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National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Medicare & Medicaid Services
Children and Families Administration
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National Institutes of Health
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Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
National Park Service
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Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
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Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Final rule; correction.
On June 24, 2024, the Federal Aviation Administration (FAA) published the subject final rule in the
This correction is effective October 31, 2024.
Brian Konie, Airspace Rules & Regulations Manager (A), AJV-P21, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-8783; email
On June 24, 2024, the Federal Aviation Administration (FAA) published the final rule, Valparaiso, Florida Terminal Area, in the
In the final rule, the FAA amended five points in § 93.81(b) as set out in the following table:
While the FAA revised the five updated coordinates contained within the table (denoted with a single asterisk (*)), the FAA failed to revise a sixth point contained in § 93.81(b)(2). This document corrects that error. This sixth point (denoted by a double asterisk (**)), located at lat. 30°19′46″ N, long. 86°23′45″ W; is hereby amended to lat. 30°19′41″ N, long. 86°23′46″ W.
Further, the FAA made the final rule effective August 23, 2024, 60 days after publication. However, that effective date does not align with the FAA's charting cycle. Thus, the FAA is correcting the effective date to align with the charting cycle.
In FR Doc. 2024-13737, published at 89 FR 52359 on June 24, 2024, the following corrections are made:
1. On page 52360, in the first column, the
2. On page 52362, in the second column, in instruction 2 for § 93.81, paragraph (b)(2) is corrected to read as follows:
(b) * * *
(2) The center section would include that airspace extending upward from the surface to but not including 18,000 feet MSL, bounded by a line beginning at: Latitude 30°25′01″ N, Longitude 86°38′12″ W; to Latitude 30°25′01″ N, Longitude 86°25′00″ W; to Latitude 30°25′01″ N, Longitude 86°22′26″ W; to Latitude 30°19′41″ N, Longitude 86°23′46″ W; then 3 NM from and parallel to the shoreline to Latitude
Issued under authority provided by 49 U.S.C. 106(f) and 40103 in Washington, DC.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce special local regulations for the annual Bayview Yacht Club Port Huron to Mackinac Race. This special local regulation is necessary to safely control vessel movements in the vicinity of the race and provide for the safety of the general boating public and commercial shipping. During this enforcement period, no person or vessel may enter the regulated area without the permission of the Coast Guard Patrol Commander (PATCOM).
The regulation in 33 CFR 100.902 will be enforced from 10 a.m. through 3 p.m. on July 20, 2024.
If you have questions about this notice of enforcement, call or email Tracy Girard, Waterway Management Division, U.S. Coast Guard Sector Detroit, 110 Mt. Elliott Street, Detroit, MI at (313) 568-9564 or
The Coast Guard will enforce the special local regulation in 33 CFR 100.902 for the Annual Bayview Mackinac Race from 10 a.m. through 3 p.m. on July 20, 2024. This notice of enforcement is necessary to safely control vessel movements in the vicinity of the race and provide for the safety of the general boating public and commercial shipping. This notice of enforcement applies to all U.S. navigable waters of the Black River, St. Clair River, and lower Lake Huron, bound by a line starting at latitude 042°58′47″ N, longitude 082°26′0″ W; then easterly to latitude 042°58′24″ N, longitude 082°24′47″ W; then northward along the International Boundary to latitude 043°02′48″ N, longitude 082°23′47″ W; then westerly to the shoreline at approximate location latitude 043°02′48″ N, longitude 082°26′48″ W; then southward along the U.S. shoreline to latitude 042°58′54″ N, longitude 082°26′01″ W; then back to the beginning.
In order to ensure the safety of spectators and participating vessels, the Coast Guard will patrol the race area under the direction of a designated Coast Guard Patrol Commander (PATCOM). Vessels desiring to transit the regulated area may do so only with prior approval of the PATCOM and when so directed by that officer. The PATCOM may be contacted on Channel 16 (156.8 MHZ) by the call sign “Coast Guard Patrol Commander.” Vessels permitted to transit the regulated area will operate at no wake speed and in a manner which will not endanger participants in the event or any other craft. The rules contained above shall not apply to participants in the event or vessels of the patrol operating in the performance of their assigned duties.
This notice of enforcement is issued under the authority of 33 CFR 100.902 and 5 U.S.C. 552(a). If the District Commander, Captain of the Port, or PATCOM determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce safety zone regulations at various locations in the Sector Columbia River Captain of the Port Zone from July 3, 2024 to July 27, 2024, to provide for the safety of life on navigable waters during fireworks displays. The regulation for fireworks displays within the Thirteenth Coast Guard District designates safety zones and identifies approximate dates for these events. Specific dates and times are identified in this notice. These regulations prohibit persons and vessels from being in the safety zones unless authorized by the Captain of the Port Sector Columbia River or a designated representative.
The regulations in 33 CFR 165.1315 will be enforced for the safety zones identified in the
If you have questions about this notice of enforcement, call or email Lieutenant Carlie Gilligan, Waterways Management Division, Sector Columbia River, Coast Guard; telephone 503-240-9319, email
The Coast Guard will enforce safety zones in 33 CFR 165.1315 for the following events, during the designated enforcement periods, and within a 450-yard radius of the launch site at the listed locations. This action is being taken to provide for the safety of life on navigable waterways during these events.
Our regulation for fireworks displays within the Thirteenth Coast Guard District designates the regulated areas and identifies the approximate dates for these events. The specific dates and times are specified below. These safety zones are subject to enforcement at least 1 hour prior to the start and 1 hour after the conclusion of the events.
All coordinates are listed in reference Datum NAD 1983.
During the enforcement periods, as reflected in § 165.1315, no person may enter or remain in the safety zones created by this section or bring, cause to be brought, or allow to remain in the regulated areas created by this section, any vehicle, vessel, or object unless authorized by the Captain of the Port Sector Columbia River or a designated representative. In addition to this notice of enforcement in the
Federal Aviation Administration, DOT.
Notice of availability; request for comments.
The FAA invites public comment on the agency's draft policy statement PS-AIR-21.17-02, “Special Class Rotorcraft.” This proposed policy would identify certain rotorcraft as special class.
Comments must be received on or before September 9, 2024.
Send comments identified with “PS-AIR-21.17-02” and docket number FAA-2024-1794 using any of the following methods:
•
•
•
•
James Blyn, Product Policy Management: Airplanes, GA, Emerging Aircraft, and Rotorcraft AIR-62B, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone (817) 222-5762; email
Advancements in technology have resulted in the development of electrically powered rotorcraft with more than two main rotor systems. Although these aircraft are rotorcraft as defined in 14 CFR part 1, the FAA has found that they are not typical of the rotorcraft designs utilizing main and auxiliary rotors envisaged by the rotorcraft airworthiness standards in 14 CFR parts 27 and 29.
Rotorcraft type-certificated in the normal and transport categories under parts 27 and 29, respectively, have primarily been helicopters that use a single main rotor and an anti-torque rotor or two main rotors to provide lift and thrust for horizontal flight. Helicopters create lift by changing the pitch of the main rotor blades and move into horizontal flight by varying the pitch of the main rotor blades throughout their rotation.
Over the past few years, the FAA has been working with potential applicants on certification projects for normal category rotorcraft designs that create lift and thrust by using multiple (three or more) rotor systems. Instead of varying the pitch of the rotor blade throughout its rotation, these aircraft create directional control for horizontal movement by varying the power at each rotor. These aircraft also rely on electric or hybrid-electric propulsion and not (or not only) a traditional internal combustion engine. Additionally, they employ advanced flight control system designs, such as fly-by-wire, that are highly integrated with the electric propulsion system. These designs provide extensive flight envelop protection and introduce high levels of automation.
During these projects, the FAA has found that existing type certification criteria do not accommodate or apply to these rotorcraft. For example, only 60 percent of the requirements in part 27 may be appropriate for these designs. Some of the remaining requirements are not applicable and would need exemptions from the regulatory requirements. For other requirements, due to the novel and unusual design, applicants would need special conditions to modify the existing standards. Furthermore, additional airworthiness criteria, for which there are no standards in part 27, would require special conditions to provide an appropriate safety standard to address the novel and unusual design features.
The FAA amended 14 CFR part 21 at amendment 21-60 to add procedural requirements for the issuance of type certificates for special classes of aircraft in § 21.17(b). In the Final Rule, the FAA explained that it intended the special class category to include, in part, those aircraft that would not be eligible for certification under existing standards due to their unique, novel, or unusual design features. The FAA further stated that the “decision to type certificate an aircraft in either the special class aircraft category or under part 23 of the [CFR] is entirely dependent upon the aircraft's unique, novel, and/or unusual design features.” (52 FR 8040, March 13, 1987).
The rotorcraft described in the paragraphs above have those unique, novel, or unusual design features the special class category was designed to accommodate. Type certificating these rotorcraft under part 27 or 29 with exemptions and special conditions would be a lengthy administrative process. The resulting certification basis will likely contain a portion of the existing airworthiness standards combined with a significant number of special conditions containing unique airworthiness criteria. Moreover, the special class process provides the public greater visibility of the complete certification basis. The level of safety provided by the certification basis would be the same under either process.
Accordingly, the FAA has determined that special class rotorcraft as defined in this policy are sufficiently different from the normal and transport category rotorcraft envisaged by parts 27 and 29, respectively, to be considered a “special class” of rotorcraft under § 21.17(b). This finding is consistent with the definition of “class” in part 1 as used with respect to the certification of aircraft. The FAA has concluded that
The FAA invites the public to submit comments on the draft policy statement, as specified in the
You may examine the draft advisory circular on the agency's public website and in the docket as follows:
• At
• At
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve most of a State Implementation Plan (SIP) revision submitted by the State of New Hampshire. This revision updates the State regulation containing ambient air quality standards. EPA is proposing to approve all the State's updated standards, except the primary annual fine particle (PM
Written comments must be received on or before August 12, 2024.
Submit your comments, identified by Docket ID No. EPA-R01-OAR-2024-0255 at
Alison C. Simcox, Air Quality Branch, Air and Radiation Division (Mail Code 5-MD), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109-3912, telephone number: (617) 918-1684; email address:
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On December 22, 2022, New Hampshire Department of Environmental Services (NH DES) submitted to EPA a SIP revision updating its Env-A 300, “Ambient Air Quality Standards”. The State revised this regulation to incorporate into its SIP revised National Ambient Air Quality Standards (NAAQS).
In its December 2022 SIP submittal, NH DES adopted the following:
(1) Coarse fine particle (PM
(2) Fine particle (PM
(3) PM
(4) PM
(5) Sulfur dioxide (SO
(6) SO
(7) CO primary 8-hour standard of 9 ppm,
(8) CO primary 1-hour standard of 35 ppm,
(9) Nitrogen Dioxide (NO
(10) NO
(11) NO
(12) Ozone primary and secondary 8-hour standard of 0.070 ppm,
(13) Lead primary and secondary rolling 3-month standard of 0.15 μg/m
New Hampshire's Env-A 300, “Ambient Air Quality Standards,” was originally approved into the New Hampshire SIP on March 15, 1983 (48 FR 10830). Updates to the rule were approved into the New Hampshire SIP on August 19, 1994 (59 FR 42766) and on June 24, 2014 (79 FR 35695).
EPA has reviewed New Hampshire's revised Env-A 300 and has determined that it is consistent with the NAAQS in 40 CFR part 50 for all standards except the PM
Pursuant to a May 16, 2024, letter to EPA from NH DES, within a year from the effective date of EPA's conditional approval of the December 2022 submittal, the State commits to submitting a revision to Env-A 300 that includes the current primary annual standard for the PM
EPA proposes to approve most of New Hampshire's revised Env-A 300, “Ambient Air Quality Standards,” submitted by the State on December 22, 2022, as a revision to the New Hampshire SIP. We propose to conditionally approve the primary annual PM
EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting comments to this proposed rule by following the instructions listed in the
Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to submit a revision to Env-A 300 that includes the current PM
In this document, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference New Hampshire's regulation Env-A 300, as discussed in Sections I and II of this preamble. The EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
NH DES did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the Regional Haze State Implementation Plan (SIP) revision submitted by the Minnesota Pollution Control Agency (Minnesota) on December 20, 2022, as satisfying applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the program's second implementation period. Minnesota's SIP submission addresses the requirement that states must periodically revise their long-term strategies for making reasonable progress towards the national goal of preventing any future, and remedying any existing, anthropogenic impairment of visibility, including regional haze, in mandatory Class I Federal areas. The SIP submission also addresses other applicable requirements for the second implementation period of the regional haze program. EPA is taking this action pursuant to sections 110 and 169A of the CAA.
Written comments must be received on or before August 12, 2024.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2022-0974 at
Matt Rau, Air and Radiation Division (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On December 20, 2022, Minnesota submitted a revision to its SIP to address regional haze for the second implementation period. Minnesota made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308. EPA proposes to find that the Minnesota Regional Haze SIP submission for the second implementation period meets the applicable statutory and regulatory requirements. Thus, EPA proposes to approve Minnesota's submission into its SIP.
In the 1977 CAA Amendments, Congress created a program for protecting visibility in the nation's mandatory Class I Federal areas, which include certain national parks and wilderness areas.
Regional haze is a visibility impairment that is produced by a multitude of anthropogenic sources and activities that are located across a broad geographic area and that emit pollutants that impair visibility. Visibility impairing pollutants include fine and coarse particulate matter (PM) (
To address regional haze visibility impairment, the 1999 RHR established an iterative planning process that requires both states in which Class I areas are located and those states “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to periodically submit SIP revisions to address such impairment. CAA 169A(b)(2);
Much of the focus in the first implementation period of the regional haze program, which ran from 2007 through 2018, was on satisfying states' BART obligations. First implementation period SIPs were additionally required to contain long-term strategies for making reasonable progress toward the national visibility goal, of which BART is one component. The core required elements for the first implementation period SIPs (other than BART) are laid out in 40 CFR 51.308(d). Those provisions required that states containing Class I areas establish reasonable progress goals (RPGs) that are measured in deciviews (dv) and reflect the anticipated visibility conditions at the end of the implementation period including from implementation of states' long-term strategies. The first planning period RPGs were required to provide for an improvement in visibility for the most impaired days over the period of the implementation plan and ensure no degradation in visibility for the least impaired days over the same period. In establishing the RPGs for any Class I area in a state, the state was required to consider four statutory factors: the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources. CAA 169A(g)(1); 40 CFR 51.308(d)(1).
States were also required to calculate baseline (using the five year period of 2000-2004) and natural visibility conditions (
On January 10, 2017, EPA promulgated revisions to the RHR, (82 FR 3078, January 10, 2017), that apply for the second and subsequent implementation periods. The 2017 rulemaking made several changes to the requirements for regional haze SIPs to clarify states' obligations and streamline certain regional haze requirements. The revisions to the regional haze program for the second and subsequent implementation periods focused on the requirement that SIPs contain long-term strategies for making reasonable progress towards the national visibility goal. The reasonable progress requirements as revised in the 2017 rulemaking (referred to here as the 2017 RHR Revisions) are codified at 40 CFR 51.308(f). Among other changes, the 2017 RHR Revisions adjusted the deadline for states to submit their second implementation period SIPs from July 31, 2018, to July 31, 2021, clarified the order of analysis and the relationship between RPGs and the long-term strategy, and focused on making visibility improvements on the days with the most
EPA provided guidance to the states for their second implementation period SIP submissions in the preamble to the 2017 RHR Revisions as well as in subsequent, stand-alone guidance documents. In August 2019, EPA issued “Guidance on Regional Haze State Implementation Plans for the Second Implementation Period” (“2019 Guidance”).
As explained in the 2021 Clarifications Memo, EPA intends the second implementation period of the regional haze program to secure meaningful reductions in visibility impairing pollutants that build on the significant progress states have achieved to date. The Agency also recognizes that analyses regarding reasonable progress are state-specific and that, based on state and sources' individual circumstances, what constitutes reasonable reductions in visibility impairing pollutants will vary from state-to-state. While there exist many opportunities for states to leverage both ongoing and upcoming emission reductions under other CAA programs, the Agency expects states to undertake rigorous reasonable progress analyses that identify further opportunities to advance the national visibility goal consistent with the statutory and regulatory requirements. See generally 2021 Clarifications Memo. This is consistent with Congress's determination that a visibility protection program is needed in addition to the CAA's National Ambient Air Quality Standards (NAAQS) and Prevention of Significant Deterioration programs, as further emission reductions may be necessary to adequately protect visibility in Class I areas throughout the country.
Because the air pollutants and pollution affecting visibility in Class I areas can be transported over long distances, successful implementation of the regional haze program requires long-term, regional coordination among multiple jurisdictions and agencies that have responsibility for Class I areas and the emissions that impact visibility in those areas. To address regional haze, states need to develop strategies in coordination with one another, considering the effect of emissions from one jurisdiction on the air quality in another. Five regional planning organizations (RPOs),
The Lake Michigan Air Directors Consortium (LADCO), one of the five RPOs described above, is a collaborative effort of state governments, Tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Midwest. LADCO member states are Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. The LADCO Regional Haze Technical Workgroup also includes Tribes, Iowa, EPA, U.S. National Park Service (NPS), U.S. Fish and Wildlife Service (FWS), and U.S. Forest Service (USFS).
Under the CAA and EPA's regulations, all 50 states, the District of Columbia, and the U.S. Virgin Islands are required to submit regional haze SIPs satisfying the applicable requirements for the second implementation period of the regional haze program by July 31, 2021. Each state's SIP must contain a long-term strategy for making reasonable progress toward meeting the national goal of remedying any existing and preventing any future anthropogenic visibility impairment in Class I areas. CAA 169A(b)(2)(B). To this end, 40 CFR 51.308(f) lays out the process by which states determine what constitutes their long-term strategies, with the order of the requirements in 40 CFR 51.308(f)(1) through (3) generally mirroring the order of the steps in the reasonable progress analysis
In addition to satisfying the requirements at 40 CFR 51.308(f) related to reasonable progress, the regional haze SIP revisions for the second implementation period must address the requirements in 40 CFR 51.308(g)(1) through (5) pertaining to periodic reports describing progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements for FLM consultation that apply to all visibility protection SIPs and SIP revisions. 40 CFR 51.308(i).
A state must submit its regional haze SIP and subsequent SIP revisions to EPA according to the requirements applicable to all SIP revisions under the CAA and EPA's regulations. See CAA 169A(b)(2); CAA 110(a). Upon EPA approval, a SIP is enforceable by the Agency and the public under the CAA. If EPA finds that a state fails to make a required SIP revision, or if EPA finds that a state's SIP is incomplete or disapproves the SIP, the Agency must promulgate a Federal Implementation Plan (FIP) that satisfies the applicable requirements. CAA 110(c)(1).
The first step in developing a regional haze SIP is for a state to determine which Class I areas, in addition to those within its borders, “may be affected” by emissions from within the state. In the 1999 RHR, EPA determined that all states contribute to visibility impairment in at least one Class I area, 64 FR 35714 at 35720-22, July 1, 1999, and explained that the statute and regulations lay out an “extremely low triggering threshold” for determining “whether States should be required to engage in air quality planning and analysis as a prerequisite to determining the need for control of emissions from sources within their State.” 64 FR 35714 at 35721, July 1, 1999.
A state must determine which Class I areas must be addressed by its SIP by evaluating the total emissions of visibility impairing pollutants from all sources within the state. While the RHR does not require this evaluation to be conducted in any particular manner, EPA's 2019 Guidance provides recommendations for how such an assessment might be accomplished, including by using, where appropriate, the determinations previously made for the first implementation period. 2019 Guidance at 8-9. In addition, the determination of which Class I areas may be affected by a state's emissions is subject to the requirement in 40 CFR 51.308(f)(2)(iii) to “document the technical basis, including modeling, monitoring, cost, engineering, and emissions information, on which the State is relying to determine the emission reduction measures that are necessary to make reasonable progress in each mandatory Class I Federal area it affects.”
As part of assessing whether a SIP submission for the second implementation period is providing for reasonable progress towards the national visibility goal, the RHR contains requirements in 40 CFR 51.308(f)(1) related to tracking visibility improvement over time. The requirements of this subsection apply only to states having Class I areas within
The RHR requires tracking of visibility conditions on two sets of days: the clearest and the most impaired days. Visibility conditions for both sets of days are expressed as the average deciview index for the relevant five-year period (the period representing baseline or current visibility conditions). The RHR provides that the relevant sets of days for visibility tracking purposes are the 20 percent clearest (the 20 percent of monitored days in a calendar year with the lowest values of the deciview index) and 20 percent most impaired days (the 20 percent of monitored days in a calendar year with the highest amounts of anthropogenic visibility impairment).
Using the data for the set of most impaired days only, states must plot a line between visibility conditions in the baseline period and natural visibility conditions for each Class I area to determine the URP—the amount of visibility improvement, measured in dv, that would need to be achieved during each implementation period to achieve natural visibility conditions by the end of 2064. The URP is used in later steps of the reasonable progress analysis for informational purposes and to provide a non-enforceable benchmark against which to assess a Class I area's rate of visibility improvement.
EPA's 2018 Visibility Tracking Guidance can be used to help satisfy the 40 CFR 51.308(f)(1) requirements, including in developing information on baseline, current, and natural visibility conditions, and in making optional adjustments to the URP. In addition, the 2020 Data Completeness Memo provides recommendations on the data completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides updated natural conditions estimates for each Class I area.
The core component of a regional haze SIP submission is a long-term strategy that addresses regional haze in each Class I area within a state's borders and each Class I area that may be affected by emissions from the state. The long-term strategy “must include the enforceable emissions limitations, compliance schedules, and other measures that are necessary to make reasonable progress, as determined pursuant to (f)(2)(i) through (iv).” 40 CFR 51.308(f)(2). The amount of progress that is “reasonable progress” is based on applying the four statutory factors in CAA section 169A(g)(1) in an evaluation of potential control options for sources of visibility impairing pollutants, which is referred to as a “four-factor” analysis. The outcome of that analysis is the emission reduction measures that a particular source or group of sources needs to implement to make reasonable progress towards the national visibility goal. See 40 CFR 51.308(f)(2)(i). Emission reduction measures that are necessary to make reasonable progress may be either new, additional control measures for a source, or they may be the existing emission reduction measures that a source is already implementing. See 2019 Guidance at 43; 2021 Clarifications Memo at 8-10. Such measures must be represented by “enforceable emissions limitations, compliance schedules, and other measures” (
The regulation 40 CFR 51.308(f)(2)(i) provides the requirements for the four-factor analysis. The first step of this analysis entails selecting the sources to be evaluated for emission reduction measures; to this end, the RHR requires states to consider “major and minor stationary sources or groups of sources, mobile sources, and area sources” of visibility impairing pollutants for potential four-factor control analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is which visibility impairing pollutants will be analyzed. As EPA previously explained, consistent with the first implementation period, EPA generally expects that each state will analyze at least SO
While states have the option to analyze
EPA explained in the 2021 Clarifications Memo that each state has an obligation to submit a long-term strategy that addresses the regional haze visibility impairment that results from emissions from within that state. Thus, source selection should focus on the in-state contribution to visibility impairment and be designed to capture a meaningful portion of the state's total contribution to visibility impairment in Class I areas. A state should not decline to select its largest in-state sources on the basis that there are even larger out-of-state contributors. 2021 Clarifications Memo at 4.
Thus, while states have discretion to choose any source selection methodology that is reasonable, whatever choices they make should be reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that a state's SIP submission include “a description of the criteria it used to determine which sources or groups of sources it evaluated.” The technical basis for source selection, which may include methods for quantifying potential visibility impacts such as emissions divided by distance (Q/d) metrics, trajectory analyses, residence time analyses, and/or photochemical modeling, must also be appropriately documented, as required by 40 CFR 51.308(f)(2)(iii).
Once a state has selected the set of sources, the next step is to determine the emissions reduction measures for those sources that are necessary to make reasonable progress for the second implementation period.
EPA's 2021 Clarifications Memo provides further guidance on what constitutes a reasonable set of control options for consideration: “A reasonable four-factor analysis will consider the full range of potentially reasonable options for reducing emissions.” 2021 Clarifications Memo at 7. In addition to add-on controls and other retrofits (
After identifying a reasonable set of potential control options for the sources it has selected, a state then collects information on the four factors with regard to each option identified. EPA has also explained that, in addition to the four statutory factors, states have flexibility under the CAA and RHR to reasonably consider visibility benefits as an additional factor alongside the four statutory factors.
As explained above, 40 CFR 51.308(f)(2)(i) requires states to determine the emission reduction measures for sources that are necessary to make reasonable progress by considering the four factors. Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make reasonable progress towards the national visibility goal must be included in a state's long-term strategy and in its SIP.
As with source selection, the characterization of information on each of the factors is also subject to the documentation requirement in 40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including source selection, information gathering, characterization of the four statutory factors (and potentially visibility), balancing of the four factors, and selection of the emission reduction measures that represent reasonable progress, is a technically complex exercise, but also a flexible one that provides states with bounded discretion to design and implement approaches appropriate to their circumstances. Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important function in requiring a state to document the technical basis for its decision making so that the public and EPA can comprehend and evaluate the information and analysis the state relied upon to determine what emission reduction measures must be in place to make reasonable progress. The technical documentation must include the modeling, monitoring, cost, engineering, and emissions information on which the state relied to determine the measures necessary to make reasonable progress. This documentation requirement can be met through the provision of and reliance on technical analyses developed through a regional planning process, so long as that process and its output has been approved by all state participants. In addition to the explicit regulatory requirement to document the technical basis of their reasonable progress determinations, states are also subject to the general principle that those determinations must be reasonably moored to the statute.
The four statutory factors (and potentially visibility) are used to determine what emission reduction measures for selected sources must be included in a state's long-term strategy for making reasonable progress. Additionally, the RHR at 40 CFR 51.308(f)(2)(iv) separately provides five “additional factors”
Because the air pollution that causes regional haze crosses state boundaries, 40 CFR 51.308(f)(2)(ii) requires a state to consult with other states that also have emissions that are reasonably anticipated to contribute to visibility impairment in a given Class I area.
Reasonable progress goals “measure the progress that is projected to be achieved by the control measures states have determined are necessary to make reasonable progress based on a four-factor analysis.” 82 FR 3078 at 3091, January 10, 2017. Their primary purpose is to assist the public and EPA in assessing the reasonableness of states' long-term strategies for making reasonable progress towards the national visibility goal. See 40 CFR 51.308(f)(3)(iii) and (iv). States in which Class I areas are located must establish two RPGs, both in dv—one representing visibility conditions on the clearest days and one representing visibility on the most anthropogenically impaired days—for each area within their borders. 40 CFR 51.308(f)(3)(i). The two RPGs are intended to reflect the projected impacts, on the two sets of days, of the emission reduction measures the state with the Class I area, as well as all other contributing states, have included in their long-term strategies for the second implementation period.
For the second implementation period, the RPGs are set for 2028. Reasonable progress goals are not enforceable targets, 40 CFR 51.308(f)(3)(iii); rather, they “provide a way for the states to check the projected outcome of the [long-term strategy] against the goals for visibility improvement.” 2019 Guidance at 46. While states are not legally obligated to achieve the visibility conditions described in their RPGs, 40 CFR 51.308(f)(3)(i) requires that “[t]he long-term strategy and the reasonable progress goals must provide for an improvement in visibility for the most impaired days since the baseline period and ensure no degradation in visibility for the clearest days since the baseline period.” Thus, states are required to have emission reduction measures in their long-term strategies that are projected to achieve visibility conditions on the most impaired days that are better than the baseline period and shows no degradation on the clearest days compared to the clearest days from the baseline period. The baseline period for the purpose of this comparison is the baseline visibility condition—the annual average visibility condition for the period 2000-2004. See 40 CFR 51.308(f)(1)(i), 82 FR 3078 at 3097-98, January 10, 2017.
So that RPGs may also serve as a metric for assessing the amount of progress a state is making towards the national visibility goal, the RHR requires states with Class I areas to compare the 2028 RPG for the most impaired days to the corresponding point on the URP line (representing visibility conditions in 2028 if visibility were to improve at a linear rate from conditions in the baseline period of 2000-2004 to natural visibility conditions in 2064). If the most impaired days RPG in 2028 is above the URP (
The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also explain that projecting an RPG that is on or below the URP based on only on-the-books and/or on-the-way control measures (
Section 51.308(f)(6) requires states to have certain strategies and elements in place for assessing and reporting on visibility. Individual requirements
All states' SIPs must provide for procedures by which monitoring data and other information are used to determine the contribution of emissions from within the state to regional haze visibility impairment in affected Class I areas. 40 CFR 51.308(f)(6)(ii), (iii). Section 51.308(f)(6)(v) further requires that all states' SIPs provide for a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area; the inventory must include emissions for the most recent year for which data are available and estimates of future projected emissions. States must also include commitments to update their inventories periodically. The inventories themselves do not need to be included as elements in the SIP and are not subject to EPA review as part of the Agency's evaluation of a SIP revision.
Separate from the requirements related to monitoring for regional haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a requirement at 40 CFR 51.308(f)(4) related to any additional monitoring that may be needed to address visibility impairment in Class I areas from a single source or a small group of sources. This is called “reasonably attributable visibility impairment.”
