Federal Register / Vol. 86, No. 173 / Friday, September 10, 2021 / Rules and Regulations 50653 

1FEMA has already implemented most of the 

changes discussed in this Final Rule through the 

Hazard Mitigation Assistance Guidance in 2013. 

See FEMA, Hazard Mitigation Assistance Guidance, 

Feb 27, 2015, available at https://www.fema.gov/ 

sites/default/files/2020-04/HMA_Guidance_

FY15.pdf (last accessed Feb 5, 2021). FEMA is now 

updating its HMA regulations to reflect these 

changes. 

2 42 U.S.C. 4001 et seq. 

TABLE 2—WASTES EXCLUDED FROM SPECIFIC SOURCES—Continued 

Facility Address Waste description 

*******

* * * * * 

[FR Doc. 2021–19048 Filed 9–9–21; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Parts 77, 78, 79, 80, 201, and 

206 

[Docket ID: FEMA–2019–0011] 

RIN 1660–AA96 

FEMA’s Hazard Mitigation Assistance 

and Mitigation Planning Regulations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Federal Emergency Management 

Agency’s Hazard Mitigation Assistance 

and mitigation planning regulations to 

reflect current statutory authority and 

agency practice. 

DATES: This rule is effective October 12, 

2021. 

ADDRESSES: The docket for this 

rulemaking is available for inspection 

using the Federal eRulemaking Portal at 

http://www.regulations.gov and can be 

viewed by following that website’s 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Fox, Assistant Administrator 

for Mitigation, Federal Emergency 

Management Agency, 202–646–1046, 

Katherine.Fox5@fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background and Discussion of the 

Rule 

On August 28, 2020, the Federal 

Emergency Management Agency 

(FEMA) published a Notice of Proposed 

Rulemaking (NPRM) (85 FR 53474) to 

revise FEMA’s Hazard Mitigation 

Assistance (HMA) program regulations 

to reflect current statutory authority and 

agency practice.1 FEMA’s HMA program 

regulations consist of the Flood 

Mitigation Assistance (FMA) grant 

program, the Hazard Mitigation Grant 

Program (HMGP), financial assistance 

for property acquisition and relocation 

of open space, and mitigation planning 

regulations. The NPRM proposed to 

revise the FMA grant program 

regulations to incorporate changes made 

by amendments to the National Flood 

Insurance Act of 1968 (NFIA).2 The 

NPRM also proposed to update terms 

and definitions throughout the HMA 

and Mitigation Planning regulations to 

better align with uniform administrative 

requirements that apply to all Federal 

assistance. 

The NPRM solicited public comment 

on these proposed changes. FEMA 

received five comments related to the 

rulemaking and one unrelated comment 

that was outside the scope of the 

rulemaking. (The unrelated comment 

was an expression of the commenter’s 

political views and therefore not 

germane to this rule). FEMA does not 

consider the one unrelated comment in 

this preamble. In this final rule, FEMA 

adopts the changes it proposed in the 

NPRM with some minor revisions in 

consideration of the related comments 

as well as Title 2 of the Code of Federal 

Regulations (CFR) part 200. FEMA 

describes the comments received and 

changes to the final rule below. 

II. Summary and Discussion of Public 

Comments 

FEMA received five written responses 

to the amendments to its Hazard 

Mitigation Assistance (HMA) program 

regulations. All commenters submitted 

responses online at regulations.gov. 

FEMA reviewed each unique comment 

and considered whether to change the 

regulation in response to the comment. 

A summary of each comment and 

FEMA’s response is provided below. 

Responses are listed in order of Docket 

ID number. 

Individual Citizen, Docket ID FEMA– 

2019–0011–0003 

This individual citizen recommended 

that FEMA eliminate the FMA program 

and reallocate those resources to be 

available for the purposes of obtaining 

open space. FEMA appreciates this 

comment and recognizes the importance 

of maintaining open space as a critical 

component of many hazard mitigation 

programs; indeed, this is why the 

acquisition of open space is one of the 

eligible project types under FEMA’s 

HMA programs. However, FEMA lacks 

authority to eliminate the FMA program 

because FEMA is required by statute to 

implement this program (42 U.S.C. 

4104c(a)(1)–(3)). FEMA also recognizes 

that a one size fits all approach to 

hazard mitigation is not aligned with 

the comprehensive community and 

hazard mitigation planning processes. 

Individual Citizen, Docket ID FEMA– 

2019–0011–0004 

This individual citizen recommended 

that the definition of ‘‘community’’ be 

expanded to include community 

organizations. In response, FEMA notes 

that ‘‘community’’ is defined in statute 

in 42 U.S.C. 4104c(h)(1) and as a result, 

FEMA cannot reinterpret, expand or 

change this definition. Although private 

nonprofits and other private sector 

entities such as businesses, industry 

associations, native corporations, and 

individuals are unable to apply for 

FEMA’s HMA programs based on 

statute, FEMA encourages partnerships 

and recognizes that these entities can 

provide value to projects eligible for 

HMA funding. 

The Association of State Floodplain 

Managers, Docket ID FEMA–2019–0011– 

0005 

The Association of State Floodplain 

Managers (ASFPM) is an organization of 

professionals involved in floodplain 

management, flood hazard mitigation, 

the flood insurance, and flood 

preparedness, warning and recovery. 

The ASFPM Flood Mitigation 

Committee submitted a number of 

comments on behalf of the organization. 

First, the ASFPM expressed concerns 

that the proposed 44 CFR 77.7(b) states 

that ‘‘[Pre-award] costs can only be 

incurred during the open application 

period for the FMA program.’’ Under 

FEMA’s current practice, eligible preaward costs may be incurred prior to 

application submission (limited by 44 

CFR 79.8 to costs incurred during the 

open application period). However, it is 

not FEMA’s intent to disallow otherwise 


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eligible pre-award costs that were 

incurred prior to the open application 

period. In response to this comment, 

FEMA has removed the statement 

referenced above from 44 CFR 77.7(b). 

Costs incurred prior to award may be 

reimbursed if they meet the eligibility 

requirements and are in compliance 

with 2 CFR part 200 Subpart E, Cost 

Principles. Pre-award costs include 

costs directly related to developing an 

application or subapplication that are 

incurred prior to the date of the grant 

award and are allowed subject to FEMA 

approval at time of award. Such costs 

may include gathering National 

Environmental Policy Act (NEPA) data 

or developing a Benefit Cost Analysis 

(BCA), preparing design specifications 

(including the development of elevation 

plans), or conducting workshops or 

meetings related to development and 

submission of subapplications. 

Second, the ASFPM identified that 

the proposed 44 CFR 77.6(c)(2)(vi) 

states, ‘‘Non-localized flood risk 

reduction projects such as dikes, levees, 

floodwalls, seawalls, groins, jetties, 

dams and large-scale waterway 

channelization projects are not eligible,’’ 

which is inconsistent with recent 

Notices of Funding Opportunity 

(NOFOs) speaking to the eligibility of 

‘‘community mitigation projects,’’ 

which could qualify as non-localized 

flood risk reduction projects. It is not 

FEMA’s intent for these project types to 

be ineligible under all circumstances. In 

response to this comment, FEMA has 

added language to 44 CFR 77.6(c)(2)(vi) 

for clarity and consistency with 42 

U.S.C. 4014c(c)(3)(E), limiting funding 

to localized projects, except in rare 

instances. As a result, 44 CFR 

77.6(c)(2)(vi) now reads, ‘‘Non-localized 

flood risk reduction projects such as 

dikes, levees, floodwalls, seawalls, 

groins, jetties, dams and large-scale 

waterway channelization projects are 

not eligible unless the Administrator 

specifically determines in approving a 

mitigation plan that such activities are 

the most cost-effective mitigation 

activities for the National Flood 

Mitigation Fund.’’ This change to the 

regulatory text reflects a change in 

FEMA’s current practice and 

emphasizes that 42 U.S.C. 4014c allows 

the option to authorize these project 

types in very rare circumstances. 

Third, the ASFPM noted that the 

revised HMA regulations do not 

specifically list project scoping 

(previously known as ‘‘advance 

assistance’’) as an eligible activity under 

the proposed 44 CFR 77.6(c). However, 

project scoping is an eligible activity 

under FEMA’s current practice. In 

response to this comment, therefore, 

FEMA has added paragraph (4) to the 

list of eligible activities in 44 CFR 

77.6(c), it reads: ‘‘Project Scoping. 

Activities that enable subapplicants to 

develop complete subapplications for 

eligible mitigation activities including 

but not limited to data development.’’ 

Fourth, the ASFPM commented that 

punishing a State for an individual 

community’s land use violation by 

withholding funding from the entire 

State (as outlined in the proposed 44 

CFR 80.19(e)(2)) seems mismatched and 

extreme, and suggested that withholding 

award or assistance be limited to the 

community that is in violation. The 

relationship between the State as the 

recipient, and a local community as a 

subrecipient is defined in 2 CFR 200.1, 

200.332, and 200.339. The penalty of 

holding the State accountable for a 

community violation is consistent with 

the State acting as the recipient of the 

grant and being primarily responsible 

for compliance with grant terms. As a 

result, FEMA has determined to retain 

in 44 CFR 80.19(e)(2) the option to 

enforce this penalty as a result of land 

use noncompliance. This is consistent 

with FEMA’s current practice. 

Fifth, the ASFPM identified the 

ongoing problem that States and 

communities are unable to access data 

on repetitive loss properties, severe 

repetitive loss properties, and National 

Flood Insurance Program (NFIP) insured 

structures due to FEMA’s current 

restriction on privacy data. The ASFPM 

stated that this information is needed 

for the purposes of FEMA’s application 

processes and the development of 

hazard mitigation plans. FEMA 

appreciates this feedback, is aware of 

this issue, and is currently working to 

address this problem throughout the 

Federal Insurance and Mitigation 

Administration (FIMA). In working on 

this issue, it is FEMA’s intent to arrive 

at a solution that will both protect 

government interests and property 

owners’ privacy, while also making the 

information that is needed accessible to 

communities. 

Individual Citizen, Docket ID FEMA– 

2019–0011–0006 

This individual citizen spoke to the 

value and benefits of nature-based 

solutions and suggested that FEMA 

explicitly speak to nature-based 

solutions within the regulation. In 

response, FEMA notes that nature-based 

solutions are eligible under FMA under 

localized flood risk reduction projects or 

other activities as identified in a 

community’s hazard mitigation plan, as 

has been FEMA’s current practice. 

FEMA recognizes and embraces naturebased solutions as an approach to 

project design that can be applied to 

many different project types, but on its 

own is not a separate project type. 

Therefore, FEMA does not intend to 

identify and speak to nature-based 

solutions as a specific project type 

within the regulation. However, FEMA 

continues to advocate for the 

incorporation of nature-based solutions 

into mitigation activities funded 

through HMA grants. 

Individual Citizen, Docket ID FEMA– 

2019–0011–0007 

This individual citizen encouraged 

FEMA to allow for the use of eminent 

domain for the purpose of carrying out 

involuntary buyout projects. The 

commenter speaks to proposed 44 CFR 

80.11(a), which states ‘‘Eligible 

acquisition projects are those where the 

property owner participates voluntarily, 

and the recipient/subrecipient will not 

use its eminent domain authority to 

acquire the property for the open space 

purposes should negotiations fail.’’ 

FEMA does not intend to change the 

voluntary component of 44 CFR 80.11; 

however, FEMA offers clarification that 

this voluntary limitation is only 

applicable to open space projects. 

Voluntary property owner participation 

is not required under other project 

types. For example, if a community 

wanted to submit an application for a 

flood retention or control project, it 

could exercise its eminent domain 

powers to acquire applicable parcels. 

Furthermore, in response to this 

comment, FEMA notes that it is up to 

recipients to prioritize and submit 

projects for funding as outlined in 44 

CFR 77.3(b)(3). 

III. Changes to Final Rule 

In response to the comment that noted 

inconsistencies with the regulatory text 

and Fiscal Year 2020 NOFOs for Flood 

Mitigation Assistance grants, the 

proposed 44 CFR 77.6(c)(2)(vi) now 

reads, ‘‘Localized flood risk reduction 

projects that lessen the frequency or 

severity of flooding and decrease 

predicted flood damages, and that do 

not duplicate the flood prevention 

activities of other Federal agencies. 

Non-localized flood risk reduction 

projects such as dikes, levees, 

floodwalls, seawalls, groins, jetties, 

dams and large-scale waterway 

channelization projects are not eligible 

unless the Administrator specifically 

determines in approving a mitigation 

plan that such activities are the most 

cost-effective mitigation activities for 

the National Flood Mitigation Fund.’’ 

In response to the comment that 

project scoping (previously known as 

‘‘advance assistance’’) is not listed as an 


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3Public Law 93–288 (42 U.S.C. 5121–5207); see 

44 CFR part 207. 

4 42 U.S.C. 4104c. 

5 85 FR 49506. 

6FEMA, Hazard Mitigation Assistance Guidance, 

Feb 27, 2015, available at https://www.fema.gov/ 

sites/default/files/2020-04/HMA_Guidance_

FY15.pdf (last accessed Feb 5, 2021). 

7 In the NPRM, FEMA incorrectly stated in the 

introductory text of the RIA that the annual 

distributional impact of the rule was $4.16 million 

in transfers. 86 FR 53474 at 53490. However, this 

was a clerical error which appeared in that sentence 

and was not repeated in the remainder of the 

document. As noted in the remainder of the RIA, 

the correct estimate was $28.4 million. 86 FR 53474 

at 53491 (Table 1); 53495 (text and Footnote 113); 

and 53496 (Table 8–A–4). 

8 Indian Entities Recognized by, and Eligible to 

Receive Services from the United States Bureau of 

Indian Affairs, 86 FR 7554, (Jan. 29, 2021). 

eligible activity under the proposed 44 

CFR 77.6(c), FEMA has added 

§ 77.6(c)(4): ‘‘Project Scoping. Activities 

that enable subapplicants to develop 

complete subapplications for eligible 

mitigation activities including but not 

limited to data development.’’ 

In response to the comment that 

expressed concerns regarding the 

statement ‘‘[Pre-award] costs can only 

be incurred during the open application 

period for the FMA program,’’ this 

statement has been removed. Section 

77.7(b) now reads, ‘‘Pre-award costs. 

FEMA may fund eligible pre-award 

costs related to developing the 

application or subapplication at its 

discretion and as funds are available. 

Recipients and subrecipients may be 

reimbursed for eligible pre-award costs 

for activities directly related to the 

development of the project or planning 

proposal. Costs associated with 

implementation of the activity but 

incurred prior to award are not eligible. 

Therefore, activities where 

implementation is initiated or 

completed prior to award are not 

eligible and will not be reimbursed.’’ 

In addition to the above and in order 

to align with 2 CFR part 200, FEMA 

removed its proposed definition of 

‘‘management costs’’ in the proposed 44 

CFR 77.2. The NPRM’s proposed 

definition of ‘‘management costs’’ 

inadvertently tied it to FEMA’s 

regulations implementing its authority 

under the Robert T. Stafford Disaster 

Relief and Emergency Assistance Act 

(‘‘Stafford Act’’).3 However, the FMA 

Program is not authorized under the 

Stafford Act, but rather the National 

Flood Insurance Act.4 As a result, direct 

and indirect administrative costs are 

governed by the cost principles of 2 CFR 

part 200 Subpart E, and FEMA has 

added the phrase ‘‘(direct and indirect 

administrative costs pursuant to 2 CFR 

part 200 Subpart E)’’ in 44 CFR 

77.7(a)(1)(i) to clarify this. Because the 

FMA Program is authorized under the 

National Flood Insurance Act, FEMA 

also added the National Flood Insurance 

Act both to the Authority citation for 44 

CFR part 201 and to section 201.1. 

Lastly, to conform with updates to 2 

CFR published on August 13, 2020,5

and other updates to statutory citations, 

FEMA removed the phrase ‘‘to carry out 

an activity under the FMA program’’ in 

the definition of ‘‘recipient’’ in 77.2(h) 

and updated citations to 2 CFR part 200 

and 25 U.S.C. 5131 as necessary. 

IV. Regulatory Analysis 

A. Executive Order 12866, as amended, 

Regulatory Planning and Review 

Executive Orders 12866 (‘‘Regulatory 

Planning and Review’’) and 13563 

(‘‘Improving Regulation and Regulatory 

Review’’) direct agencies to assess the 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

The Office of Management and Budget 

(OMB) has not designated this rule a 

significant regulatory action under 

section 3(f) of Executive Order 12866. 

Accordingly, OMB has not reviewed it. 

FEMA did not receive any public 

comments relating to the RIA in the 

NPRM and has made no changes to this 

Regulatory Analysis as a result. 

Additionally, changes made to the Final 

Rule due to public comments were due 

to clarifications in regulatory text, and 

changes made to better conform the text 

with statute. These changes will not 

have an economic impact, and FEMA 

does not address them further in this 

analysis. 

Need for Regulation 

The Biggert-Waters Flood Insurance 

Reform Act of 2012 (BW–12), Public 

Law 112–141, 126 Stat. 916, amended 

the National Flood Insurance Act of 

1968 (NFIA) to require changes to 

FEMA’s Hazard Mitigation Assistance 

(HMA) programs. FEMA implemented 

most of these changes through the 

Hazard Mitigation Assistance Guidance 

in 2013.6 FEMA is now updating its 

HMA regulations to reflect these 

changes. 

Following guidance in OMB Circular 

A–4, FEMA assessed the impacts of this 

rule against a no-action baseline as well 

as a pre-statutory baseline. The noaction baseline is an assessment against 

what the world would be like if the rule 

is not adopted. The pre-statutory 

baseline is an assessment against what 

the world would be like if the relevant 

statute(s) had not been adopted and, in 

this case, already been implemented 

through guidance. 

Under a no-action baseline, this rule 

results in cost savings to FEMA, and 

familiarization costs to HMA recipients. 

Under a pre-statutory baseline, this rule 

results in familiarization costs to HMA 

recipients, cost savings to FEMA, 

distributional impacts, and qualitative 

benefits, but no marginal costs. The 

annual distributional impact of this rule 

is estimated at $24.96 million 7 in 

increased transfers from FEMA to HMA 

recipients. 

FEMA addressed the substantive 

changes in this analysis and presented 

how they affect costs, benefits, and 

transfers. The remaining changes are 

nonsubstantive, meaning they are 

technical and include definitional 

updates and other changes that 

modernize and standardize regulations, 

reduce redundancy, or increase 

readability. The nonsubstantive changes 

do not have an economic impact. FEMA 

included a detailed marginal analysis 

table that summarizes the substantive 

and nonsubstantive changes in this rule 

and the related impacts in the public 

docket for this rulemaking available on 

www.regulations.gov under Docket ID 

FEMA–2019–0011–0002. 

Affected Population 

This rule affects all recipients of 

FEMA’s Flood Mitigation Assistance 

(FMA) grants. Recipients include 56 

State and territorial governments and 

574 Indian Tribal governments.8 Local 

governments and governmental 

organizations such as flood districts and 

sewer districts are considered 

subrecipients and must apply through a 

State or Indian Tribal government. For 

simplicity, FEMA refers to the affected 

population as ‘‘recipients’’ throughout 

the analysis, except in cases where there 

are different requirements for recipients 

or subrecipients. 

