44 CFR Part 79.7

Wednesday,
October 31, 2007

Part II

Department of
Homeland Security
Federal Emergency Management Agency

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44 CFR Parts 59, 61, 78, et al.
Flood Mitigation Grants and Hazard
Mitigation Planning; Interim Rule

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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations
E-mail: [email protected].
Include Docket ID FEMA–2006–0010 in
the subject line of the message.
Fax: 866–466–5370.
Mail/Hand Delivery/Courier: Rules
Docket Clerk, Office of Chief Counsel,
Federal Emergency Management
Agency, Room 835, 500 C Street, SW.,
Washington, DC 20472.
FOR FURTHER INFORMATION CONTACT:
Cecelia Rosenberg, Mitigation
Directorate, Federal Emergency
Management Agency, 500 C Street, SW.,
Washington DC 20472, (phone) 202–
646–3321, (facsimile) 202–646–2719, or
(e-mail) [email protected].
SUPPLEMENTARY INFORMATION:

DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Parts 59, 61, 78, 79, 80, 201,
and 206
[Docket ID FEMA–2006–0010]
RIN 1660–AA36

Flood Mitigation Grants and Hazard
Mitigation Planning
Federal Emergency
Management Agency, DHS.
ACTION: Interim rule.

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AGENCY:

SUMMARY: This interim rule implements
certain provisions of the BunningBereuter-Blumenauer Flood Insurance
Reform Act of 2004 to provide new
incentives for States and communities
to mitigate the effects of flood damage
to severe repetitive loss properties by
creating the Severe Repetitive Loss
program (SRL), and through reduced
cost-share requirements in the existing
Flood Mitigation Assistance program
(FMA). In addition, the rule ensures that
the FMA planning requirements are
consistent with other applicable
regulations, and streamlines the
planning requirements for Indian tribal
governments. It also describes
requirements for the acquisition of
property for open space with mitigation
funds, including under SRL and FMA.
Finally, this interim rule makes
technical changes to clarify current
practices and implements conforming
amendments to reflect current
authorities, including the recent change
to the standard amount of authorized
Hazard Mitigation Grant Program
assistance.
DATES: Effective Date: December 3, 2007.
Comment Date: Comments on the rule
including the new Paperwork Reduction
Act collections are due on or before
December 31, 2007.
Applicability Date: Part 78 will
continue to apply to the administration
of funds awarded for which the
application period opened prior to
December 3, 2007. Parts 79 and 80 will
apply to the administration of funds
awarded for which the application
period opens on or after December 3,
2007, except that § 80.19 will apply as
of December 3, 2007 regardless of the
original project date.
ADDRESSES: You may submit comments,
identified by Docket ID FEMA–2006–
0010, by one of the following methods:
Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.

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Request for Comments
FEMA encourages public
participation in this rulemaking.
Comments will be most helpful if they
state a particular section (or sections) of
the rule, and offer specific proposals for
change, as needed. All submissions
received must include the agency name
and docket ID (FEMA–2006–0010).
Regardless of the method used for
submitting comments or material, all
submissions will be posted, without
change, to the Federal eRulemaking
Portal at http://www.regulations.gov,
and will include any personal
information you provide. Therefore,
submitting this information makes it
public. You may wish to read the
Privacy Act notice that is available on
the Privacy and Use Notice link on the
Administration Navigation Bar of
www.regulations.gov.
All comments received, as well as this
document are available on the public
docket for this rulemaking. For access to
the docket, go to the Federal
eRulemaking Portal at http://
www.regulations.gov. Submitted
comments may also be inspected at
FEMA, Office of Chief Counsel, Room
835, 500 C Street, SW., Washington, DC
20472.
At this time, FEMA does not
anticipate it will hold a public meeting
for this rulemaking project.
Table of Abbreviations
BC—Benefit Cost
BCA—Benefit Cost Analysis
CAP–SSE—Community Assistance Program–
State Support Services Element
CRS—Community Rating System
DHS—Department of Homeland Security
FEMA—Federal Emergency Management
Agency
FIRM—Flood Insurance Rate Map
FIS—Flood Insurance Study
FMA—Flood Mitigation Assistance
HMGP—Hazard Mitigation Grant Program
ICC—Increased Cost of Compliance
NEPA—National Environmental Policy Act
of 1969

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NFIA—National Flood Insurance Act of 1968
NFIF—National Flood Insurance Fund
NFIP—National Flood Insurance Program
OMB—Office of Management and Budget
PDM—Pre-disaster Mitigation
POC—Point of Contact
PRA—Paperwork Reduction Act of 1995
RFC—Repetitive Flood Claims
SHMO—State Hazard Mitigation Officer
SQA Net—Simple and Quick Access Net
SRL—Severe Repetitive Loss
USACE—United States Army Corps of
Engineers

I. Background
This rule implements provisions of
the Bunning-Bereuter-Blumenauer
Flood Insurance Reform Act of 2004 (the
Act), Public Law 108–264, 118 Stat. 714,
found at 42 U.S.C. 4102a. The Act
amends the National Flood Insurance
Act of 1968 to provide new programs
and incentives for States and
communities to mitigate flood damage
to severe repetitive loss properties.
Severe repetitive loss properties are
residential properties covered under a
contract for flood insurance that have
incurred flood-related damage (i) for
which 4 or more separate claims
payments have been made under flood
insurance coverage, with the amount of
each such claim exceeding $5,000, and
with the cumulative amount exceeding
$20,000; or (ii) for which at least 2
separate claims payments have been
made under such coverage, with the
cumulative amount exceeding the value
of the property. Pursuant to the Act, this
interim rule implements the new Severe
Repetitive Loss (SRL) program, which is
authorized by the Act until September
30, 2009, and amends the existing Flood
Mitigation Assistance (FMA) program to
meet the requirements of the Act. In
addition, FEMA is modifying the
mitigation planning regulations to
minimize the burden on State, local,
and Indian tribal governments, to
streamline the planning process, and to
ensure consistency in the local planning
requirements that apply to all FEMA
mitigation programs, including the SRL
and FMA programs.
Also, effective October 4, 2006,
section 684 of the Post-Katrina
Emergency Management Reform Act of
2006, Public Law 109–295, amended the
amount of Hazard Mitigation Grant
Program (HMGP) assistance authorized
for States with an approved Standard
State Mitigation Plan from 7.5 percent to
15 percent of the total estimated Federal
assistance (excluding administrative
costs) provided for a major disaster
under FEMA Public and Individual
Assistance programs for amounts spent
up to $2 billion, and established a
sliding scale for HMGP assistance, based
on the amount of the total estimated

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Federal assistance. This interim rule
amends FEMA’s regulations to reflect
this statutory change.
II. Discussion of Interim Rule
The SRL grant program was created
pursuant to Section 1361A of the
National Flood Insurance Act of 1968
(NFIA, or ‘‘the Act’’), 42 U.S.C. 4030, as
amended by the Bunning-BereuterBlumenauer Flood Insurance Reform
Act of 2004, Public Law 108–264, with
the goal of reducing flood damages to
SRL properties. The long-term goal of
the SRL program is to reduce or
eliminate claims under the NFIP
through project activities that will result
in the greatest savings to the NFIF in the
shortest period of time.
The new program, the SRL program,
is authorized through September 30,
2009 and is designed to provide
mitigation assistance to address
properties that have experienced
repetitive flood losses and that are
insured under the NFIP. The SRL
program focuses on a subset of all
repetitive flood loss properties: Those
residential properties with a high
frequency of losses or a high value of
claims. The mitigation of losses
sustained by these properties, through
projects such as buyouts, elevation,
relocation, or floodproofing, will
produce savings for policyholders under
the NFIP and for Federal taxpayers
through reduced flood insurance losses
and reduced Federal disaster assistance.
The program relies on a strategy of
making mitigation offers to these severe
repetitive loss property owners and
shifting more of the burden of recovery
costs to those property owners who
decline the offer of mitigation
assistance, and choose to remain
vulnerable to repetitive flood damage,
by incrementally increasing their rates
for flood insurance. As established by
Congress, the sale of flood insurance
under the NFIP is subject to the rules
and regulations of FEMA. FEMA has
elected to have State-licensed insurance
companies’ agents and brokers sell flood
insurance to consumers. Those whose
rates are increased will be eligible to
appeal this increase via an independent
third party from a list based on
professional qualifications impartially
developed by FEMA’s Alternative
Dispute Resolution (ADR) office. To
reduce costs, the property owner may
request that the Administrator substitute
a reviewer from FEMA’s ADR office for
the independent third party.
With respect to grant programs, FEMA
has actively engaged in flood mitigation
through its HMGP, FMA, PDM and
Repetitive Flood Claims (RFC)
programs. Each of these programs was

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created under different legislative
authorities, and as a result, have varied
impacts on reducing the nation’s
inventory of the most floodprone
structures. What has not existed is a
program that specifically addresses and
provides funds for the elimination of, or
reduction of risk to, the subset of those
properties that create the largest impact
on claims paid from the NFIF. Most of
these properties existed before the
inception of the NFIP and its associated
floodplain management standards, and
are thus eligible for discounted
insurance rates. Furthermore, none of
these other programs feature a formal
mitigation offer process whereby
insurance rates may be increased if the
property owner declines the offer.
FEMA intends to focus the SRL
program in communities and on
property owners who choose to
participate in the program. This will
maximize the benefits of the program,
while minimizing adverse impacts on
communities and property owners. The
program will provide an opportunity for
many property owners to address
recurring flooding problems, and reduce
the impact of these events.
The legislation also provides an
incentive to mitigate damage to severe
repetitive loss properties through
reduced non-Federal cost-share
requirements for the SRL and FMA
programs (from 25 percent to 10
percent) for projects in States with
approved State Mitigation Plans that
meet the additional repetitive loss
requirements. The reduced cost share
would be available only for projects that
address severe repetitive loss properties.
While the SRL and FMA programs
will be implemented as separate
programs, with different funding
accounts, they are similar in their goals
and purpose. FEMA has included both
of these programs in one implementing
regulation to ensure as much
consistency as reasonable between the
programs and to limit the confusion
around program implementation, since
both programs will likely be managed
by the same State agency staff.
The final rule implementing the FMA
program is published elsewhere in
today’s Federal Register. (It follows an
interim rule published March 20, 1997
at 62 FR 13346.) See 44 CFR part 78.
This part will continue to be used to
implement the FMA program for all
grants awarded for which the
application period opened prior to
December 3, 2007.
This new interim rule creates a new
part (part 79, with details specific to
acquisition projects at a new part 80),
that restates the requirements for the
existing FMA program in a format more

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consistent with the approach to all of
FEMA’s mitigation grant programs. Part
79 will implement the FMA program for
all grants awarded for which the
application period opens on or after
December 3, 2007.
Part 79 also implements a change to
the cost share available to States under
the FMA program if their approved
mitigation plan meets certain criteria,
described herein in § 201.4. States
would be eligible for a reduced cost
share if their mitigation plan addresses
actions related to reducing the risk to
repetitive loss properties that they have
already taken, and those actions that
they intend to take.
The requirements for the new SRL
program are incorporated into this rule.
In addition, this interim rule brings the
FMA program regulations into
conformance with current policies, and
ensures better conformance to existing
grants management requirements. In
authorizing the SRL program in section
102 of the Act, and amending the FMA
program in section 103 of the Act,
Congress directed FEMA to ‘‘provide
assistance for properties in the order
that will result in the greatest amount of
savings to the National Flood Insurance
Fund in the shortest period of time’’ and
to provide assistance for activities that
are ‘‘in the best interest of the National
Flood Insurance Fund.’’ FEMA has
concluded that Congress’ stated goals
for the two programs are similar.
Therefore, there is no substantial
difference in how FEMA will determine
the funding priority for the two
programs.
As an additional aspect of
implementing these programs, this rule
includes a new part (part 80) which
describes the requirements and
procedures for open space property
acquisition which applies to the SRL
and FMA programs, as well as all FEMA
hazard mitigation assistance programs.
In light of the Act’s requirements
regarding property acquisition, FEMA
determined that a central reference
point for all mitigation grant program
property acquisitions would make the
programs more consistent overall and
easier to implement.
Elsewhere in today’s Federal Register,
FEMA published a final rule
implementing section 322 of the Robert
T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford
Act), 42 U.S.C. 5165. (It follows an
interim rule published February 26,
2002 at 67 FR 8844.) The final rule
identified the requirements for State,
Tribal, and local mitigation plans. This
new interim rule streamlines the
mitigation planning requirements
contained in that rule by making the

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FMA planning requirements, currently
implemented in a separate part of the
regulation at § 78.5, consistent with the
mitigation planning requirements
outlined in part 201. This will ensure
that local governments can comply with
one set of mitigation planning
requirements in order to be eligible to
apply for all FEMA mitigation project
grant funding, including the FMA and
SRL programs.
In addition, this interim rule
streamlines the roles and
responsibilities of Indian tribal
governments in mitigation planning. In
the preexisting regulations, Indian tribal
governments were given the option of
preparing either a State-level Mitigation
Plan, or a Local-level Mitigation Plan,
depending on whether or not they
intended to apply directly to FEMA as
a grantee or whether they would apply
through the State as a subgrantee. FEMA
has found, however, that neither of
these options has sufficiently met the
needs of the Indian tribal governments.
To address this problem, this interim
rule establishes a specific planning
requirement for Indian tribal
governments that recognizes some of the
unique aspects of these governments.
The rule establishes Tribal Mitigation
Plans for plans prepared and approved
after December 3, 2007. The rule
provides that plans prepared and
approved under the preexisting rule,
under either the State or local
requirements, would also be recognized
as Tribal Mitigation Plans. These older
plans, however, would be required to
meet the revised criteria when the
original approval expires. Most Indian
tribal governments fit the local planning
model, in that they do not have subjurisdictions as States do; however, if
they are grantees, the rule would require
that they provide the capability
assessment and identification of funding
options that are listed in the State plan
requirements. This rule combines the
appropriate aspects of these planning
requirements into one section, with a
single plan required for Indian tribal
governments.
This rule also implements section 106
of the Act, which modifies the
insurance rates for property leased from
the Federal government ‘‘located on the
river-facing side of any dike, levee, or
other riverine flood control structure, or
seaward of any seawall or other coastal
flood control structure.’’ These
properties will be charged the full
actuarial insurance premium rates.
Finally, this rule makes conforming
amendments, as well as technical
corrections to clarify current authorities
and practices. This rule thus makes
revisions to the amount of assistance

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available to States under the Hazard
Mitigation Grant Program in § 79.4 as a
result of changes made to the Stafford
Act in the Post-Katrina Emergency
Management Reform Act passed in
October 2006.

responses to the public comments are
listed below.

III. Solicitation of Public Comments

Multiple commenters stated that the
program should be administered by the
States, similar to existing FEMA
mitigation grant programs, including
FMA and Pre-Disaster Mitigation (PDM).
However, once commenter wrote that
the existing programs take too long to
implement.
Multiple commenters stated that
funding allocations should be disbursed
based on the location of SRL properties
(those with the greatest drain, greatest
losses, most number of SRL properties,
etc.), rather than disbursing funds
evenly among States. Multiple
comments indicated that the ranking of
properties should ensure that those
properties with the most loss claims
should be addressed first. Multiple
commenters stated that allocations
should also consider the State and/or
community capability, defined as
having plans in place, past performance
shown to mitigate repetitive loss
properties, projects lined-up, and/or
matching funds available. Multiple
comments also indicated that funds
should be prioritized to those
communities with experience managing
FEMA funds and/or with matching
funds and projects lined-up. Multiple
commenters indicated that reallocations
should occur quickly to move funds to
communities that need them.
A considerable number of
commenters stated that the data used for
determining those properties that meet
the SRL property definition was not
accurate and needed to be updated/
corrected, and that real-time claim
reporting was needed.
Multiple commenters stated that the
parameters for demolition rebuild
projects need to be clarified. Multiple
commenters stated that property
owners, communities, and States must
be able to determine the most
appropriate mitigation measures.
Multiple commenters stated that there
needs to be clear definitions for
‘‘notices’’ and ‘‘offers,’’ and that both
need to include clear details of the
appeals process and insurance
implications. Further, multiple
commenters stated that there needs to
be a clear description of the property
value in an offer.
Multiple commenters stated that
FEMA would need additional staff with
National Flood Insurance Program
(NFIP) expertise to manage the program.

Section 102 of the Act required
FEMA, within 90 days of the Act, to
consult with State and local officials in
carrying out the development of
procedures for the distribution of funds
to States and communities to carry out
eligible mitigation activities. To meet
this requirement, FEMA published a
Federal Register notice on September
15, 2004, at 69 FR 55642, to initiate
consultation with State and local
officials, as well as members of the
public. In the notice, FEMA solicited
responses to the following questions:
What key factors FEMA should consider
in developing the SRL program; the
parameters that FEMA should use to
define severe repetitive loss for
multifamily structures; the process
FEMA should use to notify property
owners that their property is considered
a severe repetitive loss property by
virtue of the legislative definition; the
criteria FEMA should use to allocate
funds to States, including whether or
not there should be caps on the funding
as is the case under the FMA program;
the criteria that should be used to
approve State mitigation plans to take
advantage of the increased Federal cost
share; the criteria FEMA should use to
determine projects that will result in the
greatest amount of savings to the
National Flood Insurance Fund (NFIF);
and, what types of assistance should
FEMA provide to States and
communities when making offers to
owners of SRL properties. Interested
parties initially had until November 30,
2004, to submit written comments in
response to these questions. FEMA
extended the deadline for comments
until December 7, 2004. FEMA received
26 written comments. Eight of those
comments were received from States,
ten from communities and eight were
from associations. On November 17,
2004, as part of the consultation
process, FEMA held a meeting in
Washington DC with representative
officials of State and local governments,
organizations representing emergency
management, floodplain management,
and insurance professions, and other
interested parties.
FEMA reviewed and considered all
oral and written responses as FEMA
developed the SRL grant program and
this interim rule. FEMA’s questions, the
public comments, and FEMA’s

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Question 1: What key factors should
FEMA consider in developing the Pilot
Program for Severe Repetitive Loss
Properties under section 1361A?

