Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Rules and Regulations 47471 

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 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: The Federal Emergency 

Management Agency finalizes the 

interim regulations that implemented 

the Severe Repetitive Loss program and 

clarified provisions of the existing Flood 

Mitigation Assistance program. In 

addition, this rule finalizes interim 

requirements for the acquisition of 

property for open space with mitigation 

funds and clarifies mitigation planning 

requirements for Indian Tribal 

governments. This rule is intended to 

encourage hazard mitigation, reduce the 

number of repetitive loss properties, and 

improve FEMA’s mitigation programs. 

DATES: This rule is effective October 16, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Cecelia Rosenberg, Mitigation 

Directorate, Federal Emergency 

Management Agency, 1800 South Bell 

Street, Arlington, VA 20598–3030, 

(phone) 202–646–3321, (facsimile) 202– 

646–2719, or (e-mail) 

cecelia.rosenberg@dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 31, 2007 (72 FR 61720), 

the Federal Emergency Management 

Agency (FEMA) published an Interim 

Rule (IR). The IR implemented 

provisions of the Bunning-BereuterBlumenauer Flood Insurance Reform 

Act of 2004, Public Law 108–264, 118 

Stat. 714, found at 42 U.S.C. 4102a, 

which amended the National Flood 

Insurance Act of 1968 (NFIA) to provide 

new programs and incentives for States 

and communities to mitigate flood 

damage to severe repetitive loss 

properties. Using this new authority, the 

IR added a new 44 CFR part 79 that 

established the new Severe Repetitive 

Loss (SRL) program. The SRL program 

is intended to eliminate or reduce the 

risk of additional flood damage to the 

subset of properties that have the largest 

claims paid from the National Flood 

Insurance Program (NFIP). It is also 

intended to reduce losses to the 

National Flood Insurance Fund (NFIF). 

The SRL program provides mitigation 

offers for NFIP insured properties that 

have experienced four or more separate 

flood claims payments each exceeding 

$5,000 and cumulative payments 

exceeding $20,000; or at least two 

separate claims payments cumulatively 

exceeding the market value of the 

building. Claims made within 10 days of 

each other are counted as one claim, 

and at least two of the claims must be 

within 10 years of each other. If the offer 

of mitigation assistance is refused the 

property owners’ insurance rates may be 

increased. 

In addition, the IR amended the 

existing Flood Mitigation Assistance 

(FMA) program by updating the FMA 

regulations to reflect changes to the nonFederal cost share as a result of the 

amendments to the NFIA, changes to 

FEMA policy, and adding a new 44 CFR 

part 79. The IR also codified, at new 44 

CFR part 80, procedures and 

requirements for the acquisition of 

property for open space. Although 

FEMA previously had procedures in 

place for open space acquisition, the 

new part expanded the scope of FEMA’s 

prior regulations to address the use of 

all types of mitigation funds, including 

SRL and FMA, and consolidated them 

in one location. FEMA also modified the 

mitigation planning regulations at 44 

CFR part 201 to reduce the non-Federal 

cost share for mitigation projects under 

the FMA and SRL programs for grantees 

with State mitigation plans that address 

repetitive loss strategies. This change is 

intended to minimize the burden on 

State, local, and Indian Tribal 

governments; to streamline the flood 

mitigation planning process; and to 

ensure consistency in the local planning 

requirements that apply to FEMA’s 

mitigation grant programs. Recognizing 

the unique needs of Indian Tribal 

governments, who may act as grantees 

or subgrantees and may have different 

organizational structures than State or 

local governments, the IR also 

established the Tribal Mitigation Plan in 

44 CFR 201.7. 

The rule also implemented 

amendments to section 1308 of the 

NFIA to charge the full actuarial 

insurance premium 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.’’ (42 U.S.C. 4015(c)(2)) 

Finally, 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 available to 

States with an approved Standard State 

Mitigation Plan from 7.5 percent to 15 

percent and established a sliding scale 

for HMGP assistance. The IR revised 

FEMA’s regulations to align with this 

change. (44 CFR 206.432(b)(1).) 

II. Discussion of Final Rule 

This final rule adopts the regulations 

established by the October 31, 2007 IR. 

It addresses the comments received 

from the public in response to the IR, 

makes changes to correct errors 

identified in public comments, makes 

technical corrections, and finalizes the 

interim regulations contained in 44 CFR 

parts 59, 61, 78, 79, 80, 201, and 206. 

The following is a summary of these 

regulatory changes: 

A. 44 CFR Part 79 

FEMA revised ‘‘Alaskan native 

village’’ in paragraph 79.2(c)(1) to 

‘‘Alaska Native village’’ so that the term 

is consistent with its use under the 

definition of ‘‘local government’’ in the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act (Stafford 

Act), as amended (42 U.S.C. 5122). 

FEMA also inserted a definition of 

‘‘Indian Tribal Government’’ at new 

paragraph 79.2(e) so that 44 CFR part 79 

is consistent with 44 CFR parts 201 and 

206 where ‘‘Indian Tribal government’’ 

is currently defined. Throughout 

paragraph 79.4(c), FEMA removed the 

word ‘‘State’’ and revised the text to 

recognize that per 44 CFR 206.202(f)(1), 

Indian Tribal governments may also 

apply directly to FEMA for grant 

assistance. These changes are intended 

to correct an unintentional omission in 

the language of the IR. A technical 

correction has also been made to 

paragraph 79.6(b)(1) to add a more 

specific reference to Tribal mitigation 

planning requirements. Finally, 

paragraph 79.6(c)(2)(ii) of the IR 

inadvertently listed demolition or 

relocation of structures to areas outside 

of the floodplain as an eligible activity, 

rather than as a component of paragraph 

79.6(c)(2)(i). To correct this error, 

paragraph 79.6(c)(2)(ii) has been 

removed and its substance has been 

incorporated into the language of 

paragraph 79.6(c)(2)(i). 

Finally, on April 3, 2009, FEMA 

published a technical amendment that 

updated the agency’s titles to reflect its 

current organization (74 FR 15328). 

Among other things, the technical 

amendment changed the terms 

‘‘Director’’ to ‘‘Administrator’’ and 

‘‘Regional Director’’ to ‘‘Regional 

Administrator’’ throughout Title 44 of 

the Code of Federal Regulations, and 


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removed the agency organization and 

delegations of authority from 44 CFR 

part 2. The IR had inserted definitions 

for ‘‘Administrator’’ and ‘‘Regional 

Administrator’’ at 44 CFR parts 79, 80, 

and 201 to reflect the agency 

organization; however, it did so in a 

way that referenced the old terms 

‘‘Director’’ and ‘‘Regional Director’’ as 

defined in 44 CFR part 2. To ensure this 

final rule conforms to the changes made 

in the technical amendment, the 

definitions for ‘‘Administrator’’ and 

‘‘Regional Administrator’’ are revised in 

newly designated paragraphs 79.2(l) and 

(m), paragraphs 80.3(l) and (m), and also 

revised in § 201.2. 

B. 44 CFR Part 80 

FEMA revised paragraph 80.11(d) to 

clarify that the subapplicant must 

acquire or retain fee title (full property 

interest), except for encumbrances 

FEMA determines are compatible with 

open space uses, consistent with 

paragraph 80.17(b). In response to a 

comment, FEMA reviewed the 

provisions for verifying that a property 

owner is a National of the United States 

or qualified alien and therefore eligible 

to be offered pre-event market value for 

the property in an acquisition instead of 

current market value. To correct an 

inconsistency confirmed in that review, 

FEMA revised paragraphs 80.13(a)(6) 

and 80.17(c)(4) to require the 

subapplicant to certify that the property 

owner is a U.S. National or qualified 

alien before the grant award. 

C. 44 CFR Part 201 

The final rule makes technical 

corrections throughout this part. In the 

definition of the term ‘‘Indian Tribal 

government’’ in § 201.2, the word 

‘‘Indian’’ was inadvertently omitted in 

the reference to the Federally 

Recognized Indian Tribe List Act of 

1994, but has been added in this final 

rule. The final rule removes paragraph 

201.3(c)(7) to eliminate reference to a 

paragraph of the regulation that no 

longer exists, as it was transitional in 

nature. In paragraphs 201.3(e)(1), 

201.7(a)(2) and 201.7(c)(3)(vi), FEMA 

inadvertently failed to reference that 

Indian Tribal governments, like States, 

must apply to FEMA as a grantee to 

receive the reduced cost share for the 

FMA and SRL programs when 

addressing severe repetitive loss 

properties in their plans. This 

requirement appeared in paragraph 

201.3(e) before 44 CFR part 201 was 

changed by the IR; therefore, these 

changes are nonsubstantive. 

FEMA has revised paragraph 

201.7(a)(3) by replacing local with 

Tribal to reflect the appropriate 

mitigation plan required for Tribal 

governments. Additionally, FEMA 

added a sentence to the end of 

paragraph 201.7(a)(3) to reference the 

extraordinary circumstances in which a 

Regional Administrator may grant Tribal 

governments an exception to the plan 

requirement. This exception appeared 

in FEMA’s regulations before the IR at 

paragraph 201.6(a)(3) and was 

unintentionally omitted from the new 

language specifically addressing Tribal 

governments in the IR. 