Baselines 

BW–12 made substantial changes to 

FEMA’s HMA programs. FEMA 

implemented most of these changes via 

the HMA Guidance in 2013. FEMA is 

now codifying those changes in this 

rule. Following guidance in OMB 

Circular A–4, FEMA assessed the 

impacts of this rule against a prestatutory baseline covering 2006–2012 


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9 2019 is the last year complete data is available. 

(pre-BW–12) and a no-action baseline 

covering 2013–2019 9 (post-BW–12). 

The pre-statutory baseline shows the 

effects of the rule compared to the 

current regulations (i.e., as if FEMA had 

not already implemented the changes 

through the HMA Guidance). The noaction baseline shows the effects of the 

rule compared to current FEMA practice 

(i.e., compared to the HMA Guidance, 

which reflects FEMA’s current practice, 

but not the current regulations). 

Under the pre-statutory baseline, the 

rule has distributional impacts and 

qualitative benefits. The distributional 

impacts affect recipients of Repetitive 

Loss (RL) grants and Severe Repetitive 

Loss (SRL) grants that were combined 

into the FMA program pursuant to BW– 

12. Under BW–12, RL and SRL 

properties received increased assistance, 

while standard mitigation properties 

received decreased assistance. Under 

the no-action baseline, the only impacts 

are implementation costs and Federal 

cost savings. Table 1 shows the impacts 

of this rule under the pre-statutory and 

no-action baselines. 

TABLE 1—ANNUAL EFFECTS OF RULE UNDER PRE-STATUTORY AND NO-ACTION BASELINES

[2019$] 

Baseline Costs Benefits Transfers 

Pre-Statutory .................................. $1,041 (year 1 only) ..................... Qualitative ..................................... $24.96 million from FEMA to 

grant recipients. 

No-Action ....................................... $1,041 (year 1 only) ..................... $81,159 ......................................... None. 

Effects 

The primary effects of BW–12 that are 

codified by this rule resulted from 

changes in the Federal cost shares. A 

cost share is the portion of the costs of 

a Federally assisted project or program 

borne by the Federal Government. 

FEMA pays a portion of the cost of a 

project, or the Federal cost share, and 

the recipient pays the remaining share. 

FMA Grant Cost Sharing Changes. 

The current regulations still reflect the 

pre-BW–12 cost share provisions of the 

RL and SRL grant programs. BW–12 

modified these two programs and FEMA 

implemented the modifications in the 

2013 HMA Guidance. The newly 

expanded FMA program now serves the 

recipients of these grant programs. 

BW–12 increased the RL Federal cost 

share from 75 percent to between 75 and 

90 percent, and increased the SRL 

Federal cost share from between 90 and 

100 percent to 100 percent. Table 2 

shows the cost shares by type of grant. 

TABLE 2—COST SHARE BY TYPE OF GRANT

Baseline 

RL SRL 

FEMA cost share 

(%) 

Recipient cost share 

(%) 

FEMA cost share 

(%) 

Recipient cost share 

(%) 

Pre-Statutory (2006–2012) Pre-BW–12 ......... 75 ............................... 25 ............................... 90 to 100 .................... 10 to 0. 

No-Action (2013–2019) Post-BW–12 ............. 75–90 ......................... 10–25 ......................... 100 ............................. 0. 

Lowering the Cap and Removing the 

Frequency Restriction. Prior to BW–12, 

FMA funds for the development or 

update of the flood portion of 

community multi-hazard mitigation 

plans were capped at $150,000 in 

Federal funding for States and $50,000 

for communities, with a total cap of 

$300,000 in Federal funding for 

applications statewide. FEMA could not 

award State or community planning 

grants more than once every 5 years. 

BW–12 limited FMA grant funds to 

develop or update the flood portion of 

community multi-hazard mitigation 

plans to a $50,000 Federal share to any 

recipient or a $25,000 Federal share to 

any subrecipient. BW–12 also removed 

the restriction on awarding State or 

community planning grants more than 

once every 5 years. FEMA discusses the 

impacts of these changes in the costs 

section. 

Shifting from State Allocations to 

Competition. Prior to BW–12, FEMA 

annually allocated FMA program 

funding to recipients based on the 

number of insured properties and RL 

properties present within the recipient’s 

jurisdiction. Recipients that did not 

meet the minimum threshold to receive 

a target allocation had to apply against 

funds that were set aside for this 

purpose. BW–12 replaced this process 

with a fully competitive program that 

selects subapplications against agency 

priorities identified annually. This 

change allows FEMA to identify and 

mitigate properties with the highest risk 

from flooding, thereby providing the 

greatest savings to the NFIP. 

Costs 

Costs for this rule result from 

implementation of the rule, rather than 

the 2013 HMA Guidance. FEMA 

estimated these costs against the noaction baseline since these are directly 

attributable to updating the text of the 

regulation, and not program changes 

that FEMA already implemented. 

Familiarization Costs. FEMA 

estimated familiarization costs for 

States, but not for local emergency 

management divisions or jurisdictions. 

FEMA assumed States regularly update 

their emergency response networks and 

notify local emergency management 

divisions on any changes. FEMA 

believes that States will continue to 

disseminate the new information 

through each State’s established 

process. FEMA assumed that each State 

grant recipient will have two personnel 

that will need to familiarize themselves 

and understand the rule by reading the 

existing and new regulations to 

understand the changes. FEMA expects 

each person to spend one hour to 

become familiar with the changes. 

FEMA assumes that the rule is likely to 

be reviewed by each State’s Emergency 

Management Director and one 

administrative support personnel. 

FEMA assumes that the U.S. Bureau of 

Labor Statistics (BLS) occupations 


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10May 2019 National Occupational Employment 

and Wage Rates, National File (xls), First-Line 

Supervisors of Office & Admin Support Workers 

(SOC: 43–1010, Average, Column Title: H_Mean). 

Accessed and downloaded Feb 8, 2021. https://

www.bls.gov/oes/tables.htm. 

11May 2019 National Occupational Employment 

and Wage Rates, National File (xls), Emergency 

Management Directors (SOC: 11–9160, Average, 

Column Title: H_Mean). Accessed and downloaded 

Feb 8, 2021. https://www.bls.gov/oes/tables.htm. 

12 December 2019 Bureau of Labor Statistics, 

Employer Costs for Employee Compensation, Table 

1. Employer costs per hour worked for employee 

compensation and costs as a percent of total 

compensation: Civilian workers, by major 

occupational and industry group, page 4 ($37.73/ 

$25.91). Accessed and downloaded Feb 8, 2021. 

https://www.bls.gov/news.release/archives/ecec_

06182020.pdf. 

13FEMA personnel who review the FMA grant 

requests provided the information on the average 

time to review and the discussion of complexity. 

14Based on the OPM General Schedule of Pay, 

January 2019, the average base wage of GS 13, step 

5 in each of the FEMA regional office locations is 

$52.88 (Boston, MA; New York, NY; Philadelphia, 

PA; Atlanta, GA; Chicago, IL; Denton, TX; Kansas 

City, MO; Denver, CO; Oakland, CA; and Bothell, 

WA), which is multiplied by a 1.46 benefits 

multiplier (December 2018, BLS Employer Costs for 

Employee Compensation) to get a fully loaded wage 

rate of $77.20/hour. Accessed and downloaded Feb 

9, 2021. https://www.opm.gov/policy-dataoversight/pay-leave/salaries-wages/2019/generalschedule/. 

15Based on Bureau of Labor Statistics May 2019 

National Employment and Wage Rate, National File 

(xls), a Civil Engineer, SOC 17–2050, has a base 

wage of $45.36, which is multiplied by a benefits 

multiplier of 1.46 (December 2019, BLS Employer 

Costs for Employee Compensation) to get a fully 

loaded wage rate of $66.23/hour. Accessed and 

downloaded Feb 8, 2021. https://www.bls.gov/oes/ 

tables.htm. 

Emergency Management Director (SOC: 

11–9160, mean hourly wage $39.68) 10

and First-Line Supervisor of Office and 

Administrative Support Workers (SOC: 

43–1010, mean hourly wage $28.91) 11

are most representative of these roles in 

a State. Using the 1.46 multiplier,12 the 

fully loaded wage rates are $57.93 and 

$42.21 respectively. The estimated total 

cost of recipients making themselves 

familiar with the rule is $5,608 in year 

1 ($1,041 per year annualized at 7 

percent over 7 years, and $900 at 3 

percent). ((56 recipients × 1 hour × 

$57.93 wage) + (56 recipients × 1 hour 

× $42.21 wage) = $5,608) 

Summary of Costs. FEMA estimated 

the rule has familiarization costs of 

$5,608 in the first year of 

implementation. FEMA assumed that all 

staff and resources will come from 

existing sources and thus represent an 

opportunity cost. 

Benefits 

This rule will be beneficial to both 

FEMA and Hazard Mitigation Grant 

recipients. While the benefits are not 

quantifiable, FEMA believes that 

changes implemented by BW–12 allow 

it to target the most vulnerable 

properties, and streamline the 

mitigation grant process. Under the noaction baseline, most changes in this 

rule are technical and include 

definitional updates and other changes 

made to harmonize FEMA regulations 

with current FEMA practices and HMA 

guidance, modernize and standardize 

the regulations, reduce redundancy, or 

increase readability. These changes are 

largely nonsubstantive and do not have 

an economic impact. 

Cost Savings. FEMA estimated annual 

costs savings of $81,159 resulting from 

removal of the definition of ‘‘market 

value’’ at 44 CFR 79.2(f) and (g). The 

removal of ‘‘market value’’ is new to this 

regulation and was not implemented in 

previous guidance. Currently, the 

regulation requires FEMA to use the 

market value of a structure when 

making grant determinations. Removal 

of this requirement allows FEMA to 

consider the value of the structure listed 

on the flood insurance policy when 

considering a grant request related to a 

vulnerable structure, rather than the 

‘‘market value.’’ This results in a 

reduction in the time it takes FEMA 

personnel to review a grant application. 

Using ‘‘market value’’ required 

additional research and appraisals, 

whereas the flood insurance property 

value is readily available to FEMA 

personnel. FEMA estimates that this 

change reduces the personnel time it 

takes to review a grant application by an 

estimated 2 hours per review for a total 

of $81,159 annually. The removal of 

‘‘market value’’ may impact grant 

amounts due to possible differences 

from the insured value, but FEMA does 

not have data available to estimate this 

impact. 

FEMA based its estimates on the 

estimated annual average number of 

FMA grant applications that required a 

market value review between 2013 and 

2019 and the wage rates of the 

personnel reviewing the grants. The 

annual average number of grant requests 

was 545. Table 3 shows the annual 

number of grant requests for vulnerable 

properties that required a market value 

review between 2013 and 2019. 

TABLE 3—ANNUAL GRANT REQUESTS

REQUIRING MARKET VALUE REVIEW

Year FMA Program 

2013 ...................................... 552 

2014 ...................................... 374 

2015 ...................................... 678 

2016 ...................................... 832 

2017 ...................................... 743 

2018 ...................................... 485 

2019 ...................................... 149 

Total .................................. 3,813 

Annual Average .................... 545 

Reviews of the grant applications can 

vary widely from simple—all 

documentation accompanies the request 

and requires very little follow-up—to 

complex. For this analysis, FEMA chose 

to capture the variability in the grant 

application reviews by using a weighted 

average of the hours it takes to complete 

the reviews. FEMA estimated that 25 

percent of the reviews are simple; these 

reviews take 8 hours each on average to 

complete. Reviews of applications that 

are average in their complexity 

comprise 50 percent of the reviews and 

are assumed to take 12 hours each. 

Twenty-five percent of the reviews are 

complex and take 16 hours on average 

to complete.13 Taking a weighted 

average of the times listed and using the 

distribution of 25 percent simple/50 

percent average/25 percent complex, 

FEMA estimated that grant application 

reviews take 12 hours on average to 

complete. ([(0.25 × 8) + (0.50 × 12) + 

(0.25 × 16)] = 12 hours) 

Program Specialists (GS 13, step 5) 

and contracted Civil Engineers conduct 

the reviews, the Program Specialists 

conduct 75 percent of reviews and the 

Civil Engineers conduct the remaining 

25 percent. The fully-loaded average 

hourly wage for GS 13, step 5 at the 

FEMA regional locations is $77.20 14

and FEMA estimates $66.23 15 is the 

fully-loaded hourly wage rate for Civil 

Engineers. Using the 12-hour average 

estimate for reviewing the grant 

application, FEMA estimated that each 

year it spends $486,952 on average to 

review FMA grant applications. ([(545 

grant reviews × 12 hours per review × 

$77.20 hourly wage for Program 

Specialist × 0.75) + ([(545 grant reviews 

× 12 hours per review × $66.23 hourly 

wage for Civil Engineer × 0.25)] = 

$486,952.05) 

FEMA estimated that removing the 

definition of ‘‘market value’’ will reduce 

its administrative burden by 2 hours per 

review. This results in each review 

taking 10 hours instead of 12, on 

average. Using the same calculation as 

above and 10 hours instead of 12 hours 

per review, FEMA’s average amount 

spent each year on reviewing FMA grant 

applications will be $405,793 and 

results in an estimated annual cost 

savings of $81,159. ($486,952 ¥ 

$405,793 = $81,159) 

Clarification of Mitigation Grant 

Terms and Conditions. The current 

HMA grant program regulations contain 

inconsistencies or vague language that 

may cause confusion. Specifically, 


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16Hazard Mitigation Assistance Guidance (HMA 

Guidance), Feb. 8, 2021, available at https://

www.fema.gov/sites/default/files/2020-04/HMA_

Guidance_FY15.pdf (last accessed Feb. 9, 2021). 

17FEMA assumes that the mitigation project level 

grant data with applications comprising mixed 

property categories resulting in blended cost share 

percentages (any total cost share not equal to 100 

percent, 90 percent, or 75 percent Federal) would 

be rounded up to the nearest threshold category. 

This would not round up project values or Federal 

cost shares in dollar terms, only their tabulation 

and consideration as RL or SRL. An application 

with a determined Federal cost share of 91–99 

percent would be counted as part of the 100 percent 

SRL category, while applications with 76–89 

percent Federal cost shares would be counted as 

part of the 90 percent Federal RL category. 

FEMA will add definitions for ‘‘Federal 

award’’ and ‘‘pass-through entity;’’ and 

replace definitions of ‘‘grantee,’’ 

‘‘subgrant,’’ and ‘‘subgrantee’’ with 

‘‘recipient,’’ ‘‘subaward,’’ and 

‘‘subrecipient,’’ respectively. These 

changes will make the HMA regulations 

consistent with FEMA’s other 

regulations. 

Revising, Adding, or Removing 

Definitions. FEMA is revising existing 

definitions for clarification purposes, 

add several definitions to conform with 

BW–12 and current agency practice, and 

delete others that are obsolete. FEMA 

believes the changes are clear and more 

consistent with definitions used in 2 

CFR part 200 and the HMA Guidance.16

Shifting from Standard Mitigations to 

RL and SRL Structures. One of the main 

focuses of this rulemaking is on 

mitigation grants made to properties in 

the NFIP that have been repeatedly 

subject to costly loss claims. FEMA 

provides a range of available mitigation 

options including the FMA program to 

address vulnerable RL and SRL 

structures. Once a structure is mitigated 

through one of the programs, it could be 

protected from flooding, and can be 

removed from the repetitive flood loss 

list of un-mitigated properties insured 

by the NFIP. This reduces the flood 

vulnerability to RL and SRL structures, 

preventing further losses to the 

policyholders, as well as to FEMA. This 

benefit applies to the pre-statutory 

baseline, but not the no-action baseline 

because recipients and FEMA both 

realized this benefit beginning in 2013 

when FEMA implemented it through 

the HMA Guidance. 

Shifting from State Allocations to 

Competition. Before BW–12, FMA 

program funding was based on an 

allocation methodology that required an 

analysis of the number of insured 

properties and RL properties present 

within a jurisdiction and each State was 

allocated a share of the overall available 

funding. BW–12 changed this process to 

a fully-competitive program that allows 

FEMA to select subapplications 

according to FEMA priorities no matter 

the location. 

This change lifted the constraints that 

were formerly in place against multiple 

eligible subrecipients in the same 

jurisdiction with vulnerable properties, 

allowing a more adequate coverage area 

within and across States and 

contributing to the increase in the size 

and volume of RL and SRL properties 

covered by each grant. FEMA is able to 

identify and mitigate properties with the 

highest risk from flooding and provide 

the greatest savings to the NFIP. This 

benefit applies to the pre-statutory 

baseline, but not the no-action baseline 

because recipients and FEMA both 

realized this benefit beginning in 2013 

when FEMA implemented it through 

the HMA Guidance. 

Eliminating the Limit on In-Kind 

Contributions. Eliminating the limit on 

in-kind contributions for a recipient’s 

cost share modifies the nature, or makeup, of the recipient’s contribution but 

does not change the overall dollar 

amount required for the recipient’s 

contribution. FEMA believes this is 

advantageous because recipients and 

subrecipients are able to leverage their 

own optimal mix of in-kind and cash to 

meet their portion of the cost-share. 

There is no change to transfers between 

FEMA and grantees because the cost 

share does not change; however, the 

make-up of the recipient’s portion 

changes. 

Summary of Benefits. Under a noaction baseline FEMA believes this rule 

will promote a better understanding of 

the FMA program by updating the 

regulations that govern the HMA 

programs to conform with adjustments 

made by BW–12 and current agency 

practice. These changes will clarify 

existing requirements and help facilitate 

the flood portion of the Hazard 

Mitigation Grant Program processes. 

FEMA estimated annual cost savings 

of $81,159 per year. Removing the 

definition of ‘‘market value’’ leads to 

cost savings to FEMA. Removing this 

definition will reduce the time it takes 

to conduct an initial grant application 

review by 2 hours. 

Under a pre-statutory (pre-BW–12) 

baseline, FEMA believes there are 

considerable benefits associated with 

the shift to entirely competitive awards 

for the grants instead of the previous 

State-specific allocations, as well as the 

more flexible in-kind match option. The 

shift to more vulnerable RL and SRL 

properties by modifying the cost shares 

and giving priority to applications with 

the most vulnerable properties are 

expected to reduce the frequency of loss 

claims and promote community 

resiliency through mitigation. There are 

also qualitative benefits due to the 

elimination of the cap on FMA funding 

for States and communities and the 

opening of the program to a fully 

competitive award system. These 

changes enhance FEMA’s ability to 

administer the FMA program in a more 

streamlined and cost effective manner. 

Removing State allocations of grant 

resources and accepting in-kind State 

contributions further streamline the 

program. Collectively, these benefits 

justify the rule and update FEMA’s 

regulations to reflect current statutory 

authority. 

Transfers 

Federal Cost Shares. The adjustments 

in cost shares made by BW–12 result in 

distributional impacts, with certain 

grant programs receiving relative 

increases and decreases in grant funds. 

To analyze the impact of changes to the 

cost shares, FEMA summarized 

available mitigation project data for 

standard, RL, and SRL grants.17

Between 2006 and 2012 (pre-BW–12), 

FEMA provided a total of 390 grants to 

244 recipients for 1,014 properties. The 

value of those grants was $292,374,087, 

with FEMA paying $205,762,109 and 

recipients paying $86,611,978. Table 4 

shows the distribution of these grants by 

category. 

TABLE 4—PRE-BW–12 MITIGATION PROJECTS AND ASSOCIATED VALUE BY GRANT CATEGORY

[2019$] 

Year 

Standard 

(≤75% Federal cost share) 

Repetitive loss 

(75% Federal cost share) 

Severe repetitive loss 

(90–100% Federal cost share) 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

2006 .............................. 93 $39,020,873 $28,914,463 ................ ........................ ........................ 2 $150,655 $150,655 

2007 .............................. 85 46,309,864 33,827,089 ................ ........................ ........................ ................ ........................ ........................