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Multiple commenters stated that the
Increased Cost of Compliance (ICC)
should be made available for match, or
indicated that many communities
would not be able to provide the cost
share.
Multiple commenters indicated that
the program should focus on cost
effectiveness, and Benefit/Cost analysis
in particular.
Multiple commenters indicated that
the planning requirement should be
clearly defined, and multiple
commenters suggested a plan be
required to prioritize funding.
Multiple commenters requested that a
streamlined, simple, or tailored
application and grants management
process be implemented; and that
guidance needs to be clear regarding the
roles and responsibilities of FEMA,
States and communities.
Multiple commenters stated that
mitigation funds should be directed to
only those covered under an NFIP
policy. Multiple respondents indicated
that insurance policy writers needed
education and awareness/outreach, both
to understand the program and the ICC
benefits.
FEMA’s Response
In response to comments regarding
administration of the program by the
States, the new Part 79 added in this
rulemaking deals with the States’
program administration responsibilities,
which are being designed similar to the
way FEMA’s other mitigation grant
programs operate. In response to
comments regarding the accuracy of
data used to identify SRL properties,
insurance and claims information for
properties validated as meeting the
legislative characteristics of SRL are
now available to States on a web-based
site (SQA Net), which is updated
monthly. Furthermore, regulations and
program procedures clearly describe the
notice, offer, and appeals processes.
Program procedures have been
developed to define the parameters and
limitations imposed for the demolition/
rebuild activity type. State, local and
tribal mitigation plans will be required
and are described in this interim rule;
allocation of funds will be based on the
number of SRL properties within each
State, in accordance with the
authorizing legislation; it is also
described in this interim rule. Awards
shall be prioritized in order of the
greatest savings to the National Flood
Insurance Fund, by virtue of the Benefit
Cost Ratio.
With respect to concerns over the
accuracy of claims data, FEMA has
continually worked to update the claims
information data to increase accuracy,

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including field verification of property
information when necessary.
Furthermore, property owners can
discuss errors in their claim history
with NFIP representatives. As described
under the response to Question 3, a
property owner is given a toll-free
number to call if they have questions
about their designation as an SRL
property.
With respect to concerns regarding
the details of receiving a mitigation
offer, particularly for an acquisition,
FEMA has developed an offer letter that
will contain information regarding the
mitigation project type; the amount of
the purchase offer, including the basis
and methodology for calculating the
purchase offer, and the final offer
amount that reflects applicable
deductions; notification that
participation in the SRL program is
voluntary; the amount of time the
property owner has to accept or reject
the offer; the right of the property owner
to appeal the increase in flood insurance
rates if they refuse the offer; a summary
of the consultation process, and other
pertinent information.
In response to the comment that funds
should only be directed to those covered
under a NFIP policy, the definition of a
SRL property includes the requirement
that the property is covered by a NFIP
policy.
ICC coverage under the Standard
Flood Insurance Policy (SFIP) provides
for the payment of a claim to help pay
for the cost to comply with State or
community floodplain management
laws or ordinances from a flood event in
which a building has been declared
substantially damaged or repetitively
damaged. When an insured building is
damaged by a flood and the State or
community declares the building to be
substantially or repetitively damaged,
ICC coverage will help pay for the cost
to elevate, floodproof, demolish, or
relocate the building up to a maximum
benefit of $30,000. This coverage is in
addition to the building coverage for the
repair of actual physical damages from
flood under the SFIP. ICC claims
payments from previous flood events
may be used to meet the non-Federal
cost share requirements, as long as the
period for making such a claim remains
open.
Question 2: What parameters should
FEMA use to define severe repetitive
loss for multifamily structures
consisting of 5 or more residences?
Multiple commenters stated that the
multifamily properties definition should
be the same as the single-family
properties definition. However, several

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alternative options to define multifamily
properties were suggested including:
• The ratio of cumulative loss versus
replacement cost;
• The determination of substantial
damage for a structure;
• A proportionate definition based on
the number of units; or
• Five or more residences covered
under a single contract for flood
insurance that have had 4 or more
claims, each exceeding 6.25 percent of
the replacement value of the structure,
with cumulative payments exceeding 25
percent of the replacement value.
Parameters to consider included total
damages, number of losses, dollar loss
per claim, and low-rise versus high-rise
structures.
Multiple commenters agreed that at
least 2 claims payments that
cumulatively exceed the replacement
value of the structure (as stated in
Section 1361A(b)(2) of the Act) should
apply to single family as well as
multifamily properties.
Multiple commenters indicated that
multifamily properties should follow
single-family properties as the priority
for mitigation funding.
Multiple commenters indicated that
Benefit Cost Analysis data applied to
multifamily projects consider more than
building damages, but also content
damages, in order to make multifamily
projects cost-effective.
FEMA’s Response
FEMA evaluated two options in
selecting the definition of ‘‘multifamily
property’’ for the purposes of this
interim final rule. The first option was
keeping the same claims thresholds as
defined in the Act for single family
properties. The second option FEMA
evaluated was defining ‘‘multifamily
property’’ as reflecting the increased
property values and number of units
typically associated with multifamily
properties. FEMA analyzed claim
information for multifamily properties
and determined that a claim history
including four separate claims of
$25,000 with the cumulative amount of
such payments exceeding $100,000 or
having at least two separate claims
payments with the cumulative amount
of such claims exceeding the value of
the property would be reasonable
criteria to select for the meaning of the
term ‘‘severe repetitive loss’’ for
multifamilty properties.
Based on evaluating options, FEMA
determined that selecting the first
option allowed properties for which a
relatively inexpensive mitigation
solution may be available (such as
elevating HVAC equipment or
eliminating finished enclosures below

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elevated floors) to be eligible for SRL
program funds. These minimal
mitigation steps may also lead to a
diminished need for disaster housing as
well. This definition was chosen
because it allows for the maximum
number of multifamily residences to be
eligible for funding consideration under
the SRL program by virtue of meeting
the definition of an SRL property.
Thus, ‘‘multifamily property’’ is
defined in part 79 as ‘‘a property
consisting of five or more residences’’.
Furthermore, the definition of ‘‘Severe
Repetitive Loss’’ as defined in part 79 of
this interim rule uses the same
parameters for multifamily properties as
for single family.

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Question 3: What process should FEMA
use to notify property owners that their
property is considered a severe
repetitive loss property as defined by the
statute?
A considerable number of
commenters stated that notices to
property owners needed to be
coordinated with, sent concurrently to,
or shared with State, Tribal and local
communities. A considerable number of
respondents stated that FEMA should be
responsible for notifying property
owners, and multiple commenters
indicated that this notice should be in
writing, either through certified or
registered mail.
A considerable number of
respondents stated that the notice
needed to include clear, non-legal, plain
English language that described the
notice, the program, the determination,
the process, appeals, etc. Multiple
commenters suggested a standard form
or one-page document explaining the
program. Furthermore, multiple
responses wrote that the notice be
provided with the property owner’s
insurance policy renewal to link the
program to insurance coverage. Multiple
commenters stated that disclosure in
property records, and real estate
transactions needed to be enforced.
FEMA’s Response
FEMA’s Special Direct Facility (SDF)
is operated by the NFIP’s Servicing
Agent. It has been in existence since
2000, when FEMA determined it needed
to manage more closely the loss
adjustments to the subset of repetitive
loss properties that had the highest
number of losses. For the same reasons,
property owners whose claims history
meets the SRL criteria have been
receiving letters approximately 150 days
before their policy is renewed that
identify their properties as SRL
properties. In addition to managing loss
adjustments, the SDF will manage the

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increase in premiums should the
property owner decline an offer of
mitigation. The letters also explain that
their flood insurance policy will be
transferred to FEMA’s Special Direct
Facility (if the policy is not already
being serviced there). These letters are
also sent to the property owner’s flood
insurance agent, and to their mortgage
lender. This letter provides a toll-free
number that the property owner can call
if they have questions about their
designation as an SRL property, or any
other questions about the transfer of
their policy.
Question 4: What criteria should FEMA
consider when allocating funds to States
and/or communities under the Pilot
Program? Should FEMA consider base
allocations for States with higher
numbers of severe repetitive loss
properties?
Multiple commenters stated that
funds should target those properties
with the most losses to the NFIF,
therefore targeting the most egregious
properties regardless of location. A
considerable number of commenters
indicated that allocations should be
based on the total number of SRL
properties per State. Finally, multiple
commenters indicated that base
allocations for those States with high
numbers of SRL properties should be
considered.
Multiple commenters stated that any
allocation should provide enough to
cover the cost of at least 1 project or
some acceptable number of properties,
and multiple responses stated that
allocations should consider variations
in costs to mitigate.
Commenters wrote that additional
considerations for allocation included
capability factors, such as project
readiness, leveraged local investment,
past mitigation grant performance, NFIP
compliance, and Community Rating
System (CRS) ratings. Multiple
commenters suggested FEMA base
allocations on approved mitigation
plans.
Commenters suggested several
alternative bases for allocations,
including: Insured values or market
values, or values based on value of
future losses.
FEMA’s Response
Subpart 79.4 of this interim rule
provides for allocations to be based
upon the percentage of the total number
of SRL properties located within each
State, as per the authorizing legislation,
Flood Insurance Reform Act of 2004,
Public Law 108–264. States with little or
no allocation will be able to apply for
10 percent of the total funds

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appropriated in any fiscal year,
provided that the State or Tribal
applicant has at least 1 SRL property.
State allocations will be large enough to
permit the implementation of at least 1
project.
FEMA considered several options in
evaluating how to administer
allocations based on the percentage of
the total number of SRL properties
located within each State, as per the
authorizing legislation, Flood Insurance
Reform Act of 2004, Public Law 108–
264. States with little or no funding
allocation will be able to apply for 10
percent of the total funds made
available under SRL in any fiscal year,
provided that the State or Tribal
applicant has at least one SRL property.
The options evaluated and not accepted
included small allocations to all States;
larger allocations to a limited number of
States with numerous SRL properties;
and a variety of allocation scenarios for
States with a limited number of SRL
properties.
Ultimately FEMA decided on an
allocation that could be adjusted
annually based on the number of SRL
properties in a particular State. FEMA
would evaluate the point at which it is
more beneficial for a State to compete
for the 10 percent set-aside than to
receive an allocation that was
insufficient. This allocation approach
provided the necessary funds to
accomplish mitigation projects. The
average flood mitigation project funded
under FEMA’s mitigation programs is
approximately $70,000–$100,000.
The legislation also required a 10
percent set-aside of the grant funds for
States receiving little or no allocation.
FEMA determined that ‘‘little or no
allocation’’ meant the point at which it
was more beneficial for a State to
compete for appropriate funds to
accomplish mitigation activities than to
receive a small allocation, or one which
is below the $70,000-$100,000 average
mitigation project cost. The allocation
option that FEMA selected is a
reasonable approach to both allocations
and the 10 percent set-aside.
Question 5: Should there be caps on
Pilot Program funding for States and
communities similar to Flood Mitigation
Assistance program funds? If so, how
would the cap amounts be determined?
The overwhelming response was there
should be no caps on funding.
Multiple commenters requested
FEMA remove the caps on funding
currently implemented under the FMA
program as well.

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FEMA’s Response

FEMA’s Response

At the commenters’ request, FEMA
has not imposed any funding caps
within the SRL program. FMA caps are
not changed by this rule, since they are
statutorily based.

In this interim rule, FEMA requires
states to have an approved State
Mitigation Plan meeting the
requirements of §§ 201.4 or 201.5 to
qualify for the reduced non-federal cost
share. The plan must satisfy all standard
requirements but also identify specific
actions the state has taken to reduce the
number of repetitive loss properties;
specify how the state intends to reduce
the number of such properties; and
describe the state’s strategy to ensure
that local jurisdictions with SRL
properties take actions to reduce the
number of these properties, including
the development of local mitigation
plans. Amendments to currently
approved State plans will be acceptable.
However, at the time of the next
required plan update, the amendment
must be incorporated into the plan and
adopted as part of the plan. Until such
time as the amendment is approved by
FEMA, grants could be awarded; but the
lower non-Federal cost share would not
be available until the amendment is
approved. While State and local plans
must contain different types of data, the
two types of planning efforts must be
linked via common mitigation goals and
objectives.
With respect to the number of
repetitive loss lists, FEMA has made
available a separate list of SRL
properties on SQA Net, which is
available to State NFIP Coordinators and
State Hazard Mitigation Officers via
FEMA Regional Offices. SQA Net is a
secure web portal that enables access of
data from the NFIP flood insurance
database. Data is updated monthly. In
pursuing a repetitive loss strategy,
FEMA developed a definition of
repetitive loss structures, and
maintained a list of those structures. A
target repetitive loss list was also
developed, which consisted of a subset
of the list of repetitive loss properties
that had the highest number of losses.
FEMA does not consider these lists to be
excessive, and finds that each serves a
valuable purpose.

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Question 6: What criteria should FEMA
use to review and approve State
mitigation plans consistent with 44 CFR
part 201 to ensure that they contain
recommended actions to mitigate severe
repetitive loss properties?
Multiple commenters indicated that
FEMA should be as flexible as possible
in the criteria used to review and
approve plans, including simple goals
and strategies that acknowledge
properties at risk.
Multiple commenters indicated that
mitigation is local, and therefore States
should not be held accountable for local
strategies. Multiple commenters
suggested that existing State or local
plans should be accepted, particularly
given the limited timeframe of authority
for the Pilot program.
Suggestions, if a plan is required,
included providing for amendments to
existing plans and approving projects
while the amendments are being
reviewed. Multiple commenters
suggested that criteria to be reviewed
focus on capability factors such as plan
implementation, past performance and
effort, not the number of severe
repetitive loss properties mitigated.
Multiple commenters were concerned
that the lack of accuracy in the
repetitive loss database may affect their
ability to meet the planning
requirements related to severe repetitive
loss property mitigation. Discrepancies
in claims information and property
values as shown in the repetitive loss
database may result in not showing
certain properties as being SRL
properties, yet those properties may in
fact have been mitigated, ‘‘counting’’
towards a SRL property mitigated.
Similarly, database discrepancies may
show a property as being SRL, when in
fact it may not be. Therefore, if the
property has not been mitigated, it may
count ‘‘against’’ the state’s efforts to
indicate mitigation of SRL properties in
their state plan.
Several commenters stated that
disclosure of offer and insurance
information needed to be a part of the
property’s permanent record, and
information needs to be conveyed to the
existing and new homeowners regarding
the mitigation offer. Finally, multiple
commenters indicated that there were
too many ‘‘lists’’ between repetitive loss
and severe repetitive loss.

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that any actions were taken;
partnerships with other programs and
funding sources; level of outreach; and
strength of the Community Assistance
Program-State Support Services Element
(CAP–SSSE). This program provides
funding to States to provide technical
assistance to communities in the
National Flood Insurance Program
(NFIP) and to evaluate community
performance in implementing NFIP
floodplain management activities.
Quantitative factors proposed include
number of properties mitigated, higher
regulatory standards, number of
Community Rating System (CRS)
communities, number of repetitive loss
properties, other programs in place, a
plan in place, prioritization of
properties, leveraging of matching
funds, and others.
Multiple commenters stated that
States with approved mitigation plans
in place should not have to submit new
plans or ‘‘prove’’ that actions have been
taken. Conversely, multiple commenters
suggested that States submit a report or
other documentation each year to show
actions taken.

Question 7: What criteria should FEMA
use to make the determination that a
State has taken actions to reduce the
number of severe repetitive loss
properties in its communities?

FEMA’s Response
Section § 201.5(c)(3)(v) of this interim
rule addresses the State mitigation
planning requirements for meeting this
provision. The regulation requires
documentation of actions already taken
that specifically focused on SRL
properties. Because the mitigation
measures for each State and community
could vary widely depending on the
factual circumstances of each state and
community, FEMA opted not to set
fixed criteria.
With respect to submitting plans and
updates, since most States already have
approved mitigation plans, they may
only need to make limited revisions or
clarifications to the plan that focus on
this subset of properties. The entire plan
will not need to be resubmitted, only
the amendment that pertains to the SRL
mitigation actions. Finally, at a
minimum, states are required to review
and update their mitigation plans every
3 years. Although they may opt to
submit revisions annually, showing the
mitigation actions taken, FEMA
believed an annual requirement to be
overly burdensome.

Commenters characterized criteria in
terms of qualitative and quantitative
criteria, as well as procedures for
developing and reviewing plans.
Qualitative factors suggested include
the effort (that is, the number of offers
made or the most egregious properties
approached, but not necessarily
accepted or mitigated); documentation

Question 8: What criteria should FEMA
use to determine projects that will result
in the greatest amount of savings to the
National Flood Insurance Fund? How
should the criteria relate to current
FEMA procedures for determining cost
effectiveness?
A considerable number of
commenters stated that Benefit Cost

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Analysis (BCA) should be used to
determine the greatest amount of
savings to the NFIF. Multiple
commenters indicated that the benefit
cost analysis should be waived for all
SRL properties or for those with 2 or
more claims that cumulatively exceed
the property value. Additional
suggestions for the use of benefit cost
methodologies included providing clear
guidance, a request that it be simple to
use, and that it allow FEMA and
applicants to consider all factors, not
just damages. Commenters provided
alternative criteria for ranking
properties such as: claims paid; claims
relative to property values; greatest cost
savings to insured properties mitigated;
or cost effectiveness based on insurance
premium costs.
Multiple commenters expressed that
the term ‘‘property value’’ needed to be
defined clearly, whether based on
appraisal value, replacements value,
insured value, or fair market value.

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FEMA’s Response
All projects for which FEMA provides
funding must be cost effective. For the
purpose of determining the amount of
savings to the NFIF as a result of the
project, FEMA agreed with the
commenters and used a Benefit Cost
Ratio. In this rule, FEMA determines an
SRL property by the cumulative amount
of claims when 4 or more claims have
been made, or by the market value of the
property in relation to the cumulative
amount of two or more claims when that
cumulative amount exceeds the market
value (§ 79.2(g)).
Instead of using the term ‘‘property
value’’, FEMA used the term ‘‘market
value’’ and defined it in § 79.2. FEMA
defined market value as the amount in
cash, or on terms reasonably equivalent
to cash, for which in all probability the
property would have sold on the
effective date of the valuation, after a
reasonable exposure time on the open
market, from a willing and reasonably
knowledgeable seller to a willing and
reasonably knowledgeable buyer, with
neither acting under any compulsion to
buy or sell, giving due consideration to
all available economic uses of the
property at the time of the valuation.
Question 9: What types of assistance do
States and communities want from
FEMA when making offers to owners of
severe repetitive loss properties?
Multiple commenters asked for
funding for States and communities to
assist with administrative costs,
technical assistance needs, staff, and
application development as part of
making offers to owners of SRL
properties. State and community

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commenters also stated that legal
assistance prior to initiating offers and
negotiating with owners would assist
them.
A considerable number of
commenters stated that the data
supporting the SRL properties list
needed to be updated for accuracy,
including validating the data for
addresses, names, claims history, and
property values. In addition,
commenters requested access to the
database, SQA Net, flexibility to add
structures or validate data, and verifying
premiums. Commenters also suggested
FEMA maintain a single national
database for projects, and provide
information on the true actuarial rate in
case of refusal at the time of the offer.
Multiple commenters stated that
adequate number of FEMA staff needed
to be available to manage the program,
and that the staff needs to be trained in
NFIP and FEMA mitigation programs.
Multiple commenters stated that
assistance was needed to notify property
owners of the consequences of not
accepting offers. The commenters also
stated that a simple FEMA handout or
document explaining the insurance
repercussions and the appeals process
would be extremely helpful. Multiple
commenters also requested FEMA
describe the tax implications of
accepting mitigation funds.
Multiple commenters requested
training be made available or improved
for the program, and specifically
identified insurance agents as a target
for training.
FEMA’s Response
As with our other grant programs,
administrative costs are available to
applicants and subapplicants as a
percentage of the grant award, once the
grant is awarded. Furthermore,
applicants and subapplicants may be
reimbursed for pre-award costs for
activities directly related to the
development of the project proposal.
These costs can only have been incurred
during the open application period.
These criteria are detailed in § 79.8 of
this interim rule.
Certain legal expenses may be
considered eligible applicant and/or
subapplicant management cost activities
when associated with: solicitation,
review and processing of the SRL
subapplications and subgrant awards,
obtaining pre-award consultation
agreements from SRL property owners,
and staff salary costs directly related to
performing the activities above. All
management cost activities must be in
conformance with 44 CFR part 13,
Uniform Administrative Requirements
for Grants and Cooperative Agreements

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to State and Local Governments and
applicable program guidance.
Applicant management costs are
limited to up to 10 percent of the grant
award and subapplicant management
costs are limited to up to 5 percent of
the grant award. Eligible management
costs incurred prior to the grant award,
but after the SRL application period has
opened are identified as pre-award
management costs. Costs incurred with
respect to pre-award activities
associated with project implementation
are not eligible.
Data on SRL properties is available on
the SQA Net to State NFIP Coordinators
and State Hazard Mitigation Officers.
This data is being validated and
updated continuously. Over one third of
the properties identified as having a
data anomaly have been validated. New
information is published each month on
SQA Net. Information on the insurance
premium rate increases for property
owners refusing the mitigation offer will
be provided during the consultation.
Project-related data for the SRL program
will be housed within the same database
that is maintained for all other PreDisaster Mitigation (PDM) grant
programs.
Only FEMA Regional and disaster
related staff as well as State personnel,
have been granted access to the
repetitive loss and SRL data available to
SQA Net. Several new features have
been added to SQA Net recently
including the ability to submit
requested updates to repetitive loss
records electronically over the Internet.
The ability to search for claims records
and to view former and active policy
records via SQA Net is expected to be
in place by Spring 2008. With respect to
allowing local government access to
SQA Net, there are concerns regarding
potential security issues and the
increased possibility of the
unintentional inappropriate release of
the data at the local level resulting in a
Privacy Act violation. Although they do
not have access to the SQA Net system,
local communities continue to be
approved users of the repetitive loss
data under the Privacy Act.
Program implementation information
will contain information on premium
rate increases, if a property owner
refuses the mitigation offer. This
program information also contains
checklists of the types of information
that the State or community would need
to compile and make available as part of
the consultations. The program
information will be augmented further
with mitigation consultation tools and
resources for States and communities to
aid in the consultation and offer
process.

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Tax implications of accepting
mitigation offers must be answered by
the property owner’s tax advisor or
other State or locally sponsored tax
advisory service. FEMA does not have
the authority to provide information on
this issue.
Section 207 of the Bunning-BereuterBlumenauer Flood Insurance Reform
Act of 2004 calls for the establishment
of minimum training and education

requirements for insurance agents who
sell flood insurance policies. FEMA is
working with state insurance
commissioners on training requirements
for agents that sell flood insurance
policies.

61727

Question 10: What role should states
and communities have in the appeals
process for severe repetitive loss
property owners who decline mitigation
offers under the Pilot Program? What
rules and procedures should be
contained in the Appeals Process?
Of the comments received, 19 entities
offered comments on question 10. A
general synopsis of these comments is
as follows:

General comments on appeals process

States/
territories

Local
communities

Associations/
organizations

Advocate information sharing between FEMA and States .....................................................
Advocate State and/or community involvement in Appeals Process ......................................
Advocate that only FEMA be involved in Appeals Process ....................................................
State participants still discussing the issue with other State agencies ...................................

1
5
........................
1

3
4
1
........................

4
1
............................
............................