Finally, in paragraph 

201.6(c)(2)(ii)(B), an incorrect crossreference has been revised from 

(c)(2)(i)(A) to (c)(2)(ii)(A). In paragraph 

201.6(c)(3)(iii), an incorrect crossreference has been revised from (c)(2)(ii) 

to (c)(3)(ii). In paragraph 

201.7(c)(2)(ii)(B), an incorrect crossreference has been revised from 

(c)(2)(i)(A) to (c)(2)(ii)(A) and in 

paragraph 201.7(c)(3)(iii), an incorrect 

cross-reference has been revised from 

(c)(2)(ii) to (c)(3)(ii). 

D. 44 CFR Part 206 

This final rule makes two technical 

corrections to § 206.432. The first 

technical correction is to paragraph 

206.432(b) and removes the reference to 

42 U.S.C. 5178 since 42 U.S.C. 5178, 

section 411 of the Stafford Act was 

repealed. The second technical 

correction is to paragraph 206.432(b)(2) 

to clarify that for States with an 

Enhanced State Mitigation Plan, the 

total amount of Federal contribution 

under the HMGP for a major disaster 

may not exceed 20 percent of $35.333 

billion. This technical correction is nondiscretionary and makes the paragraph 

consistent with the statute (sections 322 

and 404 of the Stafford Act, as amended, 

42 U.S.C. 5165 and 5170c). 

This final rule also corrects 

inadvertent errors and omissions to 

reflect the Tribal Mitigation Plan 

established by the IR. The rule adds the 

word ‘‘Indian’’ to the definition of 

‘‘Indian Tribal government’’ in 

§ 206.431 and ‘‘or Tribal’’ to paragraphs 

206.434(b)(1) and 206.434(c)(1), deletes 

the words ‘‘or Indian Tribal’’ from the 

definition of Local Mitigation Plan in 

§ 206.431, and adds a definition of the 

term ‘‘Tribal Mitigation Plan’’ to 

§ 206.431. 

In paragraph 206.434(b)(1), the final 

rule expands the reference to 44 CFR 

201.6 and revises it to include the 

entirety of 44 CFR part 201 so that it 

includes both Local and Tribal 

Mitigation Plans. In that paragraph, the 

final rule also removes the reference to 

disasters declared on or after November 

1, 2004, and the requirements for plans 

approved before that date. This change 

is a conforming amendment because the 

provisions are no longer applicable. 

Additionally, the final rule revises the 

cross-reference in § 206.401 to correctly 

direct readers to paragraph 206.226(d). 

Paragraph 206.226(b) is revised to 

include the Tribal Mitigation Plan 

established by the IR. As FEMA treats 

Tribal Mitigation Plans in the same 

manner that it treats State Mitigation 

Plans, this section should have been 

amended in the IR to reflect the new 

form of planning document. These 

changes are intended to correct that 

omission and conform this section to 

the requirements and authorities 

contained in other sections. 

Finally, the introductory text to 

paragraph 206.434(e) has been restated 

in this rule. As previously noted, on 

April 3, 2009, FEMA published a 

technical amendment that updated the 

agency’s titles and organization (74 FR 

15328). That rule changed ‘‘Regional 

Director’’ to ‘‘Regional Administrator’’ 

in this paragraph. To ensure this final 

rule does not undo that change, the 

language of the IR is repeated to 

incorporate the change from the 

technical amendment. 

III. Discussion of Public Comments 

FEMA received five public comments 

regarding the IR published on October 

31, 2007. The comments on the IR were 

submitted by three State emergency 

management agencies, the Association 

of State Floodplain Managers, and an 

individual citizen. The comments 

received, together with FEMA’s 

response, are set forth below. Many of 

the public comments contained general 

supportive statements or positive 

responses to specific regulatory changes. 

Although FEMA appreciates the public 

support for this rulemaking, and took 

those statements into consideration 

when drafting this final rule, FEMA has 

no specific response to those comments 

and they are not represented in this 

discussion. Additionally, the comments 

regarding river flow and impervious 

surfaces in New Jersey were outside the 

scope of this rulemaking. Therefore, 

FEMA has no specific response to those 

comments. All previously published 

rulemaking documents, as well as all 

comments received are available in the 

public docket for this rulemaking. The 

public docket for this rulemaking is 

available online at the Federal eRulemaking Portal at http:// 

www.regulations.gov under Docket ID 

FEMA–2006–0010. 

44 CFR Part 78 

44 CFR part 78 provides information 

on the actions, procedures, and 

requirements for the administration of 


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the FMA program. The FMA program is 

designed to assist States and local 

governments in funding cost effective 

actions that result in the greatest cost 

savings to the NFIF. One commenter 

noted that paragraph 78.12(f), which 

allows for other activities that bring an 

insured structure into compliance with 

NFIP minimum standards, and 

paragraph 78.12(h), that allows for 

beach nourishment activities, are now 

excluded in the new rule at 44 CFR part 

79. The commenter had no concerns 

with these changes. This change was 

incorporated into the IR to implement a 

policy change, and has not been 

modified in this final rule. Eligible 

projects that now can be funded under 

FMA are limited to acquisition/ 

demolition, relocation, elevation, 

floodproofing, and minor localized 

flood reduction projects. 

44 CFR Part 79 

General 

44 CFR part 79 implements certain 

amendments to the NFIA that provide 

incentives for States and communities 

to mitigate the effects of flood damage 

to severe repetitive loss properties by 

creating the SRL program and by 

reducing the cost share requirements in 

the existing FMA program for SRL 

properties. One commenter noted that 

§§ 79.8 and 79.9 replace § 78.13 and add 

language that is consistent with how the 

FMA program is currently being 

implemented. Another commenter 

indicated that this rulemaking 

illustrates how cumbersome the SRL 

program is as a result of complexity in 

the statute, and as a result the SRL 

program when implemented will be 

difficult. 

FEMA acknowledges that the rule is 

consistent with the statutory language as 

required by the amendments to the 

NFIA and that many details of the SRL 

program reflect the statute. FEMA 

acknowledges that implementation of 

the program poses some challenges. As 

a result of carrying out the Fiscal Year 

08 and 09 programs, FEMA is working 

to identify and address critical 

implementation issues in order to 

streamline, where possible, the delivery 

of assistance to mitigate SRL properties. 

Section 79.3 (Responsibilities/ 

Reallocation) 

Section 79.3 outlines FEMA’s, States’, 

Tribes’, and communities’ roles and 

responsibilities in implementing the 

FMA and SRL programs. These 

responsibilities include administering 

and providing oversight to FEMArelated hazard mitigation programs and 

grants by issuing program guidance and 

procedures, allocating funds to States 

for the FMA and SRL programs, 

awarding all grants to the grantee, and 

providing technical assistance and 

training to State, local, and Indian 

Tribal governments. 

One commenter noted that changes to 

the Federal responsibilities section of 

the IR eliminated FEMA regional office 

authority to award grants, and 

transferred that authority to FEMA 

headquarters. The commenter also 

acknowledged FEMA’s recent 

procedural change that no longer allows 

for a regional reallocation of FMA 

funds; rather, all unallocated funds now 

must return to FEMA headquarters and 

be reallocated through a national 

competition. The commenter prefers 

FEMA’s previous procedure that allows 

for a regional reallocation followed by a 

national reallocation. 

Although the Region is no longer 

specified in the new § 79.3 (which 

replaces paragraph 78.3(a)) regarding 

responsibility for the administration of 

funds awarded under the FMA program, 

FEMA disagrees that this has the effect 

of transferring authority to award grants 

from the Region to FEMA Headquarters. 

Rather, the provision allows FEMA 

increased flexibility in determining how 

to implement allocation, award, and 

reallocation to more efficiently make 

grant assistance available to eligible 

applicants and to more equitably 

distribute the FMA funds nationally in 

the event that eligible applications 

exceed available dollars. 

Section 79.4 (Availability of Funding) 

Section 79.4 provides information 

regarding the availability of funding and 

provides guidelines regarding the 

allocation process. Two commenters 

noted that the allocation formula for the 

SRL program is reasonable, but one 

indicated that the IR eliminates the base 

amount of per State funding for FMA 

which had been $10,000 for planning 

and $100,000 for projects. The rule does 

remove the base amounts of funding. 

The FMA allocation formula as 

described at § 79.4 is based on the 

number of NFIP policies and repetitive 

loss structures in each State, in addition 

to criteria described at § 79.6, eligibility. 

This provides FEMA with increased 

flexibility, which ensures that as many 

eligible projects as possible are funded. 

Management Costs 

One commenter was opposed to the 

elimination of paragraph 78.8(c) which 

specifies that a maximum of 10 percent 

of FMA funds will be available for 

Technical Assistance grants because 

there is no equivalent language in the IR 

to provide for costs incurred by the 

State in administering this program. The 

commenter suggested that this change 

indicates that FEMA intends to reduce 

management costs by policy instead of 

a rule change. 

FEMA does not intend for this rule to 

reduce the amount of assistance 

provided to administer the FMA and 

SRL programs. In the IR, paragraph 

79.8(a)(1) contains language that allows 

for eligible management costs. For the 

purposes of clarity, the term 

management costs in the IR replaces the 

term Technical Assistance grants as 

used in 44 CFR part 78. Management 

costs as described in the IR provide for 

costs incurred by the State in 

administering the FMA and SRL 

programs with the same 10 percent cap. 