Section 51.308(f)(5) requires a state's regional haze SIP revision to address the requirements of paragraphs 40 CFR 51.308(g)(1) through (5) so that the plan revision due in 2021 will serve also as a progress report addressing the period since submission of the progress report for the first implementation period. The regional haze progress report requirement is designed to inform the public and EPA about a state's implementation of its existing long-term strategy and whether such implementation is in fact resulting in the expected visibility improvement. See 81 FR 26942 at 26950 (May 4, 2016), (82 FR 3078 at 3119, January 10, 2017). To this end, every state's SIP revision for the second implementation period is required to describe the status of implementation of all measures included in the state's long-term strategy, including BART and reasonable progress emission reduction measures from the first implementation period, and the resulting emissions reductions. 40 CFR 51.308(g)(1) and (2).
A core component of the progress report requirements is an assessment of changes in visibility conditions on the clearest and most impaired days. For second implementation period progress reports, 40 CFR 51.308(g)(3) requires states with Class I areas within their borders to first determine current visibility conditions for each area on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i), and then to calculate the difference between those current conditions and baseline (2000-2004) visibility conditions to assess progress made to date. See 40 CFR 51.308(g)(3)(ii). States must also assess the changes in visibility impairment for the most impaired and clearest days since they submitted their first implementation period progress reports. See 40 CFR 51.308(f)(5) and (g)(3)(iii). Since different states submitted their first implementation period progress reports at different times, the starting point for this assessment will vary state by state.
Similarly, states must provide analyses tracking the change in emissions of pollutants contributing to visibility impairment from all sources and activities within the state over the period since they submitted their first implementation period progress reports. See 40 CFR 51.308(f)(5) and (g)(4). Changes in emissions should be identified by the type of source or activity. Section 51.308(g)(5) also addresses changes in emissions since the period addressed by the previous progress report and requires states' SIP revisions to include an assessment of any significant changes in anthropogenic emissions within or outside the state. This assessment must explain whether these changes in emissions were anticipated and whether they have limited or impeded progress in reducing emissions and improving visibility relative to what the state projected based on its long-term strategy for the first implementation period.
CAA section 169A(d) requires that before a state holds a public hearing on a proposed regional haze SIP revision, it must consult with the appropriate FLM or FLMs; pursuant to that consultation, the state must include a summary of the FLMs' conclusions and recommendations in the notice to the public. Consistent with this statutory requirement, the RHR also requires that states “provide the [FLM] with an opportunity for consultation, in person and at a point early enough in the State's policy analyses of its long-term strategy emission reduction obligation so that information and recommendations provided by the [FLM] can meaningfully inform the
Minnesota submitted its Regional Haze SIP for the first implementation period to EPA on December 30, 2009, and supplemented it on January 5, 2012, and May 8, 2012. EPA approved Minnesota's first implementation period Regional Haze SIP submission as satisfying the applicable requirements in 40 CFR 51.308, except for BART emission limits for the taconite facilities, on June 12, 2012 (77 FR 34801), effective July 12, 2012. These requirements include identifying affected Class I areas, calculating the baseline and natural visibility, establishing RPGs, mandating BART emission reductions for the five electric generating units (EGUs) that were subject to BART (in this case through participation in the Cross-State Air Pollution Rule (CSAPR)), adopting a long-term strategy for making reasonable progress toward visibility goals, providing a monitoring strategy, and consulting with other states and the FLMs before adopting its regional haze plan. EPA acted on RAVI BART for Northern States Power Company's Sherburne County Generating Station (Sherco) in a separate action (81 FR 11668, March 7, 2016), but approved the Minnesota provided emission limitations for Sherco units 1 and 2 solely as a SIP strengthening measure. The requirements for regional haze SIPs for the first implementation period are contained in 40 CFR 51.308(d) and (e).
EPA promulgated a FIP addressing the BART requirement for taconite plants in Michigan and Minnesota. This FIP was published in the
Pursuant to 40 CFR 51.308(g), Minnesota was also responsible for submitting a five-year progress report as a SIP revision for the first implementation period, which it did on December 30, 2014. EPA approved the progress report and incorporated it into the Minnesota SIP on June 28, 2018 (83 FR 30350), effective July 30, 2018.
In accordance with CAA section 169A and the RHR at 40 CFR 51.308(f), on December 20, 2022, Minnesota submitted a revision to the Minnesota SIP to address its regional haze obligations for the second implementation period that runs from 2018 to 2028. Minnesota made its second period Regional Haze SIP submission available for public comment on August 22, 2022. The public comment period lasted until October 7, 2022. Minnesota held a public hearing on September 22, 2022. Minnesota received and responded to public comments. It included the comments and its responses in appendix H of its regional haze SIP submission.
The following sections describe Minnesota's SIP submission, including analyses conducted by LADCO and Minnesota's determinations based on those analyses, Minnesota's assessment of progress made since the first implementation period in reducing emissions of visibility impairing pollutants, and the visibility improvement progress at its Class I areas and nearby Class I areas. This proposed rulemaking also contains EPA's evaluation of Minnesota's submission against the requirements of the CAA and RHR for the second implementation period of the regional haze program.
Section 169A(b)(2) of the CAA requires each state in which any Class I area is located or “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to have a plan for making reasonable progress toward the national visibility goal. The RHR implements this statutory requirement at 40 CFR 51.308(f), which provides that each state's plan “must address regional haze in each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State that may be affected by emissions from within the State,” and paragraph (f)(2), which requires each state's plan to include a long-term strategy that addresses regional haze in such Class I areas.
EPA explained in the 1999 RHR preamble that the CAA section 169A(b)(2) requirement that states submit SIPs to address visibility impairment establishes “an `extremely low triggering threshold' in determining which States should submit SIPs for regional haze.” 64 FR 35714 at 35721, July 1, 1999. In concluding that each of the contiguous 48 states and the District of Columbia meet this threshold,
Minnesota is home to two mandatory Class I Federal areas: Boundary Waters Canoe Area Wilderness (Boundary Waters) and Voyageurs National Park (Voyageurs). For the second implementation period, Minnesota performed technical analyses to help assess source and state-level contributions to visibility impairment at in and out of state Class I areas. Those results are presented in section 2.2.2 of its plan. Minnesota also assessed the contributions from other states and regions to its two Class I areas. See section 2.2.3 of the Minnesota plan.
Based on modeling completed by the state, Minnesota was found to have the greatest visibility impact on the Class I areas within the state, Boundary Waters and Voyageurs, contributing an estimated 16.2 and 17.6 percent of sulfate plus nitrate visibility impairment, respectively. Minnesota emissions also impact out-of-state Class I areas in Michigan, although the impacts to these out-of-state areas are smaller at 8.2 percent (Isle Royale) and 4.3 percent (Seney). Visibility impacts to the next closest six Class I areas in other states ranged from 0.5 percent at Lostwood Wilderness in North Dakota to 2.6 percent at Mammoth Cave in Kentucky.
Minnesota also assessed the states and regions impacting Minnesota's Class I areas. It presented the results of its source apportionment modeling in section 2.2.3, including Table 13, of its plan. Minnesota identified itself, Canada, North Dakota, Iowa, Nebraska, Wisconsin, and Missouri as the largest contributors to visibility impairment in one or both Class I areas in Minnesota.
The regulation at 40 CFR 51.308(f)(1) requires states to determine the following for “each mandatory Class I Federal area located within the State”: baseline visibility conditions for the most impaired and clearest days, natural visibility conditions for the most impaired and clearest days, progress to date for the most impaired and clearest days, the differences between current visibility conditions and natural visibility conditions, and the URP. This section also provides the option for states to propose adjustments to the URP line for a Class I area to account for visibility impacts from anthropogenic sources outside the United States and/or the impacts from wildland prescribed fires that were conducted for certain, specified objectives. 40 CFR 51.308(f)(1)(vi)(B).
Voyageurs has a complete set of ambient IMPROVE data for 2000 to 2004 baseline visibility conditions. Boundary Waters also has a complete, but substitute, ambient dataset for this period because an equipment malfunction in 2002, 2003, and 2004 caused the loss of some PM
As noted in section 2.1 of Minnesota's plan, for Boundary Waters, baseline visibility conditions are 6.5 dv on the 20 percent clearest days and 18.5 dv on the 20 percent most impaired days. For Voyageurs, the baseline visibility conditions are 7.2 dv on the 20 percent clearest days and 17.9 dv on the 20 percent most impaired days.
As noted in section 2.1 of Minnesota's plan, Minnesota calculated natural conditions for Boundary Waters at 6.5 dv on the 20 percent clearest days and 9.1 dv on the 20 percent most impaired days. For Voyageurs, Minnesota calculated the natural conditions at 7.2 dv
Current conditions, based on 2015-2019 monitoring data, for the days of most impaired visibility, are better than the 2018 interim progress goals for the Boundary Waters and Voyageurs, as depicted in Figure 4 in section 2.1 of Minnesota's plan. Current conditions for the days of clearest visibility improved and did not degrade from the baseline. Minnesota provides the current visibility conditions for each year and a running five-year average for both Class I areas on Table 5 in section 2.1.3 of its plan. The 2015 to 2019 averages are: Boundary Waters at 4.2 dv on the clearest days and 13.4 dv on the most impaired days and Voyageurs at 5.1 dv the clearest days and 13.5 dv on the most impaired days.
Minnesota shows the progress to date for both its Class I areas in section 2.1.4, Table 6 of its plan. Table 6 has data for the five-year averages from 2004 to 2019. For Boundary Waters, the five-year average for the most impaired days decreased from 18.5 in 2004 to 13.4 in 2019 while the five-year average for the clearest days trended from 6.5 dv in 2004 to 4.2 in 2019. For Voyageurs, the five-year average for the most impaired days decreased from 17.9 in 2004 to 13.5 in 2019 while the five-year average for the clearest days trended from 7.2 dv in 2004 to 5.1 in 2019. Based on the ambient data trends, steady progress towards natural conditions is being made in both Boundary Waters and Voyageurs.
Minnesota calculated the difference between current visibility and natural visibility conditions in section 2.1.5 of its plan. For Boundary Waters, on the most impaired days, the current visibility is 13.4 dv, which is 4.3 dv above the 2064 end point of 9.1 dv, while the current 4.2 dv visibility on the clearest days is below the end point target of 6.5 dv. The difference is similar at Voyageurs, with the current visibility on the most impaired days of 13.5 dv being 4.2 dv above the 9.3 dv end point in 2064. The current visibility at Voyageurs on the clearest days, 5.1 dv, is also below the 2064 end point target of 7.2 dv.
Minnesota, in section 2.1.6 of its plan, calculated the URP for the Class I areas
EPA proposes to find that Minnesota has submitted a regional haze plan that meets the requirements of 40 CFR 51.308(f)(1) related to the calculations of baseline, current, and natural visibility conditions; progress to date; and the URP for the second implementation period.
Each state having a Class I area within its borders or emissions that may affect visibility in a Class I area must develop a long-term strategy for making reasonable progress towards the national visibility goal. CAA 169A(b)(2)(B). As explained in the Background section of this action, reasonable progress is achieved when all states contributing to visibility impairment in a Class I area are implementing the measures determined—through application of the four statutory factors to sources of visibility impairing pollutants—to be necessary to make reasonable progress. 40 CFR 51.308(f)(2)(i). Each state's long-term strategy must include the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress. 40 CFR 51.308(f)(2). All new (
The following paragraphs detail how Minnesota's submission addresses the requirements of 40 CFR 51.308(f)(2)(i). Minnesota evaluated and determined the emission reduction measures needed to make reasonable progress. In its submission, Minnesota documents the methodology it used in its selection of sources for analysis and control measures necessary to make reasonable progress, which are discussed later in this section.
States may rely on technical information developed by the RPOs of which they are members to select sources for four-factor analysis and to conduct that analysis, as well as to satisfy the documentation requirements under 40 CFR 51.308(f). States may also satisfy the requirement of 40 CFR 51.308(f)(2)(ii) to engage in interstate consultation with other states that have emissions that are reasonably anticipated to contribute to visibility impairment in a given Class I area under the auspices of intra- and inter-RPO engagement.
Minnesota is a member of an RPO, LADCO, and participated in the RPO's regional approach to developing a strategy for making reasonable progress towards the national visibility goal in the northern Midwest Class I areas.
Minnesota performed its own technical analysis using EPA and LADCO provided elements. Minnesota's modeling used EPA's modeling platform with some portions replaced by those from LADCO.
The technical analyses included in Minnesota's submission are as follows:
• Establishment of RPGs for Boundary Waters and Voyageurs (appendix A)
• Contributions to the 2028 RPGs for Boundary Waters and Voyageurs (appendix A)
• Minnesota's impact on Class I areas (appendix A)
• Assessment of states and regions impacting Minnesota's Class I areas (appendix A)
• Modeling analyses supporting the conclusion that the Long-Term Strategy provides reasonable progress (appendix A)
• LADCO's Technical Support Documentation (appendix C)
• LADCO's Q/d Materials (appendix C)
• LADCO's photochemical modeling and Emissions Modeling results (appendix C)
Minnesota found that the emission reduction measures necessary to make reasonable progress include:
• Permanent and federally enforceable current and future retirements at ten EGUs (Minnesota plan Table 32), Enforceable by permit or administrative order;
• Existing effective controls for nine other selected sources, two paper mills, one EGU, and six taconite facilities, which are required through permits and the 2013 regional haze taconite plant FIP (Minnesota plan Table 33);
• Additional NO
• Expected emission reductions from the implementation of the Regional Haze taconite plant FIP (Minnesota plan section 2.6.2);
• Updated Northeast Minnesota Plan adding voluntary emission reduction targets of 30 percent below 2018 levels by 2025 and 40 percent below 2018 levels by 2028, targeting taconite facilities, EGUs, and paper mills (Minnesota plan section 2.5.7).
2. EPA's Evaluation of Minnesota's Compliance With 40 CFR 51.308(f)(2)(i)
The regulation at 40 CFR 51.308(f)(2)(i) requires states to evaluate and determine the emission reduction measures that are necessary to make reasonable progress by applying the four statutory factors to sources in a control analysis. The emission reduction measures that are necessary to make reasonable progress must be included in the long-term strategy. 40 CFR 51.308(f)(2).
EPA proposes to find that Minnesota appropriately considered the four statutory factors: cost of compliance, time necessary for compliance, the
Minnesota detailed its source selection process in section 2.3.6. of its plan. Minnesota originally selected 13 facilities that accounted for about the top 80 percent of emissions impacting visibility at Boundary Waters and Voyageurs. Discussions with the FLMs resulted in Minnesota considering four additional facilities—American Crystal Sugar in Crookston and East Grand Forks, Hibbing Public Utilities, and Southern Minnesota Beet Sugar Cooperative. Thus, Minnesota selected the following 17 facilities, which account for nearly the top 85 percent of visibility impacts at Boundary Waters and Voyageurs and result in an effective Q/d of about 4.6:
• American Crystal Sugar—Crookston: Boilers 1, 2, and 3;
• American Crystal Sugar—East Grand Forks: Boilers 1 and 2;
• Boise White Paper: Recovery Furnace, Boilers 1 and 2;
• Cleveland Cliffs Minorca Mine: Indurating Furnace;
• Hibbing Public Utilities: Boilers 1A, 2A, 3A, and Wood Fired Boiler;
• Hibbing Taconite Company: Indurating Furnace Lines 1, 2, and 3;
• Minnesota Power—Boswell: Units 1, 2, 3, and 4;
• Minnesota Power—Taconite Harbor: Boilers 1 and 2;
• Northshore Mining—Silver Bay: Power Boilers 1 and 2 and Furnaces 11 and 12;
• Sappi Cloquet LLC: Power Boiler 9 and Recovery Boiler 10;
• Southern Minnesota Beet Sugar Cooperative: Boiler 1;
• United Taconite—Fairlane Plant: Pellet Induration Lines 1 and 2;
• US Steel—Keetac: Grate Kiln;
• US Steel—Minntac: Rotary Kiln Lines 3, 4, 5, 6, and 7;
• Virginia Department of Public Utilities: Boilers 7, 9, and 11;
• Xcel Energy—Allen S. King: Boiler 1; and
• Xcel Energy—Sherburne: Units 1, 2, and 3.
Minnesota then contacted these selected sources and requested they prepare site-specific four-factor analyses. To guide facilities' assessment of selected sources, Minnesota suggested the facilities use the 2016 actual emissions data unless 2028 operations are expected to be significantly different than 2016 operations. In its request, Minnesota explained that emissions should be based on representative historical operations and follow the recommendations regarding emissions data in EPA's August 2019 Guidance. Facilities generally provided emissions data that were reported to the most recent Minnesota annual emissions inventory (typically 2018 or 2019), which was at least as recent as the emissions data submitted to EPA's 2017 National Emissions Inventory (NEI), at the time the requested four-factor analyses were provided to Minnesota.
In appendix E of its plan, Minnesota reviewed the emissions data provided in each four-factor analysis and compared that information to the emissions data reported in Minnesota's annual emissions inventory for the years 2016 through 2020. Minnesota compared the emissions data to these years of reported emissions data to verify that the emissions used in the four-factor analyses were similar to historically reported emissions. Where emissions data used by facilities were not representative of typical emissions, Minnesota revised the emissions data used as part of evaluating potential control measures following the methods recommended by the EPA's Air Pollution Control Cost Manual
Minnesota also evaluated the cost of compliance as detailed in sections 2.4.3 and 2.5.1 of the Minnesota plan. In order to evaluate the reasonableness of potential control measures, Minnesota chose to evaluate those costs compared to available cost information from many sources including first period BART determinations, other states' regional haze plans,
Minnesota did not set a bright-line cost threshold but considered controls that cost less than approximately $7,600 per ton as cost effective for the second implementation period. Minnesota used $10,000 per ton for an initial screening threshold. Minnesota then evaluated potential NO
In section 2.5.2 of the Minnesota plan, Minnesota reviewed the time needed for compliance with potential control measures provided by facilities to consider what compliance timeframe would be reasonable for each specific source. The state noted that in general, facilities provided an estimate of the time needed to install the evaluated control options including the time needed for design, engineering, procurement, and installation. Minnesota reviewed the facility's time needed for compliance with potential control measures provided by facilities to consider what compliance timeframe would be reasonable for each specific source. Minnesota considered the time
In section 2.5.3 of the Minnesota plan, Minnesota stated that it considered the energy and non-air environmental impacts as part of the cost of compliance of potential control measures in determining whether a control measure was necessary to make reasonable progress. Minnesota considered this factor by evaluating the cost impact from the potential control measures such as whether adopting the control would: (1) increase or decrease energy use; (2) impact solid, liquid, and hazardous waste disposal; (3) create reagents that contaminate fly ash making it unsuitable for sale; and (4) require accessory systems such as additional fans. Minnesota considered the remaining useful life of each source as described in section 2.4.6 and 2.5.4 of its plan. Minnesota determined the remaining useful life by considering the remaining duration of operation and the expected lifespan of potential controls. Minnesota noted that facilities generally followed the Control Cost Manual control device recommendations in their calculations. In several cases, Minnesota considered enforceable retirement dates as the end of a source's useful life. Minnesota provided detail on the retirements of 10 units at Minnesota Power—Boswell, Minnesota Power—Taconite Harbor, Virginia Department of Public Utilities, and Xcel Energy—Allen S. King and Sherco facilities on Table 32 in section 2.3.3 of its plan.
In order to ensure that the long-term strategy contains the enforceable emissions limitations necessary for reasonable progress, Minnesota assessed emissions limitations at each of the 17 facilities it considered. For sources for which Minnesota determined that no additional control measures were needed, Minnesota relied on existing federally enforceable emissions limitations in the taconite plant FIP, and on retirement schedules at certain facilities memorialized in administrative orders as described in section 2.5.4 and appendix D of its plan and in the following paragraph. The Minnesota long-term strategy relies on these federally enforceable emissions limitations and retirement schedules as the measures necessary to make reasonable progress. As such, Minnesota concluded that additional control measures were not necessary to make reasonable progress.
Minnesota entered into an administrative order regarding the Virginia Department of Public Utilities Boiler 7, including a permanent retirement scheduled for Boiler 7 by January 1, 2025. Minnesota also entered into administrative orders for the retirements of Minnesota Power—Taconite Harbor Boilers 1 and 2 by March 31, 2023, Xcel Energy—Allen S. King Boiler 1 by December 31, 2028, and Xcel Energy—Sherco Unit 3 by December 31, 2030. Minnesota also entered into an administrative order requiring the Northshore Mining—Silver Bay Power Company's Power Boiler 1 and Power Boiler 2 units to remain idled through 2031. Finally, at Hibbing Public Utilities commission, Minnesota entered into an administrative order requiring NO
Several units at selected facilities had permanently retired. In section 2.3.3 of its plan, Minnesota cites the federally enforceable permits for Minnesota Power—Boswell Energy Center Unit 1 and Unit 2, Virginia Department of Public Utilities Boiler 9, and Xcel Energy—Sherco Unit 1 and Unit 2.
Minnesota also considered the following sources to be effectively controlled through federally enforceable emissions limits included in operating permits or in the first regional haze implementation period. Regarding Boise White Paper Boiler 2 and Recovery Furnace, Minnesota determined that the facility's emissions permit included a NO
Minnesota also considered the following sources to be effectively controlled through federally enforceable emissions limits in the taconite plant FIP. Regarding US Steel Minntac Rotary Kiln Lines 3, 4, 5, 6, and 7, EPA published a final rule on March 2, 2021, imposing a facility-wide BART NO
In section 2.4.1 of its plan, Minnesota provided the emission control measures considered in Table 45 along with noting the units that have or will retire and were found to be effectively controlled. The NO
Minnesota evaluated potential NO
Minnesota also evaluated potential SO
For Sappi Cloquet LLC, Minnesota considered potential NO
Minnesota also evaluated potential NO
Minnesota also evaluated potential NO
Minnesota evaluated potential NO
EPA proposes to find that Minnesota has satisfied the requirements of 40 CFR 51.308(f)(2)(i) related to determining the emission reduction measures that are necessary to make reasonable progress by appropriately considering the four statutory factors and providing a long-term strategy that includes the enforceable emission limitations and compliance schedules that are necessary to make reasonable progress.
The consultation requirements of 40 CFR 51.308(f)(2)(ii) provide that states must consult with other states that are reasonably anticipated to contribute to visibility impairment in a Class I area to develop coordinated emission management strategies containing the emission reductions measures that are necessary to make reasonable progress. Section 51.308(f)(2)(ii)(A) and (B) require states to consider the emission reduction measures identified by other states as necessary for reasonable progress and to include agreed-upon measures in their SIPs, respectively. Under 40 CFR 51.308(f)(2)(ii)(C) speaks to what happens if states cannot agree on what measures are necessary to make reasonable progress.
As noted in section 2.9.1 of its plan, Minnesota participated in the LADCO Regional Haze Technical Workgroup meetings beginning in January 2018. These meetings are ongoing.
Minnesota also consulted with several states individually. Minnesota met with Iowa on June 30, 2022. Minnesota met with Michigan on June 24, 2022. Minnesota consulted with Missouri on June 21, 2022. Nebraska met with Minnesota three times on June 26, 2020, December 16, 2020, and June 21, 2022. On June 25, 2020, Minnesota and North Carolina met. North Dakota and Minnesota consulted on March 22, 2021, and June 23, 2022. Minnesota met South Dakota on September 15, 2021. Minnesota and Wisconsin met on June 30, 2022. More information on these meetings with individual states and any follow-up is provided in Minnesota's plan at section 2.9.1.
No states notified Minnesota that they identified emissions from Minnesota sources as contributing to visibility impairment at their Class I areas. There are no requests from other states to analyze emissions controls at Minnesota sources or for Minnesota to undertake specific emissions reductions necessary to make reasonable progress for the second regional haze implementation period at out-of-state Class I areas.
EPA proposes to find that Minnesota has met the 40 CFR 51.308(f)(2)(ii)(A) and (B) consultation requirements with its participation in the LADCO Regional Haze Technical Workgroup consultation process plus its individual consultation meetings with contributing states. There were no disagreements with other states, so 40 CFR 51.308(f)(2)(ii)(C) does not apply.
The regulation at 40 CFR 51.308(f)(2)(iii) requires states to document the technical basis of the long-term strategy. This includes the modeling, monitoring, cost, engineering, and emissions information that the state relied on in determining the emission-reduction measures that are necessary to make reasonable progress. As explored in further detail above, Minnesota specified the control measures necessary to make reasonable progress in section 2.5 of its plan. In summary, Minnesota concluded that the following control measures are necessary for reasonable progress:
• The realized and upcoming emission unit retirements;
• The existing effective controls for non-taconite emission units;
• Additional NO
• The expected emission reductions from implementation of the taconite plant FIP;
• The new, voluntary emission reduction targets in the Northeast Minnesota Plan for 2025 and 2028.
To select these control measures, Minnesota relied on monitoring, as
40 CFR 51.308(f)(2)(iii) also requires the documentation of cost analyses as part of the technical basis for the state's long-term strategy. As explained above, Minnesota satisfactorily complied with the requirement of 40 CFR 51.308(f)(2)(i) to consider cost as one of the four statutory factors to be considered when evaluating control options. EPA is proposing to find that Minnesota's documentation of its cost considerations satisfy its obligation under 40 CFR 51.308(f)(2)(iii).
As noted above, Minnesota considered engineering, one of the technical basis elements of 40 CFR 51.308(f)(2)(iii), in its selection of potential emission control systems and in evaluating the control analyses (such as evaluating reasonableness of the control efficiency and retrofit factor used).
40 CFR 51.308(f)(2)(iii) also requires that the emissions information considered to determine the measures that are necessary to make reasonable progress include information on emissions for the most recent year for which the state has submitted triennial emissions data to EPA (or a more recent year), with a 12-month exemption period for newly submitted data. In section 2.3.2 of its plan, Minnesota used 2016 emissions inventory data to calculate Q/d in an effort to select industrial point sources for an analysis of emissions control measures. The LADCO Regional Haze Technical Workgroup selected the National Emissions Inventory Collaborative 2016 inventory for the Q/d analysis in March 2018 as the best available inventory at that time. LADCO compiled the Q/d analysis, which accounted for the combined emissions of SO
In section 2.4.2, Minnesota's SIP submission also provided 2028 emission projections based on a modeling platform using the 2016 emissions inventory. Minnesota also considered Clean Air Markets Program Data emissions for EGUs for NO
Finally, Minnesota also adequately documented adjustments to the factors impacting the RPG, which involved adjustments to reflect changes at facilities occurring after the modeling platform was developed.
EPA proposes to find that Minnesota adequately documented its technical basis for calculating the 2028 RPGs for Boundary Waters and Voyageurs.
EPA also proposes to find that Minnesota reasonably considered the five additional factors in 40 CFR 51.308(f)(2)(iv) in developing its long-term strategy. Minnesota considered these five factors in section 2.3.4 of its plan.
Pursuant to 40 CFR 51.308(f)(2)(iv)(A), Minnesota noted that it considered ongoing state and Federal emission control programs that contribute to emission reductions through 2028 in the modeling that was used to develop the long-term strategy. In addition, the Sherco facility has an existing emissions limit to address RAVI at Minnesota Class I areas. EPA promulgated a RAVI FIP for Sherco on March 7, 2016 (81 FR 11668), and the emission limitations are in 40 CFR 52.1236. Minnesota also provided details on the taconite plant BART FIP that limits visibility impairing emissions from several taconite facilities. Minnesota noted numerous Federal standards and other existing measures that result in emission reductions. In section 3.1 of its plan, Minnesota also noted additional emission reductions from a variety of programs that are not reflected in its 2028 modeling inventory. Those programs include the Ozone and PM Advance programs, Volkswagen Settlement funded projects, and the Clean Cars Minnesota rule.
Pursuant to 40 CFR 51.308(f)(2)(iv)(B), Minnesota considered measures to mitigate the impacts of construction activities by considering EPA standards for nonroad and diesel mobile sources, as well as Minnesota Rule 7011.0150, which requires all reasonable measures to be undertaken to prevent particulate matter from becoming airborne. Minnesota notes the main impacts of construction activities include the impacts of emissions from nonroad mobile and diesel engines and fugitive emissions resulting from land clearing and construction.
Pursuant to 40 CFR 51.308(f)(2)(iv)(C), Minnesota considered source retirement and replacement schedules memorialized in enforceable administrative orders, as discussed above regarding Minnesota's compliance with the requirement of 40 CFR 51.308(f)(2)(i) to consider the remaining useful life of any existing source possibly subject to control requirements. See section 2.3.3 and Table 32 of Minnesota's plan. The source retirements that had already occurred are federally enforceable by permit condition as given by the state.