The following are the comments on
the appeals requirement of the Pilot
Program presented by State and local
officials and representative
organizations during the consultation:
• Clarity in the details, especially the
Appeals Process and the insurance
consequences.
• States and communities are also
sensitive to any possibility of liability
which may preclude much participation
in the Appeals Process. However, States
and communities may be willing to
participate in an administrative capacity
in collecting data for appeals and
ensuring that applications are
completed.
• Property owners should make an
appeal in writing, along with supporting
documentation. The jurisdiction can
also file documentation either in
support or against the property owner’s
reason for the appeal.
• The decision to accept or deny the
appeal must come from FEMA, thereby
removing the States and communities
from the threat of legal action. FEMA
should send written notice of its
findings to the state, community and
property owner.
• Appeals rule requirements should
not be written in a way that allows the
property owners to easily avoid
mitigation activities or higher flood
insurance premiums.
• States and communities should be
an informational role; again, concern to
keep the States and communities from
the potential legal liabilities.
• The local communities and the
State officials should just assist people
with the appeals. FEMA should make
all your final decisions and handle all
the paperwork. We also feel that there
should be some formal recommendation
from your parishes or local communities
or State.

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• The appeal process should start
with the community. If the owner of a
property rejects an offer but can easily
show that in purchasing, that he relied
on a FIRM [Flood Insurance Rate Map]
map that indicated the property was not
on the mapped flood hazard area, this
should not have to go to FEMA.
• The appeal should go through the
local government. They are the ones
with claims on the property; they could
validate it. Should come through the
state as the administrator of the
program. We could validate it; just like
with an appeal from the local
government, you concur, you may not
concur, no comment, but that provides
the additional insight.
FEMA’s Response
As established in § 78.7(d) of this rule,
an appeal on increased insurance rates
is made in writing by the property
owner to the FEMA Regional
Administrator within 90 days of the
date of the notice of insurance increase.
The Regional Administrator may request
the Grantee, and Sub-grantee (State and
community) if applicable, to assist in
the collection of data to support the
property owner’s appeal. The Regional
Administrator will review the
information provided by the property
owner and may participate in
discussions with the property owner,
and if applicable, with the Grantee and
Sub-grantee to resolve the appeal prior
to sending it to an Independent Third
Party or a reviewer from FEMA’s
Alternative Dispute Resolution office (at
the property owner’s discretion).
IV. Regulatory Requirements
A. Administrative Procedure Act
Statement
In general, FEMA publishes a rule for
public comment before issuing a final

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rule, under the Administrative
Procedure Act, 5 U.S.C. 533 and 44 CFR
1.12. The Administrative Procedure Act,
however, provides an exception from
that general rule where the agency for
good cause finds that the procedures for
prior comment and response are
impracticable, unnecessary, or contrary
to public interest.
This interim rule implements
provisions of the Bunning-BereuterBlumenauer Flood Insurance Reform
Act of 2004, which amended the
National Flood Insurance Act of 1968.
The key component of this rule includes
implementation of the new SRL
program as well as amending provisions
of the existing FMA program. The rule
also streamlines the planning process,
and clarifies the planning requirements
to address existing, unanticipated
inconsistencies.
Authorization for the SRL program
expires on September 30, 2009. Funding
for the new SRL program was made
available as of fiscal year 2006, thus it
is important to allow States, tribes,
communities, and property owners to
access these funds so that they may
have the opportunity to reduce their
flood losses to these high risk properties
as soon as possible. It is also in the
public interest to mitigate these SRL
properties as soon as possible to
minimize further costs resulting from
upcoming seasonal flooding. These
properties often pose the highest costs
to the Nation in terms of discounted
Federal flood insurance rates, as well as
Federal disaster assistance payments,
Prior comment on this rule is not in
the public interest where the
implementation of the new SRL
program, as well as the modified FMA
program, will assist States recovering
from flood disasters nationwide,
including Hurricanes Katrina and Rita,
by providing additional grant resources

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and increasing the Federal cost share for
projects mitigating SRL properties. In
particular, States and communities are
at a critical stage for identifying
properties to be mitigated in the postKatrina recovery efforts, and these funds
are essential for targeting the most
costly properties in the area. To be most
effective, the funds need to be made
available to the Gulf Coast States and
communities affected by Katrina and
Rita as soon as possible. At the end of
August 2007, there were just under
8,100 properties identified as meeting
the definition of severe repetitive loss
properties; approximately 58 percent, or
4,685 properties, lie within the 5 States
most affected by Hurricanes Katrina and
Rita. Mitigating these SRL properties
will provide States the opportunity to
reduce future losses to these SRL
properties, which represent the largest
drain on the NFIF and also will reduce
future disaster costs to the local, State,
and Federal government.
States, tribes, and communities also
have a strong interest in accessing, as
soon as possible, information in the rule
that outlines how the States can revise
their mitigation plans to receive the
reduced cost share under the FMA and
SRL programs. This cost-share reduction
is an important incentive and, in some
cases, necessary to allow communities,
which otherwise would not be able to
meet the match requirement, to mitigate
SRL properties. It is essential that the
availability of this information not be
delayed, particularly where in many
cases the revisions to mitigation plans
will themselves, require timeconsuming coordination across multiple
agencies.
In accordance with the
Administrative Procedure Act, 5 U.S.C.
553 (b), FEMA believes that prior notice
and comment would be contrary to the
public interest, as it would serve only to
delay the benefits of this rule to States,
tribes, and communities, and would
continue imposing the costs of these atrisk properties on the general public.
FEMA nevertheless recognizes the
importance of public input in the
regulatory process. To that end, FEMA
involved the public in a consultation
process prior to the publication of this
interim rule. To initiate the consultation
process, FEMA published a Federal
Register notice on September 15, 2004,
69 FR 55642. The comment period was
supposed to close on November 30,
2004, but FEMA extended the deadline
for comments until December 7, 2004,
and received 26 written comments from
States, communities, and associations.
Also, as part of the consultation, FEMA
invited representative officials of State
and local governments, organizations

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representing emergency management,
floodplain management, and insurance
professions, to provide oral
presentations on the requirements and
issues raised in the Federal Register
notice. Comments received were given
careful consideration in the preparation
of this interim rule.
Finally, FEMA actively encourages
and solicits comments on this interim
rule from interested parties. These
comments will be given careful
consideration, and could result in
changes to these regulations.
B. National Environmental Policy Act
FEMA has considered this rule in
accordance with its implementing
regulations for complying with the
National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321–4370f),
which are found at 44 CFR part 10. This
rule addresses applicant planning
requirements, as well as eligibility,
funding increases, and cost sharing/
funding incentives relating to certain
disaster mitigation programs and does
not change the type or nature of
mitigation actions that may be funded.
This rulemaking would neither
individually nor cumulatively have a
significant effect on the human
environment and, therefore, neither an
environmental assessment nor an
environmental impact statement is
required. This rulemaking is among the
category of actions included in the
Categorical Exclusions listed at 44 CFR
10.8(d)(2)(ii), which excludes the
preparation, revision and adoption of
regulations from the preparation of an
environmental assessment or
environmental impact statement, where
the rule relates to actions that qualify for
categorical exclusions. The related
actions of the development of plans and
administrative activities that are
included in this rule are also
categorically excluded under 44 CFR
10.8(d)(2)(iii) and 44 CFR 10.8(d)(2)(i).
C. Executive Order 11988, Floodplain
Management
FEMA has prepared and reviewed this
rule under the provisions of Executive
Order 11988, Floodplain Management.
Part 9 sets forth FEMA’s policy,
procedures, and responsibilities in
implementing this Executive Order. In
summary, these are, to the greatest
possible degree: To avoid long and short
term adverse impacts associated with
the occupancy and modification of
floodplains; avoid direct and indirect
support of floodplain development
whenever there is a practical alternative;
reduce the risk of flood loss; promote
the use of nonstructural flood protection
methods to reduce the risk of flood loss;

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minimize the impacts of floods on
human health, safety and welfare;
restore and preserve the natural and
beneficial values served by floodplains;
and adhere to the objectives of the
Unified National Program for
Floodplain Management. As stated in
the rule, the purpose of the SRL and
FMA programs is to mitigate insured
property losses from floods, thereby
minimizing impacts to the NFIF, which
is consistent with the intent of the
Executive Order. In addition, for project
activities funded through the SRL and
FMA programs, each project will go
through the environmental review
process, which will include compliance
with Executive Order 11988.
D. Executive Order 12866, Regulatory
Planning and Review
FEMA has prepared and reviewed this
rule under the provisions of Executive
Order 12866, Regulatory Planning and
Review. Under Executive Order 12866,
a significant regulatory action is subject
to the Office of Management and Budget
(OMB) review and the requirements of
the Executive Order. The Executive
Order defines ‘‘significant regulatory
action’’ as one that is likely to result in
a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
Regulatory Alternatives
In determining how to move forward
with this rule, two alternatives were
considered. The first alternative was to
issue an interim rule for the SRL
program, and to modify the existing
separate FMA rule to incorporate
changes made by the Act. This would
result in two sections of the CFR
addressing mitigation grant programs
funded through the NFIP which could
result in disjointed implementation of
the two similar programs.
The second alternative (and the one
adopted by FEMA) was to establish and
proceed with the implementation of the
SRL and FMA programs as described in

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this interim rule. This will allow FEMA
to ensure a more consistent approach to
implementation and management of
these programs. FEMA has been
working to implement all of the
mitigation grant programs in a
consistent manner, and this regulatory
change furthers that attempt. These
changes are also expected to limit
confusion around program
implementation since both programs
will likely be managed by the same state
agency staff.

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Congressional Appropriations
The regulations implementing the
FMA program were originally issued on
March 20, 1997. Historically, the
program has provided $20 million in
grants on an annual basis to States and
communities to reduce flood losses to
properties insured under the NFIP. In
fiscal year 2007, $31 million was made
available for the FMA program to fund
activities that help reduce repetitive
flood insurance claims, thereby
reducing the drain on the NFIP from
these properties. This program provides
an opportunity for every State to fund
planning and project activities but,
since it is a small program, it is unable
to assist all those who could benefit
from it. The Bunning-BereuterBlumenauer Flood Insurance Reform
Act of 2004 provides for additional
program funding for the FMA program,
as well as makes it easier for some to
participate in the program, by providing
the ability for States to reduce the cost
share for those properties that meet the
definition of a severe repetitive loss
property.
The primary purpose of this rule is to
implement the new SRL program, which
will provide grants to property owners
to mitigate their risk from flooding, with
incremental increases in the insurance
premiums imposed if they decline to
accept the offers of mitigation. In fiscal
year 2007, $40 million was made
available by Congress for the SRL
program. Therefore, in fiscal year 2007,
a total of $71 million was allocated for
these programs ($31 million for FMA
and $40 million for SRL).
Impact From Increase in Insurance
Premiums
Most severe repetitive loss properties
were built prior to December 31, 1974,
and the insurance premiums for these
properties are supported financially by
other NFIP policyholders. Repetitive
loss properties only account for
approximately 1 percent of the current
NFIP policies, yet these properties
historically account for over 30 percent
of the amount paid in claims. Under the
SRL program, owners of severe

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repetitive loss properties will receive
mitigation offers. Refusals of these offers
will result in increased premiums for
owners of these properties. Thus, in
either case, this rule should help shift
the disproportionate burden away from
the majority of NFIP policyholders who
do not own SRL properties.
Within the NFIP, the average
discounted premium paid by owners of
property built before December 31, 1974
is $800 per year. However, if those
properties were rated on an actuarial
basis, taking into account their actual
flood risk, the annual premiums they
should be paying would average
between $1,700 and $1,900 per year.
Severe repetitive loss properties as a
subset of the pre-1974 properties have
higher flood risks than most properties
with discounted premiums insured
under the NFIP, and their actuarial rates
could be much higher. For purposes of
estimating the annual economic impact
of this interim rule, FEMA used an
average actuarial premium rate of
$5,000 for these severe repetitive loss
properties. This average actuarial rate
does not reflect the discount premium
rate; rather it more closely represents
the flood risk to the property.
Of the $40 million available each year
for the SRL program, FEMA assumes
that $37 million will be awarded as
project grants, and that the average grant
per property is $75,000. Therefore,
offers will be made to approximately
500 property owners in the first year. It
is assumed that up to 3 percent of those
property owners might decline the offer
of mitigation assistance, and that these
15 properties would be subject to the
increased insurance premiums. This 3
percent figure is based on the fact that
although NFIP engages in litigation for
less than 1 percent of its claims in an
average claims year, there have been 3
times the normal number of claims as a
result of Hurricanes Katrina, Rita, and
Wilma. Also, after the wildfires of Cerro
Grande, FEMA instituted a similar grant
program whereby homeowners received
funds for repair, with an appeals
provision. Approximately 3 percent of
those homeowners appealed their grant
amount.
This increased cost of insurance for
these 15 properties would result in an
average discounted premium increase of
approximately $400 per property owner
(50% of the $800 average discounted
premium), for a total increase in
insurance premiums of $6,000 the first
year. This premium rate can increase
over time, until the actuarial rate
(averaged, for the purpose of this rule to
$5,000) is reached. At no time, however,
would the premium paid for the affected
property exceed the actuarial rate. If,

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61729

over the remaining 1 year of the pilot
SRL program, one expects the number of
property owners declining the offer of
assistance to remain the same, then the
total number of affected properties will
be 30. Within 10 to 20 years, when all
30 of the affected properties whose
owners declined the mitigation offer
will each pay actuarial premium rates
described above as averaging $5,000 per
year, the maximum annual impact of the
program would be $150,000 ($5000 ×
30).
Changes to HMGP
The rulemaking makes a technical
change to reflect existing HMGP postdisaster allocation amounts already in
effect as a result of amendments to
Section 404 of the Stafford Act (42
U.S.C. 5170c, as amended by Pub. L.
109–295, § 684). The change set nondiscretionary standard allocation
amounts for the program.
Open Space
As part of implementing the SRL and
FMA, this rule also includes a new part
(part 80) which describes the
requirements and procedures for open
space acquisition which will apply to
these programs, as well as all FEMA
mitigation grant programs. The Act
requires certain special acquisition
procedures for SRL, however open
space acquisitions funded under all
FEMA mitigation grant programs
otherwise subject to the same
requirements to ensure mitigation
objectives are met. Prior to this rule,
acquisition requirements for each
mitigation grant program were
addressed in the respective mitigation
grant program regulations or guidance,
such as at § 78.12 for FMA and
§ 206.434 for HMGP, including
associated program guidance. A central
reference point for all mitigation grant
program property acquisitions is
intended to make the programs easier to
implement. There will be no additional
cost from this change.
Increase in Federal Share
The rule also implements the changes
to the FMA program by allowing for a
90 percent Federal share for the
mitigation of severe repetitive loss
properties, amending the method by
which State funding allocations are
calculated, and making the FMA
planning requirements and other
program aspects consistent with other
FEMA mitigation planning and program
requirements. Though there is no net
change in the funding allocated for FMA
with this new cost share provision, the
distribution of the funding will shift to
the Federal ‘‘side’’. In FY 2007, $31

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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations

million was made available for the FMA
program. Since the change in Federal
share will be from 75 percent to 90
percent, the change in Federal outlay
will be $4.65 million. This figure
includes two very conservative
assumptions: That all properties
mitigated under FMA will be SRL
properties; and that all States will seek
this new cost share by virtue of revising
their State mitigation plans.

mstockstill on PROD1PC66 with RULES2

Intangible Benefit
As of the end of August 2007, just
under 8,100 properties were identified
as meeting the definition of severe
repetitive loss. Of those, approximately
58 percent are in the 5 States most
affected by hurricanes Katrina and Rita.
Alabama has 223 properties, Louisiana
has 2,567 properties, Mississippi has
148 properties, Texas has 1,275
properties, and Florida has 472
properties. Implementation of the new
SRL program, as well as the modified
FMA program, will assist these States in
recovering from these disasters by
providing additional grant resources
and the ability to increase the Federal
cost share for projects mitigating SRL
properties.
The economic impact of this rule is
approximately $76 million. This
rulemaking has been determined to be a
nonsignificant regulatory action under
section 3(f) of Executive Order 12866 by
OMB. This rule adheres to the
principles of regulation of the Executive
Order.
E. Executive Order 12898,
Environmental Justice
Under Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994, FEMA incorporates
environmental justice into our policies
and programs. The Executive Order
requires each Federal agency to conduct
its programs, policies, and activities that
substantially affect human health or the
environment, in a manner that ensures
that those programs, policies, and
activities do not have the effect of
excluding persons from participation in
our programs, denying persons the
benefits of our programs, or subjecting
persons to discrimination because of
their race, color, or national origin.
No action that FEMA can anticipate
under the interim rule will have a
disproportionately high or adverse
human health and environmental effect
on any segment of the population. This
rule implements the SRL program,
providing mitigation grants to severe
repetitive loss properties, and modifies
aspects of the FMA program and the

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mitigation planning requirements. With
respect to Indian tribal governments, the
rule streamlines and simplifies the
planning requirements. Finally, this
interim rule amends § 206.432 to reflect
statutory and technical changes to
HMGP. Accordingly, the requirements
of Executive Order 12898 do not apply
to this interim rule.
F. Paperwork Reduction Act of 1995
This interim rule includes provisions
constituting collections of information
under the Paperwork Reduction Act
(PRA) of 1995 (44 U.S.C. 3501 et seq.).
Under section 3507(d) of the PRA, The
Federal Emergency Management Agency
(FEMA) will submit a copy of this
rulemaking action to the Office of
Management and Budget (OMB) for
review. FEMA is submitting a request
for review and approval of collections of
information under OMB’s emergency
processing procedures. Through
publication of this interim rule, FEMA
is requesting a 6-month approval for
these information collections. FEMA
plans to follow this emergency approval
request with a 3-year approval request.
The 3-year request will be processed
under OMB’s normal clearance
procedures in accordance with the
provisions of OMB regulation at 5 CFR
1320.10. This interim rule also serves as
the 60 day notice required by 5 CFR
1320.8. FEMA invites the public to
comment on the proposed collections of
information during this 60 day comment
period.
Several collections of information
referenced in this interim rule have
existing OMB approvals under the PRA.
The rule in §§ 79.3(b), 79.3(c), 79.3(d),
79.5(a)(2), 79.5(b), 79.6(b), 79.7(b),
79.9(a), 201.3, 201.6, and 201.7 contains
collections of information under the
PRA for which FEMA requests approval
of amendments to existing collections
by OMB. In addition, FEMA is
requesting approval of two new
collections of information for the
interim rule contained under the new
§§ 79.7(d), 80.13(a), 80.13(b), 80.17(e),
80.19(b), 80.19(d), 80.19(e), 80.21, and
206.434.
1. Collection of Information
Part 201 under OMB Number 1660–
0062, State/Local/Tribal Hazard
Mitigation Plans—under section 322 of
Stafford Act clarifies the State, Tribal,
and local mitigation planning
requirements. Before this interim rule
goes into effect, applicants for FMA
funds are required to develop a plan
that specifically addresses flood
mitigation planning requirements under
part 78. This plan is collected under
OMB collection number 1660–0075;

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Flood Mitigation Assistance—Flood
Mitigation Plan. Applicants for all other
types of mitigation grant funding are
required to develop a plan that
addresses all hazards for which the
applicant seeks funds under part 201,
which may also include floods. This
plan is collected under OMB collection
number 1660–0062; State/Local/Tribal
Hazard Mitigation Plans—under section
322 of Stafford Act. With the revisions
established by this interim rule, the all
hazards plan developed under part 201
will meet the requirements for all
mitigation grants including FMA, which
means that applicants will no longer be
required to submit the flood specific
plans under part 78. Because of this
change FEMA is discontinuing OMB
collection number 1660–0075, and
revising OMB collection number 1660–
0062.
Due to this change in the mitigation
grant process, there are outstanding
flood mitigation grants that have been
issued with the requirement that the
grantee submit a flood mitigation plan
pursuant to the requirements of part 78.
Although FEMA will no longer require
the submission of flood mitigation plans
for those funds awarded during
application periods that open on or after
the effective date of this rule, FEMA
will continue to accept flood mitigation
plans until the end of a grantee’s current
period of performance to include any
extensions granted pursuant to § 78.9
and FEMA’s Financial and Acquisition
Management Division’s Extension
Policy.
Title: State/Local/Tribal Hazard
Mitigation Plans-Section 322 of the
Disaster Mitigation Act of 2000.
OMB Number: 1660–0062.
Abstract: The purpose of the State/
Local/Tribal Hazard Mitigation Plan
requirements is to outline the strategy
by which State, tribal and local
governments use to demonstrate the
goals, priorities, and commitment to
reduce risks from natural hazards and
serves as a guide for State and local
decision makers as they commit
resources to reducing the effects of
natural hazards.
Affected Public: State, Local or Tribal
Government.
Number of Respondents: 56.
Estimated Time per Respondent:
2,408.
Estimated Total Annual Burden
Hours: 768,320.
Frequency of Response: On Occasion.
The authorized SRL grant program
will be implemented under the new part
79. However, the administration of FMA
funds for which application period
opens prior to publication of this rule
will be subject to part 78, while the new

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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations
part 79 is used to administer new FMA
grants.
2. Collection of Information
The SRL grant program was
authorized by Congress in 2004 and
expires on September 30, 2009. The SRL
grant program focuses on a subset of all
repetitive flood loss properties,
residential properties with a high
frequency of losses or a high value of
claims, defined as severe repetitive loss
properties. This is a non-disaster grant
program that is authorized annually and
not as a result of a Presidential Disaster

Declaration. The information collection
activity under the approved OMB
information collection 1660–0025,
FEMA Grant Administrative Forms is a
paper-based collection used by States
and local government to obtain grant
information and is being amended to
include the following burden hours for
the SRL grant program.
Title: FEMA Grant Administration
Forms.
OMB Number: 1660–0025.
Abstract: This collection of
information focuses on the
standardization and consistent use of

61731

standard and FEMA forms associated
with grantees request for disaster and
non-disaster federal assistance,
submission of financial and
administrative reporting and
recordkeeping. The use of the forms will
minimize burden on the respondents
and enable FEMA to continue to
improve in its grants administration
practices.
Affected Public: State, Local or Tribal
Government.
Estimated Total Annual Burden
Hours:

DISASTER PROGRAMS
Data collections activity/instruments

Number of
respondents

Frequency of
responses

Hour burden
per response

Annual
responses

Total annual
burden hours

(A)

(B)

(C)

(D) = (A × B)

(C × D)

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PA:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
SF–LLL ...........................................................