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18 Duplication of Benefits refers to assistance from 

more than one source that is used for the same 

mitigation purpose or activity. The purpose may 

apply to the whole project or only part of it. HMA 

funds cannot duplicate funds received by or 

available to applicants or subapplicants from other 

sources for the same purpose. Examples of other 

sources include insurance claims, other assistance 

programs (including previous project or planning 

grants and subawards from HMA programs), legal 

awards, or other benefits associated with properties 

or damage that are the subject of litigation. HMA 

does not require that property owners seek 

assistance from other sources (except for insurance 

claims). However, it is the responsibility of the 

property owner to report other benefits received, 

any applications for other assistance, the 

availability of insurance proceeds, or the potential 

for other compensation, such as from pending legal 

claims for damages, relating to the property. 

References: Sec. 312 of the Stafford Act; 44 CFR 

79.6(d)(7); Hazard Mitigation Assistance Guidance 

(February 27, 2015), Part III, D.5, pages 31–32; HMA 

Tool for Identifying Duplication of Benefits https:// 

www.fema.gov/sites/default/files/2020-04/HMA_

Guidance_FY15.pdf (last accessed Feb 9, 2021). 19 Increased Cost of Compliance (ICC) provides 

up to $30,000 to help cover the cost of mitigation 

measures that will reduce flood risk. ICC coverage 

is a part of most standard flood insurance policies 

available under the NFIP https://www.fema.gov/ 

media-library/assets/documents/1130 (last accessed 

Feb 9, 2021). 

TABLE 4—PRE-BW–12 MITIGATION PROJECTS AND ASSOCIATED VALUE BY GRANT CATEGORY—Continued 

[2019$] 

Year 

Standard 

(≤75% Federal cost share) 

Repetitive loss 

(75% Federal cost share) 

Severe repetitive loss 

(90–100% Federal cost share) 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

2008 .............................. 70 37,110,276 25,084,903 ................ ........................ ........................ 1 35,166 31,649 

2009 .............................. 54 81,136,958 59,026,566 3 3,027,774 2,475,759 3 653,292 587,963 

2010 .............................. 35 32,715,929 22,915,763 2 1,480,940 897,864 ................ ........................ ........................

2011 .............................. 17 17,530,961 11,234,999 ................ ........................ ........................ ................ ........................ ........................

2012 .............................. 25 33,201,399 20,614,436 ................ ........................ ........................ ................ ........................ ........................

Average ......................... 54 41,003,751 28,802,603 0.71 644,102 481,946 0.86 119,873 110,038 

Total ....................... 379 287,026,260 201,618,219 5 4,508,714 3,373,623 6 839,113 770,267 

The 390 grants from pre-BW–12 were 

one of three types—Standard Mitigation 

(up to 75 percent Federal cost share); RL 

(75 percent Federal cost share); or SRL 

(90–100 percent Federal cost share). 

Prior to BW–12, there were 379 

Standard Mitigation grants with a total 

value of $287,026,260. FEMA’s share 

was $201,618,219 and the recipients’ 

share was $85,408,041 (70 percent 

average Federal cost share). For RL 

grants, there were five grants with a 

total value of $4,508,714. FEMA’s share 

was $3,373,623 and the recipients’ share 

was $1,135,091 (75 percent Federal cost 

share). For SRL grants, there were six 

grants made with a total value of 

$839,113. FEMA’s share was $770,267 

and the recipients’ share was $68,846 

(92 percent Federal cost share). 

Post-BW–12 (2013–2019), FEMA 

provided a total of 624 grants to 1,153 

recipients for 9,737 properties. The total 

value of those grants was $829,481,486. 

FEMA’s share was $758,759,675 and 

recipients’ share was $70,721,811. Table 

5 shows the distribution of these grants 

by category. 

TABLE 5—POST-BW–12 MITIGATION PROJECTS AND ASSOCIATED VALUE BY GRANT CATEGORY

[2019$] 

Year 

Standard 

(≤75% Federal cost share) 

Repetitive loss 

(75–90% Federal cost share) 

Severe repetitive loss 

(100% Federal cost share) 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

Number 

of 

grants 

Value of 

grants 

Federal share 

obligated 

2013 .............................. 18 $10,917,788 $7,205,740 5 $12,120,501 $10,302,426 65 $100,175,666 $90,158,099 

2014 .............................. 28 8,888,593 5,333,156 5 6,853,281 5,825,289 68 74,883,110 75,631,941 

2015 .............................. 16 7,317,656 5,488,242 8 33,763,761 30,049,747 80 124,352,333 119,378,240 

2016 .............................. 26 11,975,567 8,861,920 12 29,656,451 25,207,983 99 173,836,284 159,929,381 

2017 .............................. 33 13,673,605 10,118,468 5 5,941,663 4,990,997 59 80,043,231 74,440,205 

2018 .............................. 5 5,261,224 3,525,020 16 27,467,838 24,171,697 44 76,784,839 74,481,294 

2019 .............................. 6 2,001,833 1,301,191 5 5,663,833 4,814,258 21 17,902,429 17,544,380 

Average ......................... 19 8,576,609 5,976,248 8 17,352,475 15,051,771 62 92,568,270 87,366,220 

Total ....................... 132 60,036,266 41,833,737 56 121,467,328 105,362,397 436 647,977,892 611,563,541 

These 624 grants were one of three 

types—Standard Mitigation (up to 75 

percent Federal cost share); RL (75–90 

percent Federal cost share); or SRL (90– 

100 percent Federal cost share) (all postBW–12 cost shares). There were 132 

Standard Mitigation grants with a total 

value of $60,036,266. FEMA’s share was 

$41,833,737 and the recipients’ share 

was $18,202,529 (70 percent average 

Federal cost share). For RL grants, there 

were 56 grants with a total value of 

$121,467,328. FEMA’s share was 

$105,362,397 and the recipients’ share 

was $16,104,931 (87 percent Federal 

cost share). For SRL grants, there were 

436 grants made with a total value of 

$647,977,892. FEMA’s share was 

$611,563,541 and the recipients’ share 

was $36,414,351 (94 percent Federal 

cost share). 

These grants often include some 

ineligible costs, including cost overruns 

or underruns, the use of insurance 

proceeds that FEMA deducted as a 

duplication of benefits,18 or Increased 

Cost of Compliance (ICC),19 so the 

actual cost shares do not equal the 

percentages listed above. For example, 

although SRL grants have a 100 percent 

Federal cost share, the actual average 

Federal share was 94 percent. 

Changing Cost Share Amounts and to 

a Fully Competitive Grant Process for 

FMA. 

Changing the cost shares had a 

distributional impact, where the 

proportion of Federal funds increased 

while the recipients’ proportion 

decreased by the same amount. 


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20These figures include a large increase in grant 

funding post-BW–12 for the 3 programs resulting 

from Congressional appropriations that are not due 

to changes in from this rule. This increase in overall 

funding is not ‘‘held constant’’ in the comparisons 

shown. From 2006–2012, total funding was $292.4 

million and from 2013–2019, total funding was 

$829.5 million. 

21The annualized amounts for 3 percent and 7 

percent are equal to the estimated annual transfers 

of $24.96 million because the amounts for each year 

are identical and the first year is discounted. 

Similarly, the shift from State 

allocations of grant funding to a 

competitive-based program that allows 

grants to be allocated to the most 

vulnerable properties, resulted in 

distributional impacts where recipients 

in certain States receive more in grant 

funding where others see a decrease. 

FEMA was not able to isolate this effect 

from the effect of changing the cost 

shares, since they were implemented at 

the same time. 

First, FEMA analyzed the shift in 

grant priorities as a distributional 

impact between grant programs. This 

was done by subtracting the total value 

of grants pre-BW–12 from the total value 

of grants post-BW–12 for each program, 

showing the relative decreases and 

increases by type of FMA grant caused 

by making the grants competitive and 

shifting funding to riskier properties.20

• The seven-year total share of 

standard mitigation grants decreased by 

$226,989,994 post-BW–12 

($60,036,266¥$287,026,260). 

• The seven-year total share of RL 

grants increased by $116,958,614 postBW–12 ($121,467,328¥$4,508,714). 

• The seven-year total share of SRL 

grants increased by $647,138,779 postBW–12 ($647,977,892¥$839,113). 

This shows the total seven-year 

relative increases and decreases 

between FMA programs in terms of 

post-BW–12 grant funding: 

(¥$226,989,994 for standard grants + 

$116,958,614 for SL grants + 

$647,138,779 SRL grants = 

$537,107,399). 

Table 6 shows changes in the total 

number of grants as well as the Federal 

and non-Federal shares for all grants 

pre-BW–12 and post-BW–12 with the 

percent change in grants and funding. 

TABLE 6—CHANGE IN AVERAGE ANNUAL NUMBER OF GRANTS AND FUNDING PRE-BW–12 TO POST-BW–12 

[2019$] 

Pre-BW–12 Percent 

pre-BW–12 Post-BW–12 Percent post-BW–12 

Percent 

change 

Standard Mitigation 

Grants per Year ................................................................... 54 97.2 19 21.3 ¥75.9 

Funding per year .................................................................. $41,003,751 98.2 $8,576,609 7.2 ¥90.9 

Repetitive Loss 

Grants per Year ................................................................... 0.71 1.3 8 9 +7.7 

Funding per year .................................................................. $644,102 1.5 $17,352,475 14.6 +13.1 

Severe Repetitive Loss 

Grants per Year ................................................................... 0.86 1.5 62 69.7 +68.2 

Funding per year .................................................................. $119,873 0.3 $92,568,270 78.1 +77.8 

When comparing pre-BW–12 standard 

mitigation grants to post-BW–12, the 

average annual total amount of funding 

dropped from $41 million to $8.6 

million. For RL structures, the average 

annual amount of funding increased 

from $0.64 million to $17.4 million. For 

SRL structures, the average annual 

funding increased from $0.12 million to 

$92.6 million when compared to preBW–12. This reflects BW–12 shifting 

priority from standard mitigations to RL 

and SRL structures. FEMA’s data 

indicate a trend toward both larger 

project sizes and an increased number 

of RL and SRL projects. 

FEMA then analyzed the 

distributional impacts of the Federal 

cost shares that resulted from both the 

shift in priorities and the changes in 

cost shares. The Federal cost share for 

standard mitigation grants remained at 

70 percent over the post-BW–12 period. 

The cost share for RL grants increased 

from an average of 75 percent pre-BW– 

12 to 87 percent post-BW–12. SRL 

grants had an average 92 percent cost 

share pre-BW–12 and a 94 percent cost 

share post-BW–12. FEMA also analyzed 

the change in the Federal cost share for 

the three grant categories together, 

which shows the impact of BW–12 

changes to cost share amounts as well 

as shifting funding to RL and SRL 

grants, which have higher cost shares. 

The total Federal share of all FMA 

grant categories pre-BW–12 was 70.4 

percent [($205,762,109 ÷ $292,374,087) 

× 100]. Post BW–12, the Federal share 

was 91.5 percent [($758,759,675 ÷ 

$829,481,486) × 100]. The increase in 

transfers from FEMA to grantees as a 

result of the changed cost shares and 

changed priorities, in terms of post-BW– 

12 grant funding, was $174,739,761(91.5 

percent ¥70.4 percent × $829,481,486) 

over seven years, or an average increase 

of $24,962,823 per year. 

Under a no-action baseline, this rule 

results in no transfer impacts, as FEMA 

has already implemented the updated 

cost share percentages in the 2013 HMA 

Guidance. Under a pre-statutory (preBW–12) baseline, the revisions to the 

cost share and re-prioritization to grants 

with higher cost shares result in 

distributional transfer impacts shifting 

funding to the most vulnerable 

properties and an increase in transfers 

from FEMA to grant recipients. The 

discounted total seven-year transfers 

from FEMA to grant recipients are 

$174,739,761 million ($24.96 million 

annual average).21

Mitigation Planning Grants. BW–12 

lowered the funding cap on the amount 

of money that could be used for the 

flood portion of the individual multihazard mitigation plans from $150,000 

in recipients and $50,000 for 

subrecipients to $50,000 per recipient 

and $25,000 per subrecipient, but 

removed a restriction that grantees 

could only receive funding for planning 

grants once every 5 years. Lowering the 

cap on Federal funds results in 

decreased funding per applicant. 

However, FEMA believes this is offset 


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by the removal of the frequency 

restriction, which results in a negligible 

change in the number of approved 

applications and awards. FEMA found 

that the data does not show a substantial 

change in the number of applications, 

and thus FEMA assumed that the 

removal of the 5-year restriction is 

countered by the lowered cap on 

funding, resulting in minimal 

distributional impacts as shown in 

Table 7. Because FEMA implemented 

these changes concurrently, FEMA was 

unable to isolate the effects of 

individual changes. 

TABLE 7—MITIGATION PLANNING GRANTS 2006–2019 

[2019$] 

Year Applications Approved 

grants 

Average 

grant 

amount 

2006 ............................................................................................................................................. 167 92 $291,961 

2007 ............................................................................................................................................. 561 481 88,076 

2008 ............................................................................................................................................. 523 374 83,738 

2009 ............................................................................................................................................. 491 346 83,738 

2010 ............................................................................................................................................. 364 288 82,992 

2011 ............................................................................................................................................. 417 363 104,024 

2012 ............................................................................................................................................. 173 155 144,992 

Average Pre-BW–12 .................................................................................................................... 385 300 125,646 

2013 ............................................................................................................................................. 260 228 117,107 

2014 ............................................................................................................................................. 293 264 89,362 

2015 ............................................................................................................................................. 351 315 94,685 

2016 ............................................................................................................................................. 329 287 173,348 

2017 ............................................................................................................................................. 422 377 100,049 

2018 ............................................................................................................................................. 287 248 151,711 

2019 ............................................................................................................................................. 149 116 105,929 

Average Post-BW–12 .................................................................................................................. 299 262 118,884 

Since 2013, FEMA has applied the 

new caps on funding for FMA planning 

grants per recipient and subrecipient. 

The caps align with and reflect FEMA’s 

shift to focus the majority of FMA 

program funds on mitigating the risk to 

the most vulnerable properties. FEMA is 

no longer constrained by any limit on 

how often a recipient or subrecipient 

can receive a planning grant or the total 

amount that can be granted to a 

recipient. Further, the lower caps per 

recipient and subrecipient allow FEMA 

to assist more recipients and 

subrecipients. 

Alternatives 

Most of the changes in this rule are 

based on statute. FEMA has limited 

discretion in determining which 

changes to make. The changes that carry 

an economic impact under a prestatutory (pre-BW–12) baseline are the 

changes to 44 CFR 79.4 (now 44 CFR 

77.4): FMA Grant Federal Cost Shares 

and 44 CFR 79.6 (now 44 CFR 77.6): 

Flood Portion of Multi-Hazard 

Mitigation Plans. BW–12 prescribed 

these changes. These changes are 

neither new nor discretionary and 

FEMA did not consider alternatives. 

Below, the OMB A–4 Accounting 

Statement presents the annualized costs, 

benefits, and transfer payments of the 

final rule in 2019 dollars using the noaction baseline. Accordingly, the below 

accounting statement shows the costs 

and benefits of this rule measured 

against what the world would be like if 

this rule were not adopted. 

TABLE 8—A–4 ACCOUNTING STATEMENT—NO ACTION BASELINE

[2019$] 

Period of analysis: 2021 to 2030 

Category 7 Percent discount rate 3 Percent discount rate Source citation 

(RIA, preamble, etc.) 

BENEFITS: 

Annualized Monetized ............ $81,159 ......................................... $81,159 ......................................... Preamble (RA). 

Annualized Quantified ............ N/A ................................................ N/A.

Qualitative ............................... • Allows FEMA to target most vulnerable properties and streamline 

mitigation grant process. 

Preamble (RA). 

• Modernize and standardize regulations to align current practice with 

other FEMA programs and increase readability. 

COSTS: 

Annualized Monetized ............ $746 .............................................. $638 .............................................. Preamble (RA). 

Annualized quantified ............. N/A ................................................ N/A.

Qualitative ............................... N/A 

TRANSFERS: 


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50662 Federal Register / Vol. 86, No. 173 / Friday, September 10, 2021 / Rules and Regulations 

18 See 5 U.S.C. 601(3)–(6). In general, the term 

‘‘small entity’’ can have the same meaning as the 

terms ‘‘small business,’’ ‘‘small organization,’’ and 

‘‘small governmental jurisdiction’’ for purposes of 

this analysis. Specifically, section 601(3) defines a 

‘‘small business’’ as having the same meaning as 

‘‘small business concern’’ under section 3 of the 

Small Business Act. This includes any small 

business concern that is independently owned and 

operated that is not dominant in its field of 

operation. Section 601(4) defines a ‘‘small 

organization’’ as any not-for-profit enterprise that is 

independently owned and operated that is not 

dominant in its field of operation. Section 601(5) 

defines ‘‘small governmental jurisdiction’’ as 

governments of cities, counties, towns, townships, 

villages, school districts, or special districts with a 

population of less than 50,000. Accessed and 

downloaded Feb 24, 2021. http://uscode.house.gov/ 

view.xhtml?req=(title:5section:601edition:prelim) 

OR (granuleid:U.S.C.-prelim-title5- 

section601) 

&f=treesort&edition=prelim&num=0&jumpTo=true. 

23FEMA’s methodology is included in section IV. 

Regulatory Analysis of this final rule. 

24The Regulatory Flexibility Act (RFA) defines a 

small entity as a small business, small nonprofit 

organization, or a small governmental jurisdiction. 

Section 601(5) defines small governmental 

jurisdictions as governments of cities, counties, 

towns, townships, villages, school districts, or 

TABLE 8—A–4 ACCOUNTING STATEMENT—NO ACTION BASELINE—Continued 

[2019$] 

Period of analysis: 2021 to 2030 

Category 7 Percent discount rate 3 Percent discount rate Source citation 

(RIA, preamble, etc.) 

Annualized Monetized ............ 0 .................................................... 0 .................................................... Preamble (RA). 

From/To .................................. N/A. Preamble (RA). 

Category Effects Source citation 

(RIA, preamble, etc.) 

State, Local, and/or Tribal Government.• Allows State, local, and Tribal governments to prioritize more vulnerable properties and simplifies the grant process.Preamble (RA). 

Small business ................................ There were 391 small entity recipients from 2006–2019. Prior to BW– 

12, an average of 16 recipients per year were small entities. PostBW–12, there was an average of 40 small entity recipients per 

year. Post-BW–12, small entities were more likely to receive RL or 

SRL grants and slightly less likely to receive standard mitigation 

grants, so the Federal cost shares (i.e., the portion of the grant 

funded by FEMA) for small entities were, on average, higher postBW–12.

Preamble (FRFA). 

Wages ............................................. None.

Growth ............................................. None.

FEMA also assessed the impacts of 

this rule under the pre-statutory 

baseline. The pre-statutory baseline is 

an assessment against what the world 

would be like if the relevant statute(s) 

had not been adopted, and in this case, 

already been implemented through 

guidance. FEMA estimates the impact of 

the changes codified in this rule to 

primarily be an increase in transfers 

from FEMA to HMA recipients of $24.96 

million annualized, due to the targeting 

of higher risk properties for grant 

funding. Additionally, the changes 

codified by this rule shifted from Statebased allocations to a competitive 

process, allowing FEMA to select 

applications according to FEMA 

priorities rather than by location. This 

rule also eliminated limits on in-kind 

contributions, allowing recipients more 

flexibility to cover their portion of the 

cost shares. FEMA implemented the 

pre-statutory provisions of this rule in 

the 2013 HMA Unified Guidance. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires agency 

review of proposed and final rules to 

assess their impact on small entities. 