Thus, there is equivalent language in the 

IR to provide for such costs. 

FMA Cap 

One commenter noted that the 

community and State cap on FMA 

funding will pose an obstacle in some 

areas. Although this cap may limit the 

funding of potential FMA projects for 

some communities, it is a requirement 

imposed by the statute that authorized 

the FMA program (42 U.S.C. 4104c). 

Although FEMA has no discretionary 

authority to remove the cap, the statute 

gives FEMA the discretion to waive the 

caps for any 5-year period when a major 

disaster or emergency for flooding is 

declared under the Stafford Act in that 

community or State, respectively. This 

provision is implemented at § 79.4 of 

the rule. 

In-Kind Match Limit 

One comment notes that up to half of 

the local match to a FMA project can be 

an in-kind match and that FMA is the 

only FEMA mitigation program with the 

in-kind restriction. FEMA agrees that 

there is a restriction on the use of inkind matching of FMA projects to meet 

the required non-Federal contribution. 

This is a requirement from the 

legislation that authorized the FMA 

program (42 U.S.C. 4104c(g)(1)) which 

requires that in-kind contributions by 

any State or community shall not 

exceed one-half of the amount of nonFederal funds contributed by the State 

or community. 

Requirement of an SRL Non-Federal 

Match 

One commenter noted that the SRL 

program requires a non-Federal match 

unlike the Repetitive Flood Claims 

(RFC) program. The commenter adds 

that many communities find it difficult 

to promote mitigation buyouts when the 

property will be deed restricted and 

there is a loss of tax base. With respect 


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47474 Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Rules and Regulations 

to the SRL non-Federal match, the 

regulation mirrors the language of the 

authorizing statute. (42 U.S.C. 4102a(d)) 

The authorizing language for the RFC 

program does not contain a similar 

match requirement and FEMA has not 

implemented one. FEMA has 

interpreted that the intent of the RFC is 

to provide mitigation assistance for 

States and communities that cannot 

meet the requirements of the FMA 

program, including the ability to 

provide a non-Federal match. 

Section 79.6 (Eligibility) 

Section 79.6 provides information on 

eligible applicants, subapplicants, State 

mitigation plan requirements, eligible 

activities, and minimum project criteria. 

One commenter noted that elevation, 

flood-proofing, demolition, and 

rebuilding will occur at least to the Base 

Flood Elevation (BFE) level or higher, if 

required by FEMA or State or local 

ordinance. Another commenter added 

that its particular jurisdiction requires 

the lowest enclosed level to be the BFE 

plus 2 feet for both FMA and HMGP 

flood mitigation projects. The 

commenter noted that this requirement 

is pursuant to its grant administrative 

discretion and its responsibility to 

prepare and adopt its State Standard 

Mitigation Plan, not because of local 

ordinance or State statute. The 

commenter requested that FEMA change 

the IR by adding statements which 

recognize that State administrative 

provisions and mitigation plans may 

also require an elevation higher than the 

BFE. 

FEMA has worked closely with its 

State and local partners to robustly 

implement mitigation planning as part 

of their decision-making. FEMA 

encourages, as part of an overall 

mitigation strategy, that States and local 

communities identify the particular 

hazard or hazards in their areas. Upon 

identification and prioritization of those 

hazards, State and local decision-makers 

are encouraged to develop prudent 

mitigation measures to address those 

risks and vulnerabilities. FEMA 

encourages States to establish more 

stringent requirements as part of their 

State administrative provisions or State 

mitigation plan. FEMA’s guidelines for 

floodplain management under the NFIP 

are a minimum standard; however, 

States are afforded the flexibility to 

adopt and implement more restrictive 

requirements, which may include 

provisions specific to mitigation. The IR 

was not intended to limit States from 

implementing their own administrative 

requirements that can serve as a basis 

for State-level ordinance or local 

regulatory changes to go above and 

beyond FEMA’s minimum standards. 

SRL Benefit Cost Analysis Requirements 

Two commenters noted that a benefit 

cost analysis for SRL projects is 

required, although mitigation of some 

structures may not be cost effective 

because they are not located in special 

flood hazard areas. One of those 

commenters requested that the SRL and 

repetitive loss properties automatically 

be considered cost effective. 

FEMA determined that the intent of 

the legislation that authorized the SRL 

program is to fund projects that reduce 

flood damages to SRL properties and 

that reduce losses to the NFIF. The 

statutory text does not specify that the 

projects must be cost effective; however, 

FEMA recognizes that determining costeffectiveness ensures compliance with 

these statutory program purposes, as 

well as provides a means of 

implementing the SRL program’s 

legislative requirement of providing 

assistance that will result in the greatest 

amount of savings to the NFIF. FEMA 

continues to evaluate the various 

approaches to determining costeffectiveness in terms of creating 

savings to the NFIF. 

SRL Property Relocation 

One commenter indicated that 

paragraph 79.6(c)(2)(ii) lists the 

demolition or relocation of structures to 

areas outside of the floodplain as an 

eligible project without placing 

limitations on the future use of the flood 

prone property. The commenter 

indicates that this change in the IR 

creates a potential for misuse as it 

would be possible to use mitigation 

funding to purchase a property under 

the SRL program, have it demolished or 

relocated, and then build a new 

structure on the same flood prone site. 

FEMA notes that paragraph 79.6(c)(2)(ii) 

is a component of the eligible activity 

identified in paragraph 79.6(c)(2)(i). To 

correct the error, paragraph 79.6(c)(2)(ii) 

has been removed and its substance has 

been incorporated into the language of 

paragraph 79.6(c)(2)(i), which contains a 

requirement that the property be 

converted to open space. 

Section 79.7 (Offers and Appeals Under 

the SRL Program) 

Section 79.7 provides information on 

mitigation offers and appeals under the 

SRL program. The section provides 

guidance on the consultation process, 

the voluntary mitigation offer, likely 

insurance increases due to refusal of a 

mitigation offer, and the appeals process 

for insurance rate increases. One 

commenter noted that there is no 

appeals process for the market value 

determination on an SRL property. The 

commenter indicated that the lack of an 

appeals process will likely cause 

problems in the implementation of the 

program. 

Contrary to the commenter’s claim, 

FEMA asserts that throughout the SRL 

process there are several opportunities 

for property owners to formally or 

informally consult with the State and 

local community regarding the purchase 

offer for their property. Under the SRL 

program, the purchase offer must be at 

least equal to the greatest amount 

offered through one of the three 

alternatives, specified in § 80.17. The 

local community is required, through a 

formal SRL consultation process, to take 

all necessary steps to ensure that the 

property owner is fully informed of the 

SRL program requirements, and that 

proper consultation and offer 

procedures were followed. In the event 

that the property owner does not accept 

a mitigation offer, the property owner 

may submit an appeal of the likely 

insurance premium rate increase (under 

certain circumstances). Specifically, 

with respect to an issue of property 

value, paragraph 79.7(d)(1)(ii)(A) allows 

the property owner to appeal an 

increase in insurance rate premium 

resulting from declining the offer of 

assistance (mitigation offer) if the 

purchase offer amount can be 

documented and verified as an 

inaccurate estimate of the property’s 

market value. Also, pursuant to 

paragraph 79.7(d)(1)(i), the property 

owner may appeal if he or she cannot 

find a replacement property of 

comparable value that is functionally 

equivalent to the property being 

replaced. Finally, paragraph 80.5(c)(5) 

describes the responsibility of the 

subapplicant/subgrantee to include 

resolving property owner disputes 

regarding mitigation offers for the 

purchase of property. 

Request for Statutory Amendments for 

SRL 

A commenter posed several 

comments that focus on the authorizing 

statute with the intent to propose 

legislative changes to the SRL program. 

The commenter raised the following six 

issues: (1) There is no requirement for 

a State/community to participate in the 

SRL; (2) The offer process is unique and 

will be difficult to administer; (3) The 

entire appeals process is cumbersome 

and unnecessary; (4) SRL is the only 

mitigation program with consequences 

for refusal to mitigate; (5) SRL has a cost 

share that, compared to RFC for 

example, puts the program at a 

competitive disadvantage; and (6) 


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Benefit cost analysis is used to 

determine whether a project will be 

funded or not. These comments pertain 

directly to the authorizing statute and 

do not directly address FEMA’s 

interpretation of that statute in this 

regulation. Although FEMA notes the 

commenter’s concerns, FEMA must 

adhere to the statutory requirements. 

44 CFR Part 80 

44 CFR part 80 provides, in a single 

source, the requirements for the 

administration of FEMA mitigation 

assistance to acquire property for open 

space under all FEMA Hazard 

Mitigation Assistance (HMA) programs. 

44 CFR part 80 also provides 

information on the eligibility and 

procedures for acquisition and 

relocation of vulnerable structures away 

from hazardous areas. Subsequently, the 

cleared property is to be maintained as 

open space in perpetuity. 

Paragraph 80.5(b)(7)—Enforcement 

Section 80.5 provides information on 

the roles and responsibilities of FEMA, 

the State, the subapplicant, and the 

participating property owners in the 

context of creating open space. 