56
56
56
56
56

1
1
1
4
1

45 minutes ......
9.7 hours .........
1.7 hours ........
1 hour .............
10 minutes ......

56
56
56
224
56

42 hours.
543 hours.
95 hours.
224 hours.
9 hours.

Subtotal ...................................................

56

............................

13.3 hours ......

392

57 Disaster
Declarations
× 913 hours
= 52,041.

SCC:
SF 424 ............................................................
SF 20–20 ........................................................
FF 20–16, A, B, C ..........................................
FF 20–10 (SF 269) .........................................
SF–LLL ...........................................................

17
17
17
17
17

1
1
1
4
1

45 minutes ......
9.7 hours ........
1.7 hours ........
1 hour .............
10 minutes ......

17
17
17
68
17

Subtotal ...................................................

17

............................

13.3 hours ......

119

57 Disaster
Declarations
× 278 hours
= 15,846.

ONA:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
SF–LLL ...........................................................

40
40
40
40
40

1
1
1
4
1

45 minutes ......
9.7 hours .........
1.7 hours ........
1 hour .............
10 minutes ......

40
40
40
160
40

30 hours.
388 hours.
68 hours.
160 hours.
7 hours.

Subtotal ...................................................

40

............................

13.3 hours ......

320

57 Disaster
Declarations
× 653 hours
= 37,221.

HMGP:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
FF 20–17 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF–LLL ...........................................................

52
52
52
52
52
52
52
52

1
15
1
4
15
6
6
1

45 minutes ......
9.7 hours ........
1.7 hours ........
1 hour .............
17.2 hours ......
4.2 hours .........
5 minutes ........
10 minutes ......

52
780
52
208
780
312
312
52

39 hours.
7,566. hours.
88 hours.
208 hours.
13,416 hours.
1,310 hours.
25 hours.
9 hours.

Subtotal ...................................................

52

............................

35 hours ..........

2,548

FMAGP:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–16, A, B, C ..........................................

12
36
36

4
4
4

45 minutes ......
9.7 hours .........
1.7 hours ........

48
144
144

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E:\FR\FM\31OCR2.SGM

31OCR2

13 hours.
165 hours.
29 hours.
68 hours.
3 hours.

57 Disaster
Declarations
× 22,661
hours =
1,291,677.
36 hours.
1,397 hours.
245 hours.

61732

Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations
DISASTER PROGRAMS—Continued

Data collections activity/instruments

Number of
respondents

Frequency of
responses

Hour burden
per response

Annual
responses

Total annual
burden hours

(A)

(B)

(C)

(D) = (A × B)

(C × D)

FF 20–15 ........................................................
FF 20–10 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF–LLL ...........................................................

36
12
36
36
36

4
4
4
4
4

17.2 hours ......
1 hour .............
4.2 hours .........
5 minutes ........
10 minutes ......

144
48
144
144
144

2,477 hours.
48 hours.
605 hours.
12 hours.
24 hours.

Subtotal ...................................................

36

............................

35 hours ..........

960

94 Disaster
Declarations
× 4,844
hours =
455,336.

Disaster Grants Total ..............................

56

............................

110 hours .......

3,800

1,852,121
hours.

NON-DISASTER PROGRAMS
Data collection activity/instruments

Number of
respondents

Frequency of
responses

Hour burden
per response

Annual
responses

Total burden
hours

(A)

(B)

(C)

(D) = (A × B)

(C × D)

mstockstill on PROD1PC66 with RULES2

US&R:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–16, A, B, C ..........................................
FF 76–10A ......................................................
FF 20–10 ........................................................
SF 270 ............................................................
SF LLL ............................................................

28
28
28
28
28
28
28

1
1
1
1
2
1
1

45 minutes ......
9.7 hours .........
1.7 hours ........
1.2 hours .........
1 hour .............
1 hour .............
10 minutes ......

28
28
28
28
56
28
28

21 hours.
272 hours.
48 hours.
34 hours.
56 hours.
28 hours.
5 hours.

16 hours ..........

224

498 hours.

Subtotal ...................................................
CAP-SSSE:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–15 ........................................................
FF 20–16, A, B, C ..........................................
FF 76–10A ......................................................
FF 20–10 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF LLL ............................................................

28
56
56
56
56
56
56
56
56
56

1
1
1
1
1
2
1
1
1

45 minutes ......
9.7 hours .........
17.2 hours ......
1.7 hours ........
1.2 hours .........
1 hour .............
4.2 hours .........
5 minutes ........
10 minutes ......

56
56
56
56
56
112
56
56
56

42 hours.
543 hours.
963 hours.
95 hours.
67 hours.
112 hours.
235 hours.
4 hours.
9 hours.

Subtotal ...................................................
CSEPP:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–10 ........................................................
FF 20–16, A, B, C ..........................................
FF 76–10A ......................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF LLL ............................................................

56

............................

36 hours ..........

560

2,070 hours.

10
10
10
10
10
10
10
10

1
1
4
1
1
1
1
1

45 minutes ......
9.7 hours .........
1 hour .............
1.7 hour ..........
1.2 hour ..........
4.2 hours .........
5 minutes ........
10 minutes ......

10
10
40
10
10
10
10
10

8.0 hours.
97.0 hours.
40.0 hours.
17.0 hours.
12.0 hours.
42.0 hours.
1.0 hours.
2.0 hours.

Subtotal ...................................................
NDSP:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–16, A, B, C ..........................................
FF 76–10A ......................................................
FF 20–10 ........................................................
SF 270 ............................................................
SF LLL ............................................................

10

............................

19 hours ..........

120

219 hours.

51
51
51
51
51
51
51

1
1
1
1
4
1
1

45 minutes ......
9.7 hours .........
1.7 hours ........
1.2 hours .........
1 hour .............
1 hour .............
10 minutes ......

51
51
51
51
204
51
51

38.0 hours.
495.0 hours.
87.0 hours.
61.0 hours.
204.0 hours.
51.0 hours.
8.0 hours.

Subtotal ...................................................

51

............................

16 hours ..........

510

944 hours.

FF 20–10 ........................................................

17

4

1 hour .............

68

68.0 hours.

Subtotal ...................................................

17

............................

1 hour .............

17

68 hours.

ICE:

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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations

61733

NON-DISASTER PROGRAMS—Continued
Data collection activity/instruments

Number of
respondents

Frequency of
responses

Hour burden
per response

Annual
responses

Total burden
hours

(A)

(B)

(C)

(D) = (A × B)

(C × D)

mstockstill on PROD1PC66 with RULES2

EqC:
FF 20–10 ........................................................

3

2

1 hour .............

6

6 hours.

Subtotal ...................................................
AIDMATRIX:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–10 ........................................................
FF 20–16 A, B, C ...........................................
SF LLL ............................................................

3

............................

1 hour .............

6

6 hours.

1
1
1
1
1

1
1
4
1
1

45 minutes ......
9.7 hours ........
1 hour .............
1.7 hours .........
10 minutes ......

1
1
4
1
1

.75
9.7
4.0
1.7
.16

Subtotal ...................................................
AHPP:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–10 ........................................................
FF 20–16, A, B, C ..........................................
SF LLL ............................................................

1

............................

13 hours ..........

8

16 hours.

4
4
4
4
4

1
1
4
1
1

45 minutes ......
9.7 hours ........
1 hour .............
1.7 hours ........
10 minutes ......

4
4
16
4
4

3.0 hours.
39.0 hours.
16.0 hours.
6.8 hours.
.66 hours.

Subtotal ...................................................
CTP:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–15 ........................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
SF LLL ............................................................

4

............................

13 hours ..........

32

65 hours.

20
20
20
20
20
20

1
1
1
1
4
1

45 minutes ......
9.7 hours .........
17.2 hours ......
1.7 hours ........
1 hour .............
10 minutes ......

20
20
20
20
80
20

15.0 hours.
194.0 hours.
344.0 hours.
34.0 hours.
80.0 hours.
3.3 hours.

Subtotal ...................................................
MMMS:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–15 ........................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
SF LLL ............................................................

20

............................

31 hours ..........

180

670.3 hours.

20
20
20
20
20
20

1
1
1
1
2
1

45 minutes ......
9.7 hours .........
17.2 hours ......
1.7 hours ........
1 hour .............
10 minutes ......

20
20
20
20
40
20

15.0 hours.
194.0 hours.
344.0 hours.
34.0 hours.
40.0 hours.
3.0 hours.

Subtotal ...................................................
RFC:
SF 424 ............................................................
FF 20–20 ........................................................
FF 76–10A ......................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
FF 20–18 ........................................................
FF–20–19 .......................................................
SF LLL ............................................................

20

............................

31 hours ..........

120

630 hours.

56
56
56
56
56
56
56
56

1
1
1
1
4
1
1
1

45 minutes ......
9.7 hours .........
1.2 hours .........
1.7 hours ........
1 hour .............
4.2 hours .........
5 minutes ........
10 minutes ......

56
56
56
56
224
56
56
56

42.0 hours.
543.0 hours.
67.0 hours.
95.0 hours.
224.0 hours.
235.0 hours.
5.0 hours.
9.0 hours.

Subtotal ...................................................
SRL:
FF 424 ............................................................
FF 20–20 ........................................................
FF 76–10A ......................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF LLL ............................................................

56

............................

19 hours ..........

616

1,220 hours.

56
56
56
56
56
56
56
56

1
1
1
1
4
1
1
1

45 minutes ......
9.7 hours .........
1.2 hours .........
1.7 hours ........
1 hour .............
4.2 hours .........
5 minutes ........
10 minutes ......

56
56
56
56
224
56
56
56

42.0 hours.
543.0 hours.
67.0 hours.
95.0 hours.
224.0 hours.
235.0 hours.
5 hours.
9.0 hours.

Subtotal ...................................................
FMA:
SF 424 ............................................................
FF 20–20 ........................................................
FF 20–16, A, B, C ..........................................
FF 76–10A ......................................................
FF 20–10 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF LLL ............................................................

56

............................

19 hours ..........

616

1,220 hours.

56
56
56
56
56
56
56
56

3
3
1
3
4
1
1
1

45 minutes ......
9.7 hours .........
1.7 hours ........
1.2 hours .........
1 hour .............
4.2 hours .........
5 minutes ........
10 minutes ......

168
168
56
168
224
56
56
56

126.0 hours.
1630.0 hours.
95.0 hours.
202.0 hours.
224.0 hours.
235.0 hours.
4.0 hours.
9.0 hours.

Subtotal ...................................................

56

............................

19 hours ..........

952

2,525 hours.

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31OCR2

minutes.
hours.
hours.
hours.
minutes.

61734

Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations
NON-DISASTER PROGRAMS

Data collection activity/instruments

Number of
respondents

Frequency of
responses

Hour burden
per response

Annual
responses

Total burden
hours

(A)

(B)

(C)

(D) = (A × B)

(C × D)

PDM:
SF 424 ............................................................
FF 20–15 ........................................................
FF 20–20 ........................................................
FF 76–10A ......................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
FF 20–17 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF LLL ............................................................

56
56
56
56
56
56
56
56
56
56

2
1
2
2
2
8
20
2
2
2

45 minutes ......
17.2 hours ......
9.7 hours .........
1.2 hours .........
1.7 hours ........
1 hour .............
17.2 hours ......
4.2 hours .........
5 minutes ........
10 minutes ......

112
56
112
112
112
448
1,120
112
112
112

84 hours.
963.2 hours.
1,086.4 hours.
134.4 hours.
190.4 hours.
448 hours.
19,264 hours.
470.4 hours.
9.3 hours.
18.6 hours.

56

............................

53 hours ..........

2,408

22,668.7 hours.

4,246
4,246
4,246
4,246
4,246
4,246
4,246
4,246
4,246

1
2
2
1
2
1
1
1
1

45 minutes ......
9.7 hours .........
1.2 hours .........
1.7 hours ........
1 hour .............
17.2 hour ........
4.2 hours .........
5 minutes ........
10 minutes ......

4,246
8,492
8,492
4,246
8,492
4,246
4,246
4,246
4,246

3,185.0 hours.
82,372.0 hours.
10,190.0 hours.
7,218.0 hours.
8,492.0 hours.
73,031.0 hours.
17,833.0 hours.
340.0 hours.
705.0 hours.

Subtotal ...................................................
SAFER*:
SF 424 ............................................................
FF 20–20 ........................................................
FF 76–10A ......................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
FF 20–17 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF LLL ............................................................

4,246

............................

36 hours ..........

50,952

203,366 hours.

243
243
243
243
243
243
243
243
243

1
2
2
1
4
1
1
1
1

45 minutes ......
9.7 hours ........
1.2 hours ........
1.7 hours .........
1 hour .............
17.2 hours ......
4.2 hours ........
5 minutes ........
10 minutes ......

243
486
486
243
972
243
243
243
243

182.0 hours.
4,714.0 hours.
583.0 hours.
413.1 hours.
972 hours.
4,179.6 hours.
1,020.6 hours.
20.2 hours.
40.5 hours.

Subtotal ...................................................

243

............................

36 hours .........

3,402

Non-Disaster Grants Total ......................

............................

............................

359 ..................

55,378

248,312.

Grand Total ......................................

............................

............................

469 ..................

59,178

2,100,433.

Subtotal ...................................................
AFG*:
SF 424 ............................................................
FF 20–20 ........................................................
FF 76–10A ......................................................
FF 20–16, A, B, C ..........................................
FF 20–10 ........................................................
FF 20–17 ........................................................
FF 20–18 ........................................................
FF 20–19 ........................................................
SF LLL ............................................................

12,125.7 hours.

* AFG and SAFER grants are awarded directly to individual Fire departments.

3. Collection of Information

mstockstill on PROD1PC66 with RULES2

The information collection activity
under the approved OMB information
collection 1660–0072, Mitigation Grant
Program/e-Grants (previous named
Flood Mitigation Assistance (e-Grants))
and Grant Supplemental Information is
an electronic system used to meet the
intent of the eGovernment initiative.
This collection does not supersede the
paper-based collection for Grants (OMB
No. 1660–0025). Applicants may apply
using the e-Grants (1660–0072)
application accessible on the Internet at
https://portal.fema.gov. The OMB
Project/activity (survey, forms(s), focus group,
etc.)

approved collection 1660–0072 have
been combined with OMB No. 1660–
0071, Pre-Disaster Mitigation (PDM)
Grant Program/e-Grants to streamline
and simplify documentation of the same
information collected for all mitigation
e-Grants program. Because of this
change OMB No. 1660–0071 has been
discontinued as a separate collection.
This collection also includes the
authorized SRL program.
Title: Mitigation Grant Program/
e-Grants.
OMB Number: 1660–0072.
Abstract: The States will utilize the
Mitigation Grant Program/e-Grants,
Number of
respondents

FMA:
Benefit-Cost Determination .......................

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Frequency of
responses

56

Frm 00016

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automated application to report to
FEMA on a quarterly basis, certify how
funding is being used and to report on
the progress of mitigation activities
funded under grant awards, made to
grantees by FEMA who will use the
system to review the grantees quarterly
reports to ensure that mitigation grant
activities are progressing on schedule
and to track the expenditures of funds.
Affected Public: State, Local or Tribal
Government.
Estimated Total Annual Burden
Hours:

Burden hours per
respondent

2

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Annual
responses

5

112

31OCR2

Total annual
burden hours

560

Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations
Project/activity (survey, forms(s), focus group,
etc.)

Frequency of
responses

Burden hours per
respondent

Annual
responses

Total annual
burden hours

Environmental Review ..............................
Project Narrative—Sub-grant Application

56
56

2
4

7.5
12

112
224

840
2,688

Subtotal FMA .....................................
RFC:
Benefit-Cost Determination .......................
Environmental Review ..............................
Project Narrative—Sub-grant Application

56

............................

24.5

448

4,088

56
56
56

1
1
2

5
7.5
12

56
56
112

280
420
1,344

Subtotal RFC .....................................
PDM:
Benefit-Cost Determination .......................
Environmental Review ..............................
Project Narrative—Sub-grant Application
(including PDM Evaluation Information
Questions 5) ...........................................

56

............................

24.5

224

2,084

56
56

20
20

5
7.5

1,120
1,120

5,600
8,400

56

20

12

1,120

13,440

Subtotal PDM ....................................
SRL:
Benefit-Cost Determination .......................
Environment Review .................................
Project Narrative—Sub-grant Application

56

............................

24.5

3,360

27,440

56
56
56

7
7
8

5
7.5
12

392
392
448

1,960
2,940
5,376

Subtotal SRL .....................................

56

............................

24.5

1,232

10,276

Total ............................................

56

............................

98

5264

43,888

4. Collection of Information
The Property Acquisition and
Relocation for Open Space (part 80) will
govern property acquisitions for the
creation of open space under all of
FEMA mitigation grant programs
authorized under both the Stafford Act
and the National Flood Insurance Act of
1968, as amended. Acquisition and
relocation of property for open space
use is one of the most common
mitigation activities, and is an eligible
activity type authorized for Federal
grant funds under all of FEMA
mitigation grant programs. FEMA
mitigation grant programs require all
properties acquired with FEMA funds to
be deed restricted and maintained as
open space in perpetuity. This ensures
that no future risks from hazards occur

to life or structures on that property,
and no future disaster assistance or
insurance payments are made as a result
of damages to that property. This new
collection of information is necessary to
establish uniform requirements for State
and local implementation of acquisition
activities, and to enforce open space
maintenance and monitoring
requirements for properties acquired
with FEMA mitigation grant funds. This
interim rule includes a conforming
amendment to the HMGP to refer to the
new part 80 for acquisition and
relocation activities, and deletes
§ 206.434(f).
Title: Property Acquisition and
Relocation for Open Space.
Type of Information Collection: New
Collection.

OMB Number: 1660–New23.
Form Numbers: None.
Abstract: FEMA and State and local
recipients of FEMA mitigation grant
programs will use the information
collected under the Property
Acquisition requirements to implement
acquisition activities under the terms of
grant agreements for acquisition and
relocation activities. FEMA and State/
local grant recipients will also use the
information to monitor and enforce the
open space requirements for all
properties acquired with FEMA
mitigation grants.
Affected Public: State, local, or Indian
tribal government and individuals or
households.
Estimated Total Annual Burden
Hours:

Data collection activity

Number of
respondents

Frequency of
responses

Number of
responses

Hour burden per
response

Total burden
hours

Voluntary Participation Statement ...................
Deed Restriction Requirements .......................
Monitoring and Reporting Requirements .........
Transfer Certification ........................................
Enforcement Notices ........................................

56
56
56
............................
............................

40
40
1
............................
............................

1
4
4
............................
............................

2240
2240
56
............................
............................

2440
8960
224
............................
............................

Total ..........................................................

56

............................

9

4,536

11,424

5. Collection of Information
mstockstill on PROD1PC66 with RULES2

Number of
respondents

61735

The appeals process in § 79.7(d)
outlines the process by which any
owner of a severe repetitive loss
property may appeal the decision of
FEMA to increase the chargeable
insurance premium rate on property.

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Jkt 214001

The legislation that created the SRL
program provides that any owner of a
severe repetitive loss property who
refuses an offer of mitigation may
appeal the decision of FEMA to increase
the chargeable insurance premium rate
on that property. The process requires

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the owner to submit a written appeal,
including any supporting
documentation for their appeal to FEMA
within 90 days of the notice of the
insurance rate increase. This new
collection of information is necessary to
ensure that the property owner is given

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61736

Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations

opportunity to provide additional
documentation that support one of the
six allowable bases for appeal, outlined
in the authorizing legislation, and
implemented at § 79.7(d).
Title: Severe Repetitive Loss (SRL)
Appeals Process.

Number of
respondents

Data collection activity

Frequency of
responses

offer of mitigation under this program.
The property owner must submit
information to FEMA to support their
appeal.
Affected Public: Federal Government,
and individuals or households.
Estimated Total Annual Burden
Hours:

Number of
responses

Hour burden per
response

Total burden
hours

Appeal written request and supporting documentation ......................................................

10

1

10

10

100

Total ..........................................................

10

............................