When an agency promulgates a notice of 

proposed rulemaking under 5 U.S.C. 

553, the agency must prepare a Final 

Regulatory Flexibility Analysis (FRFA) 

unless it determines and certifies 

pursuant to 5 U.S.C. 605(b) that a rule, 

if promulgated, will not have a 

significant impact on a substantial 

number of small entities. FEMA believes 

this rule does not have a significant 

economic impact on a substantial 

number of small entities. 

In accordance with the Regulatory 

Flexibility Act of 1980 (RFA), 5 U.S.C. 

601 et seq., as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121, 

110 Stat. 857), FEMA examined the 

effects of the adjustments made by BW– 

12 and implemented by FEMA in the 

2013 HMA Guidance on small entities. 

A small entity may be: A small 

independent business, defined as 

independently owned and operated, is 

organized for profit, and is not 

dominant in its field per the Small 

Business Act (5 U.S.C. 632); a small 

organization, defined as any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field (5 U.S.C. 601); or 

a small governmental jurisdiction 

(locality with fewer than 50,000 people) 

per 5 U.S.C. 601. 

The rule directly affects all eligible 

FMA grant recipients. FEMA estimates 

that the changes from BW–12 affect 

FMA grant recipients that are small 

governmental jurisdictions with a 

population of less than 50,000, as 

defined at 5 U.S.C. 601(5).22 To estimate 

the effects on small entities of the 

adjustments made by BW–12, and 

codified in this rule, FEMA used the 

same methodology used in the 

regulatory analysis.23 In general, FEMA 

identified the affected population— 

recipients of FEMA’s FMA grants—and 

analyzed how the changes affect those 

recipients. Using those results, FEMA 

then evaluated which recipients 

qualified as ‘‘small entities.’’ Eligible 

FMA grant recipients may include 

States, U.S. territories, and Indian Tribal 

governments; subrecipients may include 

local governments and governmental 

organizations such as flood, sewer, and 

water districts. FEMA removed from its 

RFA dataset and analysis any recipients 

that are States and U.S. territories 

because they have populations greater 

than 50,000. FEMA also removed any 

Indian Tribal governments because they 

are not included in the definition of a 

small entity.24 The remaining recipients 


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special districts with a population of less than 

50,000. 25FEMA used the U.S. Census Bureau’s PEP 

estimates file entitled, ‘‘sub-est2019_all.csv’’ 

because it provided 2019 estimated populations for 

all States and all subgovernmental jurisdictions, 

including counties, parishes, etc., towns, cities, 

villages, etc. Accessed and downloaded Feb 24, 

2021. https://www2.census.gov/programs-surveys/

popest/datasets/2010-2019/cities/totals/. 

26FEMA used the population of the county, 

parish, or borough in which the grant project was 

located as a proxy to determine the populations for 

governmental organizations. For example, FEMA 

used the New Castle County, DE 2019 population 

of 558,753 to determine if the New Castle 

Conservation District was a small entity. In this 

example, the population of 558,753 is greater than 

the 50,000 small entity threshold; thus, the new 

Castle Conservation District is not a small entity. 

were either local governments or 

governmental organizations. FEMA used 

the U.S. Census Bureau’s annual 

population estimates for 2019 produced 

by its Population Estimates Program 

(PEP) 25 to determine the population for 

each recipient.26 Table 9 summarizes 

the number of small entities affected by 

the changes in BW–12. 

TABLE 9—ESTIMATED NUMBER OF SMALL ENTITIES AFFECTED BY THIS RULE

Year Grants to 

small entities 

Properties 

within grants 

Pre-BW–12 ................................................................................................ 2006 ................................................. 30 67 

2007 ................................................. 25 39 

2008 ................................................. 16 14 

2009 ................................................. 18 41 

2010 ................................................. 11 76 

2011 ................................................. 4 12 

2012 ................................................. 8 75 

Post-BW–12 ............................................................................................... 2013 ................................................. 23 64 

2014 ................................................. 27 66 

2015 ................................................. 18 71 

2016 ................................................. 25 56 

2017 ................................................. 26 78 

2018 ................................................. 122 82 

2019 ................................................. 38 25 

Total Small Entity Recipients ............................................................. .......................................................... 391 766 

Total All Recipients ............................................................................. .......................................................... 1,551 4,521 

Small Entity Recipients as a Percent of Total Recipients ................. .......................................................... 25.2% 17.0% 

Pre-BW–12 ................................................................................................ Total ................................................. 112 324 

Annual Average ............................... 16 46 

Post-BW–12 ............................................................................................... Total ................................................. 279 442 

Annual Average ............................... 40 63 

Between 2006 and 2019, FEMA 

awarded a total of 1,551 FMA grants to 

mitigate flood risk to 4,521 properties. 

Of the total 1,551 recipients, 391 

recipients, or 25.2 percent, had 

populations under 50,000 and are 

considered small entities. These small 

entities used the FMA grants to mitigate 

flood risk to 766 vulnerable properties. 

These 391 small entity recipients are all 

local governments. 

Pre-BW–12, FEMA awarded 112 

grants to small entities. Of these, 109 

were for standard mitigation with an 

average Federal cost share of 73 percent, 

2 were RL with an average Federal cost 

share of 82 percent, and 1 was SRL with 

a cost share of 90 percent. 

TABLE 10—PRE-BW–12 PROJECTS AND VALUE BY GRANT CATEGORY (2019$) AWARDED TO SMALL ENTITIES

Year 

Standard 

(≤75% Federal cost share) 

Repetitive loss (RL) 

(75% Federal Cost Share) 

Severe repetitive loss (SRL) 

(90%–100% Federal Cost Share) 

Grants Value of 

grants 

Federal share 

obligated Grants Value of grants 

Federal share 

obligated Grants Value of grants 

Federal share 

obligated 

2006 .............................. 30 $6,014,828 $4,467,682 ................ ........................ ........................ ................ ........................ ........................

2007 .............................. 25 11,015,869 7,786,046 ................ ........................ ........................ ................ ........................ ........................

2008 .............................. 16 2,189,233 1,603,820 ................ ........................ ........................ ................ ........................ ........................

2009 .............................. 15 8,068,507 5,868,226 2 $2,393,363 $1,952,676 1 $59,465 $53,518 

2010 .............................. 11 15,403,139 11,551,457 ................ ........................ ........................ ................ ........................ ........................

2011 .............................. 4 2,950,334 2,079,950 ................ ........................ ........................ ................ ........................ ........................

2012 .............................. 8 6,509,829 4,876,130 ................ ........................ ........................ ................ ........................ ........................

Total ....................... 109 52,151,739 38,233,311 2 2,393,363 1,952,676 1 59,465 53,518 

Post-BW–12, FEMA awarded 279 

grants to small entities. Of these, 40 

were standard mitigation with an 

average Federal cost share of 69 percent, 

3 were RL with an average Federal cost 

share of 88 percent, and 76 were SRL 

with an average Federal cost share of 90 

percent. While the cost shares did not 

change significantly, more applicants 

received SRL grants when compared to 

the pre-BW–12 period. This shows the 


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prioritization of more vulnerable 

properties. 

TABLE 11—POST-BW–12 PROJECTS AND VALUE BY GRANT CATEGORY (2019$) AWARDED TO SMALL ENTITIES

Year 

Standard 

(≤75% Federal cost share) 

Repetitive loss (RL) 

(75%–90% Federal cost share) 

Severe repetitive loss (SRL) 

(100% Federal cost share) 

Grants Value of 

grants 

Federal share 

obligated Grants Value of grants 

Federal share 

obligated Grants Value of grants 

Federal share 

obligated 

2013 .............................. 8 $972,391 $435,490 1 $7,274,609 $6,452,685 14 $5,720,524 $3,778,669 

2014 .............................. 11 2,575,473 1,623,207 ................ ........................ ........................ 16 12,558,967 12,235,583 

2015 .............................. 3 2,478,165 1,858,623 ................ ........................ ........................ 15 10,676,146 10,007,363 

2016 .............................. 6 290,884 197,705 2 1,798,791 1,556,119 17 10,678,636 9,299,774 

2017 .............................. 12 5,191,261 3,881,929 ................ ........................ ........................ 14 9,198,557 8,627,638 

2018 .............................. 41 1,703,802 1,109,366 3 2,014,308 1,764,641 78 16,081,572 14,090,559 

2019 .............................. 13 648,276 422,100 1 415,348 363,867 24 3,749,428 3,285,222 

Total ....................... 94 13,860,253 9,528,420 7 11,503,056 10,137,312 178 68,663,830 61,324,808 

This rule codifies legislative 

requirements included in the BiggertWaters Flood Insurance Reform Act of 

2012, Public Law 112–141, 126 Stat. 916 

(BW–12), which amended the National 

Flood Insurance Act of 1968 (NFIA) and 

required changes to all major 

components of the National Flood 

Insurance Program (NFIP), including 

mitigation grants authorized under the 

NFIA. FEMA implemented the 

legislative requirements in BW–12 

through policy/guidance in 2013 and is 

now codifying these changes in 

regulation, to reflect current agency 

practice, and to clarify existing 

regulations. Pursuant to 5 U.S.C. 605(b), 

FEMA certifies that this regulation will 

not have a significant economic impact 

on a substantial number of small 

entities. 

C. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on state, 

local, and Tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any rulemaking that is 

likely to result in the promulgation of 

any rule that includes any Federal 

mandate that may result in expenditure 

by State, local, and Tribal governments, 

in the aggregate, or by the private sector, 

of $100 million or more (adjusted 

annually for inflation) in any one year, 

and before promulgating any final rule 

for which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

Tribal governments and the private 

sector. This rule does not result in such 

an expenditure, and thus preparation of 

such a statement is not required. 

D. National Environmental Policy Act of 

1969 (NEPA) 

Section 102 of the National 

Environmental Policy Act of 1969 

(NEPA), 83 Stat. 852 (Jan. 1, 1970) (42 

U.S.C. 4321 et seq.) requires Federal 

agencies to consider the impacts of their 

proposed actions on the quality of the 

human environment. Each agency can 

develop categorical exclusions (catexes) 

to cover actions that have been 

demonstrated to not typically trigger 

significant impacts to the human 

environment individually or 

cumulatively. If an action does not 

qualify for a catex and has the potential 

to significantly affect the environment, 

agencies develop environmental 

assessments (EAs) to evaluate those 

actions. The Council on Environmental 

Quality’s (CEQ) procedures for 

implementing NEPA, 40 CFR parts 1500 

through 1508, require Federal agencies 

to prepare Environmental Impact 

Statements (EISs) for major Federal 

actions significantly affecting the 

quality of the human environment. At 

the end of the EA process, the agency 

will determine whether to make a 

Finding of No Significant Impact 

(FONSI) or whether to initiate the EIS 

process. 

Under the National Environmental 

Policy Act of 1969 (NEPA), as amended, 

42 U.S.C. 4321 et seq. an agency must 

prepare an Environmental Assessment 

(EA) and Environmental Impact 

Statement (EIS) for any rulemaking that 

significantly affects the quality of the 

human environment. FEMA has 

determined that this rulemaking does 

not significantly affect the quality of the 

human environment and consequently 

has not prepared an EA or EIS. 

Catex A3 included in the list of 

exclusion categories at Department of 

Homeland Security Instruction Manual 

023–01–001–01, Revision 01, 

Implementation of the National 

Environmental Policy Act, Appendix A, 

issued November 6, 2014, covers the 

promulgation of rules, issuance of 

rulings or interpretations, and the 

development and publication of 

policies, orders, directives, notices, 

procedures, manuals, and advisory 

circulars if they meet certain criteria 

provided in A3(a–f). This rule meets the 

criteria in A3(a), (b), (c), and (d). The 

rule makes a number of regulatory 

revisions that are strictly administrative. 

In addition, the rule amends an existing 

regulation without changing its 

environmental effect, and also 

implements, without substantive 

change, statutory requirements and 

guidance documents. Because no 

extraordinary circumstances have been 

identified, this rule does not require the 

preparation of either an EA or an EIS as 

defined by NEPA. See Department of 

Homeland Security Instruction Manual 

023–01–001–01, Revision 01, 

Implementation of the National 

Environmental Policy Act, section 

(V)(B)(2). 

E. Endangered Species Act 

The Endangered Species Act (ESA) 

mandates that Federal agencies 

determine whether their proposed 

actions may affect listed species and/or 

their designated critical habitat (critical 

habitat has been designated for some, 

but not all listed species). Without 

authorization or exemption from 

Federal resource agencies, it is unlawful 

for any person, whether government 

employee or private citizen, to take 

listed animal species. 

To comply with Section 7(a)(2) of the 

ESA, for every action that FEMA 

proposes to carry out, fund, or 

authorize, FEMA must first determine if 

species and habitat are present in the 

action area. If species are present in the 


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action area, then FEMA must make one 

of the following determinations with 

respect to the effect of the proposed 

action on listed species and critical 

habitat: (1) No effect (NE); 2) may affect, 

but is not likely to adversely affect 

(NLAA); or 3) may affect and is likely 

to adversely affect (LAA). 

This rule has been evaluated by 

FEMA and due to the administrative 

nature, FEMA has determined the rule 

does not have the potential to affect 

federally-listed species or designated 

critical habitat. As such, a ‘‘No Effect’’ 

determination has been made for these 

activities. Per the ESA regulations, 

notification to, and consultation with, 

the U.S. Fish and Wildlife Service and/ 

or the National Marine Fisheries Service 

are not required for activities with a ‘‘No 

Effect’’ determination. 

F. National Historic Preservation Act of 

1966 

The National Historic Preservation 

Act (NHPA) (54 U.S.C. 300101, formerly 

16 U.S.C. 470) was enacted in 1966, 

with various amendments throughout 

the years. Section 106 of the NHPA (54 

U.S.C. 306108) requires Federal 

agencies to take into account the effect 

of their actions on any historic property. 

It mandates a consultation process in 

the early stages of project planning and 

must be completed prior to the approval 

of expenditure of any Federal funds for 

the undertaking. Subpart B of 36 CFR 

part 800 lays out a four-step Section 106 

process to fulfill this obligation: (1) 

Initiate the process (800.3); (2) identify 

historic properties (800.4); (3) assess 

adverse effects (800.5); and (4) resolve 

adverse effects (800.6). 

Pursuant to section 106 of the NHPA 

and its implementing regulations at 36 

CFR part 800, FEMA has determined 

that this rule does not have the potential 

to cause effects to historic properties 

and in accordance with 36 CFR part 

800.3(a)(1), FEMA has no further 

obligations under section 106. 

G. Paperwork Reduction Act of 1995 

Under the Paperwork Reduction Act 

of 1995 (PRA), as amended, 44 U.S.C. 

3501–3520, an agency may not conduct 

or sponsor, and a person is not required 

to respond to, a collection of 

information unless the agency obtains 

approval from the Office of Management 

and Budget (OMB) for the collection and 

the collection displays a valid OMB 

control number. See 44 U.S.C. 3506, 

3507. This rule contains collections of 

information that are subject to review by 

OMB. The information collections 

included in this rule are approved by 

OMB under control numbers 1660–0072 

(Flood Mitigation Assistance (eGrants) 

and Grant Supplement Information), 

1660–0062 (State/Local/Tribal Hazard 

Mitigation Plans), 1660–0026 (State 

Administrative Plan for the Hazard 

Mitigation Grant Program), and 1660– 

0076 (Hazard Mitigation Grant Program 

Application and Reporting). Currently, 

FEMA is working to reinstate 1660– 

0103 (Property Acquisition and 

Relocation for Open Space). 

This rulemaking calls for no new 

collections of information under the 

PRA. This rule includes information 

currently collected by FEMA and 

approved in OMB information 

collections 1660–0072, 1660–0062, 

1660–0026, and 1660–0076. Currently, 

FEMA is working to reinstate 1660– 

0103. The actions of this rulemaking do 

not impose any additional burden to 

this collection of information. The 

changes in this rulemaking do not 

change the forms, the substance of the 

forms, or the number of recipients who 

would submit the forms to FEMA. 

H. Privacy Act/E-Government Act 

Under the Privacy Act of 1974, 5 

U.S.C. 552a, an agency must determine 

whether implementation of a proposed 

regulation will result in a system of 

records. A record is any item, collection, 

or grouping of information about an 

individual that is maintained by an 

agency, including, but not limited to, 

his/her education, financial 

transactions, medical history, and 

criminal or employment history and 

that contains his/her name, or the 

identifying number, symbol, or other 

identifying particular assigned to the 

individual, such as a finger or voice 

print or a photograph. See 5 U.S.C. 

552a(a)(4). A system of records is a 

group of records under the control of an 

agency from which information is 

retrieved by the name of the individual 

or by some identifying number, symbol, 

or other identifying particular assigned 

to the individual. An agency cannot 

disclose any record which is contained 

in a system of records except by 

following specific procedures. 

The E-Government Act of 2002, 44 

U.S.C. 3501 note, also requires specific 

procedures when an agency takes action 

to develop or procure information 

technology that collects, maintains, or 

disseminates information that is in an 

identifiable form. This Act also applies 

when an agency initiates a new 

collection of information that will be 

collected, maintained, or disseminated 

using information technology if it 

includes any information in an 

identifiable form permitting the 

physical or online contacting of a 

specific individual. A Privacy 

Threshold Analysis was completed. 

I. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, 65 FR 67249, November 

9, 2000, applies to agency regulations 

that have Tribal implications, that is, 

regulations that have substantial direct 

effects on one or more Indian Tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. Under 

this Executive Order, to the extent 

practicable and permitted by law, no 

agency shall promulgate any regulation 

that has Tribal implications, that 

imposes substantial direct compliance 

costs on Indian Tribal governments, and 

that is not required by statute, unless 

funds necessary to pay the direct costs 

incurred by the Indian Tribal 

government or the Tribe in complying 

with the regulation are provided by the 

Federal Government, or the agency 

consults with Tribal officials. 

Although Indian Tribal governments 

are potentially eligible applicants under 

HMA programs, FEMA has determined 

that this rule does not have a substantial 

direct effect on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. There is 

no substantial direct compliance cost 

associated with this rule. The HMA 

programs are voluntary programs that 

provide funding to applicants, including 

Tribal governments, for eligible 

mitigation planning and projects that 

reduce disaster losses and protect life 

and property from future disaster 

damages. An Indian Tribal government 

may participate as either an applicant/ 

recipient or a subapplicant/ 

subrecipient. FEMA does not expect the 

regulatory changes in this rule to 

disproportionately affect Indian Tribal 

governments acting as recipients. 

J. Executive Order 13132, Federalism 

Executive Order 13132, Federalism, 

64 FR 43255, August 10, 1999, sets forth 

principles and criteria that agencies 

must adhere to in formulating and 

implementing policies that have 

federalism implications, that is, 

regulations that have substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. Federal 

agencies must closely examine the 


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statutory authority supporting any 

action that would limit the 

policymaking discretion of the States, 

and to the extent practicable, must 

consult with State and local officials 

before implementing any such action. 