Paragraph 80.5(b)(7) outlines the State’s 

roles and responsibilities to enforce the 

open space deed restrictions to ensure 

that a property purchased with 

mitigation funds remains as open space 

in perpetuity. 

One commenter noted that the term 

‘‘enforcing’’ implies an assumption that 

States have a statutory and regulatory 

authority to force jurisdictions to 

uphold open space deed restrictions. 

The commenter added that various 

States may or may not have this 

authority to enforce the open space deed 

restrictions, depending upon which 

agency implements the various 

mitigation grant programs. 

By virtue of receiving the HMA funds 

for open space projects, States and local 

communities are accountable for 

compliance with the terms of the grant 

agreement and its requirements for the 

use of those funds. Upon receiving 

FEMA funds for an open space 

acquisition project, the grantee and 

subgrantee assume stewardship, 

including ensuring that the deed 

restrictions are recorded, that there is a 

clear title to the property, that all 

incompatible easements or 

encumbrances are extinguished, that the 

vacant land is clean of hazardous 

materials, that the intended and future 

use of the property complies with the 

legally imposed use restrictions, and 

that the State and the local community 

jointly monitor and inspect the deedrestricted properties at regular intervals 

to ensure that the property continues to 

be used for open space purposes. All 

parties to the grant/subgrant award 

assume these responsibilities by 

receiving HMA funds. The authority to 

enforce these restrictions lies with the 

State in its role as grantee. Therefore, 

just as the grant condition continues in 

perpetuity pursuant to Federal law, the 

responsibility to ensure compliance 

with that condition continues in 

perpetuity. FEMA notes that these 

responsibilities have always applied to 

grantees and subgrantees for open space 

acquisition and relocation projects 

under all of FEMA hazard mitigation 

grant programs as necessary to ensure 

the long-term purpose of the Federal 

funds for this particular project type is 

met. 

Section 80.9 (Eligible and Ineligible 

Costs) 

One commenter indicated that the 

language in paragraph 80.9(c) allows for 

reducing a grant award for Duplication 

of Benefits (DOB) which could mean 

that a full DOB analysis would have to 

be completed before a project is 

approved by FEMA. The commenter 

indicated that the DOB should not be 

deducted until the local project manager 

has met with each owner during the 

offer presentation process and credited 

back temporary living expenses and/or 

receipted repairs using insurance or 

grant funds. Also, the commenter noted 

that the language appears to be 

confusing the concept of DOB and 

Duplication of Programs (DOP). 

HMA funding must be reduced by the 

amounts reasonably available to a 

property owner (even if not sought or 

received) designated for the same 

purpose or loss. In this case, the 

purchase offer will be reduced by the 

duplicative amount. It is the 

subgrantee’s responsibility to coordinate 

with the property owner and to disclose 

all potential deductions as a result of 

funds that were reasonably made 

available to the property owner. It is 

also the subgrantee’s responsibility to 

make the appropriate deductions from 

the purchase offer before making a final 

mitigation offer to the property owner. 

Consequently, it is the property owner’s 

responsibility to take all reasonable 

steps to recover funding he or she is 

eligible to receive. In developing a 

project budget, the subapplicant should 

take all reasonable steps to accurately 

identify all project costs. The 

information needed to determine a DOB 

is generally readily available and can 

impact the mitigation grant offer at any 

time. Therefore, it is preferable to 

identify all DOBs as early as possible in 

order to reduce the risk of having a cost 

overrun. However, amounts made 

available for the same purpose at any 

time, even after award or acquisition, 

constitute a DOB and will be treated as 

such. It should be noted that funds 

received by the property owner that 

were designated for the same purpose or 

loss will not be deducted from the final 

mitigation offer if the owner can 

document with receipts that those funds 

were expended on repairs or cleanup. 

Finally, FEMA disagrees with the 

commenter’s assertion that the language 

confuses the concept of DOB and DOP. 

DOP would occur when an activity is 

funded under one program, despite 

there being more specific authority to 

fund it under a different program. DOB 

occurs when HMA funds are used to 

fund a mitigation activity, but other 

funds for the same purpose, such as 

from insurance, are received by or 

available to the project participant. 

Section 80.11 (Project Eligibility) 

Section 80.11 provides information on 

project eligibility. This section includes 

a discussion of voluntary participation, 

acquisition of improved properties, 

subdivision restrictions, and open space 

restrictions. Paragraph 80.11(a) notes 

that a property owner who agrees to an 

acquisition must do so on a voluntary 

basis and that the grantee/subgrantee 

can not use their powers of eminent 

domain to acquire the property should 

negotiations fail. 

One commenter notes that the term 

‘‘negotiations’’ may be construed to 

mean that negotiations of offers are 

possible. The commenter suggests that 

the use of the term ‘‘negotiations’’ may 

be problematic in implementing an 

acquisition/demolition project 

regardless of the mitigation grant 

involved. 

FEMA is required to implement the 

provisions of 49 CFR part 24, Uniform 

Relocation Assistance and Real Property 

Acquisition for Federal and Federally 

Assisted Programs (URA). The term 

‘‘initiation of negotiations’’ is defined as 

the delivery of the initial written offer 

of just compensation by the Agency to 

the owner or the owner’s representative 

to purchase the real property for the 

project. (49 CFR 24.2(a)(15).) As such, 

the word ‘‘negotiation’’ is a term of art. 

If the property owner can verify that 

the final mitigation offer is significantly 

below market value, or presents other 

convincing facts such that the offer 

should be adjusted, then there may be 

an increase of the purchase offer. 

Regardless, in all cases, FEMA, the 

State, and the local community will 

work to ensure that all property owners 

are treated fairly and are offered an 

equitable mitigation offer based on the 


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acceptable methods for determining 

purchase offers for acquisitions under 

FEMA HMA programs. 

FEMA revised paragraph 80.11(d) to 

clarify that the subapplicant must 

acquire or retain fee title (full property 

interest), except for encumbrances 

FEMA determines are compatible with 

open space uses, consistent with 

paragraph 80.17(b). In response to a 

comment, FEMA reviewed the 

provisions for obtaining verification that 

a property owner is a National of the 

United States or qualified alien and 

therefore eligible to be offered pre-event 

market value for the property in an 

acquisition instead of current market 

value. To address any perceived 

inconsistency, FEMA revised paragraph 

80.17(c)(4) to clarify that the 

subapplicant must certify that the 

property owner is a National of the 

United States or qualified alien during 

the application process. 

Section 80.13 (Application Information) 

Section 80.13 provides information on 

application requirements. Some of this 

required information includes: property 

information, deed restriction language 

consistent with FEMA’s model deed 

restriction, a signed notice of voluntary 

interest, an assurance that there is no 

intention to use the acquired property 

for any public or private facility for a 

future use that is inconsistent with 44 

CFR part 80, and certification that the 

property owner is a National of the 

United States or a qualified alien (if the 

owner is being offered pre-event market 

value). 

One commenter indicated that the 

general requirements outlined in this 

section will significantly increase the 

paperwork burden on the subapplicants 

in the application process. In particular, 

the commenter indicates that prior to 

appraisal it is difficult to obtain 

signatures from property owners 

regarding the inclusion of their 

properties in the project, and notes that, 

as an applicant, the Voluntary 

Transaction Agreements signature is 

obtained after the grant is awarded to 

the local jurisdiction. 

FEMA analyzed the anticipated 

paperwork burden associated with 

implementing these mitigation programs 

with respect to the Paperwork 

Reduction Act of 1995 (PRA) (5 CFR 

part 1320). As part of its PRA analysis 

in Section IV.E. of this rule, FEMA 

determined that the collection of 

information needed to develop a 

mitigation application package does not 

impose an additional undue burden on 

the States and local communities. 

Applicants and subapplicants have been 

submitting this information before 

FEMA published the IR. Regardless, 

FEMA reviewed 44 CFR 80.13 to ensure 

that the HMA application information 

requirements do not impose any 

additional undue burden in the 

development of HMA applications. 

Generally, 44 CFR part 80 reflects the 

information that has always been 

requested in program guidance as a 

condition for applying for assistance to 

enable FEMA to determine the project’s 

eligibility and compliance with program 

requirements. 

With respect to the comment about 

obtaining project participants’ 

signatures, FEMA wants to clarify that 

the timing for obtaining from the 

property owner the Statement of 

Voluntary Participation (formerly called 

Voluntary Transaction Agreement), 

which indicates the market value of the 

property and the owner’s 

acknowledgment that they are 

voluntarily participating in the project, 

continues to occur post award. This is 

distinct from the Notice of Voluntary 

Interest, which simply documents 

during project development that 

potentially interested owners have 

received general notice from the 

subapplicant of the voluntary nature of 

the potential acquisition project, 

including that the subapplicant will not 

use its eminent domain authority for the 

purpose of open space. The Notice of 

Voluntary Interest may be as simple as 

having a group sign-in sheet at a 

neighborhood meeting about the 

possible project that includes a 

statement to this effect. For FEMA to 

ensure compliance with basic program 

requirements, this less formal 

documentation is provided to FEMA 

during the application process. 

Another commenter noted that it is 

unclear how States will be required to 

indicate that there is no intention to use 

the property for any public or private 

facility in the future. Paragraph 

80.13(a)(5) requires that the State 

provide assurances that the subject 

property to be acquired, deed restricted, 

and converted to open space has no 

future, intended, or planned use that is 

inconsistent with the requirements 

delineated in § 80.19 (land use and 

oversight). Compliance with this 

regulation is accomplished through a 

written statement submitted as part of 

the application. 