10

10

100

Comments: Written comments are
solicited to (a) evaluate whether the
proposed data collection is necessary for
the proper performance of the agency,
including whether the information shall
have practical utility; (b) evaluate the
accuracy of the agency’s estimate of the
burden of the proposed information
collection, including the validity of the
methodology and assumptions used; (c)
enhance the quality, utility, and clarity
of the information to be collected; and
(d) minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technology, e.g., permitting electronic
submission of responses. FEMA will
continue to accept comments from
interested persons through December
31, 2007. Submit comments by one of
the methods provided in the ADDRESSES
section at the beginning of this rule.
Requests for additional information
regarding FEMA’s Paperwork Reduction
Act requirements or copies of the
information collection should be made
to Chief, Records Management and
Privacy, FEMA, 500 C Street, SW.,
Room 609, Washington, DC 20472,
facsimile number (202) 646–3347, or
e-mail address [email protected].
G. Executive Order 13132, Federalism

mstockstill on PROD1PC66 with RULES2

Type of Information Collection: New
Collection.
OMB Number: 1660–New36.
Form Numbers: None.
Abstract: The SRL program provides
property owners with the ability to
appeal an increase in their flood
insurance premium rate if they refuse an

Executive Order 13132, Federalism,
dated August 4, 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, 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

VerDate Aug<31>2005

17:56 Oct 30, 2007

Jkt 214001

practicable, must consult with State and
local officials before implementing any
such action.
FEMA published a Federal Register
notice on September 15, 2004, 69 FR
55642, to initiate consultation with
State and local officials, as well as
members of the public in the
formulation of this rule. Interested
parties initially had until November 30,
2004, to submit written comments in
response to the notice. FEMA extended
the deadline for comments until
December 7, 2004, and received 23
written comments from States,
communities, and associations.
On November 17, 2004, as part of the
consultation process, FEMA held a
meeting in Washington DC with
representative officials of State and local
governments; organizations representing
emergency management, floodplain
management, and insurance professions;
and other interested parties.
Both the written comments received
and the oral comments presented at the
meeting addressed aspects of the SRL
program, including the circumstances
affecting severe repetitive loss property
owners, the mitigation offer process, the
effects of insurance premium increases
on individuals who refuse mitigation
offers, and the appeals process. In the
context of preparing this rule, FEMA
reviewed and addressed all of the
comments received in response to the
Federal Register notice including the
oral presentations made on November
17, 2004.
FEMA has reviewed this rule under
Executive Order 13132 and has
concluded that the rule, which
implements statutory requirements for a
new SRL program as well as a potential
increase in the Federal share for the
FMA program, simplifies the planning
requirements, and reflects a statutorily
mandated change to the HMGP
allocation, does not have federalism
implications as defined by the Executive
Order. FEMA has determined that the

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Fmt 4701

Sfmt 4700

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.
FEMA will continue to evaluate the
new SRL and FMA programs, as well as
the planning requirements, and will
work with interested parties as FEMA
implements the requirements of 44 CFR
parts 59, 61, 78, 79, 80, 201, and 206.
In addition, FEMA actively encourages
and solicits comments on this interim
rule from interested parties, and FEMA
will consider those comments in
preparing the final rule.
H. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
FEMA has reviewed this interim rule
under Executive Order 13175. In
reviewing the portion of the interim rule
which streamlines the mitigation
planning requirements affecting Indian
tribal governments, FEMA finds that,
while it does have ‘‘tribal implications’’
as defined in Executive Order 13175, it
will 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.
FEMA has worked with Indian tribal
governments while implementing its
programs, and has modified its
procedures to accommodate some of the
issues relating to the tribal governments.
This rule clarifies those procedures and
streamlines the roles and
responsibilities of Indian tribal
governments in mitigation planning. In
the February 26, 2002 interim rule,
Indian tribal governments were given
the option of preparing either a Statelevel Mitigation Plan, or a Local-level
Mitigation Plan depending on whether
or not they intended to apply directly to
FEMA as a grantee, or whether they

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mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations
would apply through the State as a
subgrantee. Neither of these options has
sufficiently met the needs of the Indian
tribal governments. The new interim
rule establishes a specific planning
requirement for Indian tribal
governments that recognizes some of the
unique aspects of these governments.
The rule establishes requirements for
Tribal Mitigation Plans for plans
prepared and approved after December
3, 2007. The rule provides that plans
prepared and approved under the
preexisting rule, either under the State
or local requirements, would also be
recognized as Tribal Mitigation Plans.
These older plans, however, would be
required to meet the revised criteria
when the original plan approval expires.
This rule combines the appropriate
aspects of State and local planning
requirements into one section for Indian
tribal governments. Prior to the
preparation of this rule, FEMA
discussed the planning requirements
with many of the Indian tribal
governments as they were developing
their own plans, or while attending
tribal training courses, and heard the
concerns regarding the planning
requirements.
In conclusion, the interim rule does
not impose substantial direct
compliance costs on Indian tribal
governments, nor does it preempt tribal
law, impair treaty rights nor limit the
self-governing powers of Indian tribal
governments.

enterprises to compete with foreignbased enterprises. The rule is not an
unfunded Federal mandate within the
meaning of the Unfunded Mandates
Reform Act of 1995, Public Law 104–4,
and any enforceable duties that FEMA
imposes are a condition of Federal
assistance or a duty arising from
participation in a voluntary Federal
program.

I. Congressional Review of Agency
Rulemaking
FEMA has sent this interim rule to the
Congress and to the General
Accountability Office under the
Congressional Review of Agency
Rulemaking Act, (Congressional Review
Act), Public Law 104–121. This interim
rule is not a ‘‘major rule’’ within the
meaning of the Congressional Review
Act. It implements statutory
requirements creating the SRL program
and statutory amendments providing for
an increased Federal share for FMA
projects affecting severe repetitive loss
properties; streamlines and makes
consistent the planning requirements for
FMA and Indian tribal governments;
and makes a technical update to reflect
a statutory change in the HMGP
allocation.
The interim rule will not result in a
major increase in costs or prices for
consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions. It will
not have ‘‘significant adverse effects’’ on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based

[e]ligible acquisition projects are those where
the property owner participates voluntarily,
and the grantee/subgrantee will not use its
eminent domain authority to acquire the
property for the open space purposes should
negotiations fail.

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J. Regulatory Flexibility Act
The Regulatory Flexibility Act
(‘‘RFA’’) mandates that an agency
conduct a RFA analysis when an agency
is ‘‘required by section 553 * * * to
publish general notice of proposed
rulemaking for any proposed rule * * *
5 U.S.C. 603(a). Accordingly, RFA
analysis is not required when a rule is
exempt from notice and comment
rulemaking under 5 U.S.C. 553(b). DHS
has determined that good cause exists
under 5 U.S.C. 553(b)(B) to exempt this
rule from the notice and comment
requirements of 5 U.S.C. 553(b).
Therefore no RFA analysis under 5
U.S.C. 603 is required for this rule.
K. Executive Order 12630, Taking of
Private Property
This rule will not affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights. In fact,
§ 80.5(a) states that

L. Executive Order 12988, Civil Justice
Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.

61737

44 CFR Part 201
Administrative practice and
procedure, Disaster assistance, Grant
programs, Reporting and recordkeeping
requirements.
44 CFR Part 206
Administrative practice and
procedure, Coastal zone, Community
facilities, Disaster assistance, Fire
prevention, Grant programs—housing
and community development, Housing,
Insurance, Intergovernmental relations,
Loan programs—housing and
community development, Natural
resources, Penalties, Reporting and
recordkeeping requirements.
■ For the reasons set forth in the
preamble, the Federal Emergency
Management Agency amends 44 CFR
chapter I as set forth below:
PART 59—GENERAL PROVISIONS
1. The authority citation for part 59
continues to read as follows:

■

Authority: 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 43 FR
41943, 3 CFR, 1978 Comp., p. 329; E.O.
12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

2. Section 59.1 is amended by revising
the definition of State as follows:

■

§ 59.1

Definitions.

*

*
*
*
*
State means any State of the United
States, the District of Columbia, Puerto
Rico, the Virgin Islands, Guam,
American Samoa, and the
Commonwealth of the Northern Mariana
Islands.
*
*
*
*
*
PART 61—INSURANCE COVERAGE
AND RATES
3. The authority citation for part 61
continues to read as follows:

■

List of Subjects

Authority: 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 43 FR
41943, 3 CFR, 1978 Comp., p. 329; E.O.
12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

44 CFR Part 59

■

Flood insurance, Reporting and
recordkeeping requirements.

§ 61.9

Flood insurance, Reporting and
recordkeeping requirements.
44 CFR Parts 78 and 79
Flood insurance, Grant programs.
44 CFR Part 80
Acquisition and relocation for open
space.

Frm 00019

Fmt 4701

Establishment of chargeable rates.

*

44 CFR Part 61

PO 00000

4. In § 61.9 add paragraphs (d) and (e)
as follows:

Sfmt 4700

*
*
*
*
(d) Properties that meet the definition
of Severe Repetitive Loss properties as
defined in § 79.2(g) of this subchapter,
and who refuse an offer of mitigation
pursuant to § 79.7 of this subchapter are
not eligible for the rates identified in
paragraphs (a) through (c) of this
section.
(e) Properties leased from the Federal
Government and located either on the

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river-facing side of a dike, levee, or
other riverine flood control structure, or
seaward of any seawall or other coastal
flood control structure are not eligible
for the rates identified in paragraphs (a)
through (c) of this section.
PART 78—FLOOD MITIGATION
ASSISTANCE
5. The authority citation for part 78 is
revised to read as follows:

■

Authority: 6 U.S.C. 101; 42 U.S.C. 4001 et
seq.; 42 U.S.C. 4104c, 4104d; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; E.O. 12127, 44 FR 19367, 3
CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR
43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.
■

6. Revise § 78.1(a) to read as follows:

§ 78.1

Purpose.

(a) The purpose of this part is to
prescribe actions, procedures, and
requirements for administration of the
Flood Mitigation Assistance (FMA)
program, authorized by Sections 1366
and 1367 of the National Flood
Insurance Act of 1968, 42 U.S.C. 4104c
and 4104d. The rules in this part apply
to the administration of funds awarded
under the FMA program for which the
application period opened prior to
December 3, 2007. On or after that date,
the administration of funds awarded
under FMA program shall be subject to
the rules in part 79 of this subchapter.
*
*
*
*
*
■ 7. Remove the undesignated center
heading FEDERAL CRIME INSURANCE
PROGRAM which precedes RESERVED
PARTS 80–149.
■ 8. Add part 79 to read as follows:
PART 79—FLOOD MITIGATION
GRANTS
Sec.
79.1
79.2
79.3
79.4
79.5
79.6
79.7

mstockstill on PROD1PC66 with RULES2

Purpose.
Definitions.
Responsibilities.
Availability of funding.
Application process.
Eligibility.
Offers and appeals under the SRL
program.
79.8 Allowable costs.
79.9 Grant administration.

§ 79.2

Authority: 6 U.S.C. 101; 42 U.S.C. 4001 et
seq.; 42 U.S.C. 4104c, 4104d; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; E.O. 12127, 44 FR 19367, 3
CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR
43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.
§ 79.1

Purpose.

(a) The purpose of this part is to
prescribe actions, procedures, and

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requirements for administration of the
hazard mitigation grant programs made
available under the National Flood
Insurance Act of 1968, as amended, and
the Flood Disaster Protection Act of
1973, as amended, 42 U.S.C. 4001 et
seq. The Severe Repetitive Loss (SRL)
and Flood Mitigation Assistance (FMA)
grant programs mitigate losses from
floods, minimizing impacts to the
National Flood Insurance Fund (NFIF).
The rules in this part apply to the
administration of funds under the SRL
and FMA programs for which the
application period opens on or after
December 3, 2007. Prior to this date, the
administration of funds under the FMA
program shall be subject to the rules in
part 78 of this subchapter.
(b) The purpose of the SRL program
is to:
(1) Assist State and local governments
in funding actions that reduce or
eliminate the risk of flood damage to
residential properties insured under the
National Flood Insurance Program
(NFIP) that meet the definition of severe
repetitive loss property;
(2) Reduce the need to increase flood
insurance premiums of NFIP
policyholders that would otherwise be
required to pay for potential future
repetitive claims associated with severe
repetitive loss properties; and
(3) Reduce loss of life, property
damage, outlays for the NFIF, and
Federal disaster assistance by reducing
or eliminating the risk of flood damage
to those insured properties that have
historically experienced the most severe
flood losses.
(c) The purpose of the FMA program
is to assist State and local governments
in funding cost-effective actions that
reduce or eliminate the risk of flood
damage to buildings, manufactured
homes, and other structures insured
under the NFIP.
Definitions.

(a) Except as otherwise provided in
this part, the definitions set forth in
section 59.1 of this subchapter are
applicable to this part.
(b) Applicant is the State or Indian
tribal government applying to FEMA for
a grant, and which will be accountable
for the use of the funds.
(c) Community means:
(1) A political subdivision, including
any Indian tribe, authorized tribal
organization, Alaskan native village or
authorized native organization, that has
zoning and building code jurisdiction
over a particular area having special
flood hazards, and is participating in the
NFIP; or
(2) A political subdivision of a State,
or other authority that is designated by

PO 00000

Frm 00020

Fmt 4701

Sfmt 4700

a political subdivision to develop and
administer a mitigation plan.
(d) Grantee means the State or Indian
tribal government to which FEMA
awards a grant and which is accountable
for the use of the funds provided. The
grantee is the entire legal entity, even if
only a particular component of the
entity is designated in the grant award
document.
(e) Market Value is generally defined
as the amount in cash, or on terms
reasonably equivalent to cash, for which
in all probability the property would
have sold on the effective date of the
valuation, after a reasonable exposure
time on the open competitive market,
from a willing and reasonably
knowledgeable seller to a willing and
reasonably knowledgeable buyer, with
neither acting under any compulsion to
buy or sell, giving due consideration to
all available economic uses of the
property at the time of the valuation.
(f) Multifamily Property means a
property consisting of 5 or more
residences.
(g) Severe Repetitive Loss Properties
are defined as single or multifamily
residential properties that are covered
under an NFIP flood insurance policy
and:
(1) That have incurred flood-related
damage for which 4 or more separate
claims payments have been made, with
the amount of each claim (including
building and contents payments)
exceeding $5,000, and with the
cumulative amount of such claims
payments exceeding $20,000; or
(2) For which at least 2 separate
claims payments (building payments
only) have been made under such
coverage, with cumulative amount of
such claims exceeding the market value
of the building.
(3) In both instances, at least 2 of the
claims must be within 10 years of each
other, and claims made within 10 days
of each other will be counted as 1 claim.
(h) Subapplicant means a State
agency, community, or Indian tribal
government submitting an application
for planning or project activity to the
applicant for assistance under the FMA
or SRL programs. Upon grant award, the
subapplicant is referred to as the
subgrantee.
(i) Subgrant means an award of
financial assistance made under a
grantee to an eligible subgrantee.
(j) Subgrantee means the State agency,
community, or Indian tribal government
or other legal entity to which a subgrant
is awarded and which is accountable to
the grantee for the use of the funds
provided.
(k) Administrator means the head of
the Federal Emergency Management

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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations
Agency, or his/her designated
representative, appointed under section
503 of the Post-Katrina Emergency
Management Reform Act of 2006 (Pub.
L. 109–295). The term also refers to the
Director as discussed in part 2 of this
chapter.
(l) Regional Administrator means the
head of a Federal Emergency
Management Agency regional office, or
his/her designated representative,
appointed under section 507 of the PostKatrina Emergency Management Reform
Act of 2006 (Pub. L. 109–295). The term
also refers to Regional Directors as
discussed in part 2 of this chapter.

mstockstill on PROD1PC66 with RULES2

§ 79.3

Responsibilities.

(a) Federal Emergency Management
Agency (FEMA). Administer and
provide oversight to all FEMA-related
hazard mitigation programs and grants,
including:
(1) Issue program implementation
procedures, as necessary, which will
include information on availability of
funding;
(2) Allocate funds to States for the
FMA and for the SRL programs;
(3) Award all grants to the grantee
after evaluating subgrant applications
for eligibility and ensuring compliance
with applicable Federal laws, giving
priority to such properties, or to the
subset of such properties, as the
Administrator may determine are in the
best interest of the NFIF;
(4) Provide technical assistance and
training to State, local and Indian tribal
governments regarding the mitigation
and grants management process;
(5) Review and approve State, Indian
tribal, and local mitigation plans in
accordance with part 201 of this
chapter;
(6) Comply with applicable Federal
statutory, regulatory, and Executive
Order requirements related to
environmental and historic preservation
compliance, including reviewing and
supplementing, if necessary, the
environmental analyses conducted by
the State and subgrantee in accordance
with part 10 of this chapter;
(7) Establish and maintain an updated
list of SRL properties and make such
information available to States and
communities; and
(8) Notify owners of SRL properties
that their properties meet the definition
of a severe repetitive loss property and
provide a summary of the opportunities
and implications of being identified as
such.
(b) State. The State will serve as the
applicant and grantee through a single
Point of Contact (POC) for the FMA and
SRL programs. The POC is a State
agency that must have working

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knowledge of NFIP goals, requirements,
and processes and ensure that the
programs are coordinated with other
mitigation activities at the State level.
States will:
(1) Have a FEMA approved Mitigation
Plan in accordance with part 201 of this
chapter;
(2) Review and submit local
mitigation plans to the FEMA Regional
Administrator for final review and
approval;
(3) Provide technical assistance and
training to communities on mitigation
planning, mitigation project activities,
developing subgrant applications, and
implementing approved subgrants;
(4) Prioritize and recommend
subgrant applications to be approved by
FEMA, based on the State Mitigation
Plan, other State evaluation criteria and
the eligibility criteria described in
§ 79.6;
(5) Award FEMA-approved subgrants;
and
(6) Comply with program
requirements under this part, grant
management requirements identified
under part 13 of this chapter, the grant
agreement articles, and other applicable
Federal, State, tribal and local laws and
regulations.
(c) Indian tribal governments. The
Indian tribal government will
coordinate all tribal activities relating to
hazard evaluation and mitigation
including:
(1) Have a FEMA approved Tribal
Mitigation Plan in accordance with
§ 201.7 of this chapter;
(2) A Federally Recognized Indian
tribal government as defined by the
Federally Recognized Indian Tribe List
Act of 1994, 25 U.S.C. 479a, applying
directly to FEMA for mitigation grant
funding will assume the responsibilities
of the ‘‘State’’ as the term is used in this
part, as applicant or grantee, described
in paragraphs (b)(3) through (6) of this
section; and
(3) A Federally Recognized Indian
tribal government as defined by the
Federally Recognized Indian Tribe List
Act of 1994, 25 U.S.C. 479a, applying
through the State, will assume the
responsibilities of the community (as
the subapplicant or subgrantee)
described in paragraphs (d)(2) through
(4) of this section.
(d) Community. The community
(referred to as both subapplicant and
subgrantee) will:
(1) Prepare and submit a FEMAapproved Local Mitigation Plan,
consistent with the requirements of part
201 of this chapter;
(2) Complete and submit subgrant
applications to the State POC for FMA
planning, project and management cost

PO 00000

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61739

subgrants, and for SRL project and
management cost subgrants;
(3) Implement all approved subgrants;
notifying each holder of a recorded
interest in severe repetitive loss
properties when an offer of mitigation
assistance has been made under the SRL
program, and when such offer has been
refused; and
(4) Comply with program
requirements under this part, grant
management requirements identified
under part 13 of this chapter, the grant
agreement articles, and other applicable
Federal, State, tribal and local laws and
regulations.
§ 79.4

Availability of funding.

(a) Allocation. (1) For the amount
made available for the SRL program, the
Administrator will allocate the available
funds to States each fiscal year based
upon the percentage of the total number
of severe repetitive loss properties
located within that State. Ten percent of
the total funds made available in any
fiscal year will be made available to
States and Indian tribal applicants that
have at least 1 SRL property and that
receive little or no allocation.
(2) For the amount made available for
the FMA program, the Administrator
will allocate the available funds each
fiscal year. Funds will be distributed
based upon the number of NFIP
policies, repetitive loss structures, and
any other such criteria as the
Administrator may determine are in the
best interests of the NFIF.
(i) A maximum of 7.5 percent of the
amount made available in any fiscal
year may be allocated for FMA planning
grants nationally. A planning grant will
not be awarded to a State or community
more than once every 5 years, and an
individual planning grant will not
exceed $150,000 to any State agency
applicant, or $50,000 to any community
subapplicant. The total planning grant
made in any fiscal year to any State,
including all communities located in
the State, will not exceed $300,000.
(ii) The total amount of FMA project
grant funds provided during any 5-year
period will not exceed $10,000,000 to
any State agency(s) or $3,300,000 to any
community. The total amount of project
grant funds provided to any State,
including all communities located in
the State will not exceed $20,000,000
during any 5-year period. The
Administrator may waive the limits of
this subsection for any 5-year period
when a major disaster or emergency is
declared pursuant to the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act for flood conditions.
(b) Redistribution. Funds allocated to
States who choose not to participate in

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either the FMA or SRL program in any
given year will be reallocated to
participating States and Indian tribal
applicants. Any funds allocated to a
State, and the communities within the
State, which have not been obligated
within the timeframes established by
the Administrator, shall be redistributed
by the Administrator to other States and
communities to carry out eligible
activities in accordance with this part.
(c) Cost share. All mitigation activities
approved under the State’s grant will be
subject to the following cost-share
provisions:
(1) FEMA may contribute up to 75
percent of the eligible cost of activities
for grants approved for funding; or
(2) FEMA may contribute up to 90
percent of the cost of the eligible
activities for each severe repetitive loss
property for which grant amounts are
provided if the State has an approved
State Mitigation Plan meeting the
repetitive loss requirements identified
in § 201.4(c)(3)(v) of this chapter at the
time the project application is
submitted;
(3) For the FMA program only, of the
non-Federal contribution, not more than
one half will be provided from in-kind
contributions.

mstockstill on PROD1PC66 with RULES2

§ 79.5

Application process.