FEMA has reviewed this rule under 

Executive Order 13132 and has 

determined that this rule does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, and therefore does 

not have federalism implications as 

defined by the Executive Order. FEMA 

has determined that this rule does not 

significantly affect the rights, roles, and 

responsibilities of States, and involves 

no preemption of State law nor does it 

limit State policymaking discretion. 

This rulemaking amends regulations 

governing voluntary grant programs that 

may be used by State, local and Tribal 

governments to fund eligible mitigation 

activities that reduce disaster losses and 

protect life and property from future 

disaster damages. States are not required 

to seek grant funding, and this 

rulemaking does not limit their 

policymaking discretion. 

K. Executive Order 11988, Floodplain 

Management 

Pursuant to Executive Order 11988, 

each Federal agency is required to 

provide leadership and take action to 

reduce the risk of flood loss, to 

minimize the impact of floods on 

human safety, health and welfare, and 

to restore and preserve the natural and 

beneficial values served by floodplains 

in carrying out its responsibilities for (1) 

acquiring, managing, and disposing of 

Federal lands and facilities; (2) 

providing Federally undertaken, 

financed, or assisted construction and 

improvements; and (3) conducting 

Federal activities and programs affecting 

land use, including but not limited to 

water and related land resources 

planning, regulating, and licensing 

activities. In carrying out these 

responsibilities, each agency must 

evaluate the potential effects of any 

actions it may take in a floodplain; to 

ensure that its planning programs and 

budget requests reflect consideration of 

flood hazards and floodplain 

management; and to prescribe 

procedures to implement the policies 

and requirements of the Executive 

Order. 

Before promulgating any regulation, 

an agency must determine whether the 

regulation will affect a floodplain(s), 

and if so, the agency must consider 

alternatives to avoid adverse effects and 

incompatible development in the 

floodplain(s). If the head of the agency 

finds that the only practicable 

alternative consistent with the law and 

with the policy set forth in Executive 

Order 11988 is to promulgate a 

regulation that affects a floodplain(s), 

the agency must, prior to promulgating 

the regulation, design or modify the 

regulation in order to minimize 

potential harm to or within the 

floodplain, consistent with the agency’s 

floodplain management regulations and 

prepare and circulate a notice 

containing an explanation of why the 

action is located in the floodplain. The 

purpose of the rule is to update FEMA’s 

HMA program regulations to reflect 

statutory changes that have already been 

implemented. While the rule revises the 

regulations for FMA administered by 

the NFIP, it would not impact other 

NFIA regulations that pertain to land 

use, floodplain management, or flood 

insurance. The majority of the revisions 

in this rulemaking apply to the 

regulations for the FMA program, which 

is a voluntary grant program that 

provides funding for activities designed 

to reduce the risk of flood damage to 

structures insured under the NFIP. 

When FEMA undertakes specific actions 

that may have effects on floodplain 

management, FEMA follows the 

procedures set forth in 44 CFR part 9 to 

assure compliance with this Executive 

Order. These procedures include a 

specific, 8-step process for conducting 

floodplain management and wetland 

reviews. The rule does not change this 

process. 

L. Executive Order 11990, Protection of 

Wetlands 

Pursuant to Executive Order 11990, 

each Federal agency must provide 

leadership and take action to minimize 

the destruction, loss or degradation of 

wetlands, and to preserve and enhance 

the natural and beneficial values of 

wetlands in carrying out the agency’s 

responsibilities for (1) acquiring, 

managing, and disposing of Federal 

lands and facilities; and (2) providing 

Federally undertaken, financed, or 

assisted construction and 

improvements; and (3) conducting 

Federal activities and programs affecting 

land use, including but not limited to 

water and related land resources 

planning, regulating, and licensing 

activities. Each agency, to the extent 

permitted by law, must avoid 

undertaking or providing assistance for 

new construction located in wetlands 

unless the head of the agency finds (1) 

that there is no practicable alternative to 

such construction, and (2) that the 

proposed action includes all practicable 

measures to minimize harm to wetlands 

which may result from such use. In 

making this finding the head of the 

agency may take into account economic, 

environmental and other pertinent 

factors. 

In carrying out the activities described 

in the Executive Order, each agency 

must consider factors relevant to a 

proposal’s effect on the survival and 

quality of the wetlands. Among these 

factors are: Public health, safety, and 

welfare, including water supply, 

quality, recharge and discharge; 

pollution; flood and storm hazards; and 

sediment and erosion; maintenance of 

natural systems, including conservation 

and long-term productivity of existing 

flora and fauna, species and habitat 

diversity and stability, hydrologic 

utility, fish, wildlife, timber, and food 

and fiber resources; and other uses of 

wetlands in the public interest, 

including recreational, scientific, and 

cultural uses. 

The requirements of Executive Order 

11990 apply in the context of the 

provision of Federal financial assistance 

relating to, among other things, 

construction and property improvement 

activities. However, this rule would not 

have an effect on land use or wetlands. 

The purpose of the rule is to update 

FEMA’s HMA program regulations to 

reflect statutory changes that have 

already been implemented. While the 

rule revises the regulations for FMA 

administered by the NFIP, it does not 

impact other NFIP regulations that 

pertain to land use, floodplain 

management, or flood insurance. The 

majority of the revisions in this 

rulemaking apply to the regulations for 

the FMA program, which is a voluntary 

grant program that provides funding for 

activities designed to reduce the risk of 

flood damage to structures insured 

under the NFIP. When FEMA 

undertakes specific actions that may 

have effects on wetlands, FEMA follows 

the procedures set forth in 44 CFR part 

9 to assure compliance with this 

Executive Order. These procedures 

include a specific, 8-step process for 

conducting floodplain management and 

wetland reviews. The rule would not 

change this process. 

M. Executive Order 12898, 

Environmental Justice 

Pursuant to Executive Order 12898, 

Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations, 59 FR 7629, February 16, 

1994, as amended by Executive Order 

12948, 60 FR 6381, February 1, 1995, 

FEMA incorporates environmental 

justice into its policies and programs. 


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The Executive Order requires each 

Federal agency to conduct its programs, 

policies, and activities that substantially 

affect human health or the environment 

in a manner that ensures that those 

programs, policies, and activities do not 

have the effect of excluding persons 

from participation in programs, denying 

persons the benefits of programs, or 

subjecting persons to discrimination 

because of race, color, or national origin. 

This rulemaking will not have a 

disproportionately high or adverse effect 

on human health or the environment. 

N. Congressional Review of Agency 

Rulemaking 

Under the Congressional Review of 

Agency Rulemaking Act (CRA), 5 U.S.C. 

801–808, before a rule can take effect, 

the Federal agency promulgating the 

rule must submit to Congress and to the 

Government Accountability Office 

(GAO) a copy of the rule, a concise 

general statement relating to the rule, 

including whether it is a major rule, the 

proposed effective date of the rule, a 

copy of any cost-benefit analysis, 

descriptions of the agency’s actions 

under the Regulatory Flexibility Act and 

the Unfunded Mandates Reform Act, 

and any other information or statements 

required by relevant executive orders. 

FEMA has sent this rule to the 

Congress and to GAO pursuant to the 

CRA. The rule is not a major rule within 

the meaning of the CRA. It will not have 

an annual effect on the economy of 

$100,000,000 or more, it will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions, and it 

will not have significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

List of Subjects 

44 CFR Part 77 

Flood insurance, Grant programs. 

44 CFR Parts 78 and 79 

Flood insurance, Grant programs. 

44 CFR Part 80 

Disaster assistance, Grant programs. 

44 CFR Part 201 

Administrative practice and 

procedure, Disaster assistance, Grant 

programs, Reporting and recordkeeping 

requirements. 

44 CFR Part 206 

Administrative practice and 

procedure, Coastal zone, Community 

facilities, Disaster assistance, Fire 

prevention, Grant programs-housing and 

community development, Housing, 

Insurance, Intergovernmental relations, 

Loan programs-housing and community 

development, Natural resources, 

Penalties, and Reporting and 

recordkeeping requirements. 

For the reasons set forth in the 

preamble, FEMA amends 44 CFR parts 

77, 78, 79, 80, 201, and 206 as follows: 

PART 78—[REMOVED AND 

RESERVED] 

■ 2. Under the authority of 6 U.S.C. 101 

et seq.; 42 U.S.C. 4001 et seq.; 42 U.S.C. 

4104c, 4104d, remove and reserve part 

78. 

PART 79—[REDESIGNATED] 

■ 2. Redesignate part 79 as part 77: 

■ 3. Revise newly redesignated part 77 

to read as follows: 

PART 77—FLOOD MITIGATION 

GRANTS 

Sec. 

77.1 Purpose and applicability. 

77.2 Definitions. 

77.3 Responsibilities. 

77.4 Availability of funding. 

77.5 Application process. 

77.6 Eligibility. 

77.7 Allowable costs. 

77.8 Grant administration. 

Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 

4001 et seq.; 42 U.S.C. 4104c, 4104d. 

§ 77.1 Purpose and applicability. 

(a) The purpose of this part is to 

prescribe actions, procedures, and 

requirements for administration of the 

Flood Mitigation Assistance (FMA) 

grant program made available under the 

National Flood Insurance Act of 1968, 

as amended, and the Flood Disaster 

Protection Act of 1973, as amended, 42 

U.S.C. 4001 et seq. The purpose of the 

FMA program is to assist States, Indian 

Tribal governments, and communities 

for planning and carrying out mitigation 

activities designed to reduce the risk of 

flood damage to structures insured 

under the National Flood Insurance 

Program (NFIP). 

(b) This part applies to the 

administration of funds under the FMA 

program for which the application 

period opens on or after October 12, 

2021. 

§ 77.2 Definitions. 

(a) Except as otherwise provided in 

this part, the definitions set forth in 

§ 59.1 of this subchapter are applicable 

to this part. 

(b) Applicant means the entity, such 

as a State or Indian Tribal government, 

applying to FEMA for a Federal award 

under the FMA program. Once funds 

have been awarded, the applicant 

becomes the recipient and may also be 

a pass-through entity. 

(c) Closeout means the process by 

which FEMA or the pass-through entity 

determines that all applicable 

administrative actions and all required 

work of the Federal award have been 

completed and takes actions as 

described in 2 CFR 200.344, ‘‘Closeout.’’ 

(d) Community means: 

(1) A political subdivision, including 

any Indian Tribe, authorized Tribal 

organization, Alaska Native village or 

authorized native organization, that has 

zoning and building code jurisdiction 

over a particular area having special 

flood hazards, and is participating in the 

NFIP; or 

(2) A political subdivision of a State 

or other authority that is designated by 

political subdivisions, all of which meet 

the requirements of paragraph (d)(1) of 

this section, to administer grants for 

mitigation activities for such political 

subdivisions. 

(e) Federal award means the Federal 

financial assistance a recipient or 

subrecipient receives directly from 

FEMA or indirectly from a pass-through 

entity. The terms ‘‘award’’ and ‘‘grant’’ 

may also be used to describe a Federal 

award under this part. 

(f) Indian Tribal government means 

any Federally recognized governing 

body of an Indian or Alaska Native 

Tribe, band, nation, pueblo, village, or 

community that the Secretary of Interior 

acknowledges to exist as an Indian Tribe 

under the Federally Recognized Indian 

Tribe List Act of 1994, 25 U.S.C. 5131. 

This does not include Alaska Native 

corporations, the ownership of which is 

vested in private individuals. 

(g) Pass-through entity means a 

recipient that provides a subaward to a 

subrecipient to carry out part of the 

FMA program. 

(h) Recipient means the State or 

Indian Tribal government that receives 

a Federal award directly from FEMA. A 

recipient may also be a pass-through 

entity. The term recipient does not 

include subrecipients. 

(i) Repetitive loss structure means a 

structure covered under an NFIP flood 

insurance policy that: 

(1) Has incurred flood-related damage 

on 2 occasions, in which the cost of 

repair, on average, equaled or exceeded 

25% of the value of the structure at the 

time of each such flood event; and 


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(2) At the time of the second 

incidence of flood related damage, the 

contract for flood insurance contains 

increased cost of compliance coverage. 

(j) Severe repetitive loss structure 

means a structure that is covered under 

an NFIP flood insurance policy and has 

incurred flood-related damage: 

(1) For which 4 or more separate 

claims payments have been made under 

flood insurance coverage under 

subchapter B of this chapter, with the 

amount of each claim (including 

building and contents payments) 

exceeding $5,000, and with the 

cumulative amount of such claims 

payments exceeding $20,000; or 

(2) For which at least 2 separate flood 

insurance claims payments (building 

payments only) have been made, with 

cumulative amount of such claims 

exceeding the value of the insured 

structure. 

(k) State means any state of the 

United States, the District of Columbia, 

the Commonwealth of Puerto Rico, the 

U.S. Virgin Islands, Guam, American 

Samoa, and the Commonwealth of the 

Northern Mariana Islands. 

(l) Subaward means an award 

provided by a pass-through entity to a 

subrecipient, for the subrecipient to 

carry out part of a Federal award 

received by the pass-through entity. It 

does not include payments to a 

contractor or payments to an individual 

that is a beneficiary of a Federal 

program. A subaward may be provided 

through any form of legal agreement, 

including an agreement that the passthrough entity considers a contract. 

(m) Subapplicant means a State 

agency, community, or Indian Tribal 

government submitting a subapplication 

to the applicant for assistance under the 

FMA program. Upon grant award, the 

subapplicant is referred to as the 

subrecipient. 

(n) Subrecipient means the State 

agency, community, or Indian Tribal 

government that receives a subaward 

from a pass-through entity for the 

subrecipient to carry out an activity 

under the FMA program. 

(o) Administrator means the head of 

the Federal Emergency Management 

Agency, or his/her designated 

representative. 

(p) Regional Administrator means the 

head of a Federal Emergency 

Management Agency regional office, or 

his/her designated representative. 

§ 77.3 Responsibilities. 

(a) Federal Emergency Management 

Agency (FEMA). Administer and 

provide oversight to all FEMA-related 

hazard mitigation programs and grants, 

including: 

(1) Issue program implementation 

procedures, as necessary, which will 

include information on availability of 

funding; 

(2) Award all grants to the recipient 

after evaluating subaward applications 

for eligibility and ensuring compliance 

with applicable Federal laws, giving 

priority to such properties, or to the 

subset of such properties, as the 

Administrator may determine are in the 

best interest of the NFIF; 

(3) Provide technical assistance and 

training to State, local and Indian Tribal 

governments regarding the mitigation 

and grants management process; 

(4) Review and approve State, Indian 

Tribal, and local mitigation plans in 

accordance with part 201 of this 

chapter; 

(5) Comply with applicable Federal 

statutory, regulatory, and Executive 

Order requirements related to 

environmental and historic preservation 

compliance, including reviewing and 

supplementing, if necessary, the 

environmental analyses conducted by 

the State and subrecipient in accordance 

with applicable laws, regulations, and 

agency policy; 

(6) Monitor implementation of awards 

through quarterly reports; and 

(7) Review all closeout documentation 

for compliance and sending the 

recipient a request for additional 

supporting documentation, if needed. 

(b) Recipient. The recipient must have 

working knowledge of NFIP goals, 

requirements, and processes and ensure 

that the program is coordinated with 

other mitigation activities. Recipients 

will: 

(1) Have a FEMA approved Mitigation 

Plan in accordance with part 201 of this 

chapter; 

(2) Provide technical assistance and 

training to communities on mitigation 

planning, mitigation project activities, 

developing subaward applications, and 

implementing approved subawards; 

(3) Prioritize and recommend 

subaward applications to be approved 

by FEMA, based on the applicable 

mitigation plan(s), other evaluation 

criteria, and the eligibility criteria 

described in § 77.6; 

(4) Award FEMA-approved 

subawards; 

(5) Monitor and evaluate the progress 

of the mitigation activity in accordance 

with the approved original scope of 

work and budget through quarterly 

reports; 

(6) Closeout the subaward in 

accordance with 2 CFR 200.344 and 

200.345, and applicable FEMA 

guidance; and 

(7) Comply with program 

requirements under this part, grant 

management requirements identified 

under 2 CFR parts 200 and 3002, the 

grant agreement articles, and other 

applicable Federal, State, Tribal and 

local laws and regulations. 

(c) Subrecipient. The subrecipient (or 

subapplicant, as applicable) will: 

(1) Complete and submit subaward 

applications to the recipient for FMA 

planning and project subawards; 

(2) Implement all approved 

subawards; 

(3) Monitor and evaluate the progress 

of the mitigation activity in accordance 

with the approved original scope of 

work and budget through quarterly 

reports; 

(4) Comply with program 

requirements under this part, grant 

management requirements identified 

under 2 CFR parts 200 and 3002, the 

grant agreement articles, and other 

applicable Federal, State, Tribal and 

local laws and regulations; and 

(5) Closeout the subaward in 

accordance with 2 CFR 200.344 and 

200.345, and applicable FEMA 

guidance. 

§ 77.4 Availability of funding. 

(a) Allocation. (1) For the amount 

made available for the FMA program, 

the Administrator will allocate the 

available funds based upon criteria 

established for each application period. 

The criteria may include the number of 

NFIP policies, severe repetitive loss 

structures, repetitive loss structures, and 

any other factors the Administrator 

determines are in the best interests of 

the NFIF. 

(2) The amount of FMA funds used 

may not exceed $50,000 for any 

mitigation plan of a State or $25,000 for 

any mitigation plan of a community. 

(b) Cost share. All mitigation 

activities approved under the grant will 

be subject to the following cost share 

provisions: 

(1) For each severe repetitive loss 

structure, FEMA may contribute either: 

(i) Up to 100 percent of all eligible 

costs if the activities are technically 

feasible and cost effective; or 

(ii) Up to the amount of the expected 

savings to the NFIP for acquisition or 

relocation activities; 

(2) For repetitive loss structures, 

FEMA may contribute up to 90 percent 

of the eligible costs; 

(3) For all other mitigation activities, 

FEMA may contribute up to 75 percent 

of all eligible costs. 

(4) For projects that contain a 

combination of severe repetitive loss, 

repetitive loss, and/or other insured 

structures, the cost share will be 

calculated as appropriate for each type 

of structure submitted in the project 

subapplication. 


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(c) Failure to make award within 5 

years. Any FMA application or 

subapplication that does not receive a 

Federal award within 5 years of the 

application/subapplication submission 

date is considered to be denied, and any 

funding amounts allocated for such 

applications/subapplications will be 

made available for other FMA awards 

and subawards. 

§ 77.5 Application process. 

(a) Applicant. (1) Applicants will be 

notified of the availability of funding for 

the FMA program pursuant to 2 CFR 

200.203 and 200.204. 

(2) The applicant is responsible for 

soliciting applications from eligible 

communities, or subapplicants, and for 

reviewing and prioritizing applications 

prior to forwarding them to FEMA for 

review and award. 

(b) Subapplicant. Communities or 

other subapplicants who choose to 

apply must develop subapplications 

within the timeframes and requirements 

established by FEMA and must submit 

subapplications to the applicant. 

§ 77.6 Eligibility. 

(a) NFIP requirements. (1) States, 

Indian Tribal governments, and 

communities must be participating in 

the NFIP and may not be suspended or 

withdrawn under the program. 

(2) For projects that impact individual 

structures, for example, acquisitions and 

elevations, an NFIP policy for the 

structure must be in effect prior to the 

opening of the application period and 

be maintained for the life of the 

structure. 

(b) Plan requirement—(1) Applicants. 