Pursuant to 40 CFR 51.308(f)(2)(iv)(D), Minnesota considered smoke management by considering the Minnesota Smoke Management Plan. The state noted that prescribed fire and managed wildfire have been used in Minnesota for many years to improve and maintain natural resources. The Minnesota Smoke Management Plan
Pursuant to 40 CFR 51.308(f)(2)(iv)(E), Minnesota considered the anticipated net effect on visibility due to projected changes in emissions in its submission, in developing the technical information used to support development of the regional haze SIP. Minnesota noted that it used conservative estimates of the visibility improvements due to Minnesota's long-term strategy for the second regional haze implementation period. Minnesota met this requirement by projecting emissions from all sources in Minnesota and other nearby states to the end of the planning period (2028) and performing a detailed modeling analysis of the anticipated impact of those emissions changes on visibility impairment at Class I areas in both Minnesota and nearby states. However, Minnesota did not directly rely on the 2028 modeling analysis to select sources and evaluate controls in developing its long-term strategy. Instead, Minnesota used the Q/d process presented in section 2.3 of its plan to select sources for an analysis of control measures. As detailed in section IV. E.2. of this preamble, Minnesota performed a well-developed analysis resulting in a reasonable selection of sources and performed a sufficient control analysis on the selected sources.
EPA proposes to find that Minnesota's reasonable consideration of each of the five additional factors satisfies the requirements of 40 CFR 51.308(f)(2)(iv).
Section 51.308(f)(3) contains the requirements pertaining to RPGs for each Class I area. Minnesota contains two Class I areas, making it subject to 40 CFR 51.308(f)(3)(i). Section 51.308(f)(3)(i) requires a state in which a Class I area is located to establish RPGs—one each for the most impaired and clearest days—reflecting the visibility conditions that will be achieved at the end of the implementation period as a result of the emission limitations, compliance schedules and other measures required under paragraph (f)(2) to be in states' long-term strategies, as well as implementation of other CAA requirements. The long-term strategies as reflected by the RPGs must provide for an improvement in visibility on the most impaired days relative to the baseline period and ensure no degradation on the clearest days relative to the baseline period. Section 51.308(f)(3)(ii)(B) requires that if a state contains sources that are reasonably anticipated to contribute to visibility impairment in a Class I area in
Minnesota determined the 2028 RPGs for Boundary Waters and Voyageurs based on the long-term strategy and other enforceable measures described in its plan.
Minnesota determined the RPGs using its modeling platform, consisting of EPA's 2016 modeling platform, version 1, with some parts replaced with those provided by LADCO. This resulted in a 2016 modeling platform, version 1b, as detailed in the Minnesota plan at section 2.6.1. Minnesota used the National Emissions Inventory Collaborative's emissions inventory 2016 base year for the second implementation period. Minnesota details the meteorology inputs for its emissions model and its air-quality model in its plan. For the base year inventories, Minnesota used the LADCO prepared “actual” and “typical” emissions inventories. Minnesota used the actual emissions inventory for evaluating air-quality model performance. Minnesota used the typical emissions inventory for establishing RPGs and for the contribution assessment. Minnesota notes the only difference between the actual and typical emissions inventories involves the characterization of emissions from the taconite facilities in Minnesota. LADCO prepared a 2028 projected “typical” emissions inventory for Minnesota by incorporating state-provided emissions projections for taconite facilities that apply FIP limits from the first implementation period. LADCO's 2028 future year inventory used the National Emissions Inventory Collaborative's 2016 emissions inventory with updates.
According to the modeling, the 2028 RPGs for the most impaired days are 13.4 dv for Boundary Waters and 13.6 dv for Voyageurs. The 2028 RPGs for the clearest days are 4.5 dv for Boundary Waters and 5.3 dv for Voyageurs. See Table 65 of the Minnesota plan. Minnesota's long-term strategy and the RPGs provide for an improvement in visibility for the most impaired days since the baseline period and ensure no degradation in visibility for the clearest days since the baseline period, in accordance with 40 CFR 51.308(f)(3)(i).
Section 51.308(f)(3)(i) also specifies that RPGs must reflect “enforceable emissions limitations, compliance schedules, and other measures
The RHR at 40 CFR 51.308(f)(3)(iii) notes that the RPGs are not directly enforceable but will be considered by the Administrator in evaluating the adequacy of the measures in the implementation plan in providing for reasonable progress towards achieving natural visibility conditions at that area.
Under 40 CFR 51.308(f)(3)(ii)(A), a state with a Class I area that establishes an RPG for the most impaired days that provides for a slower rate of improvement in visibility than the URP must calculate the number of years required to reach natural conditions. Because Minnesota's RPGs are below the URP, the demonstration requirement under 40 CFR 51.308(f)(3)(ii)(A) is not triggered.
Under 40 CFR 51.308(f)(3)(ii)(B), if a state contains sources that are reasonably anticipated to contribute to visibility impairment in a Class I area in another state for which a demonstration by the other state is required, then the
In sum, EPA proposes to determine that Minnesota has satisfied the applicable requirements of 40 CFR 51.308(f)(3) relating to RPGs.
Section 51.308(f)(6) specifies that each comprehensive revision of a state's regional haze SIP must contain or provide for certain elements, including monitoring strategies, emissions inventories, and any reporting, recordkeeping and other measures needed to assess and report on visibility. A main requirement of this subsection is for states with Class I areas to submit monitoring strategies for measuring, characterizing, and reporting on visibility impairment. Compliance with this requirement may be met through participation in the IMPROVE network.
Minnesota uses its participation in the IMPROVE program
Section 51.308(f)(6)(i) requires SIPs to provide for the establishment of any additional monitoring sites or equipment needed to assess whether reasonable progress goals to address regional haze for all mandatory Class I Federal areas within the state are being achieved. The IMPROVE monitoring sites are in the two Class I areas, at Boundary Waters (monitor BOWA1) and Voyageurs (monitor VOYA2). Additionally, an IMPROVE Protocol site is located in southeastern Minnesota near Great River Bluffs State Park (monitor GRRI1). See 2.8.4 and Figure 16 of the Minnesota plan.
Section 51.308(f)(6)(ii) requires SIPs to provide for procedures by which monitoring data and other information are used in determining the contribution of emissions from within the state to regional haze visibility impairment at mandatory Class I Federal areas both within and outside the state. Minnesota used its own modeling analysis to conduct the contribution assessment as detailed in section 2.2.1 and appendix A of its plan.
In 40 CFR 51.308(f)(6)(iii) only applies to states without a Class I area, requiring procedures for using monitoring data in determining the contribution of emissions to visibility impairment at Class I areas in other states. Minnesota has Class I areas, therefore this requirement is inapplicable.
Section 51.308(f)(6)(iv) requires the SIP to provide for the reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state. The monitoring strategy for Minnesota relies upon the continued availability of the IMPROVE network. Minnesota supports the continued operation of the IMPROVE network through both state and Federal funding mechanisms.
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment, including emissions for the most recent year for which data are available and estimates of future projected emissions. It also requires a commitment to update the inventory periodically. The Minnesota emissions inventory includes VOC, NO
In 40 CFR 51.308(f)(6)(v) also requires states to include estimates of future projected emissions and include a commitment to update the inventory periodically. Minnesota noted its intention to continue to update the full emissions inventory on the three-year NEI cycle. See 2.8.5 of the Minnesota plan.
In 40 CFR 51.308(f)(6)(vi) requires a state to consider other elements necessary to assess and report on visibility, including reporting and recordkeeping. Minnesota has met the other applicable requirements of 40 CFR 51.308(f)(6), therefore no further elements are necessary for Minnesota to assess and report on visibility pursuant to 40 CFR 51.308(f)(6)(vi).
EPA proposes to find that Minnesota has met the requirements of 40 CFR 51.308(f)(6) through its continued participation in the IMPROVE network, its contribution analysis, its emissions reporting to EPA, and its statewide emissions inventory.
Section 51.308(f)(5) requires that periodic comprehensive revisions of states' regional haze plans also address the progress report requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these requirements is to evaluate progress towards the applicable RPGs for each Class I area within the state and each Class I area outside the state that may be affected by emissions from within that state. In 40 CFR 51.308(g)(1) and (2) apply to all states and require a description of the status of implementation of all measures included in a state's first implementation period regional haze plan and a summary of the emission reductions achieved through implementation of those measures. The regulations in 40 CFR 51.308(g)(3) applies only to states with Class I areas within their borders and requires such states to assess current visibility conditions, changes in visibility relative to baseline (2000-2004) visibility conditions, and changes in visibility conditions relative to the period addressed in the first implementation period progress report. The regulations in 40 CFR 51.308(g)(4) applies to all states and requires an analysis tracking changes in emissions of pollutants contributing to visibility impairment from all sources and sectors since the period addressed by the first implementation period progress report. This provision further specifies the year or years through which the analysis must extend depending on the type of source and the platform through which its emission information is reported. Finally, 40 CFR 51.308(g)(5), which also applies to all states, requires an assessment of whether any significant changes in anthropogenic emissions within or outside the state have occurred since the period addressed by the first implementation period progress report, including whether such changes were anticipated and whether they have limited or impeded expected progress towards reducing emissions and improving visibility.
Minnesota submitted its previous progress report on December 30, 2014. EPA Guidance suggests covering the period approximately from the first full year that was not in the previous progress report through a year that is as close as possible to the submission date of the SIP revision. Thus, Minnesota's
Minnesota's plan in section 2.10.1 describes the status of emission reduction measures from the first implementation period as required by 40 CFR 51.308(g)(1). Minnesota worked on implementing BART controls although Minnesota taconite facilities subject to the taconite plant FIP have not fully implemented BART controls pending settlement agreements. Minnesota also implemented its Northeast Minnesota Plan as part of its long-term strategy in the first period. This plan established voluntary combined NO
As noted in section 2.10.2 of its plan, Minnesota met the emission reduction measures during the first implementation period, by 2014. Minnesota notes that emissions continued to fall in the second half of the first period, largely driven by emission reductions from EGUs. Minnesota cited EPA data
EPA proposes to find that Minnesota has met the requirements of 40 CFR 51.308(g)(1) and (2) because its submission gives the status of implementation of first period emission reduction measures and a summary of the emission reductions achieved through such implementation.
States are required by 40 CFR 51.308(g)(3) to assess the visibility progress of its Class I areas. Section 2.10.3 of Minnesota's SIP submission included summaries of the visibility conditions and the trend of the five-year averages through 2019 at the class I areas. For Boundary Waters, the 2019 five-year average visibility impairment is 13.4 dv, down from 15.4 dv in 2014 on the most impaired days. Visibility conditions at Boundary Waters improved from 4.9 dv in 2014 to 4.2 dv in 2019 on the clearest days. At Voyageurs, visibility improved from 16.2 dv in 2014 to 13.5 dv in 2019 on the most impaired days. On the clearest days at Voyageurs, the visibility improved from 5.8 dv to 5.1 dv between 2014 and 2019. EPA proposes to find that Minnesota has satisfied the requirements of 40 CFR 51.308(g)(3).
Pursuant to 40 CFR 51.308(g)(4), Minnesota provided a summary of 2014 to 2021 NH
EPA proposes to find that Minnesota has satisfied the requirements of 40 CFR 51.308(g)(4) by providing emissions information for NH
As for the requirement of 40 CFR 51.308(g)(5) to give an assessment of changes impeding visibility progress, Minnesota evaluated contributions within and outside the state. Minnesota noted in section 2.10.5 of its plan that it has continued to make significant progress in reducing anthropogenic emissions within the state. On the other hand, one significant increase has been VOC contributions from North Dakota, primarily from the oil and gas sector. Minnesota states that this increase has not significantly impeded progress at Minnesota's Class I areas. Minnesota notes these contributions may need evaluation in future implementation periods. EPA proposes to find that Minnesota has met the requirements of 40 CFR 51.308(g)(5).
Section 169A(d) of the CAA requires states to consult with FLMs before holding the public hearing on a proposed regional haze SIP, and to include a summary of the FLMs' conclusions and recommendations in the notice to the public. In addition, 40 CFR 51.308(i)(2)'s FLM consultation provision requires a state to provide FLMs with an opportunity for consultation that is early enough in the state's policy analyses of its emission reduction obligation so that information and recommendations provided by the FLMs can meaningfully inform the state's decisions on its long-term strategy. If the consultation has taken place at least 120 days before a public hearing or public comment period, the opportunity for consultation will be deemed early enough. Regardless, the opportunity for consultation must be provided at least 60 days before a public hearing or public comment period at the state level. In 40 CFR 51.308(i)(2) also provides two substantive topics on which FLMs must be provided an opportunity to discuss with states: assessment of visibility impairment in any Class I area and recommendations on the development and implementation of strategies to address visibility impairment. Section 51.308(i)(3) requires states, in developing their implementation plans, to include a description of how they addressed FLMs' comments.
On May 11, 2022, Minnesota provided its draft Regional Haze plan to the USFS, FWS, and the NPS for a 60-day review and comment period pursuant to 40 CFR 51.308(i)(2). A FLM consultation meeting was held on June 30, 2022. NPS staff and USFS staff attended. NPS sent a comment letter on July 11, 2022. USFS sent a comment letter on July 12, 2022. Minnesota responded to the FLM comments and included the responses on Table 84 in its plan in accordance with 40 CFR 51.308(i)(3). EPA proposes to find that Minnesota has satisfied the requirements under 40 CFR 51.308(i) to consult with the FLMs on its Regional Haze SIP for the second implementation period.
Minnesota published the public notice for the proposed update to Minnesota's Regional Haze SIP in the State Register on August 22, 2022. The public comment period was from August 22, 2022, to October 7, 2022. During the public notice period, a copy of the SIP revision was made available at Minnesota's office in St. Paul and on its website. A hearing was held on September 22, 2022. Minnesota received five comment letters during the public comment period plus two late comment letters. The comment letters and Minnesota's responses are included in appendix H of its plan.
Further, Minnesota stated in section 3.2 of its plan that it performed specific outreach to Minnesota Tribes.
As explained in the
In sum, EPA is proposing approval of the SIP revision because it meets minimum requirements pursuant to the CAA and relevant implementing regulations. EPA also finds that Minnesota's consideration of EJ analyses in this context is reasonable. EPA encourages air agencies generally to evaluate EJ considerations of their actions and carefully consider impacts to communities. EPA considers Minnesota's EJ analysis but that is not the basis for EPA's decision making; Minnesota's SIP met the minimum applicable requirements, as explained above.
EPA is proposing to approve the Regional Haze SIP revision submitted by Minnesota on December 20, 2022, as satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f).
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Minnesota Administrative Orders for Hibbing Public Utilities Commission, effective August 19, 2022; Minnesota Power—Taconite Harbor Energy Center, effective May 27, 2021, and May 17, 2022; Northshore Mining Company, effective August 18, 2022; Virginia Department of Public Utilities, effective August 16, 2022; Xcel Energy—Allen S. King, effective July 16, 2021; and Xcel Energy—Sherburne Generating Plant, effective July 16, 2021, discussed in section IV.E.1. of this preamble. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, this proposed rulemaking action, pertaining to Minnesota Regional Haze SIP submission for the second planning period, is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
Minnesota evaluated EJ considerations as part of its SIP submission even though the CAA and applicable implementing regulations neither prohibit nor require an evaluation. EPA's evaluation of Minnesota's EJ considerations is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. EPA is taking action under the CAA on bases independent of Minnesota's evaluation of EJ. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based that is inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Proposed rule; extension of public comment period and announcement of public hearing.
We, NMFS, announce the extension of the public comment period on our May 14, 2024, proposed rule to issue protective regulations under section 4(d) of the Endangered Species Act (ESA) for the conservation of the threatened oceanic whitetip shark (
The deadline for receipt of comments is extended from July 15, 2024, until September 15, 2024.
You may submit comments on this proposed rule, identified by NOAA-NMFS-2023-0117 by any one of the following methods:
•
•
The proposed rule and other supporting materials are available electronically at:
Adrienne Lohe, NMFS Office of Protected Resources, 301-427-8442; A
On May 14, 2024, we published a proposed rule to issue protective regulations under section 4(d) of the ESA for the threatened oceanic whitetip shark (
We received a request to extend the public comment period and hold public hearings for fishing communities in Hawaii, the Territories of American Samoa and Guam, and the Commonwealth of the Northern Mariana Islands in order to better understand the potential impact of the proposed rule and for communities to provide comments on the proposed rule. We considered the request and concluded that a 60-day extension should allow sufficient time for responders to submit comments without significantly delaying finalization of the proposed rule. We are therefore extending the close of the public comment period from July 15, 2024, to September 15, 2024. In addition to extending the public comment period, we are announcing that we will hold one or more public hearings on the proposed rule. Details on the date(s), time(s) and location(s) of the public hearing(s) will be announced in an upcoming
16 U.S.C. 1531
On March 8, 2024, Merck Sharp & Dohme LLC submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 49Y, in Rahway, New Jersey.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that imports of R-410B, R-407G, and a custom hydrofluorocarbon (HFC) blend of 50-percent R-125 and 50-percent R-134a (custom HFC blend) which are blended in the People's Republic of China (China) and further processed in the United States, are circumventing the antidumping duty (AD) order on HFC blends from China.
Applicable July 11, 2024.
Benjamin Nathan, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3834.
On August 19, 2016, Commerce published in the
For a summary of events that occurred since the
The merchandise covered by the
This circumvention inquiry covers imports of HFC blends R-410B, R-407G, and a certain custom HFC blend which are blended in China using China-origin HFC components and further processed in the United States (inquiry merchandise).
Commerce is conducting this circumvention inquiry in accordance with section 781(a) of the Act, and 19 CFR 351.226.
All issues raised in this inquiry are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice in Appendix I. Based on our analysis of the comments received from interested parties, we have not made any changes to the
We determine that imports of R-410B, R-407G, and the custom HFC blend which are blended in China using China-origin HFC components and further processed in the United States, would be circumventing the
Based on the final affirmative country-wide determination of circumvention for China, in accordance with section 19 CFR 351.226(I)(3)(i)-(ii), Commerce will direct U.S. Customs and Border Protection (CBP) to continue the suspension of liquidation of previously suspended entries and to suspend liquidation and require a cash deposit of estimated duties on unliquidated entries of R-410B, R-407G, and a certain custom HFC blend that were entered, or withdrawn from warehouse, for consumption on or after July 7, 2023, the date of publication of the initiation of this circumvention inquiry in the
The blends subject to this inquiry not further processed in the United States are not subject to this inquiry. Therefore, cash deposits are not required for such merchandise under the
Where no certification is provided for an entry, and the
Entries for which the importer has met the certification requirements described below and in Appendix II to this notice will not be subject to either the suspension of liquidation or the cash deposit requirements described above. Failure to comply with the applicable requisite certification requirements may result in the merchandise being subject to duties.
To administer the country-wide affirmative determination of circumvention, Commerce established importer certifications, which allow companies to certify that specific entries of R-410B, R-407G, and a certain custom HFC blend are not subject to suspension of liquidation or the collection of cash deposits pursuant to this country-wide affirmative determination of circumvention because the merchandise is not further processed into subject HFC blends in the United States (
Importers that claim that their entries of merchandise subject to this inquiry from China are not subject to suspension of liquidation or the collection of cash deposits because the merchandise is not further processed into subject merchandise in the United States must complete the applicable certification and meet the certification and documentation requirements described below, as well as the requirements identified in the importer certification.
Importers are required to complete and maintain the applicable importer certification and retain all supporting documentation. The importer certification must be completed, signed, and dated by the time the entry summary is filed for the relevant entry. The importer, or the importer's agent, must submit the importer's certification to CBP as part of the entry process by uploading it into the document imaging system (DIS) in ACE. Where the importer uses a broker to facilitate the entry process, the importer should obtain the entry summary number from the broker. Agents of the importer, such as brokers, however, are not permitted to certify on behalf of the importer.
Additionally, the claims made in the certification and any supporting documentation are subject to verification by Commerce and/or CBP. Importers are required to maintain the certifications and supporting documentation until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
For all R-410B, R-407G, and a certain custom HFC blend from China that was entered, or withdrawn from warehouse, for consumption during the period July 7, 2023 (the date of initiation of this circumvention inquiry), through the date of publication of the preliminary determination in the
For unliquidated entries (and entries for which liquidation has not become final) of R-410B, R-407G, and a certain custom HFC blend from China that were declared as non-AD type entries (
If it is determined that an importer has not met the certification and/or related documentation requirements for certain entries, Commerce intends to instruct CBP to suspend, pursuant to this final affirmative country-wide determination of circumvention and the
Each year during the anniversary month of the publication of an AD or CVD order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Act, may request, in accordance with 19 CFR 351.213, that Commerce conduct an administrative review of that AD or CVD order, finding, or suspended investigation. An interested party who would like Commerce to conduct an administrative review should wait until Commerce announces via the
This notice will serve as the only reminder to all parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(2).
I hereby certify that:
A. My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS of IMPORTING COMPANY};
B. I have direct personal knowledge of the facts regarding the importation into the Customs territory of the United States of the hydrofluorocarbon (HFC) blend R-410B, R-407G, and a certain custom HFC blend produced in China that entered under the entry number(s) identified below, and which are covered by this certification. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the importation of the product, including the exporter's and/or foreign seller's identity and location;
C. If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The R-410B, R-407G, and a certain custom HFC blend covered by this certification were imported by {NAME OF IMPORTING COMPANY} on behalf of {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER}.
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
D. The R-410B, R-407G, and a certain custom HFC blend covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED} located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
E. Select the appropriate statement below:
__ I have direct personal knowledge of the facts regarding the end use of the imported products covered by this certification because my company is the end user of the imported product covered by this certification and I certify that the R-410B, R-407G, and a certain custom HFC blend will not be used to produce subject merchandise. “Direct Personal knowledge” includes information contained within my company's books and records.
__ My company is not the end user of the imported product covering this certification, however, I have personal knowledge of the facts regarding the end use of the imported products covered by this certification. I have been able to contact the end user of the imported product and confirm that it will not use this product to produce subject merchandise. The end user of the imported product is {COMPANY NAME} located at {ADDRESS}. “Personal knowledge” includes facts obtained from another party (
F. This certification applies to the following entries (repeat this block as many times as necessary):
G. I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
H. I understand that {IMPORTING COMPANY} is required to submit a copy of the importer certification as part of the entry summary by uploading them into the document imaging system (DIS) in ACE, and
I. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce;
J. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the cash deposits determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
K. I understand that agents of the importer, such as brokers, are not permitted to make this certification. Where a broker or other party was used to facilitate the entry process, {NAME OF IMPORTING COMPANY} obtained the entry summary number and date of entry summary from that party.
L. This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
M. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC), Commerce is issuing antidumping duty orders on mattresses from Bosnia and Herzegovina, Bulgaria, Burma, Italy, the Philippines, Poland, Slovenia, and Taiwan.
Applicable July 11, 2024.
Christopher Hargett (Bosnia and Herzegovina); T.J. Worthington (Bulgaria); Adam Simons (Burma and Taiwan); Adam Simons and Caroline Carroll (Italy); Sun Cho (the Philippines); Dakota Potts (Poland); and Andrew Hart (Slovenia), AD/CVD Operations, Offices II, III, IV, V, and IX Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4161, (202) 482-4567, (202) 482-6172, (202) 482-4948, (202) 482-6458, (202) 482-0223, or (202) 482-1058, respectively.
On May 15, 2024, Commerce published in the
The products covered by these orders are mattresses from Bosnia and Herzegovina, Bulgaria, Burma, Italy, the Philippines, Poland, Slovenia, and Taiwan. For a complete description of the scope of these orders,
On July 5, 2024, in accordance with section 735(d) of the Act, the ITC published in the
Therefore, in accordance with section 736(a)(1) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to assess, upon further
With respect to the ITC's negative critical circumstances determination on imports of mattresses from Bosnia and Herzegovina, Italy, the Philippines, and Taiwan, we will instruct CBP to lift suspension and to refund any cash deposits made to secure the payment of estimated antidumping duties with respect to entries of the subject merchandise from Bosnia and Herzegovina, Italy, the Philippines, and Taiwan entered, or withdrawn from warehouse, for consumption on or after December 2, 2023 (
Regarding Burma, the ITC found that critical circumstances exist with respect to imports subject to Commerce's affirmative critical circumstances finding within the meaning of section 735(b)(4)(A) of the Act. As a result of Commerce's affirmative critical circumstances determination under section 735(a)(3) of the Act, and the ITC's affirmative critical circumstances determination under section 735(b)(4)(A) of the Act, retroactive duties will be applied to the relevant imports for a period of 90 days prior to the suspension of liquidation.
Except as noted in the “Provisional Measures” section of this notice, in accordance with section 736 of the Act, Commerce will instruct CBP to continue to suspend liquidation on all relevant entries of mattresses from Bosnia and Herzegovina, Bulgaria, Burma, Italy, the Philippines, Poland, Slovenia, and Taiwan. These instructions suspending liquidation will remain in effect until further notice.
Commerce will also instruct CBP to require cash deposits equal to the estimated dumping margins indicated in the tables below. Accordingly, effective on the date of publication in the
Section 733(d) of the Act states that suspension of liquidation pursuant to an affirmative preliminary determination may not remain in effect for more than four months, except where exporters representing a significant proportion of exports of the subject merchandise request that Commerce extend the four-month period to no more than six months. None of the exporters of mattresses requested Commerce to extend the four-month period to six months in these investigations.
The provisional measures period, beginning on the date of publication of the
The estimated dumping margins are as follows:
On September 20, 2021, Commerce published the final rule titled “
In accordance with the
Interested parties who wish to be added to the annual inquiry service list for an order must submit an entry of appearance to the annual inquiry service list segment for the order in ACCESS within 30 days after the date of publication of the order. For ease of administration, Commerce requests that law firms with more than one attorney representing interested parties in an order designate a lead attorney to be included on the annual inquiry service list. Commerce will finalize the annual inquiry service list within five business days thereafter. As mentioned in the
Commerce may update an annual inquiry service list at any time as needed based on interested parties' amendments to their entries of appearance to remove or otherwise modify their list of members and representatives, or to update contact information. Any changes or announcements pertaining to these procedures will be posted to the ACCESS website at
In the
This notice constitutes the antidumping duty orders with respect to mattresses from Bosnia and Herzegovina, Bulgaria, Burma, Italy, the Philippines, Poland, Slovenia, and Taiwan pursuant to section 736(a) of the Act. Interested parties can find a list of antidumping duty orders currently in effect at
These antidumping duty orders are published in accordance with section 736(a) of the Act and 19 CFR 351.211(b).
The products covered by these orders are all types of youth and adult mattresses. The term “mattress” denotes an assembly of materials that at a minimum includes a “core,” which provides the main support system of the mattress, and may consist of innersprings, foam, other resilient filling, or a combination of these materials. Mattresses also may contain: (1) “upholstery,” the material between the core and the top panel of the ticking on a single-sided mattress, or between the core and the top and bottom panel of the ticking on a double-sided mattress; and/or (2) “ticking,” the outermost layer of fabric or other material (
The scope of these orders is restricted to only “adult mattresses” and “youth mattresses.” “Adult mattresses” are frequently described as “twin,” “extra-long twin,” “full,” “queen,” “king,” or “California king” mattresses. “Youth mattresses” are typically described as “crib,” “toddler,” or “youth” mattresses. All adult and youth mattresses are included regardless of size and size description or how they are described (
The scope encompasses all types of “innerspring mattresses,” “non-innerspring mattresses,” and “hybrid mattresses.” “Innerspring mattresses” contain innersprings, a series of metal springs joined together in sizes that correspond to the dimensions of mattresses. Mattresses that contain innersprings are referred to as “innerspring mattresses” or “hybrid mattresses.” “Hybrid mattresses” contain two or more support systems as the core, such as layers of both memory foam and innerspring units.
“Non-innerspring mattresses” are those that do not contain any innerspring units. They are generally produced from foams (
Mattresses covered by the scope of these orders may be imported independently, as part of furniture or furniture mechanisms (
Excluded from the scope of these orders are “futon” mattresses. A “futon” is a bi-fold frame made of wood, metal, or plastic material, or any combination thereof, that functions as both seating furniture (such as a couch, love seat, or sofa) and a bed. A “futon mattress” is a tufted mattress, where the top covering is secured to the bottom with thread that goes completely through the mattress from the top through to the bottom, and it does not contain innersprings or foam. A futon mattress is both the bed and seating surface for the futon. Also excluded from the scope are airbeds (including inflatable mattresses) and waterbeds, which consist of air- or liquid-filled bladders as the core or main support system of the mattress.
Also excluded is certain multifunctional furniture that is convertible from seating to sleeping, regardless of filler material or components, where such filler material or components are upholstered, integrated into the design and construction of, and inseparable from, the furniture framing, and the outermost layer of the multifunctional furniture converts into the sleeping surface. Such furniture may, and without limitation, be commonly referred to as “convertible sofas,” “sofabeds,” “sofa chaise sleepers,” “futons,” “ottoman sleepers,” or a like description.
Also excluded from the scope of these orders are any products covered by the existing antidumping duty orders on uncovered innerspring units from the People's Republic of China, South Africa, and the Socialist Republic of Vietnam.
Also excluded from the scope of these orders are bassinet pads with a nominal length of less than 39 inches, a nominal width of less than 25 inches, and a nominal depth of less than 2 inches.
Additionally, also excluded from the scope of these orders are “mattress toppers.” A “mattress topper” is a removable bedding accessory that supplements a mattress by providing an additional layer that is placed on top of a mattress. Excluded mattress toppers have a height of four inches or less.
Also excluded from the scope are the following hospital and patient care setting surfaces. Products that fall within the below categories and meet all the exclusion factors in the respective category qualify for such exclusion, regardless of whether they may be referenced as a mattress.