(a) Applicant or grantee. (1) States
will be notified of the amount allocated
to them for the SRL and FMA programs
each fiscal year, along with the
application timeframes.
(2) The State will be responsible for
soliciting applications from eligible
communities, or subapplicants, and for
reviewing and prioritizing applications
prior to forwarding them to FEMA for
review and award.
(3) Participation in these flood
mitigation grant programs is voluntary,
and States may elect not to participate
in either the SRL or FMA program in
any fiscal year without compromising
their eligibility in future years.
(4) Indian tribal governments
interested in applying directly to FEMA
for either the FMA or SRL program
grants should contact the appropriate
FEMA Regional Administrator for
application information.
(b) Subapplicant or subgrantee.
Participation in the SRL and the FMA
program is voluntary, and communities
may elect not to apply. Communities or
other subapplicants who choose to
apply must develop applications within
the timeframes and requirements
established by FEMA and must submit
applications to the State.

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§ 79.6

Eligibility.

(a) Eligible applicants and
subapplicants. (1) States, Indian tribal
governments, and communities
participating in the NFIP may apply for
FMA planning and project grants and
associated management costs.
(2) States, Indian tribal governments,
and communities participating in the
NFIP may apply for SRL project grants
and associated management costs.
(3) Communities withdrawn,
suspended, or not participating under
part 60 of this subchapter of the NFIP
are not eligible for either the FMA or
SRL programs.
(b) Plan requirement. (1) States must
have an approved State Mitigation Plan
meeting the requirements of §§ 201.4 or
201.5 of this chapter in order to apply
for grants through the FMA or SRL
programs. Indian tribal governments
must have an approved plan meeting
the requirements of part 201 of this
chapter at the time of application.
(2) In order to be eligible for FMA and
SRL project grants, subapplicants must
have an approved mitigation plan at the
time of application in accordance with
part 201 of this chapter that, at a
minimum, addresses flood hazards.
(c) Eligible activities. (1) Planning.
FMA planning grants may be used to
develop or update State, Indian tribal
and/or local mitigation plans which
meet the planning criteria outlined in
part 201 of this chapter. FMA planning
grants are limited to those activities
necessary to develop or update the flood
portion of any mitigation plan. Planning
grants are not eligible for funding under
the SRL program.
(2) Projects. Projects funded under the
SRL program are limited to those
activities that specifically reduce or
eliminate flood damages to severe
repetitive loss properties. Projects
funded under the FMA program are
limited to activities that reduce flood
damages to properties insured under the
NFIP. For either program, applications
involving any activities for which
implementation has already been
initiated or completed are not eligible
for funding, and will not be considered.
Eligible activities are:
(i) Acquisition of real property from
property owners, and demolition or
relocation of buildings to convert the
property to open space use in
perpetuity, in accordance with part 80
of this subchapter;
(ii) Demolition or relocation of
structures to areas outside of the
floodplain;
(iii) Elevation of existing structures to
at least base flood levels or higher, if
required by FEMA or if required by any
State or local ordinance, and in

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accordance with criteria established by
the Administrator;
(iv) Floodproofing of existing nonresidential structures in accordance
with the requirements of the NFIP or
higher standards if required by FEMA or
if required by any State or local
ordinance, and in accordance with
criteria established by the
Administrator;
(v) Floodproofing of historic
structures as defined in § 59.1 of this
subchapter;
(vi) For SRL only, demolition and
rebuilding of properties to at least base
flood levels or higher, if required by
FEMA or if required by any State or
local ordinance, and in accordance with
criteria established by the
Administrator; and
(vii) Minor physical localized flood
reduction measures that lessen the
frequency or severity of flooding and
decrease predicted flood damages, and
that do not duplicate the flood
prevention activities of other Federal
agencies. Major flood control projects
such as dikes, levees, floodwalls,
seawalls, groins, jetties, dams and largescale waterway channelization projects
are not eligible.
(d) Minimum project criteria. In
addition to being an eligible project
type, mitigation grant projects must
also:
(1) Be in conformance with mitigation
plans approved under part 201 of this
chapter for the State and community
where the project is located;
(2) Be in conformance with part 9 of
this chapter, Floodplain management
and protection of wetlands, part 10 of
this chapter, Environmental
considerations, § 60.3 of this
subchapter, Flood plain management
criteria for flood-prone areas, and other
applicable Federal, State, tribal, and
local laws and regulations;
(3) Be technically feasible;
(4) Solve a problem independently, or
constitute a functional portion of a longterm solution where there is assurance
that the project as a whole will be
completed. This assurance will include
documentation identifying the
remaining funds necessary to complete
the project, and the timeframe for
completing the project;
(5) Be cost-effective and reduce the
risk of future flood damage;
(6) Consider long-term changes to the
areas and entities it protects, and have
manageable future maintenance and
modification requirements. The
subgrantee is responsible for the
continued maintenance needed to
preserve the hazard mitigation benefits
of these measures; and

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(7) Not duplicate benefits available
from another source for the same
purpose or assistance that another
Federal agency or program has more
primary authority to provide.

mstockstill on PROD1PC66 with RULES2

§ 79.7 Offers and appeals under the SRL
program.

(a) Consultation. States and
communities shall consult, to the extent
practicable, and in accordance with
criteria determined by the
Administrator, with owners of the
severe repetitive loss properties to select
the most appropriate eligible mitigation
activity. These consultations shall be
initiated in the early stages of the
project development, and shall continue
throughout the process. After FEMA
awards the project grant, the subgrantee
shall continue to consult with the
property owners to determine the
specific conditions of the offer.
(b) Mitigation offer. After FEMA
awards the grant and the subgrantee
completes final consultations with the
property owners, the subgrantee shall
develop and present official offers to the
property owners participating in the
mitigation activities.
(1) The offer shall include all
pertinent information regarding the
mitigation activity, including a detailed
description of the activity (e.g. property
acquisition, elevation), the
responsibilities of and benefits to the
property owner, a summary of the
consultation process, timeframes, and
the consequences of refusing such offer.
For open space acquisitions, it will also
include the market value of the
property, the basis for the purchase
offer, and the final offer amount. The
offer will also clearly state that the
property owner’s participation in the
SRL program is voluntary.
(2) The subgrantee will send the
written offer to the property owner’s
current mailing address as a certified
letter, along with a copy to the
appropriate FEMA Regional
Administrator. In addition, the
subgrantee will notify each holder of a
recorded interest on the property when
such offer is extended, along with the
identification of the mitigation
assistance being offered.
(3) The property owner will have 45
days from the date of the letter to accept
or refuse the offer of mitigation
assistance in writing. Failure to respond
in writing within this time period will
be deemed a refusal of the offer.
(c) Insurance increases due to refusal
of offer. In any case in which the
property owner refuses an offer of
mitigation assistance made through the
SRL program, the Administrator shall
provide written notice that the

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chargeable insurance rates with respect
to the property will increase effective on
the next renewal of the policy.
(1) The chargeable insurance
premium rate shall be increased to the
amount equal to 150 percent of the
chargeable rate for the property at the
time that the offer was made, as
adjusted by any other premium
adjustments otherwise applicable to the
property. Each time there is another
claim payment in excess of $1,500, the
chargeable premium rate for that
property shall be the amount equal to
150 percent over the chargeable rate at
the time of every such claim, as adjusted
by any other premium adjustments
otherwise applicable to the property.
The increases shall end when the
actuarial rate is reached.
(2) Upon each renewal or
modification of the flood insurance
coverage, the property owner will be
able to accept the original mitigation
offer, if the community, through the
State, forwards the request to FEMA,
and if sufficient funds are available.
(d) Appeals of insurance rate
increases. Any owner of a severe
repetitive loss property may appeal the
decision to increase the chargeable
insurance premium rate as described in
paragraph (c) of this section by
submitting a written appeal, including
supporting documentation that is
postmarked or delivered to the
appropriate FEMA Regional
Administrator within 90 days of the
date of the notice of the insurance
increase. The increase in the amount of
chargeable premium rate for flood
insurance coverage for the property will
be suspended pending the outcome of
the appeal.
(1) Appeals must be based upon one
or more of the following grounds. The
property owner must include
documentation to support each ground
serving as a basis for the appeal:
(i) The offered mitigation activity is
an acquisition and the property owner
would be unable to purchase a
replacement of the primary residence
that is of comparable value and that is
functionally equivalent. The property
owner must document the actions taken
to locate such replacement dwelling and
demonstrate that no such dwelling is
available.
(ii)(A) The amount of Federal funds
offered for a mitigation activity, when
combined with funds from the required
non-Federal sources, would not cover
the actual eligible costs of the mitigation
activity contained in the mitigation
offer, based on independent
information. In the case of an
acquisition, the purchase offer is not an
accurate estimation of the market value

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of the property, based on independent
information.
(B) For a mitigation activity other than
acquisition, the property owner must
submit independent estimates from
professional engineers or registered
architects to support this claim. For an
acquisition, the property owner must
submit an appraisal from a qualified
appraiser to support this claim, and
valuations will be considered by a
review appraiser.
(iii) The offered mitigation activity
would diminish the integrity of a
historic district, site, building, or
object’s significant historic
characteristics to the extent where the
historic resource would lose its status as
listed or eligible for inclusion on the
National Register of Historic Places. The
property owner must submit
appropriate documentation from the
State Historic Preservation Officer/
Tribal Historic Preservation Officer to
support this claim.
(iv) For a multifamily property: Each
of the flood insurance claims payments
that served as the basis for its
designation as a severe repetitive loss
property must have resulted directly
from the actions of a third party in
violation of Federal, State, or local law,
ordinance, or regulation. The property
owner(s) must submit appropriate
evidence, documentation, or data to
support this claim.
(v) The property owner relied upon
FEMA Flood Insurance Rate Maps
(FIRMs) that were current at the time
the property was purchased, and the
effective FIRM and associated Flood
Insurance Study (FIS) did not indicate
that the property was located in an area
having special flood hazards. The
property owner must produce the dated
FIRM and FIS in effect at the time the
property was purchased to support this
claim.
(vi) An alternative mitigation activity
would be at least as cost effective as the
offered mitigation activity. The property
owner must submit documentation of
the costs for a technically feasible and
eligible alternative mitigation activity
based on estimates from qualified
appraisers, professional engineers, or
registered architects, and information
and documentation demonstrating the
cost effectiveness using a FEMA
approved methodology to support this
claim.
(2) The FEMA Regional Administrator
will conduct an initial review of each
appeal that is filed on a timely basis to
determine if the appeal complies with
this section and includes sufficient
documentation to be evaluated. The
Regional Administrator may reject an
appeal on initial review if it is made on

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a basis other than those listed in
paragraph (d)(1) of this section; if the
property owner does not provide
sufficient documentation, including, if
applicable, supplemental information
requested by the Regional Administrator
by the deadline established by the
Regional Administrator, which shall not
exceed the timeframe described in
paragraph (d) of this section; or if the
appeal otherwise fails to comply with
this section.
(3) If, upon initial review, the
Regional Administrator determines that
the basis for the offered mitigation
activity was erroneous on its face and
the appeal can be resolved in favor of
the property owner, the appeal will be
closed and no insurance increase will
apply to the property. All other cases
will be referred to the Administrator for
assignment to an independent third
party for review. The independent third
party shall make a final determination
on each appeal within 90 days of the
date on which FEMA receives the
appeal. As a low cost option, the
property owner may request that the
Administrator substitute a reviewer
from FEMA’s Alternative Dispute
Resolution Office for the independent
third party.
(4) A property owner who brings an
appeal will be responsible for paying
his/her attorneys’ fees and costs to
gather the necessary documentation and
data to demonstrate the ground(s) for
the appeal. Attorneys’ fees and costs
cannot be awarded by the independent
third party.
(5) If the property owner prevails on
appeal, the independent third party
shall require the Administrator to
charge the risk premium rate for flood
insurance coverage of the property at
the amount paid prior to the mitigation
offer, as adjusted by any other premium
adjustments otherwise applicable to the
property. If the independent third party
hearing the appeal is compensated for
such service, the NFIF shall bear the
costs of such compensation.
(6) If the property owner loses the
appeal, the Administrator shall
promptly increase the chargeable risk
premium rate for flood insurance
coverage of the property to the amount
established pursuant to paragraph (c) of
this section, and shall collect from the
property owner the amount necessary to
cover the stay of the applicability of
such increased rates while the appeal
was pending. If FEMA does not receive
the additional premium by the date it is
due, the amount of coverage will be
reduced to match the amount of
premium payment received. If the
independent third party hearing the
appeal is compensated for such service,

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the property owner shall bear the costs
of such compensation.
§ 79.8

Allowable costs.

(a) General. General policies for
determining allowable costs are
addressed in §§ 13.4, 13.6, and 13.22 of
this chapter. Allowable costs are
explained in this paragraph.
(1) Eligible Management Costs—(i)
Grantee. States are eligible to receive
management costs consisting of a
maximum of 10 percent of the planning
and project activities awarded to the
State, each fiscal year under FMA and
SRL, respectively. These costs must be
included in the application to FEMA.
An Indian tribal government applying
directly to FEMA is eligible for
management costs consisting of a
maximum of 10 percent of grants
awarded for planning and project
activities under the SRL and FMA
programs respectively.
(ii) Subgrantee. Subapplicants may
include a maximum of 5 percent of the
total funds requested for their
subapplication for management costs to
support the implementation of their
planning or project activity. These costs
must be included in the subapplication
to the State.
(2) Indirect costs. Indirect costs of
administering the FMA and SRL
programs are eligible as part of the 10
percent management costs for the
grantee or the 5 percent management
costs of the subgrantee, but in no case
do they make the recipient eligible for
additional management costs that
exceed the caps identified in paragraph
(a)(1) of this section. In addition, all
costs must be in accordance with the
provisions of part 13 of this chapter and
Office of Management and Budget
Circular A–87.
(b) Pre-award costs. FEMA may fund
eligible pre-award planning or project
costs at its discretion and as funds are
available. Grantees and subgrantees may
be reimbursed for eligible pre-award
costs for activities directly related to the
development of the project or planning
proposal. These costs can only be
incurred during the open application
period of the respective grant program.
Costs associated with implementation of
the activity but incurred prior to grant
award are not eligible. Therefore,
activities where implementation is
initiated or completed prior to award
are not eligible and will not be
reimbursed.
(c) Duplication of benefits. Grant
funds may not duplicate benefits
received by or available to applicants,
subapplicants and project participants
from insurance, other assistance
programs, legal awards, or any other

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source to address the same purpose.
Such individual or entity must notify
the grantee and FEMA of all benefits
that it receives or anticipates from other
sources for the same purpose. FEMA
will reduce the subgrant award by the
amounts available for the same purpose
from another source.
(d) Negligence or other tortious
conduct. FEMA grant funds are not
available where an applicant,
subapplicant, other project participant,
or third party’s negligence or intentional
actions contributed to the conditions to
be mitigated. If the applicant,
subapplicant, or project participant
suspects negligence or other tortious
conduct by a third party for causing
such condition, they are responsible for
taking all reasonable steps to recover all
costs attributable to the tortious conduct
of the third party. FEMA generally
considers such amounts to be
duplicated benefits available for the
same purpose, and will treat them
consistent with paragraph (c) of this
section.
(e) FEMA grant funds are not
available to satisfy or reimburse for legal
obligations, such as those imposed by a
legal settlement, court order, or State
law.
§ 79.9

Grant administration.

(a) The Grantee must follow FEMA
grant requirements, including
submission of performance and
financial status reports, and shall follow
adequate competitive procurement
procedures. In addition, grantees are
responsible for ensuring that all
subgrantees are aware of and follow the
requirements contained in part 13 of
this chapter.
(b) During the implementation of an
approved grant, the State POC may find
that actual costs are exceeding the
approved award amount. While there is
no guarantee of additional funding,
FEMA will only consider requests made
by the State POC to pay for such
overruns if:
(1) Funds are available to meet the
requested increase in funding;
(2) The amended grant award meets
the cost-share requirements identified in
this section; and
(3) The total amount obligated to the
State does not exceed the maximum
funding amounts set in § 79.4(a)(2).
(c) Grantees may use cost underruns
from ongoing subgrants to offset
overruns incurred by another
subgrant(s) awarded under the same
grant. All costs for which funding is
requested must have been included in
the original application’s cost estimate.
(d) For all cost overruns that exceed
the amount approved under the grant,

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and which require additional Federal
funds, the State POC shall submit a
written request with a recommendation,
including a justification for the
additional funding to the Regional
Administrator for a determination. If
approved, the Regional Administrator
shall increase the grant through an
amendment to the original award
document.
(e) At the time of closeout, FEMA will
recapture any funds provided to a State
or a community under these programs if
the applicant has not provided the
appropriate matching funds, the
approved project has not been
completed within the timeframes
specified in the grant agreement, or the
completed project does not meet the
criteria specified in this part.
■ 9. Add part 80 to read as follows:

FEMA hazard mitigation assistance
program. This part supplements general
program requirements of the funding
grant program and must be read in
conjunction with the relevant program
regulations and guidance available at
http://www.fema.gov. This part, with
the exception of § 80.19 Land use and
oversight, applies to projects for which
the funding program application period
opens or for which funding is made
available pursuant to a major disaster
declared on or after December 3, 2007.
Prior to that date, applicable program
regulations and guidance in effect for
the funding program (available at http://
www.fema.gov) shall apply. Section
80.19 Land use and oversight apply as
of December 3, 2007 to all FEMA
funded acquisitions for the purpose of
open space.

PART 80—PROPERTY ACQUISITION
AND RELOCATION FOR OPEN SPACE

§ 80.3

Subpart A—General
Sec.
80.1 Purpose and scope.
80.3 Definitions.
80.5 Roles and responsibilities.
Subpart B—Requirements Prior to Award
80.7 General.
80.9 Eligible and ineligible costs.
80.11 Project eligibility.
80.13 Application information.
Subpart C—Post-Award Requirements
80.15 General.
80.17 Project implementation.
80.19 Land use and oversight.
Subpart D—After the Grant Requirements
80.21 Closeout requirements.
Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5206; the National Flood
Insurance Act of 1968, as amended, 42 U.S.C.
4001 et seq.; Reorganization Plan No. 3 of
1978, 43 FR 41943, 3 CFR, 1978 Comp., p.
329; Homeland Security Act of 2002, 6 U.S.C.
101; E.O. 12127, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148, 44 FR 43239, 3
CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR
10619, 3 CFR, 2003 Comp., p. 166.

Subpart A—General

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§ 80.1

Purpose and scope.

This part provides guidance on the
administration of FEMA mitigation
assistance for projects to acquire
property for open space purposes under
all FEMA hazard mitigation assistance
programs. It provides information on the
eligibility and procedures for
implementing projects for acquisition
and relocation of at-risk properties from
the hazard area to maintain the property
for open space purposes. This part
applies to property acquisition for open
space project awards made under any

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Definitions.

