine that such site is the only practicable alternative. The 
following factors shall be substituted for the factors in Sec.  9.9(c) 
and (e)(2) through (4):
    (i) Speedy provision of temporary housing;
    (ii) Potential flood risk to the temporary housing occupant;
    (iii) Cost effectiveness;
    (iv) Social and neighborhood patterns;
    (v) Timely availability of other housing resources; and
    (vi) Potential harm to the floodplain or wetland.
    (4) For temporary housing units at group sites, Step 4 of the 8-
step process shall be applied in accordance with Sec.  9.10.
    (5) An individual or family shall not be housed in a floodplain or 
wetland (except in existing resources) unless the Regional 
Administrator has complied with the provisions of Sec.  9.11 to 
minimize harm to and within floodplains and wetlands. The following 
provisions shall be substituted for the provisions of Sec.  9.11(d) for 
temporary housing units:
    (i) No temporary housing unit may be placed unless it is elevated 
to the fullest extent practicable up to the base flood elevation and 
adequately anchored.
    (ii) No temporary housing unit may be placed if such placement is 
inconsistent with the criteria of the NFIP (44 CFR parts 59 and 60) or 
any more restrictive Federal, State, or local floodplain management 
standard. Such standards may require elevation to the base flood 
elevation in the absence of a variance.
    (iii) Temporary housing units shall be elevated on open works 
(walls, columns, piers, piles, etc.) rather than on fill where 
practicable.
    (iv) To minimize the effect of floods on human health, safety and 
welfare, the Agency shall:
    (A) Where appropriate, integrate all of its proposed actions in 
placing temporary housing units for temporary housing in floodplains 
into existing flood warning or preparedness plans and ensure that 
available flood warning time is reflected;
    (B) Provide adequate access and egress to and from the proposed 
site of the temporary housing unit; and
    (C) Give special consideration to the unique hazard potential in 
flash flood and rapid-rise areas.
    (6) FEMA shall comply with Step 2 Early Public Notice (Sec.  
9.8(c)) and Step 7 Final Public Notice (Sec.  9.12). In providing these 
notices, the emergency nature of temporary housing shall be taken into 
account.
    (7) FEMA shall carry out the actions in accordance with Step 8, 
ensuring the requirements of this section and the decision-making 
process are fully integrated into the provision of temporary housing.
    (d) The following applies to the permanent installation of a 
temporary housing unit as part of a sale or disposal of temporary 
housing:
    (1) FEMA shall not permanently install temporary housing units in 
floodways or coastal high hazard areas. FEMA shall not permanently 
install a temporary housing unit in floodplains as established by 
9.7(c) or wetlands unless there is full compliance with the 8-step 
process. Given the vulnerability of temporary housing units to 
flooding, a rejection of a non-floodplain location alternative and of 
the no-action alternative shall be based on:
    (i) A compelling need of the family or individual to buy a 
temporary housing unit for permanent housing; and
    (ii) A compelling requirement to permanently install the unit in a 
floodplain.
    (2) FEMA shall not permanently install temporary housing units in 
the floodplain as established by Sec.  9.7(c) unless they are or will 
be elevated at least to the elevation of the floodplain as established 
by Sec.  9.7(c).
    (3) The Regional Administrator shall notify FEMA Resilience of each 
instance where a floodplain location has been found to be the only 
practicable alternative for permanent installation of a temporary 
housing unit.

0
15. Amend Sec.  9.14 by revising paragraphs (a), (b)(4), (5), and (6), 
(b)(7)(ii) and (iii), and (b)(9) to read as follows:


Sec.  9.14  Disposal of Agency property.

    (a) This section sets forth the procedures whereby the Agency shall 
dispose of property.
    (b) * * *
    (4) Identify the potential impacts and support of floodplain and 
wetland development associated with the disposal of the property in 
accordance with Sec.  9.10;
    (5) Identify the steps necessary to minimize, restore, preserve and 
enhance in accordance with Sec.  9.11. For disposals, this analysis 
shall address all four of these components of mitigation where 
unimproved property is involved, but shall focus on minimization 
through elevation or floodproofing and restoration of natural values 
where improved property is involved;
    (6) Reevaluate the proposal to dispose of the property in light of 
its exposure to the flood hazard and its natural values-related 
impacts, in accordance with Sec.  9.9. This analysis shall focus on 
whether it is practicable in light of the findings from Sec. Sec.  9.10 
and 9.11 to dispose of the property, or whether it must be retained. If 
it is determined that it is practicable to dispose of the property, 
this analysis shall identify the practicable alternative that best 
achieves the Agency's mitigation responsibility.
    (7) * * *
    (ii) Properties located inside the floodplain but outside of the 
floodway and the coastal high hazard area; and
    (iii) Properties located in a floodway, regulatory floodway, or 
coastal high hazard area.
* * * * *