Air Surfaces with all of the following characteristics: with the foot end comprised of either die-cut construction foam or air bladders to allow extension and retraction of the surface; enclosed in a fluid-resistant polyurethane-coated ticking with a zipper; with welded seams on the ticking, which are two or more layers of coated material thermally fused together with a permanent bond; with the core including air bladders, with or without foam inside; with a unique device identifier label for medical devices issued by an FDA-accredited agency and
Stretcher Surfaces with all of the following characteristics: with a nominal thickness of 5 inches or less; with the foam core width tapered at one end; enclosed in a fluid-resistant polyurethane-coated ticking with a zipper; with welded seams on the ticking, which are two or more layers of coated material thermally fused together with a permanent bond; with the exterior of the ticking containing a welded flap to cover the ticking zipper; with loop velcro attached to the ticking to allow for the stretcher surface to be firmly affixed to the stretcher; with a unique device identifier label for medical devices issued by an FDA-accredited agency and listed in the FDA-administered Global Unique Device Identification Database.
Birthing Bed Surfaces with all of the following characteristics: with a nominal thickness of 5 inches or less; with a foam core in two pieces that have either a V-shaped cutout or U-Shaped cutout; enclosed in a fluid-resistant polyurethane-coated ticking with a zipper; with welded seams on the ticking, which are two or more layers of coated material thermally fused together with a permanent bond; with attachment fasteners extending from the bottom of the surface comprised of snaps or plastic hook(s); with a unique device identifier label for medical devices issued by an FDA-accredited agency and listed in the FDA-administered Global Unique Device Identification Database.
Foam Surfaces with all the following characteristics: with a nominal thickness of 6.5 inches or less; with a foam core that has articulation lines cut into the foam and/or die-cut construction in a portion of the foam to allow movement of the surface; enclosed in a fluid-resistant polyurethane-coated ticking with a zipper; with the ticking made of material meeting ASTM F1671B-07 requirements for porosity and ISO 10993 requirements for biocompatibility; with welded seams on the ticking, which are two or more layers of coated material thermally fused together with a permanent bond; with brackets or attachment knobs embedded in the surface core to allow the surface to be firmly affixed to the hospital bed frame; with a unique device identifier label for medical devices issued by an FDA-accredited agency and listed in the FDA-administered Global Unique Device Identification Database, where the label includes the manufacturer's name and address as well as the product's name, date of manufacture, serial number, and Global Trade Identification Number (GTIN).
The products subject to these orders are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 9404.21.0010, 9404.21.0013, 9404.21.0095, 9404.29.1005, 9404.29.1013, 9404.29.1095, 9404.29.9085, 9404.29.9087, and 9404.29.9095. Products subject to these orders may also enter under HTSUS subheadings: 9401.41.0000, 9401.49.0000, and 9401.99.9081. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to these orders is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that imports of R-410A, completed in the Republic of Türkiye (Türkiye) using the People's Republic of China (China)-origin hydrofluorocarbon (HFC) components, and exported from Türkiye, are circumventing the antidumping duty (AD) order on HFC blends from China.
Applicable July 11, 2024.
Paul Senoyuit, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6106.
On August 19, 2016, Commerce published in the
For a summary of events that occurred since the
The merchandise covered by the
This circumvention inquiry covers imports of HFC blend R-410A, completed in Türkiye using China-origin HFC components and subsequently exported from Türkiye to the United States (inquiry merchandise).
Commerce is conducting this circumvention inquiry in accordance with section 781(b) of the Act, and 19 CFR 351.226.
All issues raised in this inquiry are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice in Appendix I. Based on our analysis of the comments
We determine that imports of R-410A completed in Türkiye by Cantas, using China-origin HFC components that are subsequently exported from Türkiye to the United States, are circumventing the
We also determine that imports of R-410A completed in Türkiye using China-origin HFC components, that are subsequently exported from Türkiye to the United States, would be circumventing the
In this inquiry, Commerce continues to find that necessary information is not available on the record with respect to Cantas within the meaning of section 776(a)(1) of the Act, and that Cantas withheld requested information, failed to provide requested information by the deadline or in the form or manner requested, and significantly impeded the inquiry pursuant to sections 776(a)(1), (A), (B), and (C) of the Act. Moreover, Commerce continues to find that this company failed to cooperate by not acting to the best of its ability to provide the requested information pursuant to section 776(b)(1) of the Act. Consequently, we continue to use adverse inferences with respect to Cantas in selecting from among the facts otherwise available on the record, pursuant to sections 776(a) and (b) of the Act, for the reasons discussed in the
Based on the information provided by ICE Sogutma Sanayi Ve Ticaret Ltd. (ICE) in this circumvention inquiry, and Commerce's verification of the information provided by ICE,
Based on the affirmative country-wide determination of circumvention for Türkiye, in accordance with 19 CFR 351.226(l)(3)(iii)(A), we will direct U.S. Customs and Border Protection (CBP) to continue the suspension of liquidation of previously suspended entries and to suspend liquidation and require a cash deposit of estimated duties on unliquidated entries of R-410A from Türkiye that were entered, or withdrawn from warehouse for consumption, prior to the date of publication of the notice of initiation of the inquiry, retroactive to, and including, November 4, 2021,
R-410A produced in Türkiye that is not from China-origin HFC blends are not subject to this inquiry. Therefore, cash deposits are not required for such merchandise under the
Commerce has established the following third-country case number for Türkiye in the Automated Commercial Environment (ACE) for such entries: A-489-400-000. For Cantas, which will not be permitted to file a certification in accordance with this determination, Commerce will direct CBP, for all entries of R-410A from Türkiye produced or exported by Cantas, to suspend liquidation and require a cash deposit at the rate established for the China-wide entity,
Where no certification is provided for an entry, and the
Entries for which the importer and exporter have met the certification requirements described below and in Appendix II to this notice will not be
To administer the country-wide affirmative determination of circumvention, Commerce established importer and exporter certifications, which allow companies to certify that specific entries of R-410A from Türkiye are not subject to suspension of liquidation or the collection of cash deposits pursuant to this country-wide affirmative determination of circumvention because the merchandise is not made with China-origin components (
Because Cantas was non-cooperative, it is not currently eligible to use the certification described above.
Importers and exporters that claim that the entry of R-410A from Türkiye is not subject to suspension of liquidation or the collection of cash deposits because the merchandise is not made with China-origin components must complete the applicable certification and meet the certification and documentation requirements described below, as well as the requirements identified in the applicable certification.
Importers are required to complete and maintain the applicable importer certification, and maintain a copy of the applicable exporter certification, and retain all supporting documentation for both certifications. With the exception of the entries described below, the importer certification must be completed, signed, and dated by the time the entry summary is filed for the relevant entry. The importer, or the importer's agent, must submit both the importer's certification and the exporter's certification to CBP as part of the entry process by uploading them into the document imaging system (DIS) in ACE. Where the importer uses a broker to facilitate the entry process, the importer should obtain the entry summary number from the broker. Agents of the importer, such as brokers, however, are not permitted to certify on behalf of the importer.
Exporters are required to complete and maintain the applicable exporter certification and provide the importer with a copy of that certification and all supporting documentation (
Additionally, the claims made in the certifications and any supporting documentation are subject to verification by Commerce and/or CBP. Importers and exporters are required to maintain the certifications and supporting documentation until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
For all R-410A from Türkiye that was entered, or withdrawn from warehouse, for consumption during the period July 7, 2023 (the date of initiation of this circumvention inquiry), through the date of publication of the preliminary determination in the
For unliquidated entries (and entries for which liquidation has not become final) of R-410A from Türkiye that were declared as non-AD type entries (
If it is determined that an importer and/or exporter has not met the certification and/or related documentation requirements for certain entries, Commerce intends to instruct CBP to suspend, pursuant to this preliminary affirmative country-wide determination of circumvention and the
Each year during the anniversary month of the publication of an AD or CVD order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Act, may request, in accordance with 19 CFR 351.213, that Commerce conduct an administrative review of that AD or CVD order, finding, or suspended investigation. An interested party who would like Commerce to conduct an administrative review should wait until Commerce announces via the
This notice will serve as the only reminder to all parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(2).
I hereby certify that:
A. My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS of IMPORTING COMPANY};
B. I have direct personal knowledge of the facts regarding the importation into the Customs territory of the United States of the hydrofluorocarbon (HFC) blend R-410A produced in Türkiye that entered under the entry number(s) identified below, and which are covered by this certification. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the importation of the product, including the exporter's and/or foreign seller's identity and location;
C. If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The R-410A covered by this certification were imported by {NAME OF IMPORTING COMPANY} on behalf of {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER}.
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
D. The R-410A covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED} located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
E. I have personal knowledge of the facts regarding the production of the imported products covered by this certification. “Personal knowledge” includes facts obtained from another party, (
F. This certification applies to the following entries (repeat this block as many times as necessary):
G. The R-410A covered by this certification do not contain HFC components (
H. I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
I. I understand that {IMPORTING COMPANY} is required to maintain a copy of the exporter's certification (attesting to the production and/or exportation of the imported merchandise identified above), and any supporting documentation provided to the importer by the exporter, until the later of: (1) the date that is five years after the date of the latest entry covered by the certification or; (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries;
J. I understand that {IMPORTING COMPANY} is required to submit a copy of the importer and exporter certifications as part of the entry summary by uploading them into the document imaging system (DIS) in ACE, and to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon request of either agency;
K. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce;
L. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the cash deposits determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
M. I understand that agents of the importer, such as brokers, are not permitted to make this certification;
N. This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
O. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
The party that made the sale to the United States should fill out the exporter certification.
I hereby certify that:
A. My name is {COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES); located at
B. I have direct personal knowledge of the facts regarding the production and exportation of the hydrofluorocarbon (HFC) blend R-410A for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location.
C. The R-410A, and the individual components thereof, covered this certification were produced by {NAME OF PRODUCING COMPANY}, located at {ADDRESS OF shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED};
D. The R-410A produced in Türkiye do not contain HFC components (
E. This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):
F. The R-410A covered by this certification was shipped to {NAME OF U.S. PARTY TO WHOM MERCHANDISE WAS SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED};
G. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES required to maintain a copy of this certification and sufficient documentation supporting this certification (
H. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES} is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with this certification, and any supporting documents, upon request of either agency;
I. I understand that the claims made herein, and the substantiating documentation are subject to verification by CBP and/or Commerce;
J. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the cash deposits determined by Commerce; and
(iii) the seller/exporter no longer being allowed to participate in the certification process.
K. I understand that agents of the seller/exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.
L. This certification was completed and signed, and a copy of the certification was provided to the importer, on, or prior to, the date of shipment if the shipment date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
M. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make material false statements to the U.S. government.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that imports of R-410B from the Republic of Türkiye (Türkiye), which are completed in Türkiye using components originating in the People's Republic of China (China), and further processed in the United States, as specified below, are circumventing the antidumping duty (AD) order on hydrofluorocarbon (HFC) blends from China.
Applicable July 11, 2024.
Melissa Porpotage, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1413.
On August 19, 2016, Commerce published the
For a summary of events that occurred since the
The merchandise covered by the
This circumvention inquiry covers imports of R-410B from Türkiye, which are completed in Türkiye using Chinese-origin HFC components and further processed in the United States (inquiry merchandise).
Commerce conducted this circumvention inquiry in accordance with section 781(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.226.
All issues raised in this inquiry are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice in Appendix I. Based on our analysis of the comments received from the petitioner
We determine that imports of R-410B completed in Türkiye, using Chinese-origin HFC components, that are further processed in the United States, are circumventing the
In this inquiry, Commerce continues to find that necessary information is not available on the record with respect to by Cantas Ic Ve Dis Ticaret Sogutma Sistermleri Sanayi A.S. (Cantas) within the meaning of section 776(a)(1) of the Act, and that Cantas withheld requested information, failed to provide requested information by the deadline or in the form or manner requested, and significantly impeded the inquiry pursuant to sections 776(a)(1), (A), (B), and (C) of the Act. Moreover, Commerce continues to find that this company failed to cooperate by not acting to the best of its ability to provide the requested information pursuant to section 776(b)(1) of the Act. Consequently, we continue to use adverse inferences with respect to Cantas in selecting from among the facts otherwise available on the record, pursuant to sections 776(a) and (b) of the Act, for the reasons discussed in the
Based on the affirmative determination of circumvention for Türkiye, and our decision to apply this determination on a country-wide basis, pursuant to 19 CFR 351.225(m)(1)(ii), in accordance with 19 CFR 351.226(l)(3)(iii)(A), we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation and require a cash deposit of estimated duties on unliquidated entries of R-410B, completed in Türkiye using Chinese-origin components, that were entered, or withdrawn from warehouse, for consumption on or after July 7, 2023, the date of publication of the initiation of this circumvention inquiry in the
R-410B produced in Türkiye from HFC blends that is not of Chinese-origin is not subject to this inquiry. Therefore, cash deposits are not required for such merchandise under the
Commerce has established the following third-country case number for Türkiye in the Automated Commercial Environment (ACE) for such entries: A-489-400. For Cantas, which will not be permitted to file a certification in accordance with this determination, Commerce will direct CBP, for all entries of R-410B from Türkiye produced or exported by Cantas, to suspend liquidation and require a cash deposit at the rate established for the China-wide entity,
Where no certification is provided for an entry, and the
Entries for which the importer and exporter have met the certification requirements described below and in Appendix II to this notice will not be subject to suspension of liquidation or
To administer the country-wide affirmative determination of circumvention, Commerce established importer and exporter certifications, which allow companies to certify that specific entries of R-410B from Türkiye are not subject to suspension of liquidation or the collection of cash deposits pursuant to this affirmative determination of circumvention, as applied on a country-wide basis, because the merchandise is not made with Chinese-origin components and/or it is not further processed into subject merchandise in the United States (
Because Cantas was non-cooperative, it is not currently eligible to use the certification described above.
Importers and exporters that claim that the entry of R-410B from Türkiye is not subject to suspension of liquidation or the collection of cash deposits because the merchandise is not made with Chinese-origin components and/or is not further processed into subject merchandise in the United States must complete the applicable certification and meet the certification and documentation requirements described below, as well as the requirements identified in the applicable certification.
Importers are required to complete and maintain the applicable importer certification, maintain a copy of the applicable exporter certification, and retain all supporting documentation for both certifications. With the exception of the entries described below, the importer certification must be completed, signed, and dated by the time the entry summary is filed for the relevant entry. The importer, or the importer's agent, must submit both the importer's certification and the exporter's certification to CBP as part of the entry process by uploading them into the document imaging system (DIS) in ACE. Where the importer uses a broker to facilitate the entry process, the importer should obtain the entry summary number from the broker. Agents of the importer, such as brokers, however, are not permitted to certify on behalf of the importer.
Exporters are required to complete and maintain the applicable exporter certification and provide the importer with a copy of that certification and all supporting documentation (
Additionally, the claims made in the certifications and any supporting documentation are subject to verification by Commerce and/or CBP. Importers and exporters are required to maintain the certifications and supporting documentation until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
For unliquidated entries (and entries for which liquidation has not become final) of R-410B from Türkiye that were declared as non-AD type entries (
If it is determined that an importer and/or exporter has not met the certification and/or related documentation requirements for certain entries, Commerce intends to instruct CBP to suspend, pursuant to this affirmative determination of circumvention, as applied on a country-wide basis, and the
Each year during the anniversary month of the publication of an AD or CVD order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Act, may request, in accordance with 19 CFR 351.213, that Commerce conduct an administrative review of that AD or CVD order, finding, or suspended investigation. An interested party who would like Commerce to conduct an administrative review should wait until Commerce announces via the
This notice will serve as the only reminder to all parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(2).
I hereby certify that:
A. My name is {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS of IMPORTING COMPANY}.
B. I have direct personal knowledge of the facts regarding the importation into the Customs territory of the United States of the hydrofluorocarbon (HFC) blend R-410B produced in Türkiye that entered under the entry number(s) identified below, and which is covered by this certification. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the importation of the product, including the exporter's and/or foreign seller's identity and location.
C. If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The R-410B covered by this certification was imported by {IMPORTING COMPANY} on behalf of {U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER};
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
D. The R-410B covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED} located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
E. Select appropriate statement below:
__The R-410B covered by this certification does not contain HFC components produced in the People's Republic of China (China).
__I have direct personal knowledge of the facts regarding the end use of the imported product because my company is the end user of the imported product covered by this certification and I certify that the imported R-410B from Türkiye will not be used to produce subject merchandise. “Direct personal knowledge” includes information contained within my company's books and records.
__I do not have personal knowledge of the facts regarding the end use of the imported product because my company is not the end user of the imported product covered by this certification. However, I have been able to contact the end user of the imported product and confirm that it will not use this product to produce subject merchandise. The end user of the imported product is {COMPANY NAME} located at {ADDRESS}. “Personal knowledge” includes facts obtained from another party (
F. The imported R-410B covered by this certification will not be further processed into in-scope HFC blends in the United States.
G. This certification applies to the following entries (repeat this block as many times as necessary):
H. I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
I. I understand that {IMPORTING COMPANY} is required to submit a copy of the importer and exporter certifications as part of the entry summary by uploading them into the document imaging system (DIS) in ACE, and to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon request of either agency;
J. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce.
K. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the requirement that the importer post applicable antidumping duty cash deposits (as appropriate) equal to the rates determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
L. I understand that agents of the importer, such as brokers, are not permitted to make this certification.
M. This certification was completed by the time of filing the entry summary, if the entry date is more than 14 days after the publication of Commerce's preliminary determination of circumvention in the
N. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
The party that made the sale to the United States should fill out the exporter certification.
I hereby certify that:
A. My name is {COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES); located at {ADDRESS OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES);
B. I have direct personal knowledge of the facts regarding the production and exportation of the hydrofluorocarbon (HFC) blend R-410B for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location.
C. The R-410B, and the individual components thereof, covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED;
D. The R-410B produced in Türkiye does not contain HFC components (
E. This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):
F. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES required to maintain a copy of this certification and sufficient documentation supporting this certification (
G. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES} is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with this certification, and any supporting documents, upon request of either agency;
H. I understand that the claims made herein, and the substantiating documentation are subject to verification by CBP and/or Commerce;
I. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the cash deposits determined by Commerce; and
(iii) the seller/exporter no longer being allowed to participate in the certification process.
J. I understand that agents of the seller/exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.
K. This certification was completed at the time of shipment, if the entry date is more than 14 days after the publication of Commerce's preliminary determination of circumvention in the
L. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make material false statements to the U.S. government.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these sunset reviews, the U.S. Department of Commerce (Commerce) finds that revocation of the antidumping duty orders on certain pasta (pasta) from Italy and Türkiye would likely lead to the continuation or recurrence of dumping at the levels indicated in the “Final Results of Review” section of this notice.
Applicable July 11, 2024.
Erin Kearney, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; (202) 482-0167.
On March 1, 2024, Commerce published the notice of initiation of the fifth sunset reviews of the
On March 29, 2024, the domestic interested parties filed adequate substantive responses within the deadline specified in 19 CFR 351.218(d)(3)(i).
The merchandise subject to the order is pasta. The product is currently classified under subheadings 1901.90.9095 and 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). The full scope language can be found in the Issues and Decision Memorandum.
The merchandise subject to the order is pasta. The product is currently classified under subheading 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). The full scope language can be found in the Issues and Decision Memorandum.
A complete discussion of all issues raised in these sunset reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation of the
Pursuant to sections 751(c)(1) and 752(b) of the Act, Commerce determines that revocation of the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.218.
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of public listening session.
The Commercial Remote Sensing Regulatory Affairs (CRSRA) division of the National Oceanic and Atmospheric Administration's (NOAA's) Office of Space Commerce will hold a virtual listening session for the regulated community and the public to provide input on regulations regarding Licensing of Private Remote Sensing Space Systems, and implementing practices. During the session, the regulated community and the public may express their thoughts about any challenges or concerns experienced by the regulated community stakeholders in understanding or meeting the requirements of the regulations. Representatives from CRSRA will be present during the listening session and may ask clarifying questions, but will not discuss or address the merits of any comments provided.
The public listening session will be held on July 25, 2024, from 2:00 p.m. to 4:00 p.m. Eastern Time.
The session will be accessible via GoToWebinar!. Registration is required for all participants and can be found at:
Written comments summarizing or elaborating upon spoken remarks may be submitted up to 14 days following the conclusion of this listening session. Comments may be submitted electronically via email to
Sarah Brothers, Commercial Remote Sensing Regulatory Affairs, 1401 Constitution Ave. NW, Room 31027, Washington, DC 20230,
Licenses for the operation of private remote sensing space systems are issued by CRSRA pursuant to 51 U.S.C. 60101
The regulations at 15 CFR part 960 were revised in its entirety in 2020, and the new regulations became effective on July 20, 2020. In the approximately four years since the effective date of the new regulations, CRSRA has identified elements of the regulations that, upon implementation, yielded unexpected consequences or high administrative burdens to both CRSRA and the licensee.
CRSRA has also observed trends in the private remote sensing sector that may warrant novel or creative regulatory approaches. For example, CRSRA observed that the Coronavirus Disease 2019 (COVID-19) pandemic, which was declared shortly prior to the release of 15 CFR part 960, accelerated existing trends pertaining to virtual and distributed private remote sensing system operations and the extensive use in system operations of cloud computing resources and infrastructure. Similarly, CRSRA is seeing an increasing number of applications for hosted payloads and, as these activities increase, anticipates unexpected complications will arise therefrom.
The upcoming listening session allows CRSRA to hear from the regulated community and the public regarding insights, challenges, concerns, and recommendations pertaining to the regulations and their implementation, including during pre-application consultation, application and license issuance, license sustainment (
For this listening session, we anticipate hearing from the regulated community and the public about the following topics:
• Challenges or concerns experienced by stakeholders in understanding or meeting the requirements of 15 CFR part 960, the conditions of the license, and the implementation practices followed between pre-application consultation and license transfer or termination;
• Recommendations for regulatory or implementation practice approaches or alternatives that could address any challenges or concerns, or that could continue to streamline 15 CFR part 960; and
• Recommendations to improve 15 CFR part 960 and its implementation to
The public is reminded that CRSRA expects participants of the session to conduct themselves appropriately. At the beginning of the session, the moderator will explain how it will be conducted and how and when registered participants can provide spoken comments. CRSRA will structure the session so that all members of the public who have registered in advance and indicated a preference to speak during registration will be able to comment; it is anticipated that approximately 5 minutes will be allocated to each speaker for comments. Should requests to comment exceed the time allocated, an additional public listening session will be organized and notice provided. Participants are expected to respect the ground rules, and those that do not may be asked to leave.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of availability; notice of initiation; request for information.
The National Marine Fisheries Service (NMFS) announces the adoption of an Endangered Species Act (ESA) Recovery Plan for the threatened oceanic whitetip shark (
To allow us adequate time to conduct this review, we must receive your information no later than September 9, 2024.
You may submit information on this document, identified by NOAA-NMFS-2024-0043, by the following method:
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Electronic copies of the Recovery Plan and Recovery Implementation Strategy are available on the NMFS website at
Kristen Koyama, (301) 427-8456,
The ESA of 1973, as amended (16 U.S.C. 1531
Recovery plans help identify and guide recovery needs for species listed under the ESA. Section 4(f)(1) of the ESA requires that recovery plans include, to the maximum extent practicable: (1) site-specific management actions necessary to achieve the plan's goal for the conservation and survival of the species; (2) objective, measurable criteria which, when met, would result in a determination that the species be removed from the list; and (3) estimates of the time required and cost to carry out those measures needed to achieve the recovery plan's goal.
The Recovery Plan addresses the recovery planning requirements of the ESA for the oceanic whitetip shark. It presents a recovery strategy based on the biological and ecological needs of the species, current threats, and existing conservation measures, all of which affect its long-term viability. The overall strategy to recover the oceanic whitetip shark is to minimize fishing mortality, the primary threat to the species, through a two-pronged approach: (1) reducing the frequency of fishing interactions, and (2) increasing survivorship before, during, and after interactions with fishing gear occur. Given the oceanic whitetip shark's range is largely outside of U.S. jurisdiction, the recovery strategy includes international cooperation through Regional Fisheries Management Organizations (RFMOs) and other international partners. The Recovery Plan identifies three recovery objectives that, collectively, describe the conditions necessary to achieve recovery: (1) Ensure the oceanic whitetip shark maintains resiliency and geographic representation, and is a functional component of the ecosystem, by increasing overall abundance to achieve viable populations in all ocean basins; (2) Increase oceanic whitetip shark resiliency by managing or eliminating significant anthropogenic threats; and (3) Ensure the continued viability of the oceanic whitetip shark through development and effective implementation of regulatory mechanisms for the long-term protection of the species. The Recovery Plan includes demographic and threats-based recovery criteria that can be used to help determine when a stable and sustainable population size has been reached and that threats from bycatch-related mortality in commercial fisheries, international trade of its fins,
The Recovery Plan is accompanied by the Recovery Implementation Strategy, which is a flexible, operational document that provides specific, prioritized activities necessary to fully implement recovery actions in the plan. The activities in the Recovery Implementation Strategy may be modified to reflect changes in the information available as well as progress towards recovery. If/when the science indicates that meaningful changes to the recovery actions and criteria are necessary, the Recovery Plan will be revised and a revised draft will be made available for public comment before being finalized.
With adoption of this Recovery Plan, we will seek to implement the actions and activities for which we have authority and funding; encourage other Federal, state, and local agencies to implement recovery actions and activities for which they have responsibility, authority, and funding; and work cooperatively with other partners and the public on implementation of other actions and activities. We expect the Recovery Plan to guide us and other Federal agencies in evaluating Federal actions under ESA section 7, as well as in implementing other provisions of the ESA, such as considering permits under section 10, and other statutes.
When we are evaluating the species' status in the future, such as during a 5-year review as required by section 4(c)(2) of the ESA, the agency will examine whether the ESA section 4(a)(1) listing factors have been addressed. To assist in this examination, we will also evaluate the delisting criteria described in the Recovery Plan, which include both demographic-based criteria and threats-based criteria addressing each of the ESA section 4(a)(1) listing factors, as well as any other relevant data and policy considerations.
Section 4(c)(2)(A) of the ESA requires that we conduct a review of listed species at least once every 5 years. This will be the first review of this species pursuant to this provision of the ESA since it was listed in 2018 under the ESA. The regulations in 50 CFR 424.21 require that we publish a notice in the
To ensure that the 5-year review is complete and based on the best available scientific and commercial information, we are soliciting new information from the public, governmental agencies, Tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the status of the oceanic whitetip shark (
If you wish to provide information for the review, you may submit your information and materials electronically (see
NMFS concludes that the Recovery Plan meets the requirements of the ESA section 4(f) and is therefore adopting it as the final Recovery Plan for the oceanic whitetip shark.
Take notice that the following hydroelectric proceeding has been initiated by the Commission and is available for public inspection:
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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Commission staff issued a letter, on October 20, 2023, followed by a second letter on December 28, 2023, requesting a plan and schedule to resume project operation or surrender of the license. Commission staff shared a copy of the December 28, 2023 letter with the licensee's widow, as the licensee had passed away. On February 5, 2024, the widow informed Commission staff via email that she is not capable of rebuilding the hydroelectric project and agreed to an implied surrender of the project license following her husband's passing and that it is not possible for her to file a surrender application.
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o. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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r. The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that on July 1, 2024, Transcontinental Gas Pipe Line Company, LLC (Transco) submitted a request to the Chief Accountant of the Federal Energy Regulatory Commission (Commission or FERC) seeking guidance on whether Transco can separately calculate its weighted average cost of gas associated with its system inventory related to System Shippers and system inventory related to Cash-Out under its Operational Balancing Agreements. We note that as part of an uncontested Stipulation and Agreement in Docket Nos. RP20-614-007 and RP20-618-003, Transco was directed to file a request with the Commission's Chief Accountant seeking guidance on this matter.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, to make information publicly available and to publish information in the
Comments identified by the specific case number provided in this document must be received on or before August 12, 2024.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2024-0057, through the
This document provides the receipt and status reports for the period from 5/01/2024 to 5/31/2024. The Agency is providing notice of receipt of PMNs, SNUNs, and MCANs (including amended notices and test information); an exemption application under 40 CFR part 725 (Biotech exemption); TMEs, both pending and/or concluded; NOCs to manufacture a new chemical substance; and a periodic status report on new chemical substances that are currently under EPA review or have recently concluded review.
EPA is also providing information on its website about cases reviewed under the amended TSCA, including the section 5 PMN/SNUN/MCAN and exemption notices received, the date of receipt, the final EPA determination on the notice, and the effective date of EPA's determination for PMN/SNUN/MCAN notices on its website at:
Under the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601
Any person who intends to manufacture (including import) a new chemical substance for a non-exempt commercial purpose, or to manufacture or process a chemical substance in a non-exempt manner for a use that EPA
TSCA section 5(h)(1) authorizes EPA to allow persons, upon application and under appropriate restrictions, to manufacture or process a new chemical substance, or a chemical substance subject to a significant new use rule (SNUR) issued under TSCA section 5(a)(2), for “test marketing” purposes, upon a showing that the manufacture, processing, distribution in commerce, use, and disposal of the chemical will not present an unreasonable risk of injury to health or the environment. This is referred to as a test marketing exemption, or TME. For more information about the requirements applicable to a new chemical go to:
Under TSCA sections 5 and 8 and EPA regulations, EPA is required to publish in the
This action provides information that is directed to the public in general.