States must have a FEMA-approved 

mitigation plan meeting the 

requirements of § 201.4 of this chapter 

that provides for reduction of flood 

losses to structures for which NFIP 

coverage is available. Indian Tribal 

governments must have a FEMAapproved mitigation plan meeting the 

requirements of § 201.7 of this chapter 

that provides for reduction of flood 

losses to structures for which NFIP 

coverage is available. The FEMAapproved mitigation plan is required at 

the time of application and award. 

(2) Subapplicants. To be eligible for 

FMA project grants, subapplicants must 

have an approved mitigation plan in 

accordance with part 201 of this chapter 

that provides for reduction of flood 

losses to structures for which NFIP 

coverage is available. The FEMAapproved mitigation plan is required at 

the time of application and award. 

(c) Eligible activities—(1) Planning. 

FMA planning grants may be used to 

develop or update State, Indian Tribal 

and/or local mitigation plans that meet 

the planning criteria outlined in part 

201 of this chapter and provide for 

reduction of flood losses to structures 

for which NFIP coverage is available. 

(2) Projects. Projects funded under the 

FMA program are limited to activities 

that reduce flood damages to properties 

insured under the NFIP. Applications 

involving any activities for which 

implementation has already been 

initiated or completed are not eligible 

for funding, and will not be considered. 

Eligible activities are: 

(i) Acquisition of real property from 

property owners, and demolition or 

relocation of buildings and/or structures 

to areas outside of the floodplain to 

convert the property to open space use 

in perpetuity, in accordance with part 

80 of this subchapter; 

(ii) Elevation of existing structures to 

at least base flood levels or higher, if 

required by FEMA or if required by any 

State or local ordinance, and in 

accordance with criteria established by 

the Administrator; 

(iii) Floodproofing of existing nonresidential structures in accordance 

with the requirements of the NFIP or 

higher standards if required by FEMA or 

if required by any State or local 

ordinance, and in accordance with 

criteria established by the 

Administrator; 

(iv) Floodproofing of historic 

structures as defined in § 59.1 of this 

subchapter; 

(v) Demolition and rebuilding of 

properties to at least base flood levels or 

higher, if required by FEMA or if 

required by any State or local ordinance, 

and in accordance with criteria 

established by the Administrator; 

(vi) Localized flood risk reduction 

projects that lessen the frequency or 

severity of flooding and decrease 

predicted flood damages, and that do 

not duplicate the flood prevention 

activities of other Federal agencies. 

Non-localized flood risk reduction 

projects such as dikes, levees, 

floodwalls, seawalls, groins, jetties, 

dams and large-scale waterway 

channelization projects are not eligible 

unless the Administrator specifically 

determines in approving a mitigation 

plan that such activities are the most 

cost-effective mitigation activities for 

the National Flood Mitigation Fund; 

(vii) Elevation, relocation, or 

floodproofing of utilities; and 

(viii) Other mitigation activities not 

described or identified in (c)(2)(i) 

through (vii) of this section that are 

described in the State, Tribal or local 

mitigation plan. 

(3) Technical assistance. If a recipient 

applied for and was awarded at least $1 

million in the prior fiscal year, that 

recipient may be eligible to receive a 

technical assistance grant for up to 

$50,000. 

(4) Project Scoping. Activities that 

enable subapplicants to develop 

complete subapplications for eligible 

mitigation activities including but not 

limited to data development. 

(d) Minimum project criteria. In 

addition to being an eligible project 

type, mitigation grant projects must 

also: 

(1) Be in conformance with State, 

Tribal and/or local mitigation plans 

approved under part 201 of this chapter 

for the jurisdiction where the project is 

located; 

(2) Be in conformance with applicable 

environmental and historic preservation 

laws, regulations, and agency policy, 

including parts 9 and 60 of this chapter, 

and other applicable Federal, State, 

Tribal, and local laws and regulations; 

(3) Be technically feasible and costeffective; or, eliminate future payments 

from the NFIF for severe repetitive loss 

structures through an acquisition or 

relocation activity; 

(4) Solve a problem independently, or 

constitute a functional portion of a longterm solution where there is assurance 

that the project as a whole will be 

completed. This assurance will include 

documentation identifying the 

remaining funds necessary to complete 

the project, and the timeframe for 

completing the project; 

(5) Consider long-term changes to the 

areas and entities it protects, and have 

manageable future maintenance and 

modification requirements. The 

subrecipient is responsible for the 

continued maintenance needed to 

preserve the hazard mitigation benefits 

of these measures; and 

(6) Not duplicate benefits available 

from another source for the same 

purpose or assistance that another 

Federal agency or program has more 

primary authority to provide. 

§ 77.7 Allowable costs. 

(a) General. General policies for 

allowable costs for implementing 

awards and subawards are addressed in 

2 CFR 200.101, 200.102, 200.400– 

200.476. 

(1) Eligible management costs—(i) 

Recipient. Recipients are eligible to 

receive management costs (direct and 

indirect administrative costs pursuant to 

2 CFR part 200 Subpart E) consisting of 

a maximum of 10 percent of the 

planning and project activities awarded 

to the recipient, each fiscal year under 

FMA. These costs must be included in 

the application to FEMA. 


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(ii) Subrecipient. Subapplicants may 

include a maximum of 5 percent of the 

total funds requested for their 

subapplication for management costs to 

support the implementation of their 

planning or project activity. These costs 

must be included in the subapplication 

to the recipient. 

(2) Indirect costs. Indirect costs of 

administering the FMA program are 

eligible as part of the 10 percent 

management costs for the recipient or 

the 5 percent management costs of the 

subrecipient, but in no case do they 

make the recipient eligible for 

additional management costs that 

exceed the caps identified in paragraph 

(a)(1) of this section. In addition, all 

costs must be in accordance with the 

provisions of 2 CFR parts 200 and 3002. 

(b) Pre-award costs. FEMA may fund 

eligible pre-award costs related to 

developing the application or 

subapplication at its discretion and as 

funds are available. Recipients and 

subrecipients may be reimbursed for 

eligible pre-award costs for activities 

directly related to the development of 

the project or planning proposal. Costs 

associated with implementation of the 

activity but incurred prior to award are 

not eligible. Therefore, activities where 

implementation is initiated or 

completed prior to award are not 

eligible and will not be reimbursed. 

(c) Duplication of benefits. Grant 

funds may not duplicate benefits 

received by or available to applicants, 

subapplicants and project participants 

from insurance, other assistance 

programs, legal awards, or any other 

source to address the same purpose. 

Such individual or entity must notify 

the recipient and FEMA of all benefits 

that it receives or anticipates from other 

sources for the same purpose. FEMA 

will reduce the subaward by the 

amounts available for the same purpose 

from another source. 

(d) Negligence or other tortious 

conduct. FEMA grant funds are not 

available where an applicant, 

subapplicant, other project participant, 

or third party’s negligence or intentional 

actions contributed to the conditions to 

be mitigated. If the applicant, 

subapplicant, or project participant 

suspects negligence or other tortious 

conduct by a third party for causing 

such condition, they are responsible for 

taking all reasonable steps to recover all 

costs attributable to the tortious conduct 

of the third party. FEMA generally 

considers such amounts to be 

duplicated benefits available for the 

same purpose, and will treat them 

consistent with paragraph (c) of this 

section. 

(e) Legal obligations. FEMA grant 

funds are not available to satisfy or 

reimburse for legal obligations, such as 

those imposed by a legal settlement, 

court order, or State law. 

§ 77.8 Grant administration. 

(a) General. Recipients must comply 

with the requirements contained in 2 

CFR parts 200 and 3002 and FEMA 

award requirements, including 

submission of performance and 

financial status reports. Recipients must 

also ensure that subrecipients are aware 

of and comply with 2 CFR parts 200 and 

3002. 

(b) Cost overruns. (1) During the 

implementation of an approved grant, 

the recipient may find that actual costs 

are exceeding the approved award 

amount. While there is no guarantee of 

additional funding, FEMA will only 

consider requests made by the recipient 

to pay for such overruns if: 

(i) Funds are available to meet the 

requested increase in funding; and 

(ii) The amended grant award meets 

the eligibility requirements, including 

cost share requirements, identified in 

this section. 

(2) Recipients may use cost underruns 

from ongoing subawards to offset 

overruns incurred by another 

subaward(s) awarded under the same 

award. All costs for which funding is 

requested must have been included in 

the original subapplication’s cost 

estimate. In cases where an underrun is 

not available to cover an overrun, the 

Administrator may, with justification 

from the recipient and subrecipient, use 

other available FMA funds to cover the 

cost overrun. 

(3) For all cost overruns that exceed 

the amount approved under the award, 

and which require additional Federal 

funds, the recipient must submit a 

written request with a recommendation, 

including a justification for the 

additional funding to the Regional 

Administrator for a determination. If 

approved, the Regional Administrator 

will increase the award through an 

amendment to the original award 

document. 

(c) Recapture. At the time of closeout, 

FEMA will recapture any funds 

provided to a State or a community 

under this part if the applicant has not 

provided the appropriate matching 

funds, the approved project has not 

been completed within the timeframes 

specified in the grant agreement, or the 

completed project does not meet the 

criteria specified in this part. 

(d) Remedies for noncompliance. 

FEMA may terminate an award or take 

other remedies for noncompliance in 

accordance with 2 CFR 200.339 through 

200.343. 

(e) Reconsideration. FEMA will 

reconsider determinations of 

noncompliance, additional award 

conditions, or its decision to terminate 

a Federal award. Requests for 

reconsideration must be made in writing 

to FEMA within 60 calendar days after 

receipt of a notice of the action, and in 

accordance with submission procedures 

set out in guidance. FEMA will notify 

the requester of the disposition of the 

request for reconsideration. If the 

decision is to grant the request for 

reconsideration, FEMA will take 

appropriate implementing action. 

PART 79—[RESERVED] 

■ 4. Add and reserve part 79. 

PART 80—PROPERTY ACQUISITION 

AND RELOCATION FOR OPEN SPACE 

■ 5. Revise the authority citation for part 

80 to read as follows: 

Authority: Robert T. Stafford disaster 

relief and emergency assistance act, 42 U.S.C. 

5121 through 5207; the National Flood 

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

4001 et seq.; Homeland Security Act of 2002, 

6 U.S.C. 101. 

■ 6. Revise § 80.3 to read as follows: 

§ 80.3 Definitions. 

(a) Except as noted in this part, the 

definitions applicable to the funding 

program apply to implementation of this 

part. In addition, for purposes of this 

part: 

(b) Applicant means a State or Indian 

Tribal government applying to FEMA 

for a Federal award that will be 

accountable for the use of funds. Once 

funds have been awarded, the applicant 

becomes the recipient and may also be 

a pass-through entity. 

(c) Federal award means the Federal 

financial assistance that a recipient or 

subrecipient receives directly from 

FEMA or indirectly from a pass-through 

entity. The terms ‘‘award’’ and ‘‘grant’’ 

may also be used to describe a ‘‘Federal 

award’’ under this part. 

(d) Market Value means the price that 

the seller is willing to accept and a 

buyer is willing to pay on the open 

market and in an arm’s length 

transaction. 

(e) National of the United States 

means a person within the meaning of 

the term as defined in the Immigration 

and Nationality Act, 8 U.S.C. 

1101(a)(22). 

(f) Pass-through entity means a 

recipient that provides a subaward to a 

subrecipient. 

(g) Purchase offer is the initial value 

assigned to the property, which is later 


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adjusted by applicable additions and 

deductions, resulting in a final offer 

amount to a property owner. 

(h) Qualified alien means a person 

within the meaning of the term as 

defined at 8 U.S.C. 1641. 

(i) Qualified conservation 

organization means a qualified 

organization with a conservation 

purpose pursuant to 26 CFR 1.170A–14 

and applicable implementing 

regulations, that is such an organization 

at the time it acquires the property 

interest and that was such an 

organization at the time of the major 

disaster declaration, or for at least 2 

years prior to the opening of the grant 

application period. 

(j) Recipient means the State or Tribal 

government that receives a Federal 

award directly from FEMA. A recipient 

may also be a pass-through entity. The 

term recipient does not include 

subrecipients. 

(k) Subapplicant means the entity that 

submits an application for FEMA 

mitigation assistance to the State or 

Indian Tribal applicant/recipient. With 

respect to open space acquisition 

projects under the Hazard Mitigation 

Grant Program (HMGP), this term has 

the same meaning as given to the term 

‘‘applicant’’ in part 206, subpart N of 

this chapter. Upon grant award, the 

subapplicant is referred to as the 

subrecipient. 

(l) Subaward means an award 

provided by a pass-through entity to a 

subrecipient, for the subrecipient to 

carry out part of a Federal award 

received by the pass-through entity. 

(m) Subrecipient means the State 

agency, community or Indian Tribal 

government or other legal entity to 

which a subaward is awarded and 

which is accountable to the recipient for 

the use of the funds provided. 

(n) Administrator means the head of 

the Federal Emergency Management 

Agency, or his/her designated 

representative. 

(o) Regional Administrator means the 

head of a Federal Emergency 

Management Agency regional office, or 

his/her designated representative. 

§ 80.5 [Amended] 

■ 7. Amend § 80.5 by: 

■ a. Removing the word ‘‘grantee’’ 

wherever it appears and adding in its 

place the word ‘‘recipient’’; and 

■ b. Removing the word ‘‘subgrantee’’ 

wherever it appears and adding in its 

place the word ‘‘subrecipient’’. 

■ 8. Amend § 80.9 by revising 

paragraphs (b) and (c) to read as follows: 

§ 80.9 Eligible and ineligible costs. 

* * * * * 

(b) Pre-award costs. FEMA may fund 

eligible pre-award project costs at its 

discretion and as funds are available. 

Recipients and subrecipients may be 

reimbursed for eligible pre-award costs 

for activities directly related to the 

development of the project proposal. 

These costs can only be incurred during 

the open application period of the 

respective grant program. Costs 

associated with implementation of the 

project but incurred prior to grant award 

are not eligible. Therefore, activities 

where implementation is initiated or 

completed prior to award are not 

eligible and will not be reimbursed. 

(c) Duplication of benefits. Grant 

funds may not duplicate benefits 

received by or available to applicants, 

subapplicants and other project 

participants from insurance, other 

assistance programs, legal awards, or 

any other source to address the same 

purpose. Such individual or entity must 

notify the subapplicant and FEMA of all 

benefits that it receives, anticipates, or 

has available from other sources for the 

same purpose. FEMA will reduce the 

subaward by the amounts available for 

the same purpose from another source. 

* * * * * 

■ 9. Amend § 80.11 by revising 

paragraph (a) to read as follows: 

§ 80.11 Project eligibility. 

(a) Voluntary participation. Eligible 

acquisition projects are those where the 

property owner participates voluntarily, 

and the recipient/subrecipient will not 

use its eminent domain authority to 

acquire the property for the open space 

purposes should negotiations fail. 

* * * * * 

■ 10. Amend § 80.13 by revising 

paragraph (a)(3) to read as follows: 

§ 80.13 Application information. 

(a) * * * 

(3) The deed restriction language, 

which must be consistent with the 

FEMA model deed restriction that the 

local government will record with the 

property deeds. Any variation from the 

model deed restriction language can 

only be made with prior approval from 

FEMA’s Office of Chief Counsel; 

* * * * * 

■ 11. Revise § 80.17 to read as follows: 

§ 80.17 Project implementation. 

(a) Hazardous materials. The 

subrecipient must take steps to ensure it 

does not acquire or include in the 

project properties contaminated with 

hazardous materials by seeking 

information from property owners and 

from other sources on the use and 

presence of contaminants affecting the 

property from owners of properties that 

are or were industrial or commercial, or 

adjacent to such. A contaminated 

property must be certified clean prior to 

participation. This excludes permitted 

disposal of incidental demolition and 

household hazardous wastes. FEMA 

mitigation grant funds may not be used 

for clean up or remediation of 

contaminated properties. 

(b) Clear title. The subrecipient will 

obtain a title insurance policy 

demonstrating that fee title conveys to 

the subrecipient for each property to 

ensure that it acquires only a property 

with clear title. The property interest 

generally must transfer by a general 

warranty deed. Any incompatible 

easements or other encumbrances to the 

property must be extinguished before 

acquisition. 

(c) Purchase offer and supplemental 

payments. (1) The amount of purchase 

offer is the current market value of the 

property or the market value of the 

property immediately before the 

relevant event affecting the property 

(‘‘pre-event’’). 

(i) The relevant event for Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act assistance under HMGP 

is the major disaster under which funds 

are available; for assistance under the 

Pre-disaster Mitigation program (PDM) 

(42 U.S.C. 5133), it is the most recent 

major disaster. Where multiple disasters 

have affected the same property, the 

recipient and subrecipient will 

determine which is the relevant event. 

(ii) The relevant event for assistance 

under the National Flood Insurance Act 

is the most recent event resulting in a 

National Flood Insurance Program 

(NFIP) claim of at least $5,000. 

(2) The recipient should coordinate 

with the subrecipient in their 

determination of whether the valuation 

should be based on pre-event or current 

market value. Generally, the same 

method to determine market value 

should be used for all participants in the 

project. 

(3) A property owner who did not 

own the property at the time of the 

relevant event, or who is not a National 

of the United States or qualified alien, 

is not eligible for a purchase offer based 

on pre-event market value of the 

property. Subrecipients who offer 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. 

(4) Certain tenants who must relocate 

as a result of the project are entitled to 

relocation benefits under the Uniform 

Relocation Assistance and Real Property 


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Acquisition Act (such as moving 

expenses, replacement housing rental 

payments, and relocation assistance 

advisory services) in accordance with 49 

CFR part 24. 

(5) If a purchase offer for a residential 

property is less than the cost of the 

homeowner-occupant to purchase a 

comparable replacement dwelling 

outside the hazard-prone area in the 

same community, subrecipients for 

mitigation grant programs may make 

such a payment available in accordance 

with criteria determined by the 

Administrator. 

(6) The subrecipient must inform each 

property owner, in writing, of what it 

considers to be the market value of the 

property, the method of valuation and 

basis for the purchase offer, and the 

final offer amount. The offer will also 

clearly state that the property owner’s 

participation in the project is voluntary. 

(d) Removal of existing buildings. 

Existing incompatible facilities must be 

removed by demolition or by relocation 

outside of the hazard area within 90 

days of settlement of the property 

transaction. The FEMA Regional 

Administrator may grant an exception to 

this deadline only for a particular 

property based upon written 

justification if extenuating 

circumstances exist, but will specify a 

final date for removal. 

(e) Deed Restriction. The subrecipient, 

upon settlement of the property 

transaction, must record with the deed 

of the subject property notice of 

applicable land use restrictions and 

related procedures described in this 

part, consistent with FEMA model deed 

restriction language. 

■ 12. Amend § 80.19 by revising 

paragraphs (a) introductory text, (a)(3), 

and (b) through (e) to read as follows: 

§ 80.19 Land use and oversight. 

* * * * * 

(a) Open space requirements. The 

property must be dedicated and 

maintained in perpetuity as open space 

for the conservation of natural 

floodplain functions. 

* * * * * 

(3) Any improvements on the 

property must be in accordance with 

proper floodplain management policies 

and practices. Structures built on the 

property according to paragraph (a)(2) of 

this section must be floodproofed or 

elevated to at least the base flood level 

plus 1 foot of freeboard, or greater, if 

required by FEMA, or if required by any 

State or local ordinance, and in 

accordance with criteria established by 

the Administrator. 