Two commenters indicated that it is 

unclear why offering the pre-event value 

to a property owner requires that the 

subapplicant provide certification that 

the property owner is a National of the 

United States or a qualified alien. One 

commenter also notes that § 80.13, 

which indicates that this certification 

must be done as part of the application 

process, conflicts with § 80.17 which 

indicates that this certification must be 

done before offering pre-event market 

value for a property. 

As established by the Personal 

Responsibility and Work Opportunity 

Reconciliation Act of 1996 (PRWORA) 

(42 U.S.C. 1305 note), an alien who is 

not a qualified alien (as defined in 8 

U.S.C. 1641) is not eligible for any 

Federal public benefit. In this instance, 

such a Federal public benefit results 

from an offer of pre-event market value, 

which has the effect of compensating for 

the disaster loss beyond the current 

market value of the property. This 

benefit is reserved for property owners 

who owned the property during the 

event and who are Nationals of the 

United States or qualified aliens. The 

property value for other individuals 

must be based on current market value. 

To ensure compliance with the 

PRWORA, local communities offering 

pre-event market value must verify that 

the property owners are either Nationals 

of the United States or qualified aliens. 

The term ‘‘National of the United 

States’’ is defined at 8 U.S.C. 1101 and 

means a citizen of the United States or 

a person who is not a citizen but who 

owes permanent allegiance to the 

United States. The term ‘‘qualified 

alien’’, as delineated in the Immigration 

and Nationality Act (the Act) at 8 U.S.C. 

1641, is an individual who meets 

certain criteria contained in the Act at 

the time they apply for, receive, or 

attempt to receive a Federal public 

benefit. 

In response to the commenter’s view 

that there is an inconsistency between 

§§ 80.13 and 80.17, FEMA notes that it 

intended the language in paragraph 

80.17(c)(4) to describe a pre-condition of 

offering pre-event value, not to address 

the timing of obtaining the information. 

Such information is relevant to the 

eligible costs of the project and is 

provided to FEMA during the 

application process. FEMA revised 

§ 80.17 to clarify that the pre-event 

value is only available to a property 

owner that has certified during the 

application process as to being a 

National of the United States or a 

qualified alien. 

Section 80.17 (Project Implementation) 

Paragraph 80.17(c)(1) provides that 

the amount of a purchase offer is either 

the current market value of the property 

or the market value of the property 

immediately before the relevant event 

affecting the property. One commenter 

requested clarification of the term 

‘‘relevant event’’ for Pre-Disaster 

Mitigation (PDM). The commenter 

indicated that this clarification will 


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make implementation of the program 

easier. As it relates to PDM, the 

regulation states that the relevant event 

is the most recent major disaster that 

affected the subject property. In the case 

where multiple disasters have affected 

the same property, this section indicates 

that the ‘‘grantee and subgrantee shall 

determine which is the relevant event.’’ 

Alternatively, if the project is not 

occurring in association with or will be 

more than 12 months after a disaster 

event, for example, the grantee and 

subgrantee may want to consider 

whether current market value may be 

more appropriate, per paragraph 

80.17(c)(3). 

One commenter indicated that the 

flexibility built into the SRL program 

affords market value determination of 

the greatest amount (i.e. current market 

value, pre-event market value, original 

purchase price paid, or outstanding 

amount of the loan on the property). 

The commenter indicated that in some 

instances the offer of the greatest 

amount would render the property not 

cost effective. 

Paragraph 80.17(c)(2) notes that for 

acquisition of properties under SRL, the 

purchase offer is to be not less than the 

greatest of the following amounts: the 

current market value of the property or 

the pre-event market value of the 

property; the original purchase amount 

paid by the property owner holding the 

flood insurance policy as demonstrated 

by property closing documents; or the 

outstanding amount of any loan to the 

property owner, secured by a recorded 

interest in the property at the time of the 

purchase offer. It is legislatively 

mandated at 42 U.S.C. 4102a(g)(3) that 

FEMA use these values to determine the 

greatest amount on which to base a 

purchase offer. The statute also requires 

that the purchase price be the greatest 

of those amounts. FEMA acknowledges 

that as a result of this method, there 

may be instances where the project costs 

outweigh the project benefits; however, 

FEMA must follow the legislatively 

mandated direction. 

Section 80.19 (Land Use and Oversight) 

Section 80.19 provides guidance on 

open space requirements and land uses 

compatible with open space. One 

commenter noted the correlation 

between the requirement in paragraph 

80.17(b) that any incompatible 

easements or other encumbrances to the 

property be extinguished before 

acquisition, and the requirement in 

paragraph 80.19(a)(1)(i) identifying 

‘‘below ground pumping and switching 

stations’’ as not being compatible with 

open space uses. The commenter added 

that this requirement restricts the ability 

of the local jurisdiction to purchase a 

property because a utility company may 

be unwilling to nullify an easement. 

Above or below ground pumping 

stations or other uses that obstruct the 

natural and beneficial use of the 

floodplain are deemed as land uses that 

are incompatible with FEMA’s open 

space requirements because they are 

detrimental to maintaining the 

beneficial functions of the floodplain. If, 

at the time of acquisition, a property is 

used for an incompatible open space 

use, then that property is no longer 

eligible for acquisition if the use cannot 

be discontinued. Similarly, if easements 

for the property allow for any 

incompatible use, such provisions must 

be nullified in order for the property to 

be acquired (provisions allowing for 

compatible uses may remain in effect). 

FEMA acknowledges that where 

incompatible uses will continue to be 

permitted on a property, the property is 

not eligible for FEMA HMA funds for an 

acquisition for open space purposes. 

One commenter expressed concern 

with the monitoring and reporting 

requirements and the enforcement 

provisions of § 80.19. The commenter 

suggested a monitoring timeframe 

consistent with mitigation plans. 

In an effort to ease the workload for 

monitoring, 44 CFR part 80 reduces the 

frequency of HMGP grant monitoring 

from once every 2 years to once every 

3 years. This change makes all HMA 

programs consistent in their property 

acquisition land-use monitoring 

requirement. FEMA believes that further 

extending this timeframe would not 

provide sufficient monitoring to ensure 

ongoing compliance with the land use 

requirements. In addition, FEMA does 

not think it is appropriate to 

synchronize the open space monitoring 

timeframe with the completely 

unrelated timeframe for local mitigation 

plan updates, and notes that to do so 

could place additional distractions on 

local jurisdictions at a time when they 

need to focus instead on the mitigation 

planning process. 

The same commenter also raised 

concerns about State responsibilities, 

including funds and authority to meet 

enforcement responsibilities, including 

taking legal action. Finally, the 

commenter identified concerns about 

improper consequences for State and 

subgrantee failure to enforce open space 

requirements, noting that it would be 

unfair for the State to lose HMA 

assistance if the subgrantee were noncompliant. 

In response, it should be noted that 44 

CFR part 80 does not substantially differ 

from previous open space project grant 

requirements, where the State has 

always played a vital role in the 

monitoring and enforcement of the open 

space restrictions. These provisions 

have been a requirement of FEMA 

property acquisition and relocation for 

open space projects almost since 

program inception. They have been 

reflected in the HMGP Desk Reference 

and the annual program guidance for 

the other HMA programs (e.g., the PDM 

program), which also incorporated 

FEMA’s model deed restriction 

language. The States, as grantees, and 

subgrantees agree to this language as a 

condition of receiving HMA funding, 

both by signing a statement of 

assurances acknowledging these 

conditions, and by accepting grant 

funds subject to the grant agreement. 

Unlike most NFIP-related programs and 

activities where the primary entity is the 

community, for HMA grant purposes the 

State is the grantee and is accountable 

for the use of funds and for assuring 

compliance with the terms of the grant 

award and the program. (See, e.g., 44 

CFR 206.433 and 13.3.) It also should be 

noted that FEMA is also accountable for 

ensuring that Federal awards are used 

for the intended purpose. The IR 

restated and codified previous HMA 

program requirements to ensure that 

States and FEMA carry out their fiscal 

responsibilities by taking appropriate 

actions to maintain consistency with 

Federal open space requirements. This 

action may or may not involve court 

action. The option of seeking specific 

performance in a court of law or equity 

is not ‘‘a requirement,’’ but is an 

available option when deemed 

appropriate. 

Further, the options available to 

FEMA for enforcing the open space 

requirements are not new. FEMA has 

always retained the right to bring legal 

action against a State or local 

jurisdiction that fails to comply with the 

open space terms of the grant and deed 

restriction. In addition, as explained in 

the rule, the option of withholding 

HMA assistance is a reasonable 

response in the event that the State and 

subgrantee fail to make a good faith 

effort to enforce the deed restrictions 

they voluntarily agreed to enforce. 

These remedies for non-compliance are 

consistent with government-wide 

Federal grants management procedures. 

(See, e.g., 44 CFR 13.43(a).) In the case 

of a State and/or local jurisdiction 

failing to comply with the grant terms 

and deed restrictions, taking such an 

action may be the most effective means 

of encouraging a continued commitment 

to the open space responsibilities. 