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In the past, EPA has published individual notices reflecting the status of TSCA section 5 filings received, pending, or concluded. In 1995, the Agency modified its approach and streamlined the information published in the
For the PMN/SNUN/MCANs that have passed an initial screening by EPA during this period, Table I provides the following information (to the extent that such information is not subject to a CBI claim) on the notices screened by EPA during this period: The EPA case number assigned to the notice that indicates whether the submission is an initial submission, or an amendment, a notation of which version was received, the date the notice was received by EPA, the submitting manufacturer (
As used in each of the tables in this unit, (S) indicates that the information in the table is the specific information provided by the submitter, and (G) indicates that this information in the table is generic information because the specific information provided by the submitter was claimed as CBI. Submissions which are initial submissions will not have a letter following the case number. Submissions which are amendments to previous submissions will have a case number followed by the letter “A” (
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs that have passed an initial screening by EPA during this period: The EPA case number assigned to the NOC including whether the submission was an initial or amended submission, the date the NOC was received by EPA, the date of commencement provided by the submitter in the NOC, a notation of the type of amendment (
In Table III of this unit, EPA provides the following information (to the extent such information is not subject to a CBI claim) on the test information that has been received during this time period: The EPA case number assigned to the test information; the date the test information was received by EPA, the type of test information submitted, and chemical substance identity.
If you are interested in information that is not included in these tables, you may contact EPA's technical information contact or general information contact as described under
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments received are subject to public disclosure. In general, comments received will be made available without change and will not be modified to remove personal or business information including confidential, contact, or other identifying information. Comments should not include any information such as confidential information that would not be appropriate for public disclosure.
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than August 12, 2024.
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Board of Governors of the Federal Reserve System.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve a revision of the currently approved information collection project: “The AHRQ Safety Program for Telemedicine: Improving the Diagnostic Process and Improving Antibiotic Use.”
This proposed information collection was previously published in the
Comments on this notice must be received by August 12, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
This Information Collection Request (ICR) is for a revision to the AHRQ Safety Program for Telemedicine: Improving the Diagnostic Process and Improving Antibiotic Use. These changes include the removal of the Diagnostic Process Cohort, updates to the Improving Antibiotic Use Data Collection Tools and changing the name of the project to the “AHRQ Safety Program for Telemedicine: Improving Antibiotic Use.” The OMB control number for the AHRQ Safety Program for Telemedicine is 0935-0265 and will expire on April 30, 2026. Supporting documents can be downloaded from OMB's website at:
Since the project received OMB approval, there have been two developments that require changes to the project's goals and design. First, the Improving the Diagnostic Process Cohort was canceled because there was insufficient recruitment. Second, the materials approved by OMB for the Improving Antibiotic Use Cohort included a single version of the Structural Assessment and Participant Experience Survey, to be completed by all participants in the improving antibiotic use cohort. However, following pre-recruitment discussions with AHRQ's Technical Expert Panel (TEP) and potential participants, it was learned that the target audience for the improving antibiotic use cohort is comprised of healthcare providers from two distinctly different settings (brick-and-mortar and telemedicine-only) settings. Providers that practice in brick-and-mortar settings provide care both in-person and via telemedicine whereas providers that practice in telemedicine-only settings provide care exclusively using telemedicine. Based on this information AHRQ decided to create separate data collection tools, one for providers in a brick-and-mortar setting, and one for providers in telemedicine only. Practices and providers receive information about the program from newsletters, listservs, and direct outreach through public and private organizations. They attend an information webinar and may join the program if interested and eligible.
As in the currently approved design, the program will incorporate CUSP strategies to improve antibiotic prescribing in telemedicine. The new program goals are to:
• Identify best practices in implementing interventions to improve antibiotic use in telemedicine.
• Determine how best to adapt CUSP to enhance antibiotic use in telemedicine.
• Use a CUSP approach to design and implement the interventions for improving antibiotic use across telemedicine practices.
• Reduce inappropriate antibiotic prescribing among telemedicine practices.
To achieve these goals the following data collections will be implemented:
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This study is being conducted by AHRQ through its contractor, NORC at the University of Chicago and Johns Hopkins Medicine, pursuant to AHRQ's statutory authority to conduct and support research on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness, and value of healthcare services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).
To minimize respondent burden and to permit the electronic submission of survey responses and data collection forms, the structural assessment, AHRQ MOSOPS, participant experience survey, and antibiotic prescription data template will be web-based and deployed using a well-designed, low burden, and respondent-friendly survey administration process. In addition, the EHR data extracted by practice staff that are requested for this program may already be collected by practices as part of their ongoing quality improvement initiatives. Practices will receive access to the online data collection platform and detailed instructions on completing the online forms and EHR data submissions.
Exhibit 1 shows the estimated annualized burden hours for the respondents' time to participate in this project.
1. Structural Assessment Antibiotic Use Cohort—The assessment will be administered twice to the Safety Program leader/champion at each participating brick-and-mortar practice or telemedicine-only organization, once at baseline (pre-intervention) and again at the end of the intervention. AHRQ expects 188 respondents at each administration. The Assessment requires 12 minutes to complete.
2. Medical Office Survey on Patient Safety (MOSOPS)—The MOSOPS will be completed by all participating staff at brick-and-mortar practices to assess patient safety issues, medical errors, and event reporting practices. The survey will be completed twice, once at baseline (pre-intervention) and at the end of the intervention to measure the changes in patient safety culture resulting from participation in the Safety Program. The survey will be completed by 438 staff members at each administration and requires 30 minutes to complete.
3. Participant Experience Survey Antibiotic Use Cohort—The Participant Experience Survey will be administered once to the Safety Program leader/champion at the end of the intervention to assess participant engagement and progress; understand providers' experience using materials and participating in the Safety Program; and identify processes used and changes made to implement and sustain the Safety Program. The survey is estimated to require 20 minutes to complete.
4. Semi-Structured Interviews Antibiotic Use Cohort—Semi-structured interviews will be conducted at the end of the intervention among clinical and professional support staff from a sample of practices to collect qualitative information on the implementation of the program. Interviews will be conducted with 18 participating practices/organizations and requires one hour to complete.
5. Antibiotic Prescription Data Template Antibiotic Use Cohort—The Antibiotic Prescription Data Template will be completed each month and submitted quarterly starting in the baseline (pre-intervention) period until the end of the intervention to measure changes in antibiotic usage resulting from the intervention. The data will be extracted from the practice/organization's electronic health records, by a staff member, and entered into the data template. AHRQ expects 225 practices/organizations to extract data monthly for 18 months. Each monthly data extraction should require one hour of a staff members time.
The total burden for the respondents' time to participate in this research is estimated to be 4,644 hours.
Exhibit 2 shows the estimated annualized cost burden based on the respondents' time to complete the data collection forms. The total cost burden is estimated to be $366,163.
In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3520, comments on AHRQ's information collection are requested with regard to any of the following: (a) whether the proposed collection of information is necessary for the proper performance of AHRQ's health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is requesting that this information collection request (ICR), for the reinstatement of certain generic information collection requests (GenICs) be processed under the emergency Paperwork Reduction Act of 1995 (PRA) clearance process. Such GenICs are without change. We seek emergency reinstatement since we believe that public harm is reasonably likely to ensue if the normal, non-emergency clearance procedures are followed.
Comments must be received by July 16, 2024.
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CMS, Office of Strategic Operations and Regulatory Affairs (OSORA), Division of Regulations Development, Attention: CMS-10398/OMB 0938-1148, Room C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For general information contact William N. Parham at 410-786-4669. For policy related questions contact the individual listed below under the
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from OMB for each collection of information that they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c). Generally, it applies to voluntary and mandatory requirements that are related to any one or more of the following activities: the collection of information,
While there are some exceptions (such as collections having non-substantive changes and collections requesting emergency approval) section 3506(c)(2)(A) of the PRA requires Federal agencies to publish a notice in the
Interested parties are invited to submit comments regarding our burden estimates or any other aspect of the collection, including: the necessity and utility of the proposed information collection for the proper performance of our agency's functions; the accuracy of burden estimates; ways to enhance the quality, utility, and clarity of the information to be collected; and the use of automated collection techniques or other forms of information technology to minimize the information collection burden. See
While we will review all comments received, we may choose not to post off-topic or inappropriate comments. Otherwise, all comments will be posted without edit under the applicable docket number, including any personal information that the commenter provides. Our response to such comments will be posted at
Given the essential role the subject ICRs play and the severe beneficiary and programmatic harms that would occur without them, CMS is seeking emergency reinstatement of such collections. The public harm caused by the severe disruptions of the Medicaid and CHIP programs that would result from a further lapse in PRA approval are not speculative. The collection of such information are actively used to ensure fiscal integrity and the maintenance and expansion of coverage. Waiting to reinstate the GenICs until the full package has been processed under standard clearance procedures would threaten CMS' essential mission and cause substantial disruption and far-reaching harm to the Medicaid and CHIP programs and the beneficiaries we serve. Our justification for the emergency reinstatement is attached to the posting at:
At this time, our collection is made up of the main umbrella (see collection number 1 in the following list) and fifty individual generic collections of information. We are requesting emergency reinstatement of the main umbrella and the generic collections listed below under
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Office of Child Support Services, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF), Office of Child Support Services (OCSS), is requesting the Office of Management and Budget (OMB) to approve the Intergovernmental Reference Guide (IRG), for an additional three years. The IRG contains State and Tribal child support information that helps child support agencies (CSAs) administer their respective programs. Minor updates are proposed, as described below. The current OMB approval (OMB #: 0970-0209) expires on February 28, 2025.
You can obtain copies of the proposed collection of information and submit comments by emailing
Revisions are proposed as a result of feedback from respondents suggesting changes, recommendations from the program team, or from the program team workgroup of interested partners. The workgroup is engaged to evaluate the efficacy of the instruments. Specifically, the following changes are proposed:
• Minor edits to change Office of Child Support Enforcement (OCSE) to Office of Child Support Services (OCSS).
• Edits to the State profile based on recommendations that were received but not implemented in 2022 when the current version of the profile went through the OMB approval process. OCSS has an overview of those recommendations and OCSS responses available upon request.
• Edits to clarify the State profile questions to make it easier for respondents to understand and complete them. Some of these edits were based on the comments referenced in the prior bullet and others based on other feedback from program staff and workgroup members.
• Addition of questions in the State profile instrument that are designed to help States establish health care coverage and manage the financial aspects of child support services. The new questions pertain to policies and procedures associated with new hire reporting, income withholdings, lump sum payments, medical support, and State electronic funds transfers. The addition of these questions slightly increased the estimated time per response from .3 hours to .5 hours.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for SPEVIGO and is publishing this notice of that determination as required
Anyone with knowledge that any of the dates as published (see
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug or biological product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For human biological products, the testing phase begins when the exemption to permit the clinical investigations of the biological product becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human biological product and continues until FDA grants permission to market the biological product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human biological product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human biologic product SPEVIGO (spesolimab-sbzo). SPEVIGO is indicated for the treatment of generalized pustular psoriasis flares in adults. Subsequent to this approval, the USPTO received a patent term
FDA has determined that the applicable regulatory review period for SPEVIGO is 1,729 days. Of this time, 1,393 days occurred during the testing phase of the regulatory review period, while 336 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,033 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing notice that an applicant for a biologics license application (BLA) for a biosimilar or interchangeable biosimilar product submitted under the Public Health Service Act (PHS Act) (a “subsection (k) applicant”) notified FDA that an action for patent infringement was filed in connection with the applicant's BLA. Under the PHS Act, within 30 days after the subsection (k) applicant is served with a complaint in an action for patent infringement described under the PHS Act, the subsection (k) applicant shall provide the Secretary of Health and Human Services (HHS) with notice and copy of such complaint. FDA is required to publish notice of the complaint in the
Mustafa Ünlü, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 1139, Silver Spring, MD 20993, 301-796-3396,
The Biologics Price Competition and Innovation Act of 2009 (BPCI Act) was enacted as part of the Patient Protection and Affordable Care Act (Pub. L. 111-148) on March 23, 2010. The BPCI Act amended the PHS Act and created an abbreviated licensure pathway for biological products shown to be biosimilar to, or interchangeable with, an FDA-licensed biological reference product. Section 351(k) of the PHS Act (42 U.S.C. 262(k)) sets forth the requirements for an application for a proposed biosimilar product and an application or a supplement for a proposed interchangeable product.
Section 351(l) of the PHS Act describes certain procedures for exchanging patent information and resolving patent disputes between a subsection (k) applicant and the holder of the BLA reference product. If a subsection (k) applicant is served with a complaint in an action for a patent infringement described in section 351(l)(6) of the PHS Act, the subsection (k) applicant is required to provide the Secretary of HHS with notice and a copy of the complaint within 30 days of service. FDA is required to publish notice of a complaint received under section 351(l)(6)(C) of the PHS Act in the
FDA received notice of the following complaint under section 351(l)(6)(C) of the PHS Act:
FDA has only a ministerial role that is limited to publishing notice of a complaint received under section 351(l)(6)(C) of the PHS Act and does not perform a substantive review of the complaint.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance entitled “Clinical Considerations for Studies of Devices Intended To Treat Opioid Use Disorder.” Design of clinical studies for devices intended to treat opioid use disorder (OUD) is challenging. To help spur innovative options to combat the opioid overdose crisis and treat OUD, this guidance provides recommendations on the design of pivotal clinical studies for devices intended to treat OUD (OUD device studies). Through these recommendations, FDA intends to aid sponsors in developing OUD device studies that provide scientific evidence used to determine whether there is a reasonable assurance of safety and effectiveness for treating OUD.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Megha Reddy, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2568, Silver Spring, MD 20993-0002, 240-402-2980.
FDA recognizes the value of medical device innovation to address unmet clinical needs arising from the opioid public health emergency in the United States. FDA's Center for Devices and Radiological Health (CDRH) encourages development of innovative options to combat the opioid overdose crisis. To help spur innovative options to combat the opioid overdose crisis and treat OUD, this guidance provides recommendations on the design of pivotal OUD device studies. Through these recommendations, FDA intends to aid sponsors in developing OUD device studies that provide scientific evidence used to determine whether there is a reasonable assurance of safety and effectiveness for treating OUD. Because of the complexity of OUD, there are many challenges in designing OUD device studies. These challenges
A notice of availability of the draft guidance appeared in the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on Clinical Considerations for Studies of Devices Intended To Treat Opioid Use Disorder. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the internet. A search capability for all CDRH guidance documents is available at
While this guidance contains no new collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). The collections of information in the following table have been approved by OMB:
Notice is hereby given of a change in the meeting of the National Institute of Neurological Disorders and Stroke Special Emphasis Panel, Clinical Trials and Comparative Effectiveness Research in Neurology, July 09, 2024, 09:00 a.m. to July 10, 2024, 02:00 p.m., National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 which was published in the
This notice is being amended to change the dates of this two-day meeting from July 9, 2024, and July 10, 2024, to July 29, 2024, and July 30, 2024. The meeting time remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the National Institute of Neurological Disorders and Stroke Special Emphasis Panel, Early Phase Clinical Trials in Neurology, July 10, 2024, 02:00 p.m. to July 10, 2024, 05:00 p.m., National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852, which was published in the
This notice is being amended to change the date of this one-day meeting from July 10, 2024, to July 30, 2024. The meeting time remains the same. The meeting is closed to the public.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
Notice is hereby given for the meeting on August 27, 2024, of the Center for Substance Abuse Prevention National Advisory Council (CSAP NAC). The meeting is open to the public and can also be accessed virtually. Agenda with call-in information will be posted on the SAMHSA website prior to the meeting at:
August 27, 2024, 9:00 a.m. to approximately 4:00 p.m. EDT, Open.
200 Independence Ave. SW, Washington, DC 20201 (Room 425A).
CAPT Jennifer Fan, PharmD, JD, Designated Federal Official; Substance Abuse and Mental Health Service Administration, CSAP National Advisory Council, 5600 Fishers Lane, Rockville, Maryland 20857 (mail); telephone: (240) 276-0422; email:
The CSAP NAC was established to advise the Secretary, Department of Health and Human Services (HHS), and the Assistant Secretary for Mental Health and Substance Use, SAMHSA; and the Director, CSAP, concerning matters relating to the activities carried out by and through the Center and the policies respecting such activities.
Interested persons may present data, information, or views orally or in writing, on issues pending before the Council. Written submissions must be forwarded to the contact person no later than 7 days before the meeting. Oral presentations from the public will be scheduled for the public comment section at the end of the council discussion. Individuals interested in making oral presentations must notify the contact person by 1:00 p.m. (EDT), August 20, 2024. Up to three minutes will be allotted for each presentation, and as time permits, as these are presented in the order received. Public comments received will become part of the meeting records.
To obtain the call-in number, access code, and/or web access link; submit written or brief oral comments; or request special accommodations for persons with disabilities, please register on-line at:
Federal Emergency Management Agency, Department of Homeland Security.
Notice of open Federal advisory committee meeting.
The Federal Emergency Management Agency (FEMA) Technical Mapping Advisory Council (TMAC) will hold an in-person public meeting with a virtual option on Thursday, August 29, 2024, and Friday, August 30, 2024. The meeting will be open to the public in-person and via a Microsoft Teams Video Communications link.
The TMAC will meet on Thursday, August 29, 2024 and Friday, August 30, 2024, from 8:00 a.m. to 5:00 p.m. Eastern Time (ET). Please note that the meeting will close early if the TMAC has completed its business.
The meeting will be held in person at 400 C Street SW, Washington, DC 20472 and virtually using the following Microsoft Teams Video Communications link (Thursday Link:
To facilitate public participation, members of the public are invited to provide written comments on the issues to be considered by the TMAC, as listed in the
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A public comment period will be held on Thursday, August 29, 2024, from 3:30 p.m. to 4:00 p.m. ET and Friday, August 30, 2024, from 3:30 p.m. to 4:00 p.m. ET. The public comment period will not exceed 30 minutes. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact the individual listed below to register as a speaker by Monday, August 26, 2024, 5:00 p.m. ET. Please be prepared to submit a written version of your public comment.
FEMA is committed to ensuring all participants have equal access regardless of disability status. If you require reasonable accommodation to fully participate due to a disability, please contact the individual listed in the
Brian Koper, Designated Federal Officer for the TMAC, FEMA, 400 C Street SW, Washington, DC 20472, telephone 202-646-3085, and email
Notice of this meeting is given under the
In accordance with the
Federal Emergency Management Agency, Department of Homeland Security (DHS).
Request for information and notice of meetings.
The Federal Emergency Management Agency (FEMA) is issuing this Request for Information (RFI) to receive the public's input on potential future changes to the Community Rating System (CRS) under the National Flood Insurance Program (NFIP). This RFI seeks further input on suggested alternative program features and approaches for a redesigned CRS program, based upon public input from the August 23, 2021 “Request for Information on the National Flood Insurance Program's Community Rating System” published in the
Comments must be received on or before September 9, 2024. Submissions received after that date may not be considered.
• Register for the August 21, 2024 meeting using
• Register for the August 22, 2024 meeting using
• Register for the August 27, 2024 Tribal focused meeting using
Reasonable accommodations are available for people with disabilities. To request a reasonable accommodation (
Interested persons may submit comments responsive to this RFI electronically through the Federal eRulemaking Portal at
Commenters are encouraged to identify specific question or questions they are responding to by number. All submissions received must include the agency name and Docket ID, and will be posted, without change, to the Federal eRulemaking Portal at
Shilpa Mulik, CRS Redesign Program Manager, Hazard Mitigation Directorate, Resilience, FEMA. Phone: (202) 212-7313; Email:
Between 2000 and 2024, floods have cost approximately $107.7 billion dollars in damage throughout the United States.
In 1990, FEMA implemented the Community Rating System (CRS) as a voluntary program for recognizing and encouraging community floodplain management activities exceeding the NFIP's minimum standards for floodplain management.
FEMA is exploring changes and improvements to the CRS program through a programmatic review and improvement effort (called “CRS Redesign”). With the continuous learning around flood, flood risk management, and flood risk reduction techniques, FEMA now has more information about, and understanding of, multi-frequency analysis, pluvial flooding, climate change, and the extent of flood risk outside of the SFHA. This new understanding has led FEMA to take a holistic look at the CRS program to determine how the program can best meet FEMA and NFIP consumer needs through the CRS Redesign.
FEMA seeks input on ways the agency can improve the CRS program, specifically: (1) to incentivize communities to take measurable actions and make sustained progress to reduce current and future flood risk; (2) to embed equity as a foundation of the CRS program; (3) to incentivize communities to encourage property owners to purchase flood insurance and thus reduce their financial exposure to flood risk; and (4) to deliver a community participant-centered and modernized program.
FEMA continually evaluates its programs, regulations, and policies to identify opportunities to modify, streamline, expand, or repeal, as appropriate. FEMA does so through legally mandated review requirements (
On August 23, 2021, FEMA published a request for information entitled “Request for Information on the
• Strengths and challenges of the CRS program;
• Methods to increase equity and participation of disadvantaged communities;
• Methods to reduce flood risk to communities through the CRS program;
• Methods to incentivize participation and increase floodplain management standards;
• Methods to streamline administrative burdens, CRS program credits, and decrease program participation burdens of the CRS program;
• Methods to decrease future losses to repetitive loss structures; and
• Methods to increase collaboration and participation through cross jurisdictional entities and increase integration with other floodplain management activities, such as building standards.
FEMA received comments from 211 commenters addressing 116 unique topics in response to the 2021 CRS RFI. Commenters included private citizens; State, local, and Tribal governments; non-profit organizations; and professional associations. FEMA completed a thorough review of the comments and considered whether to explore alternative CRS program features and approaches suggested by stakeholders. Stakeholder feedback proposed a wide range of alternative program features and approaches for the CRS program. FEMA also hosted virtual public meetings to solicit input about the CRS program during the 2021 CRS RFI comment period. A non-exhaustive overview of the comments from the 2021 CRS RFI and associated public meetings is provided below:
Commenters indicated that the CRS program offers flexibility for communities to select among many CRS activities, that the CRS program has strengthened communities' floodplain management efforts, and that CRS' incentives resulted in reduced flood risk.
Commenters stated that the complexity and administrative burden of the CRS program make it difficult for communities to participate in CRS, that the CRS program raises equity concerns, and commenters questioned the degree to which the CRS incentivizes (or does not sufficiently incentivize) increases in community flood risk reduction. Commenters also expressed concern regarding CRS's alignment with the NFIP's current pricing approach and the overall affordability of NFIP flood insurance. Additionally, commenters questioned whether the CRS program is needed given the NFIP's current pricing approach which calculates actuarially based premiums, whether the CRS discount classes should be modified, and whether NFIP policy premiums will need to increase to support CRS's premium discounts.
Commenters suggested providing direct technical assistance and grant funds to underserved communities to increase CRS participation and to build local floodplain management capacity. Commenters also expressed a desire for CRS to provide more effective outreach tools for underserved communities and for a CRS scoring system that accounts for multiple aspects of a community including, but not limited to, a community's size, development density, economic status, and administrative capacity.
Commenters also suggested that CRS program credits should be shared with the community, if not fully provided to the community instead of only being provided to the policyholders as communities are doing the work to reduce flood risk. Commenters also suggested that the communities should be allowed to decide how to use the available CRS program credits, including the ability to get a cost share to support local CRS staff or mitigation funds to reduce a community's flood risk.
Commenters indicated a desire to better incorporate future conditions through mapping and modeling of future risk, to incentivize communities to adopt programs related to future conditions, to create a flexible credit system for creative efforts and innovative approaches that improve communities' resilience, and for FEMA to disseminate more guidance and data to communities to better incorporate future conditions and climate resiliency into a community's CRS program.
Commenters stated that the CRS program should continue to support and should expand incentives for community-level action and floodplain management and to better align measurable risk reduction in communities of both current and future risks with program incentives (
Commenters also suggested that CRS activities and credits should be limited to those activities that lower flood risk and result in development that is less susceptible to flooding. Commenters noted that the cost of CRS to the NFIP is too high, that credits must be given more carefully, and that enforcement of compliance with NFIP minimum floodplain management requirements within CRS communities must be improved. Commenters noted that many CRS activities and credits are unrelated to flood risk reduction, such as providing credits to incentivize community activities to protect endangered species.
Commenters requested simplification of the CRS program application process and simplification of CRS credits and activities. Commenters suggested that the document submittal procedures to initially join the CRS program and the scoring system in the CRS Coordinator's Manual should be simplified to increase transparency. Commenters also suggested that the CRS activities should be simplified by reducing the number of activities that receive credit to allow communities to focus on activities that result in the largest flood risk reduction (
Comments suggested that FEMA should establish a grant program to fund local CRS positions or establish a cost-share program across multiple municipalities to support CRS implementation. Commenters also suggested the FEMA should increase the sharing of success stories and best practices among CRS participating
Commenters also suggested that the CRS should be fully integrated into the NFIP by reimagining the NFIP's current pricing approach and enrolling all communities into the CRS program as part of NFIP participation starting at a CRS class 0 if the community only meets the NFIP minimum floodplain management standards. Under this suggestion, communities could move up in CRS class rating to increase their CRS discount with a maximum discount of up to a 50%. Commenters also suggested that a community should also be penalized for actions that increase flood risk in the community (
On July 31, 2023, the Government Accountability Office (GAO) issued report number GAO-23-105977, Flood Insurance: FEMA's New Rate-Setting Methodology Improves Actuarial Soundness but Highlights Need for Broader Program Reform.
• The Assistant Administrator of FEMA's Federal Insurance Directorate (FID) should adjust CRS by calculating a community's rating based only on community activities that reduce flood risk and by incorporating discounts into the full-risk premium based on the actuarial evaluation of risk reduction. (Recommendation 1); and
• The Assistant Administrator of FEMA's FID should evaluate other means for incentivizing desirable community activities that cannot be actuarially justified but are currently a basis for discounts in CRS. (Recommendation 2).
The GAO-23-105977 report stated that the premium discounts provided under the CRS program are not actuarially justified and are paid for, in large part, through a cross-subsidization by NFIP policyholders that are not receiving the CRS discount. The GAO-23-105977 report also stated that it is likely that policyholders receiving CRS discounts are paying lower premiums that do not fully reflect their flood risk. The amounts of CRS discounts—both to individual properties and program wide—are not closely linked to potential loss reduction of currently insured properties. While the activities that FEMA promotes through CRS are important, few of them directly mitigate flood risk to the property. For example, the GAO-23-105977 report noted that the CRS discounts related to public information, warning and response, and mapping and regulations do not reduce the potential for flood loss to currently insured properties. The GAO-23-105977 report also stated that the NFIP's new pricing approach accounts for some individual premium rating variables, such as a structure's elevation in relation to flood sources, which are also included in CRS' community-wide activities and credits. This may result in NFIP double counting risk reduction techniques/measures during rating and discount determination and policyholders in certain CRS communities receiving a CRS discount that is not based on the actuarial reduction of flood risk to currently insured properties.
The impacts of Federal regulations and policies tend to be widely dispersed on society. Members of the public are likely to have useful information, data, and perspectives on the benefits and burdens of FEMA's existing programs, regulations, information collections, and policies. FEMA seeks additional public feedback relevant to FEMA's potential redesign and improvement efforts for the CRS program given the 2021 CRS RFI comments and the findings and agency recommendations summarized above from the GAO-23-105977 report.
The following is meant to assist members of the public in formulating comments. This notice contains a list of questions, the answers to which will assist FEMA in understanding which suggested alternative program features and approaches CRS program stakeholders support or oppose and why. FEMA encourages public comment on these questions and seeks any other national-level data commenters believe are relevant to FEMA's CRS redesign efforts. Commenters should identify, with specificity, the program feature, policy, or process at issue. Below are recommendations for commenters to use when making comments in response to this RFI, so that FEMA can better evaluate the suggested changes to the CRS program:
• Commenters should explain, with as much detail as possible, why an aspect of the CRS program should be modified, streamlined, expanded, or repealed, and provide specific suggestions of ways the agency can better achieve its objectives;
• Commenters should provide specific national-level data that document the costs, burdens, and benefits of potentially new requirements to the extent they are available. Commenters might also address how FEMA can best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of a redesigned CRS program and whether there are existing sources of data that FEMA can use to evaluate the effects of the CRS program over time; and,
• Commenters should identify with specificity administrative burdens, CRS program requirements, information collection burdens, waiting time, or unnecessary complexity that may impose unjustified barriers in general, or that may have adverse effects on equity for all, including those in underserved communities.
FEMA seeks comments on all suggested program features of a redesigned CRS program, and specifically, FEMA has additional follow-up questions from the 2021 CRS RFI on suggested CRS program changes. FEMA's goal is to obtain diverse feedback on the CRS program that helps inform FEMA decision-making on the future of the CRS program.