* * * * * 

(b) Subsequent transfer. After 

acquiring the property interest, the 

subrecipient, including successors in 

interest, will convey any interest in the 

property only if the Regional 

Administrator, through the State, gives 

prior written approval of the transferee 

in accordance with this paragraph. 

(1) The request by the subrecipient, 

through the State, to the Regional 

Administrator must include a signed 

statement from the proposed transferee 

that it acknowledges and agrees to be 

bound by the terms of this section, and 

documentation of its status as a 

qualified conservation organization if 

applicable. 

(2) The subrecipient may convey a 

property interest only to a public entity 

or to a qualified conservation 

organization. However, the subrecipient 

may convey an easement or lease to a 

private individual or entity for purposes 

compatible with the uses described in 

paragraph (a) of this section, with the 

prior approval of the Regional 

Administrator, and so long as the 

conveyance does not include authority 

to control and enforce the terms and 

conditions of this section. 

(3) If title to the property is 

transferred to a public entity other than 

one with a conservation mission, it must 

be conveyed subject to a conservation 

easement that must be recorded with the 

deed and must incorporate all terms and 

conditions set forth in this section, 

including the easement holder’s 

responsibility to enforce the easement. 

This must be accomplished by one of 

the following means: 

(i) The subrecipient will convey, in 

accordance with this paragraph (b), a 

conservation easement to an entity other 

than the title holder, which must be 

recorded with the deed, or 

(ii) At the time of title transfer, the 

subrecipient will retain such 

conservation easement, and record it 

with the deed. 

(4) Conveyance of any property 

interest must reference and incorporate 

the original deed restrictions providing 

notice of the conditions in this section 

and must incorporate a provision for the 

property interest to revert to the 

subrecipient or recipient in the event 

that the transferee ceases to exist or 

loses its eligible status under this 

section. 

(c) Inspection. FEMA, its 

representatives and assigns, including 

the recipient will have the right to enter 

upon the property, at reasonable times 

and with reasonable notice, for the 

purpose of inspecting the property to 

ensure compliance with the terms of 

this part, the property conveyance and 

of the grant award. 

(d) Monitoring and reporting. Every 3 

years the subrecipient (in coordination 

with any current successor in interest) 

through the recipient, must submit to 

the FEMA Regional Administrator a 

report certifying that the subrecipient 

has inspected the property within the 

month preceding the report, and that the 

property continues to be maintained 

consistent with the provisions of this 

part, the property conveyance and the 

grant award. 

(e) Enforcement. The subrecipient, 

recipient, FEMA, and their respective 

representatives, successors and assigns, 

are responsible for taking measures to 

bring the property back into compliance 

if the property is not maintained 

according to the terms of this part, the 

conveyance, and the grant award. The 

relative rights and responsibilities of 

FEMA, the recipient, the subrecipient, 

and subsequent holders of the property 

interest at the time of enforcement, 

include the following: 

(1) The recipient will notify the 

subrecipient and any current holder of 

the property interest in writing and 

advise them that they have 60 days to 

correct the violation. If the subrecipient 

or any current holder of the property 

interest fails to demonstrate a good faith 

effort to come into compliance with the 

terms of the grant within the 60-day 

period, the recipient will enforce the 

terms of the grant by taking any 

measures it deems appropriate, 

including but not limited to bringing an 

action at law or in equity in a court of 

competent jurisdiction. 

(2) FEMA, its representatives, and 

assignees may enforce the terms of the 

grant by taking any measures it deems 

appropriate, including but not limited to 

1 or more of the following: 

(i) Withholding FEMA mitigation 

awards or assistance from the State and 

subrecipient; and current holder of the 

property interest. 

(ii) Requiring transfer of title. The 

subrecipient or the current holder of the 

property interest will bear the costs of 

bringing the property back into 

compliance with the terms of the grant; 

or 

(iii) Bringing an action at law or in 

equity in a court of competent 

jurisdiction against any or all of the 

following parties: The recipient, the 

subrecipient, and their respective 

successors. 

■ 13. Amend § 80.21 by revising the 

introductory text and paragraph (d) to 

read as follows: 


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§ 80.21 Closeout requirements. 

Upon closeout of the grant, the 

subrecipient, through the recipient, 

must provide FEMA, with the following: 

* * * * * 

(d) Identification of each property as 

a repetitive loss structure, if applicable; 

and 

* * * * * 

PART 201—MITIGATION PLANNING 

■ 14. Revise the authority citation for 

part 201 to read as follows: 

Authority: Robert T. Stafford Disaster 

Relief and Emergency Assistance Act, 42 

U.S.C. 5121 through 5207; Homeland 

Security Act of 2002, 6 U.S.C. 101; National 

Flood Insurance Act of 1968, 42 U.S.C. 

4104c. 

■ 15. Amend § 201.1 by revising 

paragraph (a) to read as follows: 

§ 201.1 Purpose. 

(a) The purpose of this part is to 

provide information on the policies and 

procedures for mitigation planning as 

required by the provisions of section 

322 of the Stafford Act, 42 U.S.C. 5165, 

and section 1366 of the National Flood 

Insurance Act of 1968, 42 U.S.C. 4104c. 

* * * * * 

■ 16. Revise § 201.2 to read as follows: 

§ 201.2 Definitions. 

Administrator means the head of the 

Federal Emergency Management 

Agency, or his/her designated 

representative. 

Applicant means the entity applying 

to FEMA for a Federal award that will 

be accountable for the use of funds. 

Federal award means the Federal 

financial assistance that a recipient or 

subrecipient receives directly from 

FEMA or indirectly from a pass-through 

entity. The term ‘‘grant’’ or ‘‘award’’ 

may also be used to describe a Federal 

award under this part. 

Flood Mitigation Assistance (FMA) 

means the program authorized by 

section 1366 of the National Flood 

Insurance Act of 1968, as amended, 42 

U.S.C. 4104c, and implemented at part 

77. 

Hazard mitigation means any 

sustained action taken to reduce or 

eliminate the long-term risk to human 

life and property from hazards. 

Hazard Mitigation Grant Program 

(HMGP) means the program authorized 

under section 404 of the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act, 42 U.S.C. 5170c, and 

implemented at part 206, subpart N of 

this chapter. 

Indian Tribal government means any 

Federally recognized governing body of 

an Indian or Alaska Native Tribe, band, 

nation, pueblo, village, or community 

that the Secretary of Interior 

acknowledges to exist as an Indian Tribe 

under the Federally Recognized Indian 

Tribe List Act of 1994, 25 U.S.C. 5131. 

This does not include Alaska Native 

corporations, the ownership of which is 

vested in private individuals. 

Local government is any county, 

municipality, city, town, township, 

public authority, school district, special 

district, intrastate district, council of 

governments (regardless of whether the 

council of governments is incorporated 

as a nonprofit corporation under State 

law), regional or interstate government 

entity, or agency or instrumentality of a 

local government; any Indian Tribe or 

authorized Tribal organization, or 

Alaska Native village or organization; 

and any rural community, 

unincorporated town or village, or other 

public entity. 

Managing State means a State to 

which FEMA has delegated the 

authority to administer and manage the 

HMGP under the criteria established by 

FEMA pursuant to 42 U.S.C. 5170c(c). 

FEMA may also delegate authority to 

Tribal governments to administer and 

manage the HMGP as a Managing State. 

Pass-through entity means a recipient 

that provides a subaward to a 

subrecipient to carry out part of a 

Federal program. 

Pre-Disaster Mitigation Program 

(PDM) means the program authorized 

under section 203 of the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act, 42 U.S.C. 5133. 

Regional Administrator means the 

head of a Federal Emergency 

Management Agency regional office, or 

his/her designated representative. 

Recipient means the government that 

receives a Federal award directly from 

FEMA. A recipient may also be a passthrough entity. The term recipient does 

not include subrecipients. The recipient 

is the entire legal entity even if only a 

particular component of the entity is 

designated in the grant award 

document. Generally, the State is the 

recipient. However, an Indian Tribal 

government may choose to be a 

recipient, or may act as a subrecipient 

under the State. An Indian Tribal 

government acting as recipient will 

assume the responsibilities of a ‘‘State’’, 

as described in this part, for the 

purposes of administering the grant. 

Repetitive loss structure means a 

structure as defined at § 77.2 of this 

chapter. 

Severe repetitive loss structure is a 

structure as defined at § 77.2 of this 

chapter. 

Small and impoverished communities 

means a community of 3,000 or fewer 

individuals that is identified by the 

State as a rural community, and is not 

a remote area within the corporate 

boundaries of a larger city; is 

economically disadvantaged, by having 

an average per capita annual income of 

residents not exceeding 80 percent of 

national, per capita income, based on 

best available data; the local 

unemployment rate exceeds by one 

percentage point or more, the most 

recently reported, average yearly 

national unemployment rate; and any 

other factors identified in the State Plan 

in which the community is located. 

The Stafford Act refers to the Robert 

T. Stafford Disaster Relief and 

Emergency Assistance Act, Public Law 

93–288, as amended (42 U.S.C. 5121– 

5207). 

State is any State of the United States, 

the District of Columbia, the 

Commonwealth of Puerto Rico, the U.S. 

Virgin Islands, Guam, American Samoa, 

and the Commonwealth of the Northern 

Mariana Islands. 

State Hazard Mitigation Officer is the 

official representative of State 

government who is the primary point of 

contact with FEMA, other Federal 

agencies, and local governments in 

mitigation planning and 

implementation of mitigation programs 

and activities required under the 

Stafford Act. 

Subapplicant means an entity 

submitting a subapplication to the 

applicant for a subaward to carry out 

part of a Federal award. 

Subaward means an award provided 

by a pass-through entity to a 

subrecipient for the subrecipient to 

carry out part of a Federal award. 

Subrecipient means the entity that 

receives a subaward from a pass-through 

entity. Depending on the program, 

subrecipients of hazard mitigation 

assistance subawards can be a State 

agency, local government, private 

nonprofit organization, or Indian Tribal 

government. Subrecipients of FMA 

subawards can be a State agency, 

community, or Indian Tribal 

government, as described in 44 CFR part 

77. Indian Tribal governments acting as 

a subrecipient are accountable to the 

State recipient. 

■ 17. Amend § 201.3 by revising 

paragraphs (a), (b)(2), (c)(1), and (e)(1) to 

read as follows: 

§ 201.3 Responsibilities. 

(a) General. This section identifies the 

key responsibilities of FEMA, States, 

and local/Tribal governments in 

carrying out section 322 of the Stafford 

Act, 42 U.S.C. 5165. 


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(b) * * * 

(2) Provide technical assistance and 

training to State, local, and Indian 

Tribal governments regarding the 

mitigation planning process; 

* * * * * 

(c) * * * 

(1) Prepare and submit to FEMA a 

Standard State Mitigation Plan 

following the criteria established in 

§ 201.4 as a condition of receiving nonemergency Stafford Act assistance and 

FEMA mitigation grants. In accordance 

with § 77.6(b) of this chapter, applicants 

and subapplicants for FMA project 

grants must have a FEMA-approved 

mitigation plan that addresses identified 

flood hazards and provides for 

reduction of flood losses to structures 

for which NFIP coverage is available. 

* * * * * 

(e) * * * 

(1) Prepare and submit to FEMA a 

Tribal Mitigation Plan following the 

criteria established in § 201.7 as a 

condition of receiving non-emergency 

Stafford Act assistance and FEMA 

mitigation grants as a recipient. This 

plan will also allow Indian Tribal 

governments to apply through the State, 

as a subrecipient, for any FEMA 

mitigation project grant. In accordance 

with § 77.6(b) of this chapter, applicants 

and subapplicants for FMA project 

grants must have a FEMA-approved 

mitigation plan that addresses identified 

flood hazards and provides for 

reduction of flood losses to structures 

for which NFIP coverage is available. 

* * * * * 

■ 18. Amend § 201.4 by revising 

paragraphs (c)(2) through (4) to read as 

follows: 

§ 201.4 Standard State Mitigation Plans. 

* * * * * 

(c) * * * 

(2) Statewide risk assessments that 

provide the factual basis for activities 

proposed in the strategy portion of the 

mitigation plan. Statewide risk 

assessments must characterize and 

analyze natural hazards and risks to 

provide a statewide overview. This 

overview will allow the State to 

compare potential losses throughout the 

State and to determine their priorities 

for implementing mitigation measures 

under the strategy, and to prioritize 

jurisdictions for receiving technical and 

financial support in developing more 

detailed local risk and vulnerability 

assessments. The risk assessment must 

include the following: 

(i) An overview of the type and 

location of all natural hazards that can 

affect the State, including information 

on previous occurrences of hazard 

events, as well as the probability of 

future hazard events, using maps where 

appropriate; 

(ii) An overview and analysis of the 

State’s vulnerability to the hazards 

described in this paragraph (c)(2), based 

on estimates provided in local risk 

assessments as well as the State risk 

assessment. The State must describe 

vulnerability in terms of the 

jurisdictions most threatened by the 

identified hazards, and most vulnerable 

to damage and loss associated with 

hazard events. State owned or operated 

critical facilities located in the 

identified hazard areas must also be 

addressed; 

(iii) An overview and analysis of 

potential losses to the identified 

vulnerable structures, based on 

estimates provided in local risk 

assessments as well as the State risk 

assessment. The State must estimate the 

potential dollar losses to State owned or 

operated buildings, infrastructure, and 

critical facilities located in the 

identified hazard areas. 

(3) A Mitigation Strategy that provides 

the State’s blueprint for reducing the 

losses identified in the risk assessment. 

This section must include: 

(i) A description of State goals to 

guide the selection of activities to 

mitigate and reduce potential losses. 

(ii) A discussion of the State’s preand post-disaster hazard management 

policies, programs, and capabilities to 

mitigate the hazards in the area, 

including: An evaluation of State laws, 

regulations, policies, and programs 

related to hazard mitigation as well as 

to development in hazard-prone areas; a 

discussion of State funding capabilities 

for hazard mitigation projects; and a 

general description and analysis of the 

effectiveness of local mitigation 

policies, programs, and capabilities. 

(iii) An identification, evaluation, and 

prioritization of cost-effective, 

environmentally sound, and technically 

feasible mitigation actions and activities 

the State is considering and an 

explanation of how each activity 

contributes to the overall mitigation 

strategy. This section should be linked 

to local plans, where specific local 

actions and projects are identified. 

(iv) Identification of current and 

potential sources of Federal, State, local, 

or private funding to implement 

mitigation activities. 

(v) In accordance with § 77.6(b) of this 

chapter, applicants and subapplicants 

for FMA project grants must have a 

FEMA-approved mitigation plan that 

addresses identified flood hazards and 

provides for reduction of flood losses to 

structures for which NFIP coverage is 

available. 

(4) A section on the Coordination of 

Local Mitigation Planning that includes 

the following: 

(i) A description of the State process 

to support, through funding and 

technical assistance, the development of 

local mitigation plans. 

(ii) A description of the State process 

and timeframe by which the local plans 

will be reviewed, coordinated, and 

linked to the State Mitigation Plan. 

(iii) Criteria for prioritizing 

communities and local jurisdictions that 

would receive planning and project 

grants under available funding 

programs, which should include 

consideration for communities with the 

highest risks, repetitive loss structures, 

and most intense development 

pressures. Further, that for nonplanning grants, a principal criterion for 

prioritizing grants will be the extent to 

which benefits are maximized according 

to a cost benefit review of proposed 

projects and their associated costs. 

* * * * * 

■ 19. Amend § 201.6 by revising 

paragraphs (a) through (c) to read as 

follows: 

§ 201.6 Local Mitigation Plans. 

* * * * * 

(a) Plan requirements. (1) A local 

government must have a mitigation plan 

approved pursuant to this section in 

order to receive HMGP project grants. A 

local government must have a 

mitigation plan approved pursuant to 

this section in order to apply for and 

receive mitigation project grants under 

all other mitigation grant programs. 

(2) Plans prepared for the FMA 

program, described at part 77 of this 

chapter, need only address these 

requirements as they relate to flood 

hazards in order to be eligible for FMA 

project grants. However, these plans 

must be clearly identified as being flood 

mitigation plans, and they will not meet 

the eligibility criteria for other 

mitigation grant programs, unless 

flooding is the only natural hazard the 

jurisdiction faces. 

(3) Regional Administrators may grant 

an exception to the plan requirement in 

extraordinary circumstances, such as in 

a small and impoverished community, 

when justification is provided. In these 

cases, a plan will be completed within 

12 months of the award of the project 

grant. If a plan is not provided within 

this timeframe, the project grant will be 

terminated, and any costs incurred after 

notice of grant’s termination will not be 

reimbursed by FEMA. 

(4) Multi-jurisdictional plans (e.g., 

watershed plans) may be accepted, as 

appropriate, as long as each jurisdiction 


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has participated in the process and has 

officially adopted the plan. State-wide 

plans will not be accepted as multijurisdictional plans. 

(b) Planning process. An open public 

involvement process is essential to the 

development of an effective plan. In 

order to develop a more comprehensive 

approach to reducing the effects of 

natural disasters, the planning process 

must include: 

(1) An opportunity for the public to 

comment on the plan during the 

drafting stage and prior to plan 

approval; 

(2) An opportunity for neighboring 

communities, local and regional 

agencies involved in hazard mitigation 

activities, and agencies that have the 

authority to regulate development, as 

well as businesses, academia and other 

private and nonprofit interests to be 

involved in the planning process; and 

(3) Review and incorporation, if 

appropriate, of existing plans, studies, 

reports, and technical information. 

(c) Plan content. The plan must 

include the following: 

(1) Documentation of the planning 

process used to develop the plan, 

including how it was prepared, who 

was involved in the process, and how 

the public was involved. 

(2) A risk assessment that provides 

the factual basis for activities proposed 

in the strategy to reduce losses from 

identified hazards. Local risk 

assessments must provide sufficient 

information to enable the jurisdiction to 

identify and prioritize appropriate 

mitigation actions to reduce losses from 

identified hazards. The risk assessment 

must include: 

(i) A description of the type, location, 

and extent of all natural hazards that 

can affect the jurisdiction. The plan 

must include information on previous 

occurrences of hazard events and on the 

probability of future hazard events. 

(ii) A description of the jurisdiction’s 

vulnerability to the hazards described in 

paragraph (c)(2)(i) of this section. This 

description must include an overall 

summary of each hazard and its impact 

on the community. All plans approved 

after October 1, 2008 must also address 

NFIP insured structures that have been 

repetitively damaged by floods. The 

plan should describe vulnerability in 

terms of: 

(A) The types and numbers of existing 

and future buildings, infrastructure, and 

critical facilities located in the 

identified hazard areas; 

(B) An estimate of the potential dollar 

losses to vulnerable structures identified 

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

and a description of the methodology 

used to prepare the estimate; 

(C) Providing a general description of 

land uses and development trends 

within the community so that mitigation 

options can be considered in future land 

use decisions. 

(iii) For multi-jurisdictional plans, the 

risk assessment section must assess each 

jurisdiction’s risks where they vary from 

the risks facing the entire planning area. 

(3) A mitigation strategy that provides 

the jurisdiction’s blueprint for reducing 

the potential losses identified in the risk 

assessment, based on existing 

authorities, policies, programs and 

resources, and its ability to expand on 

and improve these existing tools. This 

section must include: 

(i) A description of mitigation goals to 

reduce or avoid long-term 

vulnerabilities to the identified hazards. 

(ii) A section that identifies and 

analyzes a comprehensive range of 

specific mitigation actions and projects 

being considered to reduce the effects of 

each hazard, with particular emphasis 

on new and existing buildings and 

infrastructure. All plans approved by 

FEMA after October 1, 2008, must also 

address the jurisdiction’s participation 

in the NFIP, and continued compliance 

with NFIP requirements, as appropriate. 