FEMA may withhold funds from a 

subgrantee for failure to demonstrate a 


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47478 Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Rules and Regulations 

good faith effort to come into 

compliance with the terms of the grant. 

Because the grant relationship is 

between FEMA and the State as grantee, 

funds withheld from a subgrantee are 

also withheld from the grantee. This 

does not necessarily mean that FEMA 

will withhold all HMA funding from 

that State. 

General Comment 

One commenter expressed concern 

that FEMA’s Flood Insurance Rate Map 

(FIRM) is antiquated and therefore does 

not provide the public with the most 

accurate and up-to-date risk mapping 

data. The commenter suggested that 

FEMA be proactive in stopping 

development in flood-prone areas. 

While this comment is outside the 

scope of this rulemaking, FEMA notes 

that efforts have been made to update 

and digitize flood maps. Local 

communities and States work closely 

with FEMA to provide the most up-todate data on flood risk. Any interested 

party may ask community officials to 

submit a map revision request to FEMA 

in accordance with 44 CFR part 65 of 

the NFIP regulations. Factors that 

influence when the maps are updated 

are: (1) When climatological or physical 

changes in watersheds occur, or (2) 

when mapping methodologies are 

improved. 

IV. Regulatory Requirements 

A. 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. 4321–4365), 

which are found at 44 CFR part 10. The 

rulemaking 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 

paragraph 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 § 10.8 

paragraphs (d)(2)(i) and (d)(2)(iii). 

FEMA received no public comments on 

the IR regarding its NEPA 

determination. 

B. Executive Order 11988, Floodplain 

Management 

FEMA has prepared and reviewed this 

rule under the provisions of Executive 

Order 11988, Floodplain Management. 

FEMA’s policy, procedures, and 

responsibilities in implementing this 

Executive Order are set forth in 44 CFR 

part 9. FEMA’s floodplain management 

regulations are intended to avoid long 

and short term adverse impacts 

associated with the occupancy and 

modification of floodplains; to avoid 

direct and indirect support of floodplain 

development whenever there is a 

practical alternative; to reduce the risk 

of flood loss; to promote the use of 

nonstructural flood protection methods 

to reduce the risk of flood loss; to 

minimize the impacts of floods on 

human health, safety and welfare; to 

restore and preserve the natural and 

beneficial values served by floodplains; 

and to adhere to the objectives of the 

Unified National Program for 

Floodplain Management. As stated in 

the rulemaking, 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. FEMA received no public 

comments on the IR regarding its 

Executive Order 11988 determination. 

C. 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 or entitlements, grants, user fees, 

or loan programs or the right 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. 

This final rule adopts the regulations 

established in the IR with a few 

nonsignificant changes that are a logical 

outgrowth from the IR. This final rule 

does not meet the criteria under 

paragraphs 2, 3, or 4 of the provision of 

the Executive Order. In addition, FEMA 

determined that it is not likely to have 

a significant economic impact of $100 

million or more per year (under 

paragraph 1 of this provision). This rule 

has not been reviewed by OMB. 

This final rule is intended to have a 

positive impact on State, local, and 

Indian Tribal governments. The new 

SRL program and the modified FMA 

program assist State, local, and Indian 

Tribal governments in reducing the loss 

of life and property from flooding events 

by providing additional grant resources 

and the ability to increase the Federal 

cost share for projects mitigating SRL 

properties. The FMA is an annual grant 

program created with the goal of 

reducing or eliminating claims under 

the NFIP. The SRL pilot program 

provides funding to assist States and 

communities in implementing measures 

to reduce or eliminate the long-term risk 

of flood damage to severe repetitive loss 

structures insured under the NFIP, 

therefore reducing payments from the 

NFIF. The SRL program differs from 

FEMA’s other mitigation grant 

programs, as those property owners who 

decline offers of mitigation assistance 

will be subject to increases to their flood 

insurance premium rates. This final rule 

also implements changes to the FMA 

program by allowing for up to a 90 

percent Federal cost share for the 

mitigation of severe repetitive loss 

properties (the standard Federal cost 

share is 75 percent). While the SRL and 

FMA programs will be implemented as 

separate programs with different 

funding accounts, they are similar in 

their goals and purpose. Therefore, 

FEMA has included both of these 

programs into one implementing 

regulation to ensure consistency 

between the programs. 

The primary economic impact of the 

final rule is defined as the additional 

transfer of funding from FEMA to State, 

local, and Indian Tribal governments to 

implement measures to reduce or 

eliminate the long-term risk of flood 


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Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Rules and Regulations 47479 

damage to severe repetitive loss 

structures. FEMA made conservative 

assumptions in order not to under 

estimate the economic impact of the 

final rule. Historically, the FMA 

program has provided $20 million in 

grants on an annual basis. The NFIA, as 

amended, authorizes the appropriations 

for the existing FMA program to be 

increased from $20 million to $40 

million per year. Congressional 

appropriators have gradually increased 

the funding for this program, and the 

FMA program may eventually reach its 

total authorized $40 million cap per 

year. 

In fiscal year 2008, FEMA awarded 

$38 million for the mitigation of 173 

properties at an average of $220,000 per 

property under the SRL pilot program. 

In fiscal year 2009, FEMA expects to 

award $50 million for the mitigation of 

227 properties also at an average of 

$220,000 per property. To date, no one 

has refused the offer of mitigation or 

appealed, therefore no premiums have 

increased. 

The purpose of the SRL grant program 

is to reduce or eliminate claims through 

flood mitigation projects that would 

result in the greatest savings to the 

NFIF. The two most common types of 

flood mitigation projects are elevation of 

a flood prone structure, and acquisition 

and demolition or relocation of a flood 

prone structure. In 2006, the NFIP paid 

a total of $617.28 million for claims 

with an average claim payment of 

$25,545. Severe Repetitive Loss 

properties account for far less than 1 

percent of the current NFIP policies, yet 

these properties account for over 7 

percent of the total amount paid in 

claims. Approximately, 8,544 properties 

were identified as meeting the 

definition of severe repetitive loss, 

among which 1,067 SRL properties were 

damaged by flood and paid $46.21 

million in 2006 (or $49.35 million in 

2008, if adjusted to reflect inflation). 

Assuming that all 400 SRL properties 

(173 in FY08 + 227 in FY09) have 

accepted mitigation offers, 4.7 percent 

of the 8,544 SRL properties will lower 

or eliminate the risk of future flood 

damages by the end of fiscal year 2009. 

Therefore, the reduction in claims paid 

for SRL properties is estimated at up to 

$2.31 million per year (4.7 percent × 

$49.35 million). 

Assuming that the FMA program 

reaches its $40 million cap per year, the 

net economic impact of the final rule is 

estimated to be up to $61.69 million per 

year. Table 1 details the annual impact 

of the final rule. The NFIA, as amended, 

authorizes the SRL program through the 

end of fiscal year 2009; therefore, the 

impact of this rule will be reduced by 

$44 million in fiscal year 2010 and 

beyond. 

TABLE 1—NET ANNUAL IMPACT OF THE

FINAL RULE

[in 2008 $] 

FMA Program ....................... $20,000,000 

SRL Program ........................ *44,000,000 

National Flood Insurance 

Fund .................................. (2,310,000) 

Total ............................... 61,690,000 

* Average of $38 million in FY 2008 and $50 

million in FY 2009. 

D. Executive Order 12898, 

Environmental Justice 

In accordance with Executive Order 

12898, Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations, 59 FR 7629, Feb. 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. 

This rule implements the SRL 

program, providing mitigation grants to 

severe repetitive loss properties, and 

improves the FMA program and the 

mitigation planning requirements. This 

rule also clarifies and simplifies the 

planning requirements for Indian Tribal 

governments. No action in this rule will 

have a disproportionately high or 

adverse human health and 

environmental effect on any segment of 

the population. FEMA received no 

comments during the IR comment 

period that disagreed with this 

determination. 

E. Paperwork Reduction Act of 1995 

In accordance with the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501– 

3520, OMB has approved use of OMB 

Numbers 1660–0025, FEMA Emergency 

Preparedness and Response Directorate 

Grants Administration Forms under 44 

CFR parts 78, 79, and 206 in this rule; 

1660–0062, State/Local/Tribal Hazard 

Mitigation Plans—Section 322 of the 

Disaster Mitigation Act of 2000 under 44 

CFR part 201; 1660–0103, Property 

Acquisition and Relocation for Open 

Space under 44 CFR part 80; and 1660– 

0104, Severe Repetitive Loss (SRL) 

Appeals process under 44 CFR part 79. 

The approved collections have gone 

through the OMB’s normal clearance 

procedures in accordance with the 

provisions of OMB regulation at 5 CFR 

1320.10. Use of these collections, under 

this final rule, does not impose addition 

burden and are approved for use until 

August 31, 2011. 

The information collection activity 

under the approved OMB information 

collection 1660–0072, Mitigation Grant 

Programs/e-Grants (previously named 

Flood Mitigation Assistance (e-Grants) 

and Grant Supplemental Information) 

have been combined with OMB No. 

1660–0071, Pre-Disaster Mitigation 

(PDM) Grant Program/eGrants to 

streamline and simplify documentation 

of the same information collected for all 

mitigation e-Grants program under 

section 203 (Predisaster Hazard 

Mitigation) of the Stafford Act (42 

U.S.C. 5133) and has been approved for 

use until February 28, 2011. 