(a) If FEMA were to provide NFIP premium discounts to individual policyholders for CRS activities, through the NFIP's current pricing approach, should FEMA offer duplicate CRS discounts for the same activities that are already reflected in individual premiums? Why or why not?
(b) Assuming no to (a), would communities be incentivized to adopt measures in excess of FEMA's minimum floodplain management standards for community-wide activities that reduce future flood risk (
FEMA notes that this notice is issued solely for information and program-planning purposes. The suggested approaches do not reflect an agency position or official action. Responses to this notice do not bind FEMA to any further actions related to the response.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The purpose of this notice is to allow an additional 30 days for public comments.
Comments are encouraged and will be accepted until August 12, 2024.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be submitted via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, Telephone number (240) 721-3000 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for
DHS previously published an information collection notice for within the Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status (RIN 1615-AA59) final rule in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Minnesota Historical Society intends to repatriate a certain cultural item that meets the definition of an unassociated funerary object and sacred object and that has a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the cultural item in this notice may occur on or after August 12, 2024.
Cecily Marcus, Minnesota Historical Society, 345 West Kellogg Boulevard, Saint Paul, MN 55102, telephone (651) 259-3123, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Minnesota Historical Society, and additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records. The National Park Service is not responsible for the determinations in this notice.
A total of one cultural item has been requested for repatriation. The one item, determined by MNHS and Native American consultants to be both an Unassociated Funerary Object and a Sacred Object, is the noose used to execute Wicanhpi Wastedanpi (Good Little Stars, or, Chaske), also known as the “Mankato Hanging Rope” (MNHS #3333.H474). Wicanhpi Wastedanpi was one of the 38 Dakota men hanged on December 26, 1862 in Mankato, MN.
The Minnesota Historical Society has determined that:
• The one unassociated funerary object described in this notice is reasonably believed to have been placed intentionally with or near human remains, and are connected, either at the time of death or later as part of the death rite or ceremony of a Native American culture according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. The unassociated funerary objects have been identified by a preponderance of the evidence as related to human remains, specific individuals, or families, or removed from a specific burial site or burial area of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization.
• The one sacred object described in this notice is specific ceremonial objects needed by a traditional Native American religious leader for present-day adherents to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.
• There is a reasonable connection between the cultural item described in this notice and the Prairie Island Indian Community in the State of Minnesota.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the authorized representative identified in this notice under
Repatriation of the cultural items in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, the Minnesota Historical Society must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The Minnesota Historical Society is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice and to any other consulting parties.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Field Museum intends to repatriate certain cultural items that meet the definition of sacred objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the cultural items in this notice may occur on or after August 12, 2024.
June Carpenter, NAGPRA Director, Field Museum, 1400 S Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7820, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Field Museum, and additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records. The National Park Service is not responsible for the determinations in this notice.
A total of three cultural items have been requested for repatriation. The three sacred objects are a pipe, a pipe and pipe case, and a dance hat. They were collected in 1900 by Stewart Culin in the Hoopa Valley. At the request of the Wiyot Tribe the cultural items were tested to determine whether they had been treated with contaminants. Trace amounts of bromine were found on the pipe case. Its presence may be due to a past pesticide application or may be due to the once live animal's exposure to bromine in its natural environment. There is no known presence of other potentially hazardous substances.
The Field Museum has determined that:
• The three sacred objects described in this notice are specific ceremonial objects needed by a traditional Native American religious leader for present-day adherents to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.
• There is a reasonable connection between the cultural items described in this notice and the Wiyot Tribe, California.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the authorized representative identified in this notice under
Repatriation of the cultural items in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, the Field Museum must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The Field Museum is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice and to any other consulting parties.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Louisiana State University, Museum of Natural Science (LSUMNS) has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the human remains in this notice may occur on or after August 12, 2024.
Dr. Irene Martí Gil, LSU Museum of Natural Science, 119 Foster Hall, LSU, Baton Rouge, LA 70803, telephone (225) 578-2855, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of LSUMNS, and additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records. The National Park Service is not responsible for the determinations in this notice.
Based on the information available, human remains representing, at least, 19 individuals have been reasonably identified. No known individuals were identified. No associated funerary objects are present.
From the Toups Place site (16LF001, located on the east bank of West Fork Bayou L'Ours in Lafourche Parish, LA), human remains representing, at a minimum, one adult individual, were removed as part of a surface collection by Tommy Ryan in 1984. The burial could be Troyville, Coles Creek, or Plaquemine/Mississippian.
From the South Point site (16OR12, located on the south shore of Lake Pontchartrain in Orleans Parish, LA) human remains representing, at a minimum, two adult individuals, were removed in two episodes of surface collection by Sherwood Gagliano, probably between 1963 and 1965. The burials could be Tchefuncte, Troyville, Coles Creek, or Mississippian.
From the Bayou Biloxi site (16SB53, located at the junction of Bayou Biloxi and Southwest Branch in St. Bernard Parish, LA), human remains representing, at a minimum, one individual, were removed by Robert Treadwell during a surface collection on August 23, 1952, in the context of McIntire's Prehistoric Indian Settlements of the Changing Mississippi River Delta survey project. The burial is considered Coles Creek-Plaquemine, and Mississippian.
From the Bayou La Loutre site (16SB68, located west of Bayou La Loutre in St. Bernard Parish, LA), human remains representing, at a minimum, two adult individuals, were removed by Robert Neuman during a surface collection in 1976. The burial is considered Coles Creek or Mississippian.
From the 16SB103 site (this site, northwest of “Sundown Island,” in St. Bernard Parish, LA, was never given a name), human remains representing, at a minimum, three adult individuals, were removed by Eric Lacefield in 1980 and by Robert Neuman, Phillip “Duke” Rivet, Kathleen Byrd, and Eric Lacefield in 1984 in surface collections. The burials are considered Coles Creek or Mississippian.
From the 16SC00 site (this site, located in the Lake Salvador area, in St. Charles Parish, LA, was never given a name), human remains representing, at a minimum, two individuals were removed by Forest Travirca in the 1970s. Mr. Travirca donated the materials from these surface collections to the LSUMNS in 1993. The individuals included one adult and one subadult, possibly a teenager. The burials are considered “Prehistoric Unknown” and Plaquemine/Mississippian.
From the Bois Chactas site (16SC4, located on the northwestern shore of Lake Salvador, in St. Bernard Parish, LA) human remains representing, at a minimum, three individuals, were removed by Robert Neuman during a surface collection in 1969. The collection included two adults and one subadult. The burials are considered Coles Creek, Plaquemine, and/or Mississippian.
From the Chaudiere Casse site (16SC8, located on the southeastern side of Lake Salvador in St. Charles Parish, LA), human remains representing, at a minimum, one adult individual, were removed by Forest Travirca during a surface collection in the 1970s. Mr. Travirca donated his collection from the site to the LSUMNS in 1994. The burials are considered Coles Creek, Plaquemine, and/or Mississippian.
From the Bayou Trepagnier site (16SC10, located on the west bank of Bayou Trepagnier in St. Charles Parish, LA), human remains, representing at a minimum, one individual, were removed by Sherwood Gagliano and Roger Saucier during a surface collection in 1951. The burials are considered Tchefuncte, Marksville, and possibly Mississippian.
From the Bayou Lacombe site (16ST30, located on the east bank of Bayou Lacombe in St. Tammany Parish, LA), human remains, representing, at a minimum, one adult individual, were removed in two surface collection episodes: the first in 1968, probably by Roger Saucier; the second by Phillip Rivet in 1974. The burials are considered Tchefuncte, Marksville, or Mississippian.
From the Somerset Mound (16TE7, also LMS 24-L-2, located on a natural levee of the Mississippi River in Tensas Parish, LA), human remains representing, at a minimum, two adult individuals, were removed by Robert Neuman, George Percy, and Fred (?) Smith in 1969 during a surface collection. The burials are considered Plaquemine or Late Mississippian.
The prehistoric material, including Tchefuncte, Troyville, Coles Creek, Plaquemine, and “unknown,” removed from the sites above is culturally affiliated with the Chitimacha, while the Mississippian material is most likely culturally affiliated with the Choctaw.
Based on the information available and the results of consultation, cultural affiliation is reasonably identified by the geographical location or acquisition history of the human remains described in this notice.
The LSUMNS has determined that:
• The human remains described in this notice represent the physical remains of 19 individuals of Native American ancestry.
• There is a reasonable connection between the human remains described in this notice and the Chitimacha Tribe of Louisiana; Jena Band of Choctaw Indians; Mississippi Band of Choctaw
Written requests for repatriation of the human remains in this notice must be sent to the authorized representative identified in this notice under
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, LSUMNS must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. The LSUMNS is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), The Henry Ford intends to repatriate certain a cultural item that meets the definition of an object of cultural patrimony and that has a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the cultural item in this notice may occur on or after August 12, 2024.
Laura Myles, The Henry Ford, 20900 Oakwood Boulevard, Dearborn, MI 48124, telephone (313) 203-4757, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of The Henry Ford, and additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records. The National Park Service is not responsible for the determinations in this notice.
A total of one cultural item has been requested for repatriation. The one object of cultural patrimony is a silver gorget. This gorget was purchased in 1959; however further acquisition information is unknown. Affiliation was assumed based on the inscription, “MOHICKANS,” and confirmed through consultation. No treatments have been documented; hazardous treatments have not been historically used at The Henry Ford.
The Henry Ford has determined that:
• The one object of cultural patrimony described in this notice has ongoing historical, traditional, or cultural importance central to the Native American group, including any constituent sub-group (such as a band, clan, lineage, ceremonial society, or other subdivision), according to the Native American traditional knowledge of an Indian Tribe or Native Hawaiian organization.
• There is a reasonable connection between the cultural item described in this notice and the Stockbridge Munsee Community, Wisconsin.
Additional, written requests for repatriation of the cultural item in this notice must be sent to the authorized representative identified in this notice under
Repatriation of the cultural item in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, The Henry Ford must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural item are considered a single request and not competing requests. The Henry Ford is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice and to any other consulting parties.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the San Francisco State University (SF State) NAGPRA Program intends to repatriate certain cultural items that meet the definition of unassociated funerary objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the cultural items in this notice may occur on or after August 12, 2024.
Elise Green, San Francisco State University NAGPRA Program, 1600 Holloway Avenue, San Francisco, CA 94132, telephone (415) 405-3545, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the SF State NAGPRA Program, and additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records. The National Park Service is not responsible for the determinations in this notice.
A total of 86 cultural items have been requested for repatriation. The 86 lots of unassociated funerary objects are soil samples, shells, basalt choppers, basalt core, basalt flakes, scrapers, assorted rocks, charcoal, pottery fragments, chert point, shell, obsidian points, glass fragments, Olivella bead, stones, square nail, faunal bones, a mortar, and a pestle. CA-TEH-20, CA-TEH-UNK, and CA-TEH-24 are part of the Tehama-Colusa Canal Survey located in the Corning Quadrangle in Corning, California. CA-TEH-Sacramento River archaeological site collection was donated by Adan E. Treganza to the now defunct Treganza Anthropology Museum. Treganza probably surface collected from various sites in Tehama County when working on the Tehama-Colusa Canal projects in 1950s-60s. There are no other records for CA-TEH-Sacramento River at SF State. The survey abstract indicates that these sites are affiliated with the Central Wintun, whose aboriginal occupation of the surrounding areas is well-documented in the ethnographic literature.
It was once common practice by museums to use chemicals on cultural items to prevent deterioration by mold, insects, and moisture. To date, the SF State NAGPRA Program has no records documenting use of chemicals at our facilities, and we currently do not use chemicals on any cultural items. A former SF State professor, Dr. Michael Moratto, stated that staff used glues, polyvinyl acetate, and a solution called Glyptol to mend and stabilize cultural objects in the past. Prior non-invasive and non-destructive hazardous chemical tests conducted at the SF State NAGPRA Program repositories show arsenic, mercury, and/or lead in some storage containers, surfaces, and certain cultural items.
The SF State NAGPRA Program has determined that:
• The 86 lots of unassociated funerary objects described in this notice are reasonably believed to have been placed intentionally with or near human remains, and are connected, either at the time of death or later as part of the death rite or ceremony of a Native American culture according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. The unassociated funerary objects have been identified by a preponderance of the evidence as related to human remains, specific individuals, or families, or removed from a specific burial site or burial area of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization.
• There is a reasonable connection between the cultural items described in this notice and the Grindstone Indian Rancheria of Wintun-Wailaki Indians of California and the Paskenta Band of Nomlaki Indians of California.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the authorized representative identified in this notice under
Repatriation of the cultural items in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, the SF State NAGPRA Program must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The SF State NAGPRA Program is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice and to any other consulting parties.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Maxey Museum, Whitman College has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after August 12, 2024.
Libby Miller, Maxey Museum, Whitman College, 345 Boyer Avenue, Walla Walla, WA 99362, telephone: (509) 876-7327, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Maxey Museum, Whitman College, and additional information on the determinations in this notice, including the results of consultation, can be found in its inventory or related records. The National Park Service is not responsible for the determinations in this notice.
Human remains representing, at minimum, one individual have been identified. The one associated funerary objects is one lot of copper beads and string. The human remains consist of a large adult mandible with four extremely worn teeth. Collected by Myron Eells between 1874 and 1907. Exact location unknown. Eells occasionally noted tribal affiliation and/or places of origin, as here it appears as “Clallam” (Klallam). The AFOs are listed in accession records as “Hudson's Bay Company, from graves, Sequim, Washington. Clallam”. Donated to Whitman in 1906 or 1907 at the time of Eells' death.
Based on the information available and the results of consultation, cultural affiliation is clearly identified by the information available about the human remains and associated funerary objects described in this notice.
The Maxey Museum at Whitman College has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• The one lot of objects described in this notice are reasonably believed to have been placed intentionally with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a connection between the human remains and associated funerary objects described in this notice and the Jamestown S'Klallam Tribe.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the authorized representative identified in this notice under
1. The Indian Tribe identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, the Maxey Museum, Whitman College must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The Maxey Museum, Whitman College is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), Bryn Mawr College intends to repatriate certain cultural items that meet the definition of unassociated funerary objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the cultural items in this notice may occur on or after August 12, 2024.
Marianne Weldon, Bryn Mawr College, 101 N Merion Avenue, Bryn Mawr, PA 19010, telephone (610) 526-5022, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of Bryn Mawr College, and additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records. The National Park Service is not responsible for the determinations in this notice.
A total of 218 cultural items have been requested for repatriation. The 218 unassociated funerary objects are adzes, axes, bannerstones, beads, Bodkin knives, celts, celts or axes, celts or chisels, chisels, discoidals, drills, earthenware pipes, gorgets, net sinkers, net sinkers or hammerstones, notched disks, notched stones or sinkers, pendants, pestles, pipes, plummets, projectile points, a string of beads, worked pebbles, a notched stone with sinkers, an adze or axe, an axe or pick, a biface blade knife, a bird effigy pipe bowl fragment, a bowl, a chisel or gouge, an effigy of a fish, an effigy pipe, a gorget fragment, a gorget or effigy, a gouge, a graver or auger, a hammerstone, a hand axe, a knife or scraper, a necklace, a notched slab, a pebble bead, a pebble chipped for axe or sinker, a pendant or partial gorget, a pendant or sinker, a point or scraper, a sherd, a sinew stone, a stone bead, and a stone tool. These cultural items were removed from Massachusetts, New Jersey, New York, Pennsylvania, and the Delaware Water Gap. In 1882, William Sansom Vaux bequeathed a collection to the Academy of Natural Sciences (ANS), and ANS accessioned them on June 27, 1912. In 1961, ANS loaned approximately 3,000 items to Bryn Mawr College, including the items described in this notice. In 1997, the ANS board voted to transfer control of the items to Bryn Mawr College, and in 1998, it executed the paperwork.
Bryn Mawr College has determined that:
• The 218 unassociated funerary objects described in this notice are reasonably believed to have been placed intentionally with or near human remains, and are connected, either at the time of death or later as part of the death rite or ceremony of a Native American culture according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. The unassociated funerary objects have been identified by a preponderance of the evidence as related to human remains, specific individuals, or families, or removed from a specific burial site or burial area of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization.
• There is a reasonable connection between the cultural items described in this notice and the Delaware Nation, Oklahoma; Delaware Tribe of Indians; and the Stockbridge Munsee Community, Wisconsin.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the authorized representative identified in this notice under
Repatriation of the cultural items in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, Bryn Mawr College must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. Bryn Mawr College is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice and to any other consulting parties.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the U.S. Department of the Interior, National Park Service, Southeast Archeological Center (SEAC, part of the Southeast Regional Office's Cultural Resources, Partnerships, and Science Division) has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after August 12, 2024.
Julie H. Ernstein, Division Manager, Cultural Resource Partnerships and Science Division, National Park Service, Interior Region 2: South Atlantic—Gulf, 100 Alabama Street SW, Atlanta, GA 30303, telephone (404) 909-2240, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of SEAC, and additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records.
Based on the information available, human remains representing, at least, five individuals have been reasonably identified. The 153 associated funerary objects are three greenstone ceremonial celts, two quartz hammerstones, one pitted stone, four whetstones, one piece of petrified wood, four ceramic discs, three stone discs, 14 ceramic sherds, one elbow fragment of a biconical clay pipe, four bone awls, one antler tip, one flat faunal bone, 107 shell beads, one deer bone, three reconstructed ceramic pots, and three reconstructed ceramic water bottles.
On an unknown date prior to 1940, human remains and associated funerary objects were removed from Moundville in Hale and Tuscaloosa Counties, AL. These individuals and objects were collected or purchased by James Milton Mallory over an unknown period of time. The associated funerary objects were first inventoried on April 27, 1932, by the Alabama Museum of Natural History. Following Mr. Mallory's demise in 1940, the individuals and objects entered Works Projects Administration (WPA) collections and were later transferred to National Park Service collections after the WPA ceased in 1943.
Based on the information available and the results of consultation, cultural affiliation is reasonably identified by the geographical location or acquisition history of the human remains and associated funerary objects described in this notice.
SEAC has determined that:
• The human remains described in this notice represent the physical remains of five individuals of Native American ancestry.
• The 153 objects described in this notice are reasonably believed to have been placed intentionally with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a reasonable connection between the human remains and associated funerary objects described in this notice and the Alabama-Coushatta Tribe of Texas; Alabama-Quassarte Tribal Town; Coushatta Tribe of Louisiana; Jena Band of Choctaw Indians; Kialegee Tribal Town; Miccosukee Tribe of Indians; Mississippi Band of Choctaw Indians; Poarch Band of Creek Indians; Seminole Tribe of Florida; The Chickasaw Nation; The Choctaw Nation of Oklahoma; The Muscogee (Creek) Nation; The Seminole Nation of Oklahoma; and the Thlopthlocco Tribal Town.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the authorized representative identified in this notice under
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, SEAC must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. SEAC is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Town of Germantown has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the human remains in this notice may occur on or after August 12, 2024.
Thomas Shannon, Town Historian, Germantown Town Hall, 50 Palatine Park Road, Germantown, NY 12526, telephone (518) 822-7908, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Town of Germantown, and additional information on the determinations in
Based on the information available, human remains representing, at least, one individual have been reasonably identified. No associated funerary objects are present. The individual's remains were disturbed in 1990 during the excavation and expansion of 45 Moore Road, Town of Germantown, Columbia County, New York, which overlooks the Hudson River. The Columbia County Sheriff's Department opened an investigation (Case 6641-90). On August 8, 1990, a Columbia County Sheriff's Department investigator brought the remains to the Onondaga County Medical Examiner's Office for analysis. After William C. Rodriguez, III, Ph.D., completed his analysis, the remains were stored at the Onondaga County Medical Examiner's Office until May 1, 1991, when they were returned to the Columbia County Sheriff's Office. Sometime after that, they were brought to the Town of Germantown Records Retention Room, where they have been since. The Town Historian discovered the individual's remains in the records retention room on January 13, 2024. According to the report, the remains contain portions of the cranium, distal portions of the left and right humeri, proximal end of the right ulnae, right tibial mid-shaft, superior portions of the left and right scapula, superior half of the left innominate, both femurs, rib fragments, right temporal and parietal bone portions, assorted phalanges of the feet, right half of the mandible, including 1st and 2nd molars, maxilla.
Based on the information available and the results of consultation, cultural affiliation is clearly identified by the information available about the human remains described in this notice.
The Town of Germantown has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• There is a reasonable connection between the human remains described in this notice and the Delaware Nation, Oklahoma; Delaware Tribe of Indians; and the Stockbridge Munsee Community, Wisconsin.
Written requests for repatriation of the human remains in this notice must be sent to the authorized representative identified in this notice under
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, the Town of Germantown must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. The Town of Germantown is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the U.S. Department of the Interior, Fish and Wildlife Service (USFWS) intends to repatriate certain cultural items that meet the definition of unassociated funerary objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice.
Repatriation of the cultural items in this notice may occur on or after August 12, 2024.
Spencer Lodge, USFWS, 1936 California Avenue, Klamath Falls, OR 97601, telephone (541) 885-8481, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the USFWS, and additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records. The National Park Service is not responsible for the determinations in this notice.
A total of 1,949 cultural items have been requested for repatriation. The 1,949 unassociated funerary objects are projectile points, stone tools, bone objects, cordage fragments, basketry fragments, tule knots, stone flakes, shell, faunal remains, wood, coprolites, botanical remains, charcoal, ash, stick objects, groundstone, beads, glass fragment, and a fishing weight.
Objects described above were removed from Siskiyou County, CA by R.J. Squier and Gordon L. Grosscup during archaeological excavations occurring between 1952-1954. Excavations took place at two national wildlife refuges (NWR) operated by the USFWS, Tule Lake and Lowe Klamath NWR, where these objects were removed from four sites (CA-Sis-2, CA-Sis-108, CA-Sis-223, CA-Sis-239). These objects have been curated at the Phoebe A. Hearst Museum at the University of California Berkeley since their removal.
The USFWS has determined that:
• The 1,949 unassociated funerary objects described in this notice are reasonably believed to have been placed intentionally with or near human remains, and are connected, either at the time of death or later as part of the death rite or ceremony of a Native American culture according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. The unassociated funerary objects have been identified by a preponderance of the evidence as related to human remains, specific individuals, or families, or removed from a specific burial site or burial area of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization.
• There is a reasonable connection between the cultural items described in this notice and the Klamath Tribes and Modoc Nation.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the authorized representative identified in this notice under
Repatriation of the cultural items in this notice to a requestor may occur on or after August 12, 2024. If competing requests for repatriation are received, the USFWS must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The USFWS is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice and to any other consulting parties.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty order and countervailing duty order on plastic decorative ribbon from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
May 6, 2024.
Alexis Yim (202-708-1446), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with §§ 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
United States International Trade Commission.
July 16, 2024 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
Sharon Bellamy, Supervisory Hearings and Information Officer, 202-205-2000.
The Commission is holding the meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b). In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting. Earlier notification of this meeting was not possible.
By order of the Commission.
Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, 29 U.S.C. 1142, provides for the establishment of an Advisory Council on Employee Welfare and Pension Benefit Plans (the Council), consisting of 15 members appointed by the Secretary of Labor (the Secretary) as follows:
• Three representatives of employee organizations (at least one of whom shall be a representative of an organization whose members are participants in a multiemployer plan);
• three representatives of employers (at least one of whom shall be a representative of employers maintaining or contributing to multiemployer plans);
• three representatives from the general public (one of whom shall be a person representing those receiving benefits from a pension plan); and
• one representative each from the fields of insurance, corporate trust, actuarial counseling, investment counseling, investment management, and accounting.
No more than eight members of the Council shall be members of the same political party.
Council members must be qualified to appraise the programs instituted under ERISA. Appointments are for three-year terms. The Council's prescribed duties are to advise the Secretary with respect to carrying out their functions under ERISA, and to submit to the Secretary, or their designee, related recommendations. The Council will meet at least four times each year.
The terms of five Council members expire at the end of this year. The groups or fields they represent are as follows:
(1) Employee organizations;
(2) employers;
(3) the general public;
(4) actuarial counseling; and
(5) investment counseling.
The Department of Labor is committed to equal opportunity in the workplace and seeks a broad-based and diverse Council. Selection of Council membership will be consistent with achieving the greatest impact, scope, and credibility among diverse stakeholders. The diversity in such membership includes, but is not limited to, race, gender, disability, sexual orientation, and gender identity.
If you or your organization wants to nominate one or more people for appointment to the Council to represent one of the groups or fields specified above, submit nominations to George Pantazopoulos, Council Executive Secretary, as email attachments to
Nominations, including supporting letters, should:
• State the person's qualifications to serve on the Council (including any particular specialized knowledge or experience relevant to the nominee's proposed Council position);
• state that the candidate will accept appointment to the Council if offered;
• include which of the five positions (representing groups or fields) you are nominating the candidate to fill;
• include the nominee's full name, work affiliation, mailing address, phone number, and email address;
• include the nominator's full name, work affiliation, mailing address, phone number, and email address;
• include the nominator's signature, whether sent by email or otherwise.
Please do not include any information that you do not want publicly disclosed.
The Department of Labor will contact nominees for information on their political affiliation and their status as registered lobbyists. Anyone currently subject to federal registration requirements as a lobbyist is not eligible for appointment. Nominees should be aware of the time commitment for attending meetings and actively participating in the work of the Council. Historically, this has meant a commitment of at least 20 days per year. The Department of Labor has a process for vetting nominees under consideration for appointment.
National Endowment for the Arts, National Foundation on the Arts and the Humanities.
Notice of proposed collection; comment request.
The National Endowment for the Arts (NEA), as part of its continuing
Written comments must be submitted to the office listed in the
Comments should be sent to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the National Endowment for the Arts, Office of Management and Budget, Room 10235, Washington, DC 20503.
The Office of Management and Budget (OMB) is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Could help minimize the burden of the collection of information on those who are to respond, including through the use of electronic submission of responses through
The NEA's mission is to “foster and sustain an environment in which the arts benefit everyone in the United States.” With the advice of the National Council on the Arts and advisory panels, the NEA Chair establishes eligibility requirements and criteria for the review of applications for funding. Section 959(c) of the NEA's enabling legislation, as amended, directs the Chair to utilize advisory panels to review applications and to make recommendations to the National Council on the Arts, which in turn makes recommendations to the Chair.
The legislation requires the Chair “(1) to ensure that all panels are composed, to the extent practicable, of individuals reflecting a wide geographic, ethnic, and minority representation as well as to (2) ensure that all panels include representation of lay individuals who are knowledgeable about the arts . . .” These panels are considered to be committees under the Federal Advisory Committee Act (FACA), which also requires that committees be balanced geographically and ethnically. In addition, the membership of each panel must change substantially from year to year and each individual is ineligible to serve on a panel for more than three consecutive years. To assist with efforts to meet these legislated mandates regarding representation on advisory panels, the NEA has established a database of names, addresses, areas of expertise and other basic information on individuals who are qualified to serve as panelists for the NEA.
The Panelist Profile Data Collection, for which clearance is requested, is used to gather basic information from qualified individuals recommended by the arts community; arts organizations; Members of Congress; the general public; local, state and regional arts organizations; NEA staff, and others.
Occupational Safety and Health Review Commission.
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, the Occupational Safety and Health Review Commission (OSHRC) is revising the notice for Privacy Act system-of-records OSHRC-5.
Comments must be received by OSHRC on or before August 12, 2024. The revised system of records will become effective on that date, without any further notice in the
You may submit comments by any of the following methods:
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Ron Bailey, Senior Attorney-Advisor, Office of the General Counsel, via telephone at (202) 606-5410, or via email at
The Privacy Act of 1974, 5 U.S.C. 552a(e)(4), requires Federal agencies such as OSHRC to publish in the
As detailed below, OSHRC is revising this system-of-records notice to reflect that records related to Privacy Act requests, as well as program-related training, are maintained by employees in the Office of General Counsel. In addition, the notice has been revised to reflect that Microsoft OneDrive and
The notice for OSHRC-5, provided below in its entirety, is as follows.
Office of the General Counsel Records, OSHRC-5.
Unclassified.
Office of the General Counsel, OSHRC, 1120 20th Street NW, Ninth Floor, Washington, DC 20036-3457.
Office of the General Counsel, OSHRC, 1120 20th Street NW, Ninth Floor, Washington, DC 20036-3457; (202) 606-5100.
5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 29 U.S.C. 661; 44 U.S.C. 3101.
This system of records is maintained to assist management in making decisions with respect to case processing activities; to assist OSHRC attorneys in organizing their work product; and to assist in other matters assigned to the Office of the General Counsel, such as processing Freedom of Information Act (FOIA) and Privacy Act requests and implementation of the agency's privacy program.
This system of records covers current and former OSHRC employees, contractors, and Commission members; Freedom of Information Act and Privacy Act requesters; and parties in cases that have been, or presently are, before OSHRC.