(a) Except as noted in this part, the
definitions applicable to the funding
program apply to implementation of this
part. In addition, for purposes of this
part:
(b) Applicant is the State or Indian
tribal government applying to FEMA for
a grant, and which will be accountable
for the use of the funds.
(c) Grantee means the State or Indian
tribal government to which FEMA
awards a grant and which is accountable
for the use of the funds provided. The
grantee is the entire legal entity, even if
only a particular component of the
entity is designated in the grant award
document.
(d) Market Value is generally defined
as the amount in cash, or on terms
reasonably equivalent to cash, for which
in all probability the property would
have sold on the effective date of the
valuation, after a reasonable exposure
time on the open competitive market,
from a willing and reasonably
knowledgeable seller to a willing and
reasonably knowledgeable buyer, with
neither acting under any compulsion to
buy or sell, giving due consideration to
all available economic uses of the
property at the time of the valuation.
(e) National of the United States
means a person within the meaning of
the term as defined in the Immigration
and Nationality Act, 8 U.S.C. section
1101(a)(22).
(f) Purchase offer is the initial value
assigned to the property, which is later
adjusted by applicable additions and
deductions, resulting in a final offer
amount to a property owner.
(g) Qualified alien means a person
within the meaning of the term as
defined at 8 U.S.C. 1641.
(h) ‘‘Qualified conservation
organization’’ means a qualified

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61743

organization with a conservation
purpose pursuant to 26 CFR 1.170A–14
and applicable implementing
regulations, that is such an organization
at the time it acquires the property
interest and that was such an
organization at the time of the major
disaster declaration, or for at least 2
years prior to the opening of the grant
application period.
(i) Subapplicant means the entity that
submits an application for FEMA
mitigation assistance to the State or
Indian tribal applicant/grantee. With
respect to open space acquisition
projects under the Hazard Mitigation
Grant Program (HMGP), this term has
the same meaning as given to the term
‘‘applicant’’ in part 206, subpart N of
this chapter. Upon grant award, the
subapplicant is referred to as the
subgrantee.
(j) Subgrant means an award of
financial assistance made under a
grantee to an eligible subgrantee.
(k) Subgrantee means the State
agency, community, or Indian tribal
government or other legal entity to
which a subgrant is awarded and which
is accountable to the grantee for the use
of the funds provided.
(l) Administrator means the head of
the Federal Emergency Management
Agency, or his/her designated
representative, appointed under section
503 of the Post-Katrina Emergency
Management Reform Act of 2006 (Pub.
L. 109–295). The term also refers to the
Director as discussed in part 2 of this
chapter.
(m) Regional Administrator means the
head of a Federal Emergency
Management Agency regional office, or
his/her designated representative,
appointed under section 507 of the PostKatrina Emergency Management Reform
Act of 2006 (Pub. L. 109–295). The term
also refers to Regional Directors as
discussed in part 2 of this chapter.
§ 80.5

Roles and responsibilities.

The roles and responsibilities of
FEMA, the State, the subapplicant/
subgrantee, and participating property
owners in the particular context of
mitigation projects for the purpose of
creating open space include the
activities in this section. These are in
addition to grants management roles
and responsibilities identified in
regulations and guidance of the program
funding the project (available at http://
www.fema.gov) and other
responsibilities specified in this part.
(a) Federal roles and responsibilities.
Oversee property acquisition activities
undertaken under FEMA mitigation
grant programs, including:

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(1) Providing technical assistance to
the applicant/grantee to assist in
implementing project activities in
compliance with this part;
(2) Reviewing applications for
eligibility and compliance with this
part;
(3) Reviewing proposals for
subsequent transfer of a property
interest and approving appropriate
transferees;
(4) Making determinations on the
compatibility of proposed uses with the
open space purpose, in accordance with
§ 80.19;
(5) Complying with applicable
Federal statutory, regulatory, and
Executive Order requirements related to
environmental and historic preservation
compliance, including reviewing and
supplementing, if necessary,
environmental analyses conducted by
the State and subgrantee in accordance
with part 10 of this chapter;
(6) Providing no Federal disaster
assistance, flood insurance claims
payments, or other FEMA assistance
with respect to the property or any
open-space related improvements, after
the property interest transfers; and
(7) Enforcing the requirements of this
part and the deed restrictions to ensure
that the property remains in open space
use in perpetuity.
(b) State (applicant/grantee) roles and
responsibilities. Serve as the point of
contact for all property acquisition
activities by coordinating with the
subapplicant/subgrantee and with
FEMA to ensure that the project is
implemented in compliance with this
part, including:
(1) Providing technical assistance to
the subapplicant/subgrantee to assist in
implementing project activities in
compliance with this part;
(2) Ensuring that applications are not
framed in a manner that has the effect
of circumventing any requirements of
this part;
(3) Reviewing the application to
ensure that the proposed activity
complies with this part, including
ensuring that the property acquisition
activities remain voluntary in nature,
and that the subgrantee and property
owners are made aware of such;
(4) Submitting to FEMA
subapplications for proposed projects in
accordance with the respective program
schedule and programmatic
requirements, and including all the
requisite information to enable FEMA to
determine the eligibility, technical
feasibility, cost effectiveness, and
environmental and historic preservation
compliance of the proposed projects;
(5) Reviewing proposals for
subsequent transfer of property interest

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and obtaining FEMA approval of such
transfers; and ensuring that all uses
proposed for the property are
compatible with open space project
purposes;
(6) Making no application for, nor
providing, Federal disaster assistance or
other FEMA assistance for the property
or any open-space related
improvements, after the property
interest transfers;
(7) Enforcing the terms of this part
and the deed restrictions to ensure that
the property remains in open space use
in perpetuity; and
(8) Reporting on property compliance
with the open space requirements after
the grant is awarded.
(c) Subapplicant/Subgrantee roles
and responsibilities. Coordinate with
the applicant/grantee and with the
property owners to ensure that the
project is implemented in compliance
with this part, including:
(1) Submitting all applications for
proposed projects in accordance with
the respective program schedule and
programmatic requirements, and
including all the requisite information
to enable the applicant/grantee and
FEMA to determine the eligibility,
technical feasibility, cost effectiveness,
and environmental and historic
preservation compliance of the
proposed projects;
(2) Ensuring that applications are not
framed in a manner that has the effect
of circumventing any requirements of
this part;
(3) Coordinating with the property
owners to ensure they understand the
benefits and responsibilities of
participating in the project, including
that participation in the project is
voluntary, and that the property
owner(s) are made aware of such;
(4) Developing the application and
implementing property acquisition
activities in compliance with this part,
and ensuring that all terms of the deed
restrictions and grant award are
enforced;
(5) Ensuring fair procedures and
processes are in place to compensate
property owners and tenants affected by
the purchase of property; such as
determining property values and/or the
amount of the mitigation offer, and
reviewing property owner disputes
regarding such offers;
(6) Making no application for Federal
disaster assistance, flood insurance, or
other FEMA benefits for the property or
any open-space related improvements,
after the property interest transfers;
(7) Taking and retaining full property
interest, consistent with this part; or if
transferring such interest, obtaining
approval of the grantee and FEMA;

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(8) Submitting to the grantee and
FEMA proposed uses on the property
for open space compatibility
determinations; and
(9) Monitoring and reporting on
property compliance after the grant is
awarded.
(d) Participating property owner roles
and responsibilities. Notify the
subapplicant/subgrantee of its interest
to participate, provide information to
the subapplicant/subgrantee, and take
all required actions necessary for the
completion of the grant application and
the implementation of property
acquisition activities in accordance with
this part.
Subpart B—Requirements Prior to
Award
§ 80.7

General.

A project involving property
acquisition or the relocation of
structures for open space is eligible for
hazard mitigation assistance only if the
subapplicant meets the pre-award
requirements set forth in this subpart. A
project may not be framed in a manner
that has the effect of circumventing the
requirements of this subpart.
§ 80.9

Eligible and ineligible costs.

(a) Allowable costs. Eligible project
costs may include compensation for the
value of structures, for their relocation
or demolition, for associated land, and
associated costs. For land that is already
held by an eligible entity, compensation
for the land is not an allowable cost, but
compensation for development rights
may be allowable.
(b) Pre-award costs. FEMA may fund
eligible pre-award project costs at its
discretion and as funds are available.
Grantees and subgrantees may be
reimbursed for eligible pre-award costs
for activities directly related to the
development of the project proposal.
These costs can only be incurred during
the open application period of the
respective grant program. Costs
associated with implementation of the
project but incurred prior to grant award
are not eligible. Therefore, activities
where implementation is initiated or
completed prior to award are not
eligible and will not be reimbursed.
(c) Duplication of benefits. Grant
funds may not duplicate benefits
received by or available to applicants,
subapplicants and other project
participants from insurance, other
assistance programs, legal awards, or
any other source to address the same
purpose. Such individual or entity must
notify the subapplicant and FEMA of all
benefits that it receives, anticipates, or
has available from other sources for the

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same purpose. FEMA will reduce the
subgrant award by the amounts
available for the same purpose from
another source.
(d) Negligence or other tortious
conduct. FEMA acquisition funds are
not available where an applicant,
subapplicant, other project participant,
or third party’s negligence or intentional
actions contributed to the conditions to
be mitigated. If the applicant,
subapplicant, or project participant
suspects negligence or other tortious
conduct by a third party for causing
such condition, they are responsible for
taking all reasonable steps to recover all
costs attributable to the tortious conduct
of the third party. FEMA generally
considers such amounts to be
duplicated benefits available for the
same purpose, and will treat them
consistent with paragraph (c) of this
section.
(e) FEMA mitigation grant funds are
not available to satisfy or reimburse for
legal obligations, such as those imposed
by a legal settlement, court order, or
State law.

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§ 80.11

Project eligibility.

(a) Voluntary participation. Eligible
acquisition projects are those where the
property owner participates voluntarily,
and the grantee/subgrantee will not use
its eminent domain authority to acquire
the property for the open space
purposes should negotiations fail.
(b) Acquisition of improved
properties. Eligible properties are those
with at-risk structures on the property,
including those that are damaged or
destroyed due to an event. In some
cases, undeveloped, at-risk land
adjacent to an eligible property with
existing structures may be eligible.
(c) Subdivision restrictions. The land
may not be subdivided prior to
acquisition except for portions outside
the identified hazard area, such as the
Special Flood Hazard Area or any risk
zone identified by FEMA.
(d) Subapplicant property interest. To
be eligible, the subapplicant must
acquire or retain fee title (full property
interest) as part of the project
implementation. A pass through of
funds from an eligible entity to an
ineligible entity must not occur.
(e) Hazardous materials. Eligible
properties include only those that are
not contaminated with hazardous
materials, except for incidental
demolition and household hazardous
waste.
(f) Open space restrictions. Property
acquired or from which a structure is
removed must be dedicated to and
maintained as open space in perpetuity
consistent with this part.

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§ 80.13

Application information.

(a) An application for acquisition of
property for the purpose of open space
must include:
(1) A photograph that represents the
appearance of each property site at the
time of application;
(2) Assurances that the subapplicant
will implement the project grant award
in compliance with subparts C and D of
this part;
(3) The deed restriction language,
which shall be consistent with the
FEMA model deed restriction that the
local government will record with the
property deeds. Any variation from the
model deed restriction language can
only be made with prior approval from
FEMA’s Office of General Counsel;
(4) The documentation of voluntary
interest signed by each property owner,
which must include that the
subapplicant has informed them in
writing that it will not use its eminent
domain authority for the open space
purpose; and
(5) Assurance that the subject
property is not part of an intended,
planned, or designated project area for
which the land is to be acquired by a
certain date, and that local and State
governments have no intention to use
the property for any public or private
facility in the future inconsistent with
this part;
(6) If the applicant is offering preevent value: certification that the
property owner is a National of the
United States or qualified alien; and
(7) Other information as determined
by the Administrator.
(b) Consultation regarding other
ongoing Federal activities. (1) The
subapplicant must demonstrate that it
has consulted with the United States
Army Corps of Engineers (USACE)
regarding the subject land’s potential
future use for the construction of a levee
system. The subapplicant must also
demonstrate that it has, and will, reject
any future consideration of such use if
it accepts FEMA assistance to convert
the property to permanent open space.
(2) The subapplicant must
demonstrate that it has coordinated with
its State Department of Transportation
to ensure that no future, planned
modifications, improvements, or
enhancements to Federal aid systems
are under consideration that will affect
the subject property.
(c) Restriction on alternate properties.
Changes to the properties in an
approved mitigation project will be
considered by FEMA but not approved
automatically. The subapplicant must
identify the alternate properties in the
project application and each alternate

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property must meet eligibility
requirements in order to be considered.
Subpart C—Post-Award Requirements
§ 80.15

General.

A project involving property
acquisition or the relocation of
structures for open space must be
implemented consistent with the
requirements set forth in this subpart.
§ 80.17

Project implementation.

(a) Hazardous materials. The
subgrantee shall take steps to ensure it
does not acquire or include in the
project properties contaminated with
hazardous materials by seeking
information from property owners and
from other sources on the use and
presence of contaminants affecting the
property from owners of properties that
are or were industrial or commercial, or
adjacent to such. A contaminated
property must be certified clean prior to
participation. This excludes permitted
disposal of incidental demolition and
household hazardous wastes. FEMA
mitigation grant funds may not be used
for clean up or remediation of
contaminated properties.
(b) Clear title. The subgrantee will
obtain a title insurance policy
demonstrating that fee title conveys to
the subgrantee for each property to
ensure that it acquires only a property
with clear title. The property interest
generally must transfer by a general
warranty deed. Any incompatible
easements or other encumbrances to the
property must be extinguished before
acquisition.
(c) Purchase offer and supplemental
payments. (1) The amount of purchase
offer is the current market value of the
property or the market value of the
property immediately before the
relevant event affecting the property
(‘‘pre-event’’).
(i) The relevant event for Robert T.
Stafford Disaster Relief and Emergency
Assistance Act assistance under HMGP
is the major disaster under which funds
are available; for assistance under the
Pre-disaster Mitigation program (PDM)
(42 U.S.C. 5133), it is the most recent
major disaster. Where multiple disasters
have affected the same property, the
grantee and subgrantee shall determine
which is the relevant event.
(ii) The relevant event for assistance
under the National Flood Insurance Act
is the most recent event resulting in a
National Flood Insurance Program
(NFIP) claim of at least $5000.
(2) For acquisition of properties under
the Severe Repetitive Loss program
under part 79 of this subchapter, the
purchase offer is not less than the

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greatest of the amount in paragraph
(c)(1) of this section; the original
purchase price paid by the participating
property owner holding the flood
insurance policy; or the outstanding
amount of any loan to the participating
property owner, which is secured by a
recorded interest in the property at the
time of the purchase offer.
(3) The grantee should coordinate
with the subgrantee in their
determination of whether the valuation
should be based on pre-event or current
market value. Generally, the same
method to determine market value
should be used for all participants in the
project.
(4) A property owner who did not
own the property at the time of the
relevant event, or who is not a National
of the United States or qualified alien,
is not eligible for a purchase offer based
on pre-event market value of the
property. Subgrantees will ask each
participating property owner to certify
that they are either a National of the
United States or qualified alien before
offering pre-event market value for the
property.
(5) Certain tenants who must relocate
as a result of the project are entitled to
relocation benefits under the Uniform
Relocation Assistance and Real Property
Acquisition Policies Act (such as
moving expenses, replacement housing
rental payments, and relocation
assistance advisory services) in
accordance with 49 CFR part 24.
(6) If a purchase offer for a residential
property is less than the cost of the
homeowner-occupant to purchase a
comparable replacement dwelling
outside the hazard-prone area in the
same community, the subgrantee for
funding under the Severe Repetitive
Loss program implemented at part 79 of
this subchapter shall make available a
supplemental payment to the
homeowner-occupant to apply to the
difference. Subgrantees for other
mitigation grant programs may make
such a payment available in accordance
with criteria determined by the
Administrator.
(7) The subgrantee must inform each
property owner, in writing, of what it
considers to be the market value of the
property, the method of valuation and
basis for the purchase offer, and the
final offer amount. The offer will also
clearly state that the property owner’s
participation in the project is voluntary.
(d) Removal of Existing Buildings.
Existing incompatible facilities must be
removed by demolition or by relocation
outside of the hazard area within 90
days of settlement of the property
transaction. The FEMA Regional
Administrator may grant an exception to

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this deadline only for a particular
property based upon written
justification if extenuating
circumstances exist, but shall specify a
final date for removal.
(e) Deed Restriction. The subgrantee,
upon settlement of the property
transaction, shall record with the deed
of the subject property notice of
applicable land use restrictions and
related procedures described in this
part, consistent with FEMA model deed
restriction language.
§ 80.19

Land use and oversight.

This section applies to acquisitions
for open space projects to address flood
hazards. If the Administrator determines
to mitigate in other circumstances, he/
she will adapt the provisions of this
section as appropriate.
(a) Open space requirements. The
property shall be dedicated and
maintained in perpetuity as open space
for the conservation of natural
floodplain functions.
(1) These uses may include: Parks for
outdoor recreational activities; wetlands
management; nature reserves;
cultivation; grazing; camping (except
where adequate warning time is not
available to allow evacuation);
unimproved, unpaved parking lots;
buffer zones; and other uses FEMA
determines compatible with this part.
(i) Allowable uses generally do not
include: Walled buildings, levees, dikes,
or floodwalls, paved roads, highways,
bridges, cemeteries, landfills, storage of
any hazardous or toxic materials, above
or below ground pumping and
switching stations, above or below
ground storage tanks, paved parking,
off-site fill or other uses that obstruct
the natural and beneficial functions of
the floodplain.
(ii) In the rare circumstances where
the Administrator has determined
competing Federal interests were
unavoidable and has analyzed
floodplain impacts for compliance with
§ 60.3 of this subchapter or higher
standards, the Administrator may find
only USACE projects recognized by
FEMA in 2000 and improvements to
pre-existing Federal-aid transportation
systems to be allowable uses.
(2) No new structures or
improvements will be built on the
property except as indicated below:
(i) A public facility that is open on all
sides and functionally related to a
designated open space or recreational
use;
(ii) A public restroom; or
(iii) A structure that is compatible
with open space and conserves the
natural function of the floodplain,
which the Administrator approves in

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writing before the construction of the
structure begins.
(3) Any improvements on the
property shall be in accordance with
proper floodplain management policies
and practices. Structures built on the
property according to paragraph (a)(2) of
this section shall be floodproofed or
elevated to at least the base flood level
plus 1 foot of freeboard, or greater, if
required by FEMA, or if required by any
State or local ordinance, and in
accordance with criteria established by
the Administrator.
(4) After the date of property
settlement, no Federal entity or source
may provide disaster assistance for any
purpose with respect to the property,
nor may any application for such
assistance be made to any Federal entity
or source.
(5) The property is not eligible for
coverage under the NFIP for damage to
structures on the property occurring
after the date of the property settlement,
except for pre-existing structures being
relocated off the property as a result of
the project.
(b) Subsequent transfer. After
acquiring the property interest, the
subgrantee, including successors in
interest, shall convey any interest in the
property only if the Regional
Administrator, through the State, gives
prior written approval of the transferee
in accordance with this paragraph.
(1) The request by the subgrantee,
through the State, to the Regional
Administrator must include a signed
statement from the proposed transferee
that it acknowledges and agrees to be
bound by the terms of this section, and
documentation of its status as a
qualified conservation organization if
applicable.
(2) The subgrantee may convey a
property interest only to a public entity
or to a qualified conservation
organization. However, the subgrantee
may convey an easement or lease to a
private individual or entity for purposes
compatible with the uses described in
paragraph (a), of this section, with the
prior approval of the Regional
Administrator, and so long as the
conveyance does not include authority
to control and enforce the terms and
conditions of this section.
(3) If title to the property is
transferred to a public entity other than
one with a conservation mission, it must
be conveyed subject to a conservation
easement that shall be recorded with the
deed and shall incorporate all terms and
conditions set forth in this section,
including the easement holder’s
responsibility to enforce the easement.
This shall be accomplished by one of
the following means:

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(i) The subgrantee shall convey, in
accordance with this paragraph, a
conservation easement to an entity other
than the title holder, which shall be
recorded with the deed, or
(ii) At the time of title transfer, the
subgrantee shall retain such
conservation easement, and record it
with the deed.
(4) Conveyance of any property
interest must reference and incorporate
the original deed restrictions providing
notice of the conditions in this section
and must incorporate a provision for the
property interest to revert to the
subgrantee or grantee in the event that
the transferee ceases to exist or loses its
eligible status under this section.
(c) Inspection. FEMA, its
representatives and assigns, including
the grantee shall have the right to enter
upon the property, at reasonable times
and with reasonable notice, for the
purpose of inspecting the property to
ensure compliance with the terms of
this part, the property conveyance and
of the grant award.
(d) Monitoring and reporting. Every 3
years the subgrantee (in coordination
with any current successor in interest)
through the grantee, shall submit to the
FEMA Regional Administrator a report
certifying that the subgrantee has
inspected the property within the
month preceding the report, and that the
property continues to be maintained
consistent with the provisions of this
part, the property conveyance and the
grant award.
(e) Enforcement. The subgrantee,
grantee, FEMA, and their respective
representatives, successors and assigns,
are responsible for taking measures to
bring the property back into compliance
if the property is not maintained
according to the terms of this part, the
conveyance, and the grant award. The
relative rights and responsibilities of
FEMA, the grantee, the subgrantee, and
subsequent holders of the property
interest at the time of enforcement, shall
include the following:
(1) The grantee will notify the
subgrantee and any current holder of the
property interest in writing and advise
them that they have 60 days to correct
the violation.
(i) If the subgrantee or any current
holder of the property interest fails to
demonstrate a good faith effort to come
into compliance with the terms of the
grant within the 60-day period, the
grantee shall enforce the terms of the
grant by taking any measures it deems
appropriate, including but not limited to
bringing an action at law or in equity in
a court of competent jurisdiction.
(ii) FEMA, its representatives, and
assignees may enforce the terms of the

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grant by taking any measures it deems
appropriate, including but not limited to
1 or more of the following:
(A) Withholding FEMA mitigation
awards or assistance from the State and
subgrantee; and current holder of the
property interest.
(B) Requiring transfer of title. The
subgrantee or the current holder of the
property interest shall bear the costs of
bringing the property back into
compliance with the terms of the grant;
or
(C) Bringing an action at law or in
equity in a court of competent
jurisdiction against any or all of the
following parties: the grantee, the
subgrantee, and their respective
successors.
Subpart D—After the Grant
Requirements
§ 80.21

Closeout requirements.