F. Executive Order 13132, Federalism 

Executive Order 13132, Federalism, 

signed 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 

practicable, must consult with State and 

local officials before implementing any 

such action. 

FEMA reviewed the IR under 

Executive Order 13132 and concluded 

that the IR, which implemented the 

statutory requirements for a new SRL 

program as well as a potential increase 

in the Federal share for the FMA 

program, simplified the planning 

requirements, and reflected a 

statutorily-mandated change to the 

HMGP allocation, does not have 

federalism implications as defined by 

the Executive Order. FEMA received no 

comments during the IR comment 

period that disagreed with this 

determination. FEMA also determined 

that this final rule does not significantly 

affect the rights, roles, and 

responsibilities of States, and involves 

no preemption of State law nor does it 

limit State policymaking discretion. 


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47480 Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Rules and Regulations 

G. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

While this rule does have ‘‘Tribal 

implications’’ as defined in Executive 

Order 13175, it does not have a 

substantial direct effect on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

FEMA coordinates 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. 

Indian Tribal governments may apply 

for assistance directly to FEMA as a 

grantee, or through the State as a 

subgrantee. (See 44 CFR 201.3(e) and 

206.202(f)(1).) Before the IR went into 

effect, Indian Tribes were permitted to 

prepare either a State-level Mitigation 

Plan, or a Local-level Mitigation Plan 

depending on whether they intend to 

apply as a grantee, or as a subgrantee. 

Before publishing the IR, FEMA 

discussed the existing planning 

requirements with many of the Indian 

Tribal governments as they were 

developing their plans, or while 

attending Tribal training courses, and 

were informed that neither of these 

options sufficiently met the needs of the 

Indian Tribal governments. To address 

this problem, the IR established a 

specific planning requirement for Indian 

Tribal governments in 44 CFR 201.7 that 

recognized some of the unique aspects 

of these governments and combined the 

appropriate aspects of State and local 

planning requirements into one section 

for Indian Tribal governments. 

The substance of this rule is intended 

to have a positive impact on Indian 

Tribal governments and their 

relationship with the Federal 

Government. The 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. FEMA 

received no comments during the IR 

comment period that disagreed with this 

determination. 

H. Congressional Review of Agency 

Rulemaking 

FEMA has sent this final rule to the 

Congress and to the General 

Accountability Office under the 

Congressional Review of Agency 

Rulemaking Act, (Congressional Review 

Act), 5 U.S.C. 801–808. The final 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 

enterprises to compete with foreignbased enterprises. 

I. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121), requires Federal agencies 

to consider the potential impact of 

regulations on small businesses, small 

governmental jurisdictions, and small 

organizations during the development of 

their rules. When an agency invokes the 

good cause exception under the 

Administrative Procedure Act to make 

changes effective through an interim 

final or final rule, the RFA does not 

require an agency to prepare a 

regulatory flexibility analysis. FEMA 

determined in the IR 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) (72 FR 61720, Oct. 31, 2007). 

Therefore, a regulatory flexibility 

analysis is not required for this rule. 

J. Executive Order 12630, Taking of 

Private Property 

This rule will not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. In 44 CFR 

80.11(a), this final rule explicitly states 

that a grantee/subgrantee cannot use its 

eminent domain authority to acquire the 

property for open space purposes; only 

such projects where the property owner 

participates voluntarily are eligible to 

receive a grant. 

K. 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. 

L. Unfunded Mandates 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), enacted as 

Public Law 104–4 on March 22, 1995 (2 

U.S.C. 1531–1538), requires each 

Federal agency, to the extent permitted 

by law, to prepare a written assessment 

of the effects of any Federal mandate in 

a proposed or final agency rule that may 

result in the expenditure by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more (adjusted annually 

for inflation) in any one year. UMRA 

exempts from its definition of ‘‘Federal 

intergovernmental mandate’’ regulations 

that establish conditions of Federal 

assistance or provide for emergency 

assistance or relief at the request of any 

State, local, or Tribal government. 

Therefore, this rule is not an unfunded 

Federal mandate under that Act. 

List of Subjects 

44 CFR Part 59 

Flood insurance, Reporting and 

recordkeeping requirements. 

44 CFR Part 61 

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. 

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. 

■ Accordingly, the Interim Rule 

amending 44 CFR Parts 59, 61, 78, 79, 

80, 201, and 206 published on October 

31, 2007 (72 FR 61720), is adopted as a 

final rule with the following changes: 

PART 79—FLOOD MITIGATION 

GRANTS 

■ 1. The authority citation for part 79 

continues 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. 


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■ 2. Amend § 79.2 by redesignating 

paragraphs (e) through (l) as (f) through 

(m); by adding a new paragraph (e); and 

by revising paragraphs (c)(1), newly 

designated paragraph (l), and newly 

designated paragraph (m) to read as 

follows: 

§ 79.2 Definitions. 

* * * * * 

(c) * * * 

(1) A political subdivision, including 

any Indian Tribe, authorized Tribal 

organization, Alaska Native village or 

authorized native organization, that has 

zoning and building code jurisdiction 

over a particular area having special 

flood hazards, and is participating in the 

NFIP; or 

* * * * * 

(e) Indian Tribal government means 

any Federally recognized governing 

body of an Indian or Alaska Native 

Tribe, band, nation, pueblo, village, or 

community that the Secretary of Interior 

acknowledges to exist as an Indian Tribe 

under the Federally Recognized Indian 

Tribe List Act of 1994, 25 U.S.C. 479a. 

This does not include Alaska Native 

corporations, the ownership of which is 

vested in private individuals. 

* * * * * 

(l) Administrator means the head of 

the Federal Emergency Management 

Agency, or his/her designated 

representative. 

(m) Regional Administrator means the 

head of a Federal Emergency 

Management Agency regional office, or 

his/her designated representative. 

■ 3. In § 79.4, revise paragraph (c) 

introductory text and paragraph (c)(2) to 

read as follows: 

§ 79.4 Availability of funding. 

* * * * * 

(c) Cost Share. All mitigation 

activities approved under the grant will 

be subject to the following cost-share 

provisions: 

* * * * * 

(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 applicant has an 

approved Mitigation Plan meeting the 

repetitive loss requirements identified 

in § 201.4(c)(3)(v) or § 201.7(c)(3)(vi) of 

this chapter, as applicable, at the time 

the project application is submitted; 

* * * * * 

■ 4. Amend § 79.6 by removing 

paragraph (c)(2)(ii), redesignating 

paragraphs (c)(2)(iii) through (c)(2)(vii) 

as (c)(2)(ii) through (c)(2)(vi), and 

revising paragraphs (b)(1) and (c)(2)(i) to 

read as follows: 

§ 79.6 Eligibility. 

* * * * * 

(b) * * * 

(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 § 201.7 of this chapter at the time of 

application. 

* * * * * 

(c) * * * 

(2) * * * 

(i) Acquisition of real property from 

property owners, and demolition or 

relocation of buildings and/or structures 

to areas outside of the floodplain to 

convert the property to open space use 

in perpetuity, in accordance with part 

80 of this subchapter; 

* * * * * 

PART 80—PROPERTY ACQUISITION 

AND RELOCATION FOR OPEN SPACE 

■ 5. The authority citation for part 80 is 

revised to read as follows: 

Authority: Robert T. Stafford Disaster 

Relief and Emergency Assistance Act, 42 

U.S.C. 5121 through 5207; the National Flood 

Insurance Act of 1968, as amended, 42 U.S.C. 

4001 et seq.; 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. 

■ 6. In § 80.3, revise paragraphs (l) and 

(m) to read as follows: 

§ 80.3 Definitions. 

* * * * * 

(l) Administrator means the head of 

the Federal Emergency Management 

Agency, or his/her designated 

representative. 

(m) Regional Administrator means the 

head of a Federal Emergency 

Management Agency regional office, or 

his/her designated representative. 

■ 7. Revise § 80.11(d) to read as follows: 

§ 80.11 Project eligibility. 

* * * * * 

(d) Subapplicant property interest. To 

be eligible, the subapplicant must 

acquire or retain fee title (full property 

interest), except for encumbrances 

FEMA determines are compatible with 

open space uses, as part of the project 

implementation. A pass through of 

funds from an eligible entity to an 

ineligible entity must not occur. 

* * * * * 

■ 8. Revise § 80.13(a)(6) to read as 

follows: 

§ 80.13 Application information. 

(a) * * * 

(6) If the subapplicant is offering preevent value: the property owner’s 

certification that the property owner is 

a National of the United States or 

qualified alien; and 

* * * * * 

■ 9. Revise § 80.17(c)(4) to read as 

follows: 

§ 80.17 Project implementation. 

* * * * * 

(c) * * * 

(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 who offer preevent market value to the property 

owner must have already obtained 

certification during the application 

process that the property owner is either 

a National of the United States or a 

qualified alien. 

* * * * * 

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 5207; 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. In § 201.2, revise the definition of 

‘‘Administrator’’, the first sentence of 

the definition of ‘‘Indian Tribal 

government’’, and the definition of 

‘‘Regional Administrator’’ to read as 

follows: 

§ 201.2 Definitions. 