[[Page 57046]]

    (9) The Agency shall ensure that the applicable mitigation 
requirements are fully implemented in accordance with Sec.  9.11(c).
* * * * *

0
16. Amend Sec.  9.16 by revising paragraphs (b) introductory text, 
(b)(2) through (5), and (c) to read as follows:


Sec.  9.16   Guidance for applicants.

* * * * *
    (b) This shall be accomplished primarily through amendment of all 
Agency instructions to applicants, and also through contact made by 
agency staff during the normal course of their activities, to fully 
inform prospective applicants of:
* * * * *
    (2) The decision-making process to be used by the Agency in making 
the determination of whether to take an action in or affecting 
floodplains or wetlands as set out in Sec.  9.6;
    (3) The practicability analysis as set out in Sec.  9.9;
    (4) The mitigation responsibilities as set out in Sec.  9.11;
    (5) The public notice and involvement process as set out in 
Sec. Sec.  9.8 and 9.12; and
* * * * *
    (c) Guidance to applicants shall be provided, where possible, prior 
to the time of application in order to minimize potential delays in the 
Agency's processing of the application due to failure of applicants to 
follow the provisions in this part.

0
17. Amend Sec.  9.17 by revising paragraphs (a), (b) introductory text, 
(b)(3) through (5), (c), and (d) to read as follows:


Sec.  9.17  Instructions to applicants.

    (a) Purpose. In accordance with Executive Orders 11988, as amended, 
and 11990, the Federal executive agencies must respond to a number of 
floodplain management and wetland protection responsibilities before 
carrying out any of their activities, including the provision of 
Federal financial and technical assistance. This section provides 
notice to applicants for Agency assistance of both the criteria that 
FEMA is required to follow, and the applicants' responsibilities under 
this part.
    (b) Responsibilities of applicants. Based upon the guidance 
provided by the Agency under Sec.  9.16, the guidance included in the 
U.S. Water Resources Council's Guidelines for Implementing Executive 
Order 11988, Floodplain Management, and Executive Order 13690, 
Establishing a Federal Flood Risk Management Standard and a Process for 
Further Soliciting and Considering Stakeholder Input, and based upon 
the provisions of the Orders and this part, applicants for Agency 
assistance shall recognize and reflect in their application:
* * * * *
    (3) The practicability analysis as set out in Sec.  9.9;
    (4) The mitigation responsibilities as set out in Sec.  9.11;
    (5) The public notice and involvement process as set out in 
Sec. Sec.  9.8 and 9.12; and
* * * * *
    (c) Provision of supporting information. Applicants for Agency 
assistance may be required to provide supporting information relative 
to the various responsibilities set out in paragraph (b) of this 
section as a prerequisite to the approval of their applications.
    (d) Approval of applicants. Applications for Agency assistance 
shall be reviewed for compliance with the provisions in this part in 
addition to the Agency's other approval criteria.

0
18. Amend Sec.  9.18 by revising paragraph (a)(1), the second sentence 
of paragraph (b)(1), and the first sentence of (b)(2) to read as 
follows:


Sec.  9.18  Responsibilities.

    (a) * * *
    (1) Implement the requirements of the Orders and this part. Under 
Sec. Sec.  9.2 and 9.6 through 9.13 and 9.15 where a direction is given 
to the Agency, it is the responsibility of the Regional Administrator.
* * * * *
    (b) * * *
    (1) * * * When a decision of a Regional Administrator relating to 
disaster assistance is appealed, FEMA Resilience may make 
determinations under this part on behalf of the Agency.
    (2) Prepare and submit to the Office of Chief Counsel reports to 
the Office of Management and Budget in accordance with section 2(b) of 
Executive Order 11988, as amended, and section 3 of Executive Order 
11990. * * *

Appendix A to Part 9 [Removed]

0
19. Remove appendix A to part 9.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2024-15169 Filed 7-10-24; 8:45 am]
BILLING CODE 9111-66-P