This system of records contains documents—filings and other materials—pertaining to cases before OSHRC. These documents may include the following categories of records: (1) the names and locations (city and state) of the individuals representing each party; (2) the names of sole proprietors cited by OSHA, as well as employees and other witnesses, and information describing those individuals, including job title and duties, medical history, and other descriptive information that is relevant to the disposition of a case; and (3) the names and job titles of the Commissioners and ALJs. This system also contains other matters that have been assigned to the Office of the General Counsel for processing, such as FOIA and Privacy Act requests, which include the names of FOIA and Privacy Act requesters, contact information, and information concerning the requests. In addition, this system contains program-related training records, which include the names and/or business email addresses of OSHRC employees and contractors. Finally, this system includes documents necessary for managerial oversite, such as charts relating to workflow and teleworking. These documents may include the names of OSHRC employees and the cases assigned to them, as well as the employees' contact information.
Information in this system is derived from the individual to whom it applies or is derived from case processing records maintained by the Office of the Executive Secretary and the Office of the General Counsel.
In addition to disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system of records may be disclosed as a routine use pursuant to 5 U.S.C. 552a(b)(3) under the circumstances or for the purposes described below, to the extent such disclosures are compatible with the purposes for which the information was collected:
(1) To the Department of Justice (DOJ), or to a court or adjudicative body before which OSHRC is authorized to appear, when any of the following entities or individuals—(a) OSHRC, or any of its components; (b) any employee of OSHRC in his or her official capacity; (c) any employee of OSHRC in his or her individual capacity where DOJ (or OSHRC where it is authorized to do so) has agreed to represent the employee; or (d) the United States, where OSHRC determines that litigation is likely to affect OSHRC or any of its components—is a party to litigation or has an interest in such litigation, and OSHRC determines that the use of such records by DOJ, or by a court or other tribunal, or another party before such tribunal, is relevant and necessary to the litigation.
(2) To an appropriate agency, whether Federal, State, local, or foreign, charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes civil, criminal or regulatory violations, and such disclosure is proper and consistent with the official duties of the person making the disclosure.
(3) To a Federal, State, or local agency maintaining civil, criminal or other relevant enforcement information, such as current licenses, if necessary to obtain information relevant to an OSHRC decision concerning the hiring, appointment, or retention of an employee; the issuance, renewal, suspension, or revocation of a security clearance; the execution of a security or suitability investigation; the letting of a contract; or the issuance of a license, grant or other benefit.
(4) To a Federal, State, or local agency, in response to that agency's request for a record, and only to the extent that the information is relevant and necessary to the requesting agency's decision in the matter, if the record is sought in connection with the hiring, appointment, or retention of an employee; the issuance, renewal, suspension, or revocation of a security clearance; the execution of a security or suitability investigation; the letting of a contract; or the issuance of a license, grant or other benefit by the requesting agency.
(5) To an authorized appeal grievance examiner, formal complaints manager, equal employment opportunity investigator, arbitrator, or other duly authorized official engaged in investigation or settlement of a grievance, complaint, or appeal filed by an employee, only to the extent that the information is relevant and necessary to the case or matter.
(6) To OPM in accordance with the agency's responsibilities for evaluation and oversight of Federal personnel management.
(7) To officers and employees of a Federal agency for the purpose of conducting an audit, but only to the extent that the record is relevant and necessary to this purpose.
(8) To OMB in connection with the review of private relief legislation at any stage of the legislative coordination and clearance process, as set forth in Circular No. A-19.
(9) To a Member of Congress or to a person on his or her staff acting on the Member's behalf when a written request is made on behalf and at the behest of the individual who is the subject of the record.
(10) To the National Archives and Records Administration (NARA) for records management inspections and such other purposes conducted under the authority of 44 U.S.C. 2904 and 2906.
(11) To appropriate agencies, entities, and persons when: (a) OSHRC suspects or has confirmed that there has been a breach of the system of records; (b) OSHRC has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, OSHRC, the Federal Government, or national security; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with OSHRC's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(12) To NARA, Office of Government Information Services (OGIS), to the extent necessary to fulfill its
(13) To another Federal agency or Federal entity, when OSHRC determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (a) responding to a suspected or confirmed breach or (b) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
Records are stored (1) on paper in offices and locked file cabinets at OSHRC's National Office in Washington, DC; (2) electronically on a shared OSHRC drive or on Microsoft OneDrive, both of which are access-restricted and require a username and password; and (3) as to some FOIA and Privacy Act requests, in
Records may be retrieved manually or electronically by case names or docket numbers; the names of OSHRC employees, contractors, or Commission members; or the names of other individuals, such as FOIA and Privacy Act requesters.
Paper and electronic records are maintained in accordance with General Records Schedules 2.6, 4.2, and 5.1, or for as long as needed for business use.
Paper records are maintained in offices and locked file cabinets. During duty hours, the records are under surveillance of personnel charged with their custody. After duty hours, the offices are accessible only using an office key or access card. Access to electronic records maintained on an OSHRC shared drive, Microsoft OneDrive, or dedicated
Individuals who wish to gain access to their records should notify: Privacy Officer, OSHRC, 1120 20th Street NW, Ninth Floor, Washington, DC 20036-3457. For an explanation on how such requests should be drafted, refer to 29 CFR 2400.4 (procedures for requesting notification of and access to personal records).
Individuals who wish to contest their records should notify: Privacy Officer, OSHRC, 1120 20th Street NW, Ninth Floor, Washington, DC 20036-3457. For an explanation on the specific procedures for contesting the content of a record, refer to 29 CFR 2400.6 (procedures for amending personal records), and 29 CFR 2400.7 (procedures for appealing).
Individuals interested in inquiring about their records should notify: Privacy Officer, OSHRC, 1120 20th Street NW, Ninth Floor, Washington, DC 20036-3457. For an explanation on how such requests should be drafted, refer to 29 CFR 2400.4 (procedures for requesting notification of and access to personal records).
None.
April 14, 2006, 71 FR 19556; August 4, 2008, 73 FR 45256; October 5, 2015, 80 FR 60182; September 28, 2017, 82 FR 45324; and October 31, 2018, 83 FR 54789.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states
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This Notice will be published in the
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 2, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 3, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 2, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 5, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 3, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 2, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 2, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 3, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 3, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 3, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 2, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 2, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 3, 2024, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean C. Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 3, 2024, it filed with the Postal Regulatory Commission a
On May 6, 2024, Banque Centrale de Compensation, which conducts business under the name LCH SA (“LCH SA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
LCH SA is a clearing agency registered with the Commission. Through its CDSClear business unit, LCH SA provides central counterparty services for security-based swaps, including credit default swaps, and options on credit default swaps. LCH SA is an affiliate of LCH Ltd, through common ownership by LCH Group.
LCH SA's Board is responsible for LCH SA's overall management. It determines LCH SA's business strategies and oversees their implementation.
LCH SA proposes updating these ToR. The proposed updates fall into six categories. The first category would rename the Technology, Security and Resilience Committee as the Operational Resilience Committee and expand the ambit of that committee. The second category would update the Audit Committee's responsibilities. The third would make additional changes to the Risk Committee's responsibilities, its supervision of risk at LCH SA, and other matters. The fourth would delete redundant language from the ToR. The fifth would make updates to reflect changes to the existence of and responsibilities for certain positions at LCH Group, which is LCH SA's intermediate parent company. The final category would include other miscellaneous changes.
The Proposed Rule Change would rename the Technology, Security and Resilience Committee; expand the Committee's responsibilities; make the Committee the representative of, and advisor to, the Board on matters related to operational resilience; specify the Committee's relationship with other Board committees; and revise the qualifications required for members of the Committee.
First, as noted above, the Proposed Rule Change would rename the Technology, Security and Resilience Committee to be the Operational Resilience Committee. To that end, the Proposed Rule Change would amend this Committee's ToR, Articles 15 and 20 of the Board ToR, and Article 3.3.8 of the Audit Committee ToR to reflect this name change. Additionally, to reflect the Operational Resilience Committee's new name and to align with the Operational Resilience Committee ToR, LCH SA proposes changing the title of Article 11 of the Risk Committee ToR from “Operational Risk Management” to “Operational Resilience Risk.”
LCH SA proposes the name change to better reflect the ambit of the Committee, which, under the Proposed Rule Change, would include technical subjects related to information systems, technology, and cybersecurity, as well as operational resilience.
The Proposed Rule Change also would make the responsibilities of the Committee consistent with current practice and other LCH SA ToR. For example, current Article 1.2 states that the Committee must determine if management has put in place adequate strategies and plans which, among other things, provide reasonable assurance that LCH SA operates within its risk appetite. LCH SA's proposal would specify that the risk appetite is set by the Board, in accordance with current practice.
Consistent with these responsibilities, the Proposed Rule Change also would make the Operational Resilience Committee the Board's representative and advisor on matters related to operational resilience.
Just as the Committee would provide advice to the full Board on operational resilience matters, the Committee also would provide advice on operational resilience matters to other Board committees.
Related to the proposed addition of Article 4.2.14 of the Operational Resilience Committee ToR, LCH SA proposes changing Article 11.3 of the Risk Committee ToR to note that the Risk Committee will review and approve the recommendations of the Operational Resilience Committee in relation to DORAs for significant projects and new products and notify the Board of the same. Currently, Article 11.3 requires the Risk Committee to review DORAs for all significant projects and new products and to make recommendations to the Board for their approval. LCH SA also proposes adding a new Article 11.2 to the Risk Committee ToR to require the Risk Committee to inform the Board in a timely manner of any new risk affecting the resilience of LCH SA. These proposed changes are meant to align the Risk Committee ToR with the Operational Resilience Committee ToR.
To further reflect the Committee's role as advisor to the Risk Committee on resilience risk matters, LCH SA also proposes to add a new Article 1.3 to the
Relatedly, LCH SA proposes deleting from the ToR language related to other Committees to align with the Operational Resilience Committee's responsibilities. For example, current Article 11.2 of the Risk Committee ToR requires the Risk Committee to review and provide advice on any aspects of LCH SA's Operational Risk Management Framework on request by the Audit Committee or the Board. Because it requires the Risk Committee to take action within the ambit of the Operational Resilience Committee,
Finally, LCH SA also proposes changes to Article 4.4 of the Operational Resilience Committee ToR to clarify the Committee Chair's membership on the Risk and Audit Committees.
LCH SA proposes additional changes to ensure members of Operational Resilience Committee have experience consistent with the Committee's responsibilities.
The Proposed Rule Change would make various updates to the Audit Committee's responsibilities. For example, current Article 1.3.5 provides that the Audit Committee will review Enterprise Risk Reports. Because LCH SA is expanding the detail provided in these reports, the Proposed Rule Change would rename them as the Resilience and Enterprise Risk Management reports.
The Proposed Rule Change also would amend Article 3.3.4, which sets out the Audit Committee's responsibilities for reviewing LCH SA's compliance with regulations. The Proposed Rule Change would add to Article 3.3.4 a requirement that the Committee approve the compliance policies and be informed of any breaches. LCH SA is making this change to document an existing practice of the Audit Committee.
Similarly, current Article 3.3.5 requires that the Audit Committee, among other things, review the process for annual model validations and breaches of LCH SA's Risk Governance Framework. The proposed rule change would add a requirement that the Committee be notified of outside appetite financial and resilience risks. LCH SA proposes this change to make the Audit Committee better informed as it carries out its responsibilities.
Finally, current Article 3.3.6(a)(iii) requires that the Committee receive annual reports required by a 2014 order of its national regulators related to internal controls.
The proposed rule change also would change the Risk Committee ToR with respect to the Committee's responsibilities, the Committee's supervision of risk at LCH SA, reporting by the Committee, responsibilities of LCH SA's Chief Risk Officer, and membership of the Committee.
With respect to the responsibilities of the Committee, the Proposed Rule Change first would add a new Article 6.4. Article 6.4 would provide that the Risk Committee should be notified of the outcome of the annual independent validation of the counterparty credit scoring model, in accordance with the Model Governance Validation and Review Policy. LCH SA is making this change to be consistent with its current practice.
Current Article 7.4 requires that the Committee review LCH SA's risk policy on the eligibility of new products. Since this policy is now called the Contract and Market Acceptability Policy, LCH SA proposes reflecting this name change in Article 7.4 of the Risk Committee ToR.
LCH SA also proposes a new Article 7.5 in the Risk Committee ToR. This new article would require that the Committee review annually a report outlining the compliance of all markets and products against the criteria defined in the Contract and Market Acceptability Policy. LCH SA is making this change to be consistent with its current practice.
Further, for the same reason, LCH SA proposes revising renumbered Article 7.7.1. Current Article 7.7.1 clarifies that the CEO of LCH SA may be given authority to approve clearing of certain new contracts or products, without prior approval by the Risk Committee, subject to notifying the Committee. The Proposed Rule Change would add to this provision approval of trade venues, in addition to contracts or products.
Articles 8 and 9 of the Risk Committee ToR contain additional proposed changes to the Committee's responsibilities, which LCH SA is making to reflect current practice.
Proposed revisions to Article 9 would clarify the Committee's responsibilities related to LCH SA's default procedures, again to be consistent with current practice.
LCH SA also proposes to add new Articles 9.4 and 9.7 to reflect current practice.
Moreover, LCH SA proposes several new provisions and revisions in Article 10 of the Risk Committee ToR to reflect current practices related to liquidity risk management.
The Proposed Rule Change would also add a new Article 12 to the Risk Committee ToR, titled Model Governance and Procyclicality. Under new Article 12.1, the Risk Committee would review annually (or more frequently if deemed necessary) the Company's Model Governance, Validation and Review Policy, to consider proposals for modification of those arrangements, and to make recommendations to the Board for approval. Under proposed Article 12.2, the Risk Committee would review, at least annually and upon material change, reports prepared by independent model experts confirming the ongoing suitability of LCH SA's financial risk models, in accordance with the Model Governance, Validation and Review Policy. Proposed Article 12.3 would require the Committee to review annually (or more frequently if deemed necessary) LCH SA's Procyclicality Risk Policy, to consider proposals for modification of those arrangements and to make recommendations to the Board for approval. The Committee also would review, at least annually, reports confirming that LCH SA's risk models do not operate in a procyclical manner under proposed Article 12.4. Consistent with LCH SA's overall current practice, these changes would help ensure that the LCH SA Risk Committee ToR mirror the corresponding ToR of its affiliated company, LCH Limited.
Proposed changes to renumbered Articles 13 and 20 of the Risk Committee ToR also would reflect LCH SA's current practices.
LCH SA's proposal would also correct renumbered Article 20.2 to reflect how the Risk Committee currently may assess the remuneration structure's impact on LCH SA's risk profile.
The Proposed Rule Change would make several changes to the Risk Committee ToR related to the Committee's supervision of risk, including through the information reported to the Committee. One such proposed change would add a new Article 3.2 clarifying that the risks within the current scope of the LCH SA Risk Committee are financial and model risks and operational resilience risks. LCH SA proposes this change to strengthen the Risk Committee's supervision of certain information technology and resilience risk matters.
LCH SA also proposes a change in Article 4.2 of the Risk Committee ToR. Current Article 4.2 provides that the Risk Committee will receive a detailed report from the Executive Risk Committee which includes, among other things, the risk profile of LCH SA on a monthly basis. The Proposed Rule Change would clarify that this report would cover the risks defined within the scope in Article 3.2 of the Risk Committee ToR.
In addition to revising the reporting to the Risk Committee, the Proposed Rule Change would revise the reporting by the Risk Committee. Specifically, LCH SA proposes that the Risk Committee Secretary no longer make available all minutes to the Chair of the Audit Committee of the LCH Group Board under Article 2.9 of the Risk Committee ToR. Instead, Article 2.9 would only require the Risk Committee Secretary to make those minutes available to the LCH SA Board and the Chair of the LCH SA Audit Committee. LCH SA proposes this change because the LCH Group Board does not usually consider discussions, decisions, and recommendations of the Risk Committee. Instead, discussions, decisions, and recommendations of the Risk Committee are reported to the LCH SA Board.
The Proposed Rule Change would also amend the Risk Committee ToR as it relates to certain responsibilities of LCH SA's Chief Risk Officer (“CRO”). First, the Proposed Rule Change would delete Article 2.10 of the Risk Committee ToR in its entirety. This provision requires that the CRO report to the LCH Group Board on the discussions, decisions, and recommendations of the Risk Committee to formally ratify those decisions and recommendations that affect the Group. LCH SA is deleting this provision because, as noted, the LCH Group Board does not usually consider discussions, decisions, and recommendations of the Risk Committee.
Article 10.7.4 currently requires either the CRO or the Head of Collateral and Liquidity Management (“CaLM”) to sign off on breaches of the limits or restrictions detailed in the Collateral Risk Policy and/or the Investment Risk Policy. Since the CRO is responsible for these policies, including signing off on them as part of their second line function, LCH SA proposes requiring sign-off by only the CRO.
The Proposed Rule Change would also clarify the responsibilities of the CRO in renumbered Article 16 (current Article 15) by editing renumbered Article 16 of the Risk Committee ToR to simplify the description of the information provided to the Committee by the CRO. Current Article 15.1 provides that the Committee will consider and review regular reports prepared by the Risk Management Department of LCH SA, which covers recent developments in at least the areas listed in current Articles 15.1.1 through 15.1.8, such as membership and operations. LCH proposes changing this Article's number to 16.2 and deleting the list of areas to be covered. Instead, a new Article 16.1 would state that the Risk Committee receives management information from the CRO of LCH SA on the assessment of all financial, model and operational resilience risks, and informs the Board in a timely manner of any new significant risk change affecting the resilience of the Company. New Article 16.1 also would state that this report will include any breaches or waivers granted. Proposed Article 16.2 would indicate that the management information will cover recent developments and material issues related to Financial, Model, and Operational Resilience Risks. This revised Article would still require the CRO report to the Committee on all risks, but would not list the specific areas covered, as currently found in Article 15.1.
LCH SA also would amend the Risk Committee ToR as it relates to members of the Committee. Current Article 1.1 provides that the Risk Committee must include representatives of clients as required by law or regulation from time to time. Article 1.1 further explains that no client representatives on the Committee may be employees of LCH Group. The Proposed Rule Change would revise this slightly, to provide that these client representatives may not be employees of any LCH Group company, meaning LCH Group Holdings Limited and its subsidiaries. This change is proposed to conform the Risk Committee ToR to LCH Group requirements.
Moreover, Article 1.1 also currently provides that the Risk Committee must include representatives of LCH SA's Clearing Members as required by law or regulation from time to time and who have significant experience in market, credit, or liquidity risk management. The Proposed Rule Change would add operational risk management to this list of subject matters in respect of which such Committee members should have significant expertise and experience. This would be consistent with the overall scope of responsibility of the Committee, as discussed above. This
LCH SA also proposes changes related to permitted conduct by External Committee Members of the Risk Committee. Current Article 1.5 defines External Committee Members as those members of the Risk Committee that are not independent directors of LCH SA, who attend meetings as risk experts and represent Clearing Members and clients. Currently, under Article 1.6 of the Risk Committee ToR, External Committee Members may consult with other individuals within their organization, prior to Risk Committee meetings, where expertise other than the specialty of the external member is required. LCH SA's proposed changes specify that External Committee Members' consultations with other individuals within their organization, under Article 1.6, are subject to restrictions set out in the confidentiality agreements signed by the External Committee Members.
Finally, the Proposed Rule Change would amend the list of individuals that can attend meetings of the Committee in a non-voting capacity. Currently, Article 1.2 lists individuals that may do so, including the Head of Financial Risk of LSEG, or their nominated delegate (under 1.2.6). LCH SA proposes revising current Article 1.2.6 to replace the Head of Financial Risk of LSEG, or their nominated delegate, with the Chief Risk Officer of LSEG, or their nominated delegate. LCH SA believes this proposed change would ensure that the Risk Committee has appropriate oversight of all risks, including those risks that affect its ultimate parent company, LSEG.
Similarly, under current Article 1.2.8, such other individuals within the Group, as considered appropriate by the Committee, may attend in a non-voting capacity. The Proposed Rule Change would replace the reference to “individuals within the Group” with LCH SA employees. LCH SA proposes this change because it believes LCH SA employees would ostensibly have the expertise and background necessary to participate in Risk Committee meetings.
LCH SA proposes several changes that would delete redundant language, and make related updates as needed, in the ToR of the Audit, Operational Resilience, and Risk committees.
In the Audit Committee ToR, current Article 1.4 requires that the Committee keep itself informed of changes to laws and regulations applicable to the audit policy of LCH SA and matters for which the Audit Committee is responsible. The Proposed Rule Change would remove from Article 1.4 reference to the audit policy of LCH SA because the “matters for which the Audit Committee is responsible” includes the audit policy.
LCH SA also proposes a change in part to eliminate redundant language in the Operational Resilience Committee ToR. Current Article 4.2.10 of the Operational Resilience Committee ToR provides that the Operational Resilience Committee reviews and receives reports as appropriate, on operations and agreed metrics in conjunction with the Audit Committee. Since current Article 4.2.9 of the Operational Resilience Committee ToR already provides that the Operational Resilience Committee receives reports, as appropriate, from the Audit Committee regarding the results of reviews and assessments of LCH SA's operations and technology functions, LCH SA views Article 4.2.10 as redundant.
Moreover, LCH SA's proposal would remove Article 7.3 of the Operational Resilience Committee ToR in its entirety. This provision notes that any disagreement within the Board, including disagreement between the Committee's members and the rest of the Board, should be resolved at the Board level. Further, it notes that where disagreements between the Committee and the Board cannot be resolved, the Committee has the right to report the issue to the shareholders through the Company's annual report. LCH SA proposes to remove this provision because it is applicable only to the Audit Committee ToR.
Finally, the Proposed Rule Change would make a similar change to the Risk Committee ToR to remove a redundant provision. Specifically, the Proposed Rule Change would delete Article 1.2.5 of the Risk Committee ToR in its entirety. This provision allows the Chief Executive Officer of LCH Group to be invited
The Proposed Rule Change also would make updates regarding changes to certain positions at LCH Group. As noted above, LCH Group is LCH SA's intermediate parent company.
The Proposed Rule Change would update the Nomination Committee, Board, and Risk Committee ToR to reflect the retirement of the LCH Group Chief Risk Officer position. Current Article 2.3 of the Nomination
Similarly, LCH SA proposes changes to Article 3 of the ToR of the Board to account for the retirement of the LCH Group Chief Risk Officer position. Currently, Article 3 provides that the Board includes, as a category of directors, Executive Directors which includes the LCH SA CEO, the LCH Group CEO, and an additional LCH executive, who may be but shall not be limited to the Chief Risk Officer of LCH Group. LCH SA proposes deleting reference to the LCH Group Chief Risk Officer from this provision and including only the LCH SA CEO and LCH Group CEO as Executive Directors. Additionally, LCH SA proposes including as a separate category of Director an additional LCH or LSEG executive, who may be but shall not be limited to the chief risk officer of LSEG, as proposed by the CEO of LCH Group. Like the changes to Article 2.3 of the Nomination Committee ToR, these revisions would replace the Chief Risk Officer of LCH Group with the Chief Risk Officer of LSEG.
Finally, LCH SA also proposes updating the Risk Committee ToR to reflect the retirement of the Group CRO. Specifically, the Proposed Rule Change would delete Article 1.2.4 from the Risk Committee ToR because it indicates that the Chief Risk Officer of LCH Group may be invited to attend Risk Committee meetings in a non-voting capacity.
Separately, current Article 10.7.4 of the Risk Committee ToR provides that if any of the limits or restrictions detailed in LCH SA's Collateral Risk Policy and/or Investment Risk Policy are breached, that breach must be, among other things, reported to the Risk Committee, the Audit Committee, the Executive Risk Committee, and the CEOs of LCH SA and LCH Group. The Proposed Rule Change would delete the reference to the CEO of LCH Group. LCH SA is making this change because LCH Group's CEO does not usually consider breaches of those policies. Therefore, it is no longer necessary to report such breaches to LCH Group's CEO.
The Proposed Rule Change also would make updates to defined terms across the various ToR and make other non-substantive changes, as described below.
With respect to the defined terms, the Proposed Rule Change would replace the term Chairman with Chair in the ToR of the Operational Resilience Committee, Audit Committee, and Risk Committee.
In the ToR of the Board, LCH SA proposes removing the requirement that meeting minutes be translated to French before being presented to the Board because this is now unnecessary based on the composition of the Board.
Finally, the Proposed Rule Change would renumber various provisions because of the changes described above as well as make a number of non-substantive clarifying changes.
Section 19(b)(2)(C) of the Act requires the Commission to approve a proposed rule change of a self-regulatory organization if it finds that the Proposed Rule Change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the organization.
The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,
After carefully considering the Proposed Rule Change, the Commission finds that the Proposed Rule Change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to LCH SA. More specifically, for the reasons given below, the Commission finds that the Proposed Rule Change is consistent with Sections 17A(b)(3)(C)
Under Section 17A(b)(3)(C) of the Act, LCH SA's rules must “assure fair representation of its shareholders (or members) and participants in the selections of its directors and administration of its affairs.” The Commission has stated that “at a
First, the proposed changes would not alter the number of directors that represent LCH SA's participants, which are User Directors.
Second, the Proposed Rule Change would work to enhance LCH SA's owners' representation in the administration of LCH SA's affairs. LCH SA has one shareholder, LCH Group,
For the foregoing reasons the Proposed Rule Change is consistent with the requirements of Section 17A(b)(3)(C) of the Act.
Under Section 17A(b)(3)(F) of the Act, LCH SA's rules, among other things, must be “designed to promote the prompt and accurate clearance and settlement of securities transactions . . . derivative agreements, contracts, and transactions . . . and to assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible.”
The Proposed Rule Change makes the ambit of the Technology, Security and Resilience Committee and the Risk Committee clearer. For example, under the proposal, the Technology, Security and Resilience Committee's purpose would be changed to represent the interests of the Board in the sound management of operational resilience to ensure that technology security, cyber security and operational resilience strategies, investments and outcomes support the mission, values, and strategic goals of LCH SA. To reflect this change in scope, LCH SA proposes renaming the Committee the Operational Resilience Committee. LCH SA also proposes a new Article 3.2 of the Risk Committee ToR clarifying that the risks within the scope of the LCH SA Risk Committee are financial and model risks and operational resilience risks.
Further, the Proposed Rule Change would more clearly identify responsibilities and maintain consistency between those responsibilities and the scope of certain Committees. For example, LCH SA proposes adding Articles 4.2.13 through 4.2.15 to the ToR of the Operational Resilience Committee to require the Operational Resilience Committee to review certain matters and provide advice to the Risk Committee. Relatedly, proposed changes to Article 11.3 of the ToR of the Risk Committee would require the Risk Committee to review and approve recommendations of the Operational Resilience Committee for certain matters. LCH SA's proposal would also add a new Article 1.3 to the Operational Resilience Committee ToR requiring that the Operational Resilience Committee help with the review of a number of different policies. Further, LCH SA proposes deleting language from certain ToR to ensure its Committees do not encroach on one another's responsibilities. To that end, along with other provisions, LCH SA proposes removing Article 11.2 of the Risk Committee ToR, which requires the Risk Committee to review and provide advice on any aspects of LCH SA's operational risk management framework on request by the Audit Committee or the Board. LCH SA also proposes adding a new Article 3.3.4(a) to the Audit Committee ToR requiring the Audit Committee to approve the Compliance policies and be informed of any breaches. To make sure that the Risk Committee has appropriate oversight of all risks, LCH SA proposes replacing the Head of Financial Risk of LSEG, or their nominated delegate, with the Chief Risk Officer of LSEG, or their nominated delegate, in current Article 1.2.6 as an ex officio party to be invited to Risk Committee meetings in a non-voting capacity from time to time.
The proposed changes would also help clarify and simplify LCH SA's ToR by deleting redundant text. For example, the proposal would remove redundant references to the Audit Policy from Articles 1.4 and 1.5 of the Audit Committee ToR. Likewise, the proposed deletion of Article 2.3.2 from the Audit Committee ToR would eliminate a duplicative provision that indicates that the LCH SA Audit Committee Chair may also be appointed as the Chair of the LCH Limited Audit Committee. A provision in the ToR of the Audit Committee for LCH Limited already notes the same person can be Chair of both committees.
LCH SA also proposes changes making the ToR clearer by improving their accuracy, renaming items, and identifying where to find information. For example, the Proposed Rule Change would make a number of changes related to the retirement of the LCH Group Chief Risk Officer position. Additionally, LCH SA proposes changing the name of reports identified in Article 1.3.5 of the Audit Committee ToR in line with additional details
By making the ambit of the Committees clearer, more clearly identifying Committee responsibilities, and maintaining consistency between Committee responsibilities and Committee scopes, LCH SA reduces the potential for confusion by Committees or individuals as to whether they have a specific responsibility. By deleting redundant text, LCH SA lowers the chance that it could have contradictory text within its rules, which would also create confusion. By correcting inaccurate text, LCH SA makes it less likely that there is confusion as to what the ToR require. By renaming items to better match their contents and identifying where to find information LCH SA improves the chances that individuals can find accurate information when referring to their ToR and thereby reduces the likelihood there will be confusion. Reducing the potential for confusion could help ensure that Committees complete their responsibilities in timely manner. To the extent Committees, such as the Operational Resilience Committee or the Risk Committee, do not complete their responsibilities, they may fail to identify certain changes in risk and therefore fail to initiate processes that could minimize those risks. Ultimately, failure to minimize risks could result in LCH SA not having sufficient funds in place to recover from a Clearing Member default, which could in turn result in a disruption of clearing services. Thus, by making the ambit of the Committees and their responsibilities clearer, maintaining consistency between Committee responsibilities and Committee scopes, eliminating redundant text, improving the ToR accuracy, renaming items, and identifying where to find information, LCH SA promotes the prompt and accurate clearance and settlement of securities transactions and assures the safeguarding of securities and funds which are in the custody or control of it or for which it is responsible.