Administrator means the head of the 

Federal Emergency Management 

Agency, or his/her designated 

representative. 

* * * * * 

Indian Tribal government means any 

Federally recognized governing body of 

an Indian or Alaska Native Tribe, band, 

nation, pueblo, village, or community 

that the Secretary of Interior 

acknowledges to exist as an Indian Tribe 

under the Federally Recognized Indian 

Tribe List Act of 1994, 25 U.S.C. 479a. 

* * * 

* * * * * 

Regional Administrator means the 

head of a Federal Emergency 


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Management Agency regional office, or 

his/her designated representative. 

* * * * * 

■ 12. Amend § 201.3 by removing 

paragraph (c)(7) and by revising the last 

sentence of paragraph (e)(1) to read as 

follows: 

§ 201.3 Responsibilities. 

* * * * * 

(e) * * * 

(1) * * * In addition, an Indian Tribal 

government applying to FEMA as a 

grantee 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. 

* * * * * 

■ 13. In § 201.6 revise paragraphs 

(c)(2)(ii)(B) and (c)(3)(iii) to read as 

follows: 

§ 201.6 Local Mitigation Plans. 

* * * * * 

(c) * * * 

(2) * * * 

(ii) * * * 

(B) An estimate of the potential dollar 

losses to vulnerable structures identified 

in paragraph (c)(2)(ii)(A) of this section 

and a description of the methodology 

used to prepare the estimate; 

* * * * * 

(3) * * * 

(iii) An action plan describing how 

the actions identified in paragraph 

(c)(3)(ii) of this section will be 

prioritized, implemented, and 

administered by the local jurisdiction. 

Prioritization shall include a special 

emphasis on the extent to which 

benefits are maximized according to a 

cost benefit review of the proposed 

projects and their associated costs. 

* * * * * 

■ 14. In § 201.7 revise paragraphs (a)(2), 

(a)(3), (c)(2)(ii)(B), (c)(3)(iii), and 

(c)(3)(vi) to read as follows: 

§ 201.7 Tribal Mitigation Plans. 

* * * * * 

(a) * * * 

(2) An Indian Tribal government 

applying to FEMA as a grantee 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 and, the 

Administrator, at his discretion may 

require a Tribal 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. The provisions in 

§ 201.6(a)(3) are available to Tribes 

applying as subgrantees. 

* * * * * 

(c) * * * 

(2) * * * 

(ii) * * * 

(B) An estimate of the potential dollar 

losses to vulnerable structures identified 

in paragraph (c)(2)(ii)(A) of this section 

and a description of the methodology 

used to prepare the estimate; 

* * * * * 

(3) * * * 

(iii) An action plan describing how 

the actions identified in paragraph 

(c)(3)(ii) of this section will be 

prioritized, implemented, and 

administered by the Indian Tribal 

government. 

* * * * * 

(vi) An Indian Tribal government 

applying to FEMA as a grantee 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 

identifies 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 

reduce the number of such repetitive 

loss properties. 

* * * * * 

PART 206—FEDERAL DISASTER 

ASSISTANCE 

■ 15. 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 5207; 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; and 

E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., 

p. 166. 

■ 16. In § 206.226 revise paragraph (b) 

to read as follows: 

§ 206.226 Restoration of damaged 

facilities. 

* * * * * 

(b) Mitigation planning. In order to 

receive assistance under this section, 

the State or Indian Tribal government 

applying to FEMA as a grantee must 

have in place a FEMA approved State or 

Tribal Mitigation Plan, as applicable, in 

accordance with 44 CFR part 201. 

* * * * * 

■ 17. Revise § 206.401 to read as 

follows: 

§ 206.401 Local standards. 

The cost of repairing or constructing 

a facility in conformity with minimum 

codes, specifications and standards may 

be eligible for reimbursement under 

section 406 of the Stafford Act, as long 

as such codes, specifications, and 

standards meet the criteria that are 

listed at 44 CFR 206.226(d). 

■ 18. Amend § 206.431 by revising the 

definitions of ‘‘Indian Tribal 

government’’ and ‘‘Local Mitigation 

Plan’’ and by adding, in alphabetical 

order, the definition of ‘‘Tribal 

Mitigation Plan’’ to read as follows: 

§ 206.431 Definitions. 

* * * * * 

Indian Tribal government means any 

Federally recognized governing body of 

an Indian or Alaska Native Tribe, band, 

nation, pueblo, village, or community 

that the Secretary of Interior 

acknowledges to exist as an Indian Tribe 

under the Federally Recognized Indian 

Tribe List Act of 1994, 25 U.S.C. 479a. 

This does not include Alaska Native 

corporations, the ownership of which is 

vested in private individuals. 

Local Mitigation Plan is the hazard 

mitigation plan required of a local 

government acting as a subgrantee as a 

condition of receiving a project subgrant 

under the HMGP as outlined in 44 CFR 

201.6. 

* * * * * 

Tribal Mitigation Plan is the hazard 

mitigation plan required of an Indian 

Tribal government acting as a grantee or 

subgrantee as a condition of receiving a 

project grant or subgrant under the 

HMGP as outlined in 44 CFR 201.7. 

■ 19. In § 206.432 revise paragraphs (b) 

introductory text and (b)(2) 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, and 5183 of the 

Stafford Act for the major disaster (less 

associated administrative costs), and 

shall be as follows: 

* * * * * 

(2) Twenty (20) percent. A State with 

an approved Enhanced State Mitigation 

Plan, in effect before the disaster 


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Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Rules and Regulations 47483 

declaration, which meets the 

requirements outlined in § 201.5 of this 

subchapter shall be eligible for 

assistance under the HMGP not to 

exceed 20 percent of such amounts, for 

amounts not more than $35.333 billion. 

* * * * * 

■ 20. In § 206.434 revise paragraphs 

(b)(1), (c)(1), and (e) introductory text to 

read as follows: 

§ 206.434 Eligibility. 

* * * * * 

(b) * * * 

(1) Local and Indian Tribal 

government applicants for project 

subgrants must have an approved local 

or Tribal Mitigation Plan in accordance 

with 44 CFR part 201 before receipt of 

HMGP subgrant funding for projects. 

* * * * * 

(c) * * * 

(1) Be in conformance with the State 

Mitigation Plan and Local or Tribal 

Mitigation Plan approved under 44 CFR 

part 201; or for Indian Tribal 

governments acting as grantees, be in 

conformance with the Tribal Mitigation 

Plan approved under 44 CFR 201.7; 

* * * * * 

(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 before 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 

Administrator that provides assurances 

that: 

* * * * * 

Dated: September 8, 2009. 

David Garratt, 

Acting Deputy Administrator, Federal 

Emergency Management Agency. 

[FR Doc. E9–22278 Filed 9–15–09; 8:45 am] 

BILLING CODE 9110–12–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–2016; MB Docket No. 09–125; RM– 

11548] 

Television Broadcasting Services; 

Biloxi, MS 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commission grants a 

petition for rulemaking filed by WLOX 

License Subsidiary, LLC, the permittee 

of station WLOX(TV), channel 13, 

Biloxi, Mississippi, requesting the 

substitution of its pre-transition digital 

channel 39 for its allotted posttransition channel 13 at Biloxi. 

DATES: This rule is effective September 

16, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Joyce L. Bernstein, Media Bureau, (202) 

418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Report 

and Order, MB Docket No. 09–125, 

adopted September 3, 2009, and 

released September 4, 2009. The full 

text of this document is available for 

public inspection and copying during 

normal business hours in the FCC’s 

Reference Information Center at Portals 

II, CY–A257, 445 12th Street, SW., 

Washington, DC, 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1– 

800–478–3160 or via e-mail http:// 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

information collection burden ‘‘for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

The Commission will send a copy of 

this Report and Order in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional review Act, see 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622 [Amended] 

■ 2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Mississippi, is amended by 

adding DTV channel 39 and removing 

DTV channel 13 at Biloxi. 

Federal Communications Commission. 

James J. Brown, 

Deputy Chief, Video Division, Media Bureau. 

[FR Doc. E9–22315 Filed 9–15–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R3–ES–2009–0063; 

92220–1113–0000; C6] 

RIN 1018–AW80 

Endangered and Threatened Wildlife 

and Plants; Reinstatement of 

Protections for the Gray Wolf in the 

Western Great Lakes in Compliance 

With Settlement Agreement and Court 

Order 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are issuing 

this final rule to comply with a court 

order that has the effect of reinstating 

the regulatory protections under the 

Endangered Species Act of 1973, as 

amended (ESA), for the gray wolf (Canis 

lupus) in the western Great Lakes. This 

rule corrects the gray wolf listing in our 

regulations which will reinstate the 

listing of gray wolves in all of 

Wisconsin and Michigan, the eastern 

half of North Dakota and South Dakota, 

the northern half of Iowa, the northern 

portions of Illinois and Indiana, and the 

northwestern portion of Ohio as 

endangered, and reinstate the listing of 

wolves in Minnesota as threatened. This 

rule also reinstates the former 

designated critical habitat for gray 

wolves in Minnesota and Michigan and 

special regulations for gray wolves in 

Minnesota. 

DATES: This action is effective 

September 16, 2009. 


sroberts on DSKD5P82C1PROD with RULES