Upon closeout of the grant, the
subgrantee, through the grantee, shall
provide FEMA, with the following:
(a) A copy of the deed recorded for
each property, demonstrating that each
property approved in the original
application was mitigated and that the
deed restrictions recorded are consistent
with the FEMA model deed restriction
language to meet the requirements of
this part;
(b) A photo of each property site after
project completion;
(c) The latitude-longitude coordinates
of each property site;
(d) Identification of each property as
a repetitive loss property, if applicable;
and
(e) Other information as determined
by the Administrator.
PART 201—MITIGATION PLANNING
10. The authority citation for part 201
is revised to read as follows:

■

Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5206; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; Homeland Security Act of
2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p. 376; E.O. 12148, 44
FR 43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.

11. Section 201.2 is amended by
revising the definition of ‘‘Hazard
Mitigation Grant Program’’ and by
adding the following definitions to the
alphabetical list of definitions:

■

§ 201.2

Definitions.

Administrator means the head of the
Federal Emergency Management
Agency, or his/her designated
representative, appointed under section

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61747

503 of the Post-Katrina Emergency
Management Reform Act of 2006 (Pub.
L. 109–295). The term also refers to the
Director as discussed in part 2 of this
chapter.
Flood Mitigation Assistance (FMA)
means the program authorized by
section 1366 of the National Flood
Insurance Act of 1968, as amended, 42
U.S.C. 4104c, and implemented at parts
78 and 79.
*
*
*
*
*
Hazard Mitigation Grant Program
(HMGP) means the program authorized
under section 404 of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5170c, and
implemented at part 206, subpart N of
this chapter.
*
*
*
*
*
Pre-Disaster Mitigation Program
(PDM) means the program authorized
under section 203 of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5133.
*
*
*
*
*
Repetitive Flood Claims (RFC)
program means the program authorized
under section 1323 of the National
Flood Insurance Act of 1968, as
amended, 42 U.S.C. 4011, which
provides funding to reduce flood
damages to individual properties for
which 1 or more claim payments for
losses have been made under flood
insurance coverage and that will result
in the greatest savings to the National
Flood Insurance Program (NFIP) in the
shortest period of time.
Severe Repetitive Loss (SRL) program
means the program authorized under
section 1361(a) of the National Flood
Insurance Act of 1968, as amended, 42
U.S.C. 4102a, and implemented at part
79 of this chapter.
Severe Repetitive Loss properties are
defined as single or multifamily
residential properties that are covered
under an NFIP flood insurance policy
and:
(1) That have incurred flood-related
damage for which 4 or more separate
claims payments have been made, with
the amount of each claim (including
building and contents payments)
exceeding $5,000, and with the
cumulative amount of such claims
payments exceeding $20,000; or
(2) For which at least 2 separate
claims payments (building payments
only) have been made under such
coverage, with cumulative amount of
such claims exceeding the market value
of the property.
(3) In both instances, at least 2 of the
claims must be within 10 years of each

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other, and claims made within 10 days
of each other will be counted as 1 claim.
*
*
*
*
*
■ 12. Revise paragraphs (c)(1), (c)(3),
(d)(2) and (e) of § 201.3 to read as
follows:
§ 201.3

Responsibilities.

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*

*
*
*
*
(c) * * *
(1) Prepare and submit to FEMA a
Standard State Mitigation Plan
following the criteria established in
§ 201.4 as a condition of receiving nonemergency Stafford Act assistance and
FEMA mitigation grants. In addition, a
State may choose to address severe
repetitive loss properties in their plan as
identified in § 201.4(c)(3)(v) to receive
the reduced cost share for the Flood
Mitigation Assistance (FMA) and Severe
Repetitive Loss (SRL) programs,
pursuant to § 79.4(c)(2) of this chapter.
*
*
*
*
*
(3) At a minimum, review and update
the Standard State Mitigation Plan every
3 years from the date of the approval of
the previous plan in order to continue
program eligibility.
*
*
*
*
*
(d) * * *
(2) At a minimum, review and update
the local mitigation plan every 5 years
from date of plan approval of the
previous plan in order to continue
program eligibility.
(e) Indian tribal governments. The key
responsibilities of the Indian tribal
government are to coordinate all tribal
activities relating to hazard evaluation
and mitigation and to:
(1) Prepare and submit to FEMA a
Tribal Mitigation Plan following the
criteria established in § 201.7 as a
condition of receiving non-emergency
Stafford Act assistance as a grantee. This
plan will also allow Indian tribal
governments to apply through the State,
as a subgrantee, for any FEMA
mitigation project grant. Indian tribal
governments with a plan approved by
FEMA on or before October 1, 2008
under § 201.4 or § 201.6 will also meet
this planning requirement. All Tribal
Mitigation Plans approved after that
date must follow the criteria identified
in § 201.7. In addition, an Indian tribal
government may choose to address
severe repetitive loss properties as
identified in § 201.4(c)(3)(v) as a
condition of receiving the reduced cost
share for the FMA and SRL programs,
pursuant to § 79.4(c)(2) of this chapter.
(2) Review and update the Tribal
Mitigation Plan at least every 5 years
from the date of approval of the
previous plan in order to continue
program eligibility.

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(3) In order to be considered for the
increased HMGP funding, the Tribal
Mitigation Plan must meet the
Enhanced State Mitigation Plan criteria
identified in § 201.5. The plan must be
reviewed and updated at least every 3
years from the date of approval of the
previous plan.
■ 13. Revise paragraphs (a) and (c)(7)
and add paragraph (c)(3)(v) of § 201.4 to
read as follows:
§ 201.4

Standard State Mitigation Plans.

(a) Plan requirement. States must have
an approved Standard State Mitigation
Plans meeting the requirements of this
section as a condition of receiving nonemergency Stafford Act assistance and
FEMA mitigation grants. Emergency
assistance provided under 42 U.S.C.
5170a, 5170b, 5173, 5174, 5177, 5179,
5180, 5182, 5183, 5184, 5192 will not be
affected. Mitigation planning grants
provided through the Pre-disaster
Mitigation (PDM) program, authorized
under section 203 of the Stafford Act, 42
U.S.C. 5133, will also continue to be
available. The mitigation plan is the
demonstration of the State’s
commitment to reduce risks from
natural hazards and serves as a guide for
State decision makers as they commit
resources to reducing the effects of
natural hazards.
*
*
*
*
*
(c) * * *
(3) * * *
(v) A State may request the reduced
cost share authorized under § 79.4(c)(2)
of this chapter for the FMA and SRL
programs, if it has an approved State
Mitigation Plan meeting the
requirements of this section that also
identifies specific actions the State has
taken to reduce the number of repetitive
loss properties (which must include
severe repetitive loss properties), and
specifies how the State intends to
reduce the number of such repetitive
loss properties. In addition, the plan
must describe the strategy the State has
to ensure that local jurisdictions with
severe repetitive loss properties take
actions to reduce the number of these
properties, including the development
of local mitigation plans.
*
*
*
*
*
(7) Assurances. The plan must
include assurances that the State will
comply with all applicable Federal
statutes and regulations in effect with
respect to the periods for which it
receives grant funding, in compliance
with 44 CFR 13.11(c) of this chapter.
The State will amend its plan whenever
necessary to reflect changes in State or
Federal statutes and regulations as

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required in 44 CFR 13.11(d) of this
chapter.
*
*
*
*
*
■ 14. Revise paragraphs (a)(1), (a)(2),
(c)(2)(ii) introductory text, (d)(1), and
(d)(3) and add a sentence to the end of
paragraph (c)(3)(ii) of § 201.6 to read as
follows:
§ 201.6

Local Mitigation Plans.

*

*
*
*
*
(a) * * *
(1) A local government must have a
mitigation plan approved pursuant to
this section in order to receive HMGP
project grants. The Administrator may,
at his discretion, require a local
mitigation plan for the Repetitive Flood
Claims Program. A local government
must have a mitigation plan approved
pursuant to this section in order to
apply for and receive mitigation project
grants under all other mitigation grant
programs.
(2) Plans prepared for the FMA
program, described at part 79 of this
chapter, need only address these
requirements as they relate to flood
hazards in order to be eligible for FMA
project grants. However, these plans
must be clearly identified as being flood
mitigation plans, and they will not meet
the eligibility criteria for other
mitigation grant programs, unless
flooding is the only natural hazard the
jurisdiction faces.
*
*
*
*
*
(c) * * *
(2) * * *
(ii) A description of the jurisdiction’s
vulnerability to the hazards described in
paragraph (c)(2)(i) of this section. This
description shall include an overall
summary of each hazard and its impact
on the community. All plans approved
after October 1, 2008 must also address
NFIP insured structures that have been
repetitively damaged by floods. The
plan should describe vulnerability in
terms of:
*
*
*
*
*
(3) * * *
(ii) * * * All plans approved by
FEMA after October 1, 2008, must also
address the jurisdiction’s participation
in the NFIP, and continued compliance
with NFIP requirements, as appropriate.
*
*
*
*
*
(d) * * *
(1) Plans must be submitted to the
State Hazard Mitigation Officer (SHMO)
for initial review and coordination. The
State will then send the plan to the
appropriate FEMA Regional Office for
formal review and approval. Where the
State point of contact for the FMA
program is different from the SHMO, the
SHMO will be responsible for

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coordinating the local plan reviews
between the FMA point of contact and
FEMA.
*
*
*
*
*
(3) A local jurisdiction must review
and revise its plan to reflect changes in
development, progress in local
mitigation efforts, and changes in
priorities, and resubmit it for approval
within 5 years in order to continue to
be eligible for mitigation project grant
funding.
*
*
*
*
*
■ 15. Add § 201.7 to read as follows:

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§ 201.7

Tribal Mitigation Plans.

The Indian Tribal Mitigation Plan is
the representation of the Indian tribal
government’s commitment to reduce
risks from natural hazards, serving as a
guide for decision makers as they
commit resources to reducing the effects
of natural hazards.
(a) Plan requirement. (1) Indian tribal
governments applying to FEMA as a
grantee must have an approved Tribal
Mitigation Plan meeting the
requirements of this section as a
condition of receiving non-emergency
Stafford Act assistance and FEMA
mitigation grants. Emergency assistance
provided under 42 U.S.C. 5170a, 5170b,
5173, 5174, 5177, 5179, 5180, 5182,
5183, 5184, 5192 will not be affected.
Mitigation planning grants provided
through the PDM program, authorized
under section 203 of the Stafford Act, 42
U.S.C. 5133, will also continue to be
available.
(2) An Indian tribal government may
choose to address severe repetitive loss
properties in their plan, as identified in
§ 201.4(c)(3)(v), to receive the reduced
cost share for the FMA and SRL
programs.
(3) Indian tribal governments
applying through the State as a
subgrantee must have an approved
Tribal Mitigation Plan meeting the
requirements of this section in order to
receive HMGP project grants. The
Administrator, at his discretion may
require a local mitigation plan for the
Repetitive Flood Claims Program. A
tribe must have an approved Tribal
Mitigation Plan in order to apply for and
receive FEMA mitigation project grants,
under all other mitigation grant
programs.
(4) Multi-jurisdictional plans (e.g.
county-wide or watershed plans) may be
accepted, as appropriate, as long as the
Indian tribal government has
participated in the process and has
officially adopted the plan. Indian tribal
governments must address all the
elements identified in this section to

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ensure eligibility as a grantee or as a
subgrantee.
(b) An effective planning process is
essential in developing and maintaining
a good plan. The mitigation planning
process should include coordination
with other tribal agencies, appropriate
Federal agencies, adjacent jurisdictions,
interested groups, and be integrated to
the extent possible with other ongoing
tribal planning efforts as well as other
FEMA mitigation programs and
initiatives.
(c) Plan content. The plan shall
include the following:
(1) Documentation of the planning
process used to develop the plan,
including how it was prepared, who
was involved in the process, and how
the public was involved. This shall
include:
(i) An opportunity for the public to
comment on the plan during the
drafting stage and prior to plan
approval, including a description of
how the Indian tribal government
defined ‘‘public;’’
(ii) As appropriate, an opportunity for
neighboring communities, tribal and
regional agencies involved in hazard
mitigation activities, and agencies that
have the authority to regulate
development, as well as businesses,
academia, and other private and
nonprofit interests to be involved in the
planning process;
(iii) Review and incorporation, if
appropriate, of existing plans, studies,
and reports; and
(iv) Be integrated to the extent
possible with other ongoing tribal
planning efforts as well as other FEMA
programs and initiatives.
(2) A risk assessment that provides
the factual basis for activities proposed
in the strategy to reduce losses from
identified hazards. Tribal risk
assessments must provide sufficient
information to enable the Indian tribal
government to identify and prioritize
appropriate mitigation actions to reduce
losses from identified hazards. The risk
assessment shall include:
(i) A description of the type, location,
and extent of all natural hazards that
can affect the tribal planning area. The
plan shall include information on
previous occurrences of hazard events
and on the probability of future hazard
events.
(ii) A description of the Indian tribal
government’s vulnerability to the
hazards described in paragraph (c)(2)(i)
of this section. This description shall
include an overall summary of each
hazard and its impact on the tribe. The
plan should describe vulnerability in
terms of:

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(A) The types and numbers of existing
and future buildings, infrastructure, and
critical facilities located in the
identified hazard areas;
(B) An estimate of the potential dollar
losses to vulnerable structures identified
in paragraph (c)(2)(i)(A) of this section
and a description of the methodology
used to prepare the estimate;
(C) A general description of land uses
and development trends within the
tribal planning area so that mitigation
options can be considered in future land
use decisions; and
(D) Cultural and sacred sites that are
significant, even if they cannot be
valued in monetary terms.
(3) A mitigation strategy that provides
the Indian tribal government’s blueprint
for reducing the potential losses
identified in the risk assessment, based
on existing authorities, policies,
programs and resources, and its ability
to expand on and improve these existing
tools. This section shall include:
(i) A description of mitigation goals to
reduce or avoid long-term
vulnerabilities to the identified hazards.
(ii) A section that identifies and
analyzes a comprehensive range of
specific mitigation actions and projects
being considered to reduce the effects of
each hazard, with particular emphasis
on new and existing buildings and
infrastructure.
(iii) An action plan describing how
the actions identified in paragraph
(c)(2)(ii) of this section will be
prioritized, implemented, and
administered by the Indian tribal
government.
(iv) A discussion of the Indian tribal
government’s pre- and post-disaster
hazard management policies, programs,
and capabilities to mitigate the hazards
in the area, including: An evaluation of
tribal laws, regulations, policies, and
programs related to hazard mitigation as
well as to development in hazard-prone
areas; and a discussion of tribal funding
capabilities for hazard mitigation
projects.
(v) Identification of current and
potential sources of Federal, tribal, or
private funding to implement mitigation
activities.
(vi) An Indian tribal government may
request the reduced cost share
authorized under § 79.4(c)(2) of this
chapter of the FMA and SRL programs
if they have an approved Tribal
Mitigation Plan meeting the
requirements of this section that also
identify actions the Indian tribal
government has taken to reduce the
number of repetitive loss properties
(which must include severe repetitive
loss properties), and specifies how the
Indian tribal government intends to

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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations

reduce the number of such repetitive
loss properties.
(4) A plan maintenance process that
includes:
(i) A section describing the method
and schedule of monitoring, evaluating,
and updating the mitigation plan.
(ii) A system for monitoring
implementation of mitigation measures
and project closeouts.
(iii) A process by which the Indian
tribal government incorporates the
requirements of the mitigation plan into
other planning mechanisms such as
reservation master plans or capital
improvement plans, when appropriate.
(iv) Discussion on how the Indian
tribal government will continue public
participation in the plan maintenance
process.
(v) A system for reviewing progress on
achieving goals as well as activities and
projects identified in the mitigation
strategy.
(5) Plan Adoption Process. The plan
must be formally adopted by the
governing body of the Indian tribal
government prior to submittal to FEMA
for final review and approval.
(6) Assurances. The plan must
include assurances that the Indian tribal
government will comply with all
applicable Federal statutes and
regulations in effect with respect to the
periods for which it receives grant
funding, in compliance with § 13.11(c)
of this chapter. The Indian tribal
government will amend its plan
whenever necessary to reflect changes
in tribal or Federal laws and statutes as
required in § 13.11(d) of this chapter.
(d) Plan review and updates. (1) Plans
must be submitted to the appropriate
FEMA Regional Office for formal review
and approval. Indian tribal governments
who would like the option of being a
subgrantee under the State must also
submit their plan to the State Hazard
Mitigation Officer for review and
coordination.
(2) The Regional review will be
completed within 45 days after receipt
from the Indian tribal government,
whenever possible.
(3) Indian tribal governments must
review and revise their plan to reflect
changes in development, progress in
local mitigation efforts, and changes in
priorities, and resubmit it for approval
within 5 years in order to continue to
be eligible for non-emergency Stafford
Act assistance and FEMA mitigation
grant funding, with the exception of the
Repetitive Flood Claims program.

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17:56 Oct 30, 2007

Jkt 214001

PART 206–FEDERAL DISASTER
ASSISTANCE
16. The authority citation for part 206
continues to read as follows:

■

Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5206; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; Homeland Security Act of
2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p. 376; E.O. 12148, 44
FR 43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10619, 3 CFR, 2003 Comp., p.
166.

17. Section 206.432 is amended by
revising paragraphs (b) introductory text
and (b)(1) to read as follows:

■

§ 206.432

Federal grant assistance.

*

*
*
*
*
(b) Amounts of Assistance. The total
Federal contribution of funds is based
on the estimated aggregate grant amount
to be made under 42 U.S.C. 5170b, 5172,
5173, 5174, 5177, 5178, and 5183 of the
Stafford Act for the major disaster (less
associated administrative costs), and
shall be as follows:
(1) Standard percentages. Not to
exceed 15 percent for the first
$2,000,000,000 or less of such amounts;
not to exceed 10 percent of the portion
of such amounts over $2,000,000,000
and not more than $10,000,000,000; and
not to exceed 7.5 percent of the portion
of such amounts over $10,000,000,000
and not more than $35,333,000,000.
*
*
*
*
*
■ 18. Section 206.433 is amended by
revising paragraph (c) to read as follows:
§ 206.433

State responsibilities.

*

*
*
*
*
(c) Hazard Mitigation Officer. The
State must appoint a Hazard Mitigation
Officer who serves as the responsible
individual for all matters related to the
Hazard Mitigation Grant Program.
*
*
*
*
*
■ 19. Revise paragraphs (a)(2), (c)(5)(ii),
(e) introductory text; add a sentence
after the first sentence of (d)(2); remove
paragraph (f); and redesignate current
paragraphs (g) and (h) as (f) and (g) of
§ 206.434 to read as follows:
§ 206.434

Eligibility.

(a) * * *
(2) Private nonprofit organizations
that own or operate a private nonprofit
facility as defined in § 206.221(e). A
qualified conservation organization as
defined at § 80.3(h) of this chapter is the
only private nonprofit organization

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eligible to apply for acquisition or
relocation for open space projects;
*
*
*
*
*
(c) * * *
(5) * * *
(ii) Will not cost more than the
anticipated value of the reduction in
both direct damages and subsequent
negative impacts to the area if future
disasters were to occur,
*
*
*
*
*
(d) * * *
(2) * * * Activities for which
implementation has already been
initiated or completed are not eligible
for funding. * * *
*
*
*
*
*
(e) Property acquisitions and
relocation requirements. Property
acquisitions and relocation projects for
open space proposed for funding
pursuant to a major disaster declared on
or after December 3, 2007 must be
implemented in accordance with part 80
of this chapter. For major disasters
declared prior to December 3, 2007, a
project involving property acquisition or
the relocation of structures and
individuals is eligible for assistance
only if the applicant enters into an
agreement with the FEMA Regional
Director that provides assurances that:
*
*
*
*
*
■ 20. Add new paragraph (c) to
§206.439 to read as follows:
§ 206.439

Allowable costs.

*

*
*
*
*
(c) Pre-award costs. FEMA may fund
eligible pre-award planning or project
costs at its discretion and as funds are
available. Grantees and subgrantees may
be reimbursed for eligible pre-award
costs for activities directly related to the
development of the project or planning
proposal. These costs can only be
incurred during the open application
period of the grant program. Costs
associated with implementation of the
activity but incurred prior to grant
award are not eligible. Therefore,
activities where implementation is
initiated or completed prior to award
are not eligible and will not be
reimbursed.
Dated: October 24, 2007.
Harvey E. Johnson, Jr.,
Deputy Administrator/Chief Operating
Officer, Federal Emergency Management
Agency.
[FR Doc. E7–21265 Filed 10–30–07; 8:45 am]
BILLING CODE 9110–41–P

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