Multiple proposed changes would also ensure that qualified individuals participate in LCH SA decision making. For example, LCH SA proposes that Article 2.1.2 of the ToR of the Operational Resilience Committee be revised to require that members of the Operational Resilience Committee have the relevant expertise required for the Committee to function properly as well as recent and relevant experience of the operations of LCH Group. LCH SA also proposes changes to its definition of User Risk Committee members in Article 1.1.3 of the Risk Committee ToR which would add operational risk management to the list of subject matters in respect of which such Committee members should have significant expertise and experience. Additionally, LCH SA's proposal would allow CEO of LCH SA to approve trade venues which present no novel risk features and require no amendment of risk controls subject to the Risk Committee being notified of such approvals. The Proposed Rule Change would also strengthen or maintain the ability of Committees to carry out their responsibilities by ensuring that the appropriate Committees and individuals receive notice of certain reviews. For example, new Article 6.4 to the Risk Committee ToR would require the Risk Committee to be notified of the outcome of the annual independent validation of the counterparty credit scoring model in accordance with the Model Governance, Validation and Review Policy. Likewise, new Article 8.4 of the Risk Committee ToR would specify that the Risk Committee must be notified of the outcome of the annual independent validation of all margin models in accordance with the Model Governance, Validation and Review Policy.
Additionally, the Proposed Rule Change would strengthen the ability of Committees to carry out their responsibilities because the proposed change would protect confidential information and thereby would afford the Risk Committee the ability to obtain information. In proposed Article 1.6 of the Risk Committee ToR, LCH SA would specify that external Risk Committee members' consultations with other individuals within their organization under Article 1.6 are subject to restrictions set out in confidentiality agreements signed by the external member. By protecting confidential information in this instance, the proposed rule change would enhance and improve the information and recommendations provided to the Risk Committee by its external members.
Ensuring that the individuals making decisions related to the administration of a clearing agency are qualified to make those decisions, receive relevant information from important notices, and receive quality information and informed recommendations from external stakeholders helps decrease the chance of those decisions being misinformed or wrong, which in turn helps decrease the chance that a misinformed or wrong decision increases the possibility of a Clearing Member default or interruption to the clearing agency's functions. As such, by ensuring that qualified individuals participate in LCH SA decision making, that notices are received, and that external members are able to consult with other individuals in their organizations under certain circumstances, LCH SA promotes the prompt and accurate clearance and settlement of securities transactions and assures the safeguarding of securities and funds which are in the custody or control of it or for which it is responsible.
The Proposed Rule Change would also delete text from Article 10 of the ToR of the Board requiring meeting minutes to be translated to French. This requirement is now unnecessary due to the Board's composition. Board members would still approve the minutes, as required by the Board ToR, which will help ensure that they continue to carry out their responsibilities to ensure that the minutes accurately reflect meetings of the Board, which in turn will help LCH SA continue to ensure that LCH SA and its Board continue to comply with applicable rules and regulations and have accurate information to address potential defaults, trading disruptions, and other issues that could affect LCH SA's ability to support the prompt and accurate clearance and settlement of securities transactions and the safeguarding of securities and funds which are in the custody or control of LCH SA or for which it is responsible.
For the foregoing reasons, the Commission finds that the Proposed Rule Change is consistent with the requirements of Section 17A(b)(3)(F) of the Act.
Rule 17Ad-22(e)(2)(v) requires covered clearing agencies to establish, implement, maintain, and enforce written policies and procedures reasonably designed to specify clear and direct lines of responsibility.
Several of LCH SA's proposed changes specify clear and direct lines of responsibility. Proposed Article 1.3 of the Operational Resilience Committee ToR would require that the Operational Resilience Committee contribute to the review of certain Operational Resilience
The Commission finds, therefore, that the Proposed Rule Change is consistent with the requirements of Rule 17Ad-22(e)(2)(v) under the Act.
On the basis of the foregoing, the Commission finds that the Proposed Rule Change is consistent with the requirements of the Act, and in particular, Sections 17A(b)(3)(C)
It is therefore ordered pursuant to Section 19(b)(2) of the Act that the Proposed Rule Change (SR-LCH SA-2024-003) be, and hereby is, approved.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice of Small Business Investment Company (SBIC) licenses.
Pursuant to the authority granted to the United States Small Business Administration under section 301(c) of the Small Business Investment Act of 1958, as amended, to grant Small Business Investment Company licenses under the Small Business Investment Company Program, this notice satisfies the requirement effective August 17, 2023 under 13 CFR 107.501(a) to publish in the
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary display in the exhibition “Siena: The Rise of Painting, 1300-1350” at The Metropolitan Museum of Art, New York, New York, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Reed Liriano, Program Coordinator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that a certain object being imported from abroad pursuant to an agreement with its foreign owner or custodian for temporary display in the exhibition “Cecily Brown: Themes and Variations” at the Dallas Museum of Art, Dallas, Texas; the Barnes Foundation, Philadelphia, Pennsylvania; and at possible additional exhibitions or venues yet to be determined, is of cultural significance, and, further, that its temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Reed Liriano, Program Coordinator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Delegation of authority.
The State Department is publishing a Delegation of Authority signed by Under Secretary of State for Arms Control and International Security on June 25, 2024.
Bonnie Jenkins, Under Secretary of State for Arms Control and International Security, signed the following “Redelegation of Authority to the Assistant Secretary, Bureau of Arms Control, Deterrence, and Stability, the Principal Deputy Assistant Secretary, Bureau of Arms Control, Deterrence, and Stability, and the Director, Office of Chemical and Biological Weapons Affairs, Bureau of Arms Control, Deterrence, and Stability” on June 25, 2024. The State Department maintains the original document.
By virtue of the authority vested in the Secretary of State by the laws of the United States, including by section 101 of the Chemical Weapons Convention Implementation Act of 1998, Division I of Public Law 105-277, codified at 22 U.S.C. 6711(c), and delegated by section 2(a)(12) of Delegation of Authority 293-2, dated October 23, 2011, I hereby re-delegate to the Assistant Secretary, Bureau of Arms Control, Deterrence, and Stability, the Principal Deputy Assistant Secretary, Bureau of Arms Control, Deterrence, and Stability, and the Director, Office of Chemical and Biological Weapons Affairs, Bureau of Arms Control, Deterrence, and Stability, to the extent authorized by law, the authorities and functions pertaining to the Director of the United States National Authority.
A reference in this delegation of authority to a statute or delegation of authority shall be deemed to be a reference to such statute or delegation of authority as amended from time to time.
The Secretary of State, the Deputy Secretary, the Deputy Secretary for Management and Resources, and the Under Secretary for Arms Control and International Security may at any time exercise any function delegated by this delegation of authority. Delegation of Authority 333, dated September 24, 2010, is hereby rescinded.
This delegation of authority shall be published in the
Union Pacific Railroad Company (UP), a Class I railroad, has filed a verified notice of exemption under 49 CFR 1180.2(d)(8) for the acquisition of temporary overhead trackage rights over an approximately 51.7-mile rail line of BNSF Railway Company (BNSF) between milepost 579.3 on BNSF's Creek Subdivision near Mill Creek, Okla., and milepost 631.0 on BNSF's Madill Subdivision near Joe Junction, Tex., pursuant to the terms of a written temporary trackage rights agreement dated December 31, 2023 (Agreement).
UP states that the sole purpose of the temporary trackage rights is to allow UP to move loaded and empty unit ballast trains, which will be used solely for UP maintenance-of-way projects. UP states that the temporary trackage rights will expire on December 31, 2024.
The transaction may be consummated on or after July 25, 2024, the effective date of the exemption (30 days after the verified notice was filed).
As a condition to this exemption, any employees affected by the acquisition of the temporary trackage rights will be protected by the conditions imposed in
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of
All pleadings, referring to Docket No. FD 36792, must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on UP's representative, Tanya S. Spratt, Sr. General Attorney, Union Pacific Railroad Company, 1400 Douglas Street, Stop 1580, Omaha, NE 68179.
According to UP, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under Supplementary Information. We are required to publish this notice in the
Please submit comments by September 9, 2024.
You may submit comments identified by DOT Docket ID Number 0050 by any of the following methods:
Follow the online instructions for submitting comments.
Chip Millard, Reduction of Truck Emissions at Port Facilities Grant Program Manager, 202-366-4415, Office of Transportation Management (HOTM), Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 8:30 a.m. to 6:00 p.m. ET, Monday through Friday, except Federal holidays.
Federal Highway Administration (FHWA), DOT.
Notice of limitation on claims for judicial review.
The FHWA, on behalf of the FDOT, is issuing this notice to announce actions taken by FDOT and other Federal Agencies that are final agency actions. These actions relate to the proposed State Road (SR) 29 roadway project extending 15.6 miles from Oil Well Road (southern terminus) to SR 82 (northern terminus) in unincorporated Collier County, Florida. These actions grant licenses, permits, or approvals for the project.
By this notice, the FHWA, on behalf of FDOT, is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal Agency actions on the listed highway project will be barred unless the claim is filed on or before December 9, 2024. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such
The Environmental Assessment with Finding of No Significant Impact prepared for the project and additional project documents can be viewed and downloaded from the project website at:
Jennifer Marshall, P.E., Director, FDOT Office of Environmental Management, FDOT; telephone (850) 414-4316; email:
Effective December 14, 2016, and as subsequently renewed on May 26, 2022, the FHWA assigned, and the FDOT assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that FDOT and other Federal Agencies have taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, or approvals for the proposed improvement highway project. The actions by FDOT and other Federal Agencies on the project, and the laws under which such actions were taken are described in the Environmental Assessment with Finding of No Significant Impact approved on June 19, 2024 and in other project records for the listed project. The Environmental Assessment with Finding of No Significant Impact and other documents for the listed project are available by contacting FDOT at the address provided above.
The project subject to this notice is:
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Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that, on July 1, 2024, the National Railroad Passenger Corporation (Amtrak) submitted a request for amendment (RFA) to its FRA-approved Positive Train Control Safety Plan (PTCSP) to request approval for a planned positive train control (PTC) system outage of its Mixed System PTC system for maintenance purposes during the month of August 2024. As this RFA may involve a request for FRA's approval of proposed material
FRA will consider comments received by July 31, 2024. FRA may consider comments received after that date to the extent practicable and without delaying implementation of valuable or necessary modifications to a PTC system.
Gabe Neal, Staff Director, Signal, Train Control, and Crossings Division, telephone: 816-516-7168, email:
In general, title 49 United States Code (U.S.C.) section 20157(h) requires FRA to certify that a host railroad's PTC system complies with title 49 Code of Federal Regulations (CFR) part 236, subpart I, before the technology may be operated in revenue service. Before making certain changes to an FRA-certified PTC system or the associated FRA-approved PTCSP, a host railroad must submit, and obtain FRA's approval of, an RFA to its PTCSP under 49 CFR 236.1021.
Under 49 CFR 236.1021(e), FRA's regulations provide that FRA will publish a notice in the
Interested parties are invited to comment on Amtrak's RFA to its PTCSP by submitting written comments or data. During FRA's review of Amtrak's RFA, FRA will consider any comments or data submitted within the timeline specified in this notice and to the extent practicable, without delaying implementation of valuable or necessary modifications to a PTC system.
In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the name of a person whose property and interests in property have been unblocked and who has been removed from the Specially Designated Nationals and Blocked Persons List (SDN List).
See
OFAC: Bradley T. Smith, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
A. On July 8, 2024, OFAC removed from the SDN List the person listed below, whose property and interests in property were blocked pursuant to section l(a)(iii) of Executive Order 13694 of April 1, 2015, “Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities,” 80 FR 18077, 3 CFR, 2015 Comp., p. 297, as amended by Executive Order 13757 of December 28, 2016, “Taking Additional Steps to Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities,” 82 FR 1, 3 CFR, 2016 Comp., p. 659 (E.O. 13694, as amended). On July 8, 2024, OFAC determined that circumstances no longer warrant the inclusion of the following person on the SDN List under this authority. This person is no longer subject to the blocking provisions of section 1(a)(iii) of E.O. 13694, as amended.
1. TSAREVA, Marina Igorevna, Russia; DOB 09 Nov 1973; POB Krasnoyarsk, Russia; nationality Russia; Gender Female; Secondary sanctions risk: Ukraine-/Russia-Related Sanctions Regulations, 31 CFR 589.201; Passport 711002398 (Russia) (individual) [CYBER2] (Linked To: DIVETECHNOSERVICES; Linked To: VELA-MARINE LTD.)
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning membership application for Internal Revenue Service Advisory Council.
Written comments should be received on or before September 9, 2024 to be assured of consideration.
Direct all written comments to Molly Stasko, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the form and instructions should be directed to Sara Covington, (202) 317-5744, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The IRS is currently seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency 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. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice of publication.
The 2024 inflation adjustment factor and reference price are used in determining the availability of the credit for renewable electricity production under section 45 (section 45 credit).
Charles Hyde, CC:PSI:6, Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC 20224, (202) 317-6853 (not a toll-free number).
The 2024 inflation adjustment factor and reference price apply to calendar year 2024 sales of kilowatt hours of electricity produced in the United States or a possession thereof from qualified energy resources.
As amended by the IRA, section 45(b)(6)(A) provides that, in the case of any qualified facility that satisfies the requirements of section 45(b)(6)(B), the credit amount determined under section 45(a) (determined after the application of section 45(b)(1) through (5) and without regard to section 45(b)(6)) is equal to such amount multiplied by 5. A qualified facility satisfies the requirements of section 45(b)(6)(B) if it is placed in service after December 31, 2021, and it is one of the following: (i) a facility with a maximum net output of less than 1 megawatt (as measured in alternating current); (ii) a facility the construction of which began prior to January 29, 2023, which is the date that is 60 days after the publication of the guidance with respect to the requirements of section 45(b)(7)(A) (prevailing wage requirements) and section 45(b)(8) (apprenticeship requirements); or (iii) a facility that satisfies the requirements of section 45(b)(7)(A) and (8).
The IRA amended the phaseout of the section 45 credit for wind facilities under section 45(b)(5) such that it does not apply to facilities placed in service after December 31, 2021. The IRA also added a new phaseout of the section 45 credit under section 45(b)(10) in the case of qualified facilities placed in service after December 31, 2022, for taxpayers making an elective payment election under section 6417. The IRA also amended the credit amount reduction under section 45(b)(3) in the case of qualified facilities the construction of which began after August 16, 2022.
The IRA amended section 45(d)(4) to restore the section 45 credit for electricity produced in solar energy facilities in the case of qualified facilities placed in service after December 31, 2021, and the construction of which begins before January 1, 2025. Effective for facilities placed in service after December 31, 2022, the IRA (1) removed the one-half reduction of the credit amount under section 45(b)(4)(A) for qualified hydropower facilities and marine and hydrokinetic renewable energy facilities and (2) amended the definition of marine and hydrokinetic renewable energy under section 45(c)(10) and the definition of a marine and hydrokinetic renewable energy facility under section 45(d)(11). The IRA also extended certain deadlines in the definitions under section 45(d) for wind facilities, closed-loop biomass facilities, open-loop biomass facilities, geothermal facilities, landfill gas facilities, trash facilities, qualified hydropower facilities, and marine and hydrokinetic renewable energy facilities.
Under the calculation required by section 45(b)(2), the credit for renewable electricity production for calendar year 2024 determined under section 45(a) is 2.9 cents per kilowatt hour on the sale of electricity produced in any qualified facility placed in service before January 1, 2022, from the qualified energy resources of wind, closed-loop biomass, and geothermal energy, and 1.5 cents per kilowatt hour on the sale of electricity produced in any qualified facility placed in service before January 1, 2022, from the qualified energy resources of open-loop biomass, landfill gas, trash, qualified hydropower, and marine and hydrokinetic renewable energy.
Under the calculation required by section 45(b)(2), the credit for renewable electricity production for calendar year 2024 determined under section 45(a) is 0.6 cents per kilowatt hour on the sale of electricity produced in any qualified facility placed in service after December 31, 2021, from the qualified energy resources of wind, closed-loop biomass, geothermal energy, and solar energy, and 0.3 cents per kilowatt hour on the sale of electricity produced in any qualified facility placed in service after December 31, 2021, from the qualified energy resources of open-loop biomass, landfill gas, and trash. The credit for renewable electricity production for calendar year 2024 determined under section 45(a) is also 0.3 cents per kilowatt hour on the sale of electricity produced in any qualified facility placed in service after December 31, 2021, and before January 1, 2023, from the qualified energy resources of qualified hydropower and marine and hydrokinetic renewable energy.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden, and it includes the actual data collection instrument.
Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice by clicking on the following link
VA PRA information: Maribel Aponte, 202-461-8900,
No changes have been made to this form. The respondent burden has increased due to the estimated number of receivables averaged over the past year.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Federal Emergency Management Agency, DHS.
Notice of availability.
The Federal Emergency Management Agency (FEMA) is announcing the availability of the final FEMA policy,
The announcement of this policy is published in the
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:
FEMA is issuing this policy complementary to 44 CFR part 9, Floodplain Management and Protection of Wetlands, which governs FEMA's implementation of the Federal Flood Risk Management Standard (FFRMS). This policy facilitates implementation of FFRMS and bolsters the resilience of communities and Federal assets against the impacts of flooding.
Consistent with the final rule that is also published in today's edition of the
This policy also outlines FEMA's process to identify actions that may receive substantial damage or substantial improvement determinations, requires consideration of natural features and nature-based approaches as alternatives to a proposed action, explains requirements to minimize flood risk, and encourages early coordination when multiple Federal agencies are jointly engaged in an action to ensure a consistent approach to determine which floodplain determination is applied.
Federal Emergency Management Agency, Department of Homeland Security.
Final rule.
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.
This rule is effective September 9, 2024.
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:
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
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.
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.
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),
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.
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.”
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:
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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 § 9.5, edits to incorporate the use of the internet in public notice requirement in § 9.8, edits to consolidate temporary housing requirements in § 9.13, and other clarifying edits to update citations and remove outdated terminology.
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 §§ 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.
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.
Table 3
Quantified
A Benefits Analysis of Increased Freeboard for Public and Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA. Draft, July 2022, page 16. Available at:
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
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.
The President issued Executive Order 11988 (42 FR 26951, May 25, 1977) in furtherance of the NFIA (42 U.S.C. 4001
In furtherance of and consistent with this statutory foundation, Executive Order 11988 directs Federal agencies to avoid, to the extent possible, the long-
To meet this direction, each agency, before taking an action, must determine whether the proposed action will occur in a floodplain.
Executive Order 11988 directs agencies to prepare implementing procedures in consultation with the Water Resources Council (WRC),
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,
Congress enacted the Stafford Act
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
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.”
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.
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.”
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
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.
The FFRMS is a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands.
Under the FFRMS, a Federal agency may establish the floodplain for actions subject to the FFRMS using any of the following approaches:
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The four approaches are described in further detail below.
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 (
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.
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.
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.
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.
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.
The NPRM proposed to amend § 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 § 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 § 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.
The NPRM proposed to amend § 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 § 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
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,
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 § 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.
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,
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.
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:
• 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.
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.
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”).
The FFRMS CISA State of the Science Report specifically identifies the latest sea level rise projections from the National Climate Assessment as actionable.
This is the basis of the interagency implementation and supporting tools such as the FFRMS Job Aid.
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.
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.
FEMA published these additional resources in the public docket with this rulemaking
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 § 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 § 9.5(a)(3) to clarify that copies of the legacy regulations will be available on the agency's website and to § 9.7(c)(3) to clarify that FEMA may consider information from the entities listed. FEMA is also making minor technical edits in § 9.7(c)(1)(i)(C) and § 9.11(d)(3)(ii).
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.
The NPRM public comment period closed on December 1, 2023, and FEMA received 47 germane comments.
The majority of commenters were generally supportive of the rule and accompanying FFRMS policy.
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
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.
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 § 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.
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
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.
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
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.
The commenters also refer to the NFIP's pricing approach
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.
Two commenters wrote comments concurring with FEMA's statutory and other authority for the rulemaking.
Three commenters raised concerns regarding FEMA's legal authority to amend part 9 and implement FFRMS.
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),
Finally, the comments related to wetlands and the Supreme Court's decision in
FEMA received over 40 specific comments on the proposed rule's definitions in § 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.
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 § 9.4 as part of this rulemaking effort and FEMA addresses their concerns in this final rule.
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.
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.
While some commenters expressed support for the definition of “nature-based approaches” in the rule, other commenters requested specific revisions.
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.”
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,
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
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.
FEMA received three comments on the definitions of “natural and beneficial values of floodplains and wetlands” and “natural features.”
While one commenter wrote in support of the revised definition of “wetlands,” three other commenters requested revision to the definition.
In addition to the new and revised definitions provided in the NPRM, commenters requested FEMA add definitions to the final rule.
Commenters requested clarification on the applicability of FFRMS generally as well as to specific types of actions.
As explained in § 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.
In § 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 § 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
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.
Commenters also commented on the applicability of FFRMS to specific FEMA programs.
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.
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.
Four commenters had questions regarding the applicability of the final rule and FFRMS policy to facilities.
The same commenter wrote of their experience with agencies struggling to adequately assess relevant flood risks when evaluating vital facilities and
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.
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.
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.
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.
FEMA further believes that revising the text of § 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.
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.
In the FFRMS policy, FEMA addresses both structures and facilities and how the agency will apply FFRMS to each.
Further, § 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.
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 (
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.
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.
As explained above, § 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, § 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.
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
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.
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
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.
Commenters inquired as to how FEMA would implement CISA as part of the agency's FFRMS implementation.
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,
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.
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.
• 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.
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.
As previously explained, the FFRMS CISA State of the Science Report
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.
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.
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.
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.
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
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.
FEMA will continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: Guidance on the Use of Available Flood Hazard Information,
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 § 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.
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.
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.
FEMA adopted a Building Codes Strategy
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.
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.
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.
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 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.
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 (
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.
A more restrictive application of the FVA or 0.2PFA would not necessarily
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
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.
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.
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.
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
The requirements of § 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
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.
FEMA's FFRMS policy states “[e]levation and floodproofing requirements must be consistent with NFIP criteria or any more restrictive local standard.”
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.”
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.
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,
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.
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.
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
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.
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.
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
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
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.
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
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.
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 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.
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.
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.
Several commenters requested FEMA consider local CISA data in making the CISA floodplain determination.
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 (
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,
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
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.
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.
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 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,
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.
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.
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 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.
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 § 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.
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.
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 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
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, § 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.
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.
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.
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.
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.
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
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.
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 disagrees with the commenter that the rule and policy do not consider economic development. Consistent with Executive Order 14030,
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.
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.
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.
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 § 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.
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.
Additionally, FEMA's interagency consultative role in the broader implementation of the FFRMS across the Federal government, through the
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.
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.
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, § 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, § 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.
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.
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.
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.
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 § 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,
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 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.
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.
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 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.
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
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 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
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.
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,
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.
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
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.
FEMA does not believe the specific changes requested to revise § 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.
In § 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 § 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 § 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 § 9.8.
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.
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 § 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, § 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.
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.
Two commenters recommended FEMA revise § 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 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.
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.”
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.
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.
As explained above, the flood minimization measures found in § 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 § 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.
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.
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 § 9.10. The edits made to § 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 § 9.10(d)(2) for consistency with edits made in § 9.4 defining the natural and beneficial values of floodplains and wetlands.
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 § 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 § 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 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
(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
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 § 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 § 9.11(e) other than updating the
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 § 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.
FEMA does accept public comments on proposed actions during both the early and final public notice periods, addressed in §§ 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
FEMA routinely translates agency materials into languages other than English as appropriate
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.
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 §§ 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.
The impact analysis addressed in § 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 § 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.
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.
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 § 9.10(d)(2) for consistency with edits made in § 9.4 defining the natural and beneficial values of floodplains and wetlands. Specifically, the edits to § 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
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 § 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 § 9.9 to emphasize avoiding federal actions in floodplains and wetlands where practicable.
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.”
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.
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 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.
The substance of the requirements in § 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.
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.
Commenters also recommended changes to the practicability analysis in the 8-step process.
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.
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.
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.
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.
Some commenters stated FEMA's request for comment on accessibility concerns indicated a conflict with implementation of the FFRMS and laws
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.
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.
FEMA received several comments specific to the agency's RIA associated with the rulemaking.
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.
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.
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 § 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 § 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.
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 (
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.
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.
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.
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 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.
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
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.
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.
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
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.
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.
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.
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.
Consistent with FEMA's BCA guidance,
This rule makes changes to the NPRM in response to comments received, as well as minor technical edits. Specifically, in § 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 § 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 § 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 § 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 § 9.7(c)(1)(i)(C) and § 9.11(d)(3)(ii). In § 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 § 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.
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
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
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
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 (
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:
• For non-critical actions: FEMA will use the lower of the +2-foot FVA or 0.2PFA.
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.
Projects that are located near a Special Flood Hazard Area (SFHA),
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.
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.
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.
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 × 11.1 percent) PHC projects and 1,507 (13,576 THU projects × 11.1 percent) THU projects in the current floodplain in years 1-10 of the analysis.
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
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
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)
Table 5 shows the summary of the total costs, benefits, and distributional impacts of the final rule.
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.
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.
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
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.
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.
FEMA has calculated the cost of elevating PHC structures, depending on FFRMS approach and location and type of project.
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
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.
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.
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.
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.
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.
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.
The June 3, 2022 PA interim partial implementation policy
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
The August 26, 2021 HMA interim partial implementation policy
The updated HMA interim policy,
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.
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.
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
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.
Changes Over Time. EPA. Available at:
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.
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 × 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 (
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 (
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.
In Table 17, FEMA
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
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.
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
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.
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.
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.
FEMA did not receive any comments on the proposed rule from the Chief Counsel for Advocacy of the SBA.
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
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
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.
With the 26 percent expansion of the floodplain, an additional 13 HMA projects per year (50 × 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
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
In an average year, FFRMS will impact about 120 PA Category D facilities. Based on a random sample of 55 projects,
In an average year, FFRMS will impact about 208 PA Category F facilities. Based on a random sample of 68 projects,
In an average year, FFRMS will impact about 314 PA Category G facilities. Based on a random sample of 76 projects,
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,
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.
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 × 47 small entities PA projects) and $5,925,666 ($126,078 × 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 (
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 × 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.
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.
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.
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
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.
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.
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.
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.
Section 102 of NEPA (42 U.S.C. 4321
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
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.
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.
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.
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).
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.
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).
“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,
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.
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:
6 U.S.C. 101
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
(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
(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.
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.
The additions and revisions read as follows:
(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.
(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.
(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.
(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.
(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).
(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
(b) * * *
(1) Executive Order 11990, Protection of Wetlands, contains a limited exemption not found in Executive Order 11988, Floodplain Management, as amended. * * *
(c)
(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 (§ 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)
(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)
(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)
(g)
(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.
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(a)
(b)
(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 § 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)
(1) FEMA shall determine whether the action is an action subject to the FFRMS as defined in § 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 § 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 § 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. (
(a)
(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
(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.
The revisions and additions read as follows:
(a) * * * *
(1) This section expands upon the directives set out in § 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 § 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.
(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.
(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)
(2)
(3)
The revisions read as follows:
(a)
(c) * * *
(1) Potential harm to lives and the investment from flooding based on flood elevations as established by § 9.7(c);
(d)
(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 § 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 § 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 § 60.6(b) of this chapter, or the community has granted a variance which the Regional Administrator determines is consistent with § 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 § 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 § 9.7(c).
(e)
(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.
The revision reads as follows:
(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 (§ 9.8 and this section) may be met by a single notice. Such notice shall contain all the information required by both sections.
(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 (
(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 § 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 § 9.9 to determine that such site is the only practicable alternative. The following factors shall be substituted for the factors in § 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 § 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 § 9.11 to minimize harm to and within floodplains and wetlands. The following provisions shall be substituted for the provisions of § 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 (§ 9.8(c)) and Step 7 Final Public Notice (§ 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 § 9.7(c) unless they are or will be elevated at least to the elevation of the floodplain as established by § 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.
(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 § 9.10;
(5) Identify the steps necessary to minimize, restore, preserve and enhance in accordance with § 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 § 9.9. This analysis shall focus on whether it is practicable in light of the findings from §§ 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.
(9) The Agency shall ensure that the applicable mitigation requirements are fully implemented in accordance with § 9.11(c).
(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 § 9.6;
(3) The practicability analysis as set out in § 9.9;
(4) The mitigation responsibilities as set out in § 9.11;
(5) The public notice and involvement process as set out in §§ 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.
(a)
(b)
(3) The practicability analysis as set out in § 9.9;
(4) The mitigation responsibilities as set out in § 9.11;
(5) The public notice and involvement process as set out in §§ 9.8 and 9.12; and
(c)
(d)
(a) * * *
(1) Implement the requirements of the Orders and this part. Under §§ 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. * * *