(iii) An action plan describing how 

the actions identified in paragraph 

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

prioritized, implemented, and 

administered by the local jurisdiction. 

Prioritization will include a special 

emphasis on the extent to which 

benefits are maximized according to a 

cost benefit review of the proposed 

projects and their associated costs. 

(iv) For multi-jurisdictional plans, 

there must be identifiable action items 

specific to the jurisdiction requesting 

FEMA approval or credit of the plan. 

(4) A plan maintenance process that 

includes: 

(i) A section describing the method 

and schedule of monitoring, evaluating, 

and updating the mitigation plan within 

a five-year cycle. 

(ii) A process by which local 

governments incorporate the 

requirements of the mitigation plan into 

other planning mechanisms such as 

comprehensive or capital improvement 

plans, when appropriate. 

(iii) Discussion on how the 

community will continue public 

participation in the plan maintenance 

process. 

(5) Documentation that the plan has 

been formally adopted by the governing 

body of the jurisdiction requesting 

approval of the plan (e.g., City Council, 

County Commissioner, Tribal Council). 

For multi-jurisdictional plans, each 

jurisdiction requesting approval of the 

plan must document that it has been 

formally adopted. 

* * * * * 

■ 20. Amend § 201.7 by revising 

paragraphs (a), (c), and (d) to read as 

follows: 

§ 201.7 Tribal Mitigation Plans. 

* * * * * 

(a) Plan requirement. (1) Indian Tribal 

governments applying to FEMA as a 

recipient must have an approved Tribal 

Mitigation Plan meeting the 

requirements of this section as a 

condition of receiving non-emergency 

Stafford Act assistance and FEMA 

mitigation grants. Emergency assistance 

provided under 42 U.S.C. 5170a, 5170b, 

5173, 5174, 5177, 5179, 5180, 5182, 

5183, 5184, 5192 will not be affected. 

Mitigation planning grants provided 

through the PDM program, authorized 

under section 203 of the Stafford Act, 42 

U.S.C. 5133, will also continue to be 

available. 

(2) Indian Tribal governments 

applying through the State as a 

subrecipient must have an approved 

Tribal Mitigation Plan meeting the 

requirements of this section in order to 

receive HMGP project grants. A Tribe 

must have an approved Tribal 

Mitigation Plan in order to apply for and 

receive FEMA mitigation project grants, 

under all other mitigation grant 

programs. The provisions in 

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

applying as subrecipients. 

(3) Multi-jurisdictional plans (e.g., 

county-wide or watershed plans) may be 

accepted, as appropriate, as long as the 

Indian Tribal government has 

participated in the process and has 

officially adopted the plan. Indian 

Tribal governments must address all the 

elements identified in this section to 

ensure eligibility as a recipient or as a 

subrecipient. 

* * * * * 

(c) Plan content. The plan must 

include the following: 

(1) Documentation of the planning 

process used to develop the plan, 

including how it was prepared, who 

was involved in the process, and how 

the public was involved. This must 

include: 

(i) An opportunity for the public to 

comment on the plan during the 

drafting stage and prior to plan 

approval, including a description of 

how the Indian Tribal government 

defined ‘‘public;’’ 

(ii) As appropriate, an opportunity for 

neighboring communities, Tribal and 

regional agencies involved in hazard 

mitigation activities, and agencies that 

have the authority to regulate 


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development, as well as businesses, 

academia, and other private and 

nonprofit interests to be involved in the 

planning process; 

(iii) Review and incorporation, if 

appropriate, of existing plans, studies, 

and reports; and 

(iv) Be integrated to the extent 

possible with other ongoing Tribal 

planning efforts as well as other FEMA 

programs and initiatives. 

(2) A risk assessment that provides 

the factual basis for activities proposed 

in the strategy to reduce losses from 

identified hazards. Tribal risk 

assessments must provide sufficient 

information to enable the Indian Tribal 

government to identify and prioritize 

appropriate mitigation actions to reduce 

losses from identified hazards. The risk 

assessment must include: 

(i) A description of the type, location, 

and extent of all natural hazards that 

can affect the Tribal planning area. The 

plan must include information on 

previous occurrences of hazard events 

and on the probability of future hazard 

events. 

(ii) A description of the Indian Tribal 

government’s vulnerability to the 

hazards described in paragraph (c)(2)(i) 

of this section. This description must 

include an overall summary of each 

hazard and its impact on the Tribe. The 

plan should describe vulnerability in 

terms of: 

(A) The types and numbers of existing 

and future buildings, infrastructure, and 

critical facilities located in the 

identified hazard areas; 

(B) An estimate of the potential dollar 

losses to vulnerable structures identified 

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

and a description of the methodology 

used to prepare the estimate; 

(C) A general description of land uses 

and development trends within the 

Tribal planning area so that mitigation 

options can be considered in future land 

use decisions; and 

(D) Cultural and sacred sites that are 

significant, even if they cannot be 

valued in monetary terms. 

(3) A mitigation strategy that provides 

the Indian Tribal government’s 

blueprint for reducing the potential 

losses identified in the risk assessment, 

based on existing authorities, policies, 

programs and resources, and its ability 

to expand on and improve these existing 

tools. This section must include: 

(i) A description of mitigation goals to 

reduce or avoid long-term 

vulnerabilities to the identified hazards. 

(ii) A section that identifies and 

analyzes a comprehensive range of 

specific mitigation actions and projects 

being considered to reduce the effects of 

each hazard, with particular emphasis 

on new and existing buildings and 

infrastructure. 

(iii) An action plan describing how 

the actions identified in paragraph 

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

prioritized, implemented, and 

administered by the Indian Tribal 

government. 

(iv) A discussion of the Indian Tribal 

government’s pre- and post-disaster 

hazard management policies, programs, 

and capabilities to mitigate the hazards 

in the area, including: An evaluation of 

Tribal laws, regulations, policies, and 

programs related to hazard mitigation as 

well as to development in hazard-prone 

areas; and a discussion of Tribal funding 

capabilities for hazard mitigation 

projects. 

(v) Identification of current and 

potential sources of Federal, Tribal, or 

private funding to implement mitigation 

activities. 

(vi) In accordance with § 77.6(b) of 

this chapter, applicants and 

subapplicants for FMA project grants 

must have a FEMA-approved mitigation 

plan that addresses identified flood 

hazards and provides for reduction of 

flood losses to structures for which 

NFIP coverage is available. 

(4) A plan maintenance process that 

includes: 

(i) A section describing the method 

and schedule of monitoring, evaluating, 

and updating the mitigation plan. 

(ii) A system for monitoring 

implementation of mitigation measures 

and project closeouts. 

(iii) A process by which the Indian 

Tribal government incorporates the 

requirements of the mitigation plan into 

other planning mechanisms such as 

reservation master plans or capital 

improvement plans, when appropriate. 

(iv) Discussion on how the Indian 

Tribal government will continue public 

participation in the plan maintenance 

process. 

(v) A system for reviewing progress on 

achieving goals as well as activities and 

projects identified in the mitigation 

strategy. 

(5) The plan must be formally adopted 

by the governing body of the Indian 

Tribal government prior to submittal to 

FEMA for final review and approval. 

(6) The plan must include assurances 

that the Indian Tribal government will 

comply with all applicable Federal 

statutes and regulations in effect with 

respect to the periods for which it 

receives grant funding, including 2 CFR 

parts 200 and 3002. The Indian Tribal 

government will amend its plan 

whenever necessary to reflect changes 

in Tribal or Federal laws and statutes. 

(d) Plan review and updates. (1) Plans 

must be submitted to the appropriate 

FEMA Regional Office for formal review 

and approval. Indian Tribal 

governments who would like the option 

of being a subrecipient under the State 

must also submit their plan to the State 

Hazard Mitigation Officer for review 

and coordination. 

(2) The Regional review will be 

completed within 45 days after receipt 

from the Indian Tribal government, 

whenever possible. 

(3) Indian Tribal governments must 

review and revise their plan to reflect 

changes in development, progress in 

local mitigation efforts, and changes in 

priorities, and resubmit it for approval 

within 5 years in order to continue to 

be eligible for non-emergency Stafford 

Act assistance and FEMA mitigation 

grant funding. 

PART 206—FEDERAL DISASTER 

ASSISTANCE 

■ 21. The authority citation for part 206 

is revised to read as follows: 

Authority: Robert T. Stafford Disaster 

Relief and Emergency Assistance Act, 42 

U.S.C. 5121 through 5207; Homeland 

Security Act of 2002, 6 U.S.C. 101 et seq.; 

Department of Homeland Security Delegation 

9001.1; sec. 1105, Pub. L. 113–2, 127 Stat. 43 

(42 U.S.C. 5189a note). 

■ 22. Revise § 206.431 to read as 

follows: 

§ 206.431 Definitions. 

Activity means any mitigation 

measure, project, or action proposed to 

reduce risk of future damage, hardship, 

loss or suffering from disasters. 

Applicant means the non-Federal 

entity consisting of a State or Indian 

Tribal government, applying to FEMA 

for a Federal award under the Hazard 

Mitigation Grant Program. Upon award, 

the applicant becomes the recipient and 

may also be a pass-through entity. 

Enhanced State Mitigation Plan is the 

hazard mitigation plan approved under 

44 CFR part 201 as a condition of 

receiving increased funding under the 

HMGP. 

Grant application means the request 

to FEMA for HMGP funding, as outlined 

in § 206.436, by a State or Tribal 

government that will act as recipient. 

Grant award means total of Federal 

and non-Federal contributions to 

complete the approved scope of work. 

Indian Tribal government means any 

Federally recognized governing body of 

an Indian or Alaska Native Tribe, band, 

nation, pueblo, village, or community 

that the Secretary of Interior 

acknowledges to exist as an Indian Tribe 

under the Federally Recognized Indian 

Tribe List Act of 1994, 25 U.S.C. 5131. 

This does not include Alaska Native 


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corporations, the ownership of which is 

vested in private individuals. Indian 

Tribal governments have the option to 

apply as an applicant or subapplicant. 

Local Mitigation Plan is the hazard 

mitigation plan required of a local 

government acting as a subrecipient as 

a condition of receiving a project 

subaward under the HMGP as outlined 

in 44 CFR 201.6. 

Pass-through entity means a recipient 

that provides a subaward to a 

subrecipient. 

Recipient means the State or Indian 

Tribal government that receives a 

Federal award directly from FEMA. A 

recipient may also be a pass-through 

entity. The term recipient does not 

include subrecipients. The recipient is 

the entire legal entity even if only a 

particular component of the entity is 

designated in the grant award 

document. Generally, the State is the 

recipient. However, an Indian Tribal 

government may choose to be a 

recipient, or may act as a subrecipient 

under the State. An Indian Tribal 

government acting as recipient will 

assume the responsibilities of a ‘‘State’’, 

as described in this part, for the 

purposes of administering the grant. 

Standard State Mitigation Plan is the 

hazard mitigation plan approved under 

44 CFR part 201, as a condition of 

receiving Stafford Act assistance as 

outlined in § 201.4 of this chapter. 

State Administrative Plan for the 

Hazard Mitigation Grant Program means 

the plan developed by the State to 

describe the procedures for 

administration of the HMGP. 

Subapplicant means the State agency, 

local government, eligible private 

nonprofit organization, or Indian Tribal 

government submitting a subapplication 

to the applicant for financial assistance 

under HMGP. Upon award, the 

subapplicant becomes the subrecipient. 

Subaward means an award provided 

by a pass-through entity to a 

subrecipient for the subrecipient to 

carry out part of a Federal award. 

Subaward application means the 

request to the recipient for HMGP 

funding by the eligible subrecipient, as 

outlined in § 206.436. 

Subrecipient means the government 

or other legal entity to which a 

subaward is awarded and which is 

accountable to the recipient for the use 

of the funds provided. Subrecipients 

can be a State agency, local government, 

private nonprofit organization, or Indian 

Tribal government as outlined in 

§ 206.433. Indian Tribal governments 

acting as a subrecipient are accountable 

to the State recipient. 

Tribal Mitigation Plan is the hazard 

mitigation plan required of an Indian 

Tribal government acting as a recipient 

or subrecipient as a condition of 

receiving a project award or subaward 

under the HMGP as outlined in 44 CFR 

201.7. 

■ 23. Amend § 206.432 by revising 

paragraphs (b) introductory text, (b)(2) 

and (3), and (c) 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 the Stafford Act for 

the major disaster (less associated 

administrative costs), and must be as 

follows: 

* * * * * 

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

an approved Enhanced State Mitigation 

Plan, in effect before the disaster 

declaration, which meets the 

requirements outlined in § 201.5 of this 

subchapter will be eligible for assistance 

under the HMGP not to exceed 20 

percent of such amounts, for amounts 

not more than $35.333 billion. 

(3) The estimates of Federal assistance 

under this paragraph (b) will be based 

on the Regional Administrator’s 

estimate of all eligible costs, actual 

grants, and appropriate mission 

assignments. 

(c) Cost sharing. All mitigation 

measures approved under the State’s 

grant will be subject to the cost sharing 

provisions established in the FEMAState Agreement. FEMA may contribute 

up to 75 percent of the cost of measures 

approved for funding under the Hazard 

Mitigation Grant Program for major 

disasters declared on or after June 10, 

1993. The non-Federal share may 

exceed the Federal share. FEMA will 

not contribute to costs above the 

Federally approved estimate. 

■ 24. Amend § 206.433 by revising 

paragraph (a) to read as follows: 

§ 206.433 State responsibilities. 

(a) Recipient. The State will be the 

recipient to which funds are awarded 

and will be accountable for the use of 

those funds. There may be subrecipients 

within the State government. 

* * * * * 

■ 25. Amend § 206.434 by revising 

paragraphs (a), (b), (c)(1) and (5), (d)(1), 

and (e) to read as follows: 

§ 206.434 Eligibility. 

(a) Eligible entities. The following are 

eligible to apply for the Hazard 

Mitigation Program Grant: 

(1) Applicants—States and Indian 

Tribal governments; 

(2) Subapplicants—(i) State agencies 

and local governments; 

(ii) Private nonprofit organizations 

that own or operate a private nonprofit 

facility as defined in § 206.221(e). A 

qualified conservation organization as 

defined at § 80.3(h) of this chapter is the 

only private nonprofit organization 

eligible to apply for acquisition or 

relocation for open space projects; 

(iii) Indian Tribal governments. 

(b) Plan requirement. (1) Local and 

Indian Tribal government applicants for 

project subawards must have an 

approved local or Tribal Mitigation Plan 

in accordance with 44 CFR part 201 

before receipt of HMGP subaward 

funding for projects. 

(2) Regional Administrators may grant 

an exception to this requirement in 

extraordinary circumstances, such as in 

a small and impoverished community 

when justification is provided. In these 

cases, a plan will be completed within 

12 months of the award of the project 

subaward. If a plan is not provided 

within this timeframe, the project 

subaward will be terminated, and any 

costs incurred after notice of subaward’s 

termination will not be reimbursed by 

FEMA. 

(c) * * * 

(1) Be in conformance with the State 

Mitigation Plan and Local or Tribal 

Mitigation Plan approved under 44 CFR 

part 201; or for Indian Tribal 

governments acting as recipients, be in 

conformance with the Tribal Mitigation 

Plan approved under 44 CFR 201.7; 

* * * * * 

(5) Be cost-effective and substantially 

reduce the risk of future damage, 

hardship, loss, or suffering resulting 

from a major disaster. The recipient 

must demonstrate this by documenting 

that the project; 

(i) Addresses a problem that has been 

repetitive, or a problem that poses a 

significant risk to public health and 

safety if left unsolved, 

(ii) Will not cost more than the 

anticipated value of the reduction in 

both direct damages and subsequent 

negative impacts to the area if future 

disasters were to occur, 

(iii) Has been determined to be the 

most practical, effective, and 

environmentally sound alternative after 

consideration of a range of options, 

(iv) Contributes, to the extent 

practicable, to a long-term solution to 

the problem it is intended to address, 

(v) Considers long-term changes to the 

areas and entities it protects, and has 

manageable future maintenance and 

modification requirements. 

(d) * * * (1) Planning. Up to 7% of 

the State’s HMGP award may be used to 

develop State, Tribal and/or local 


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mitigation plans to meet the planning 

criteria outlined in 44 CFR part 201. 

* * * * * 

(e) Property acquisitions and 

relocation requirements. Property 

acquisitions and relocation projects for 

open space proposed for funding 

pursuant to a major disaster declared on 

or after December 3, 2007 must be 

implemented in accordance with part 80 

of this chapter. 

* * * * * 

§ 206.435 [Amended] 

■ 26. Amend § 206.435 by removing the 

word ‘‘shall’’ and adding in its place the 

word ‘‘will’’ in the last sentence of 

paragraph (a). 

■ 27. Amend § 206.436 by revising 

paragraphs (a), (b), (c) introductory text, 

(c)(1), (e), and (g) to read as follows: 

§ 206.436 Application procedures. 

(a) General. This section describes the 

procedures to be used by the recipient 

in submitting an application for HMGP 

funding. Under the HMGP, the State or 

Indian Tribal government is the 

recipient and is responsible for 

processing subawards to applicants in 

accordance with 2 CFR parts 200 and 

3002. Subrecipients are accountable to 

the recipient. 

(b) Governor’s Authorized 

Representative. The Governor’s 

Authorized Representative serves as the 

grant administrator for all funds 

provided under the Hazard Mitigation 

Grant Program. The Governor’s 

Authorized Representative’s 

responsibilities as they pertain to 

procedures outlined in this section 

include providing technical advice and 

assistance to eligible subrecipients, and 

ensuring that all potential applicants are 

aware of assistance available and 

submission of those documents 

necessary for grant award. 

(c) Hazard mitigation application. 

Upon identification of mitigation 

measures, the State (Governor’s 

Authorized Representative) will submit 

its Hazard Mitigation Grant Program 

application to the FEMA Regional 

Administrator. The application will 

identify one or more mitigation 

measures for which funding is 

requested. The application must include 

a Standard Form (SF) 424, Application 

for Federal Assistance, SF 424D, 

Assurances for Construction Programs, 

if appropriate, and a narrative 

statement. The narrative statement will 

contain any pertinent project 

management information not included 

in the State’s administrative plan for 

Hazard Mitigation. The narrative 

statement will also serve to identify the 

specific mitigation measures for which 

funding is requested. Information 

required for each mitigation measure 

must include the following: 

(1) Name of the subrecipient, if any; 

* * * * * 

(e) Extensions. The State may request 

the Regional Administrator to extend 

the application time limit by 30 to 90 

day increments, not to exceed a total of 

180 days. The recipient must include a 

justification in its request. 

* * * * * 

(g) Indian Tribal recipients. Indian 

Tribal governments may submit a SF 

424 directly to the Regional 

Administrator. 

■ 28. Amend § 206.437 by revising 

paragraphs (a), (b)(4)(i), (x), and (xiii), 

and (d) to read as follows: 

§ 206.437 State administrative plan. 

(a) General. The State must develop a 

plan for the administration of the 

Hazard Mitigation Grant Program. 

(b) * * * 

(4) * * * 

(i) Identify and notify potential 

applicants (subrecipients) of the 

availability of the program; 

* * * * * 

(x) Provide technical assistance as 

required to subrecipient(s); 

* * * * * 

(xiii) Determine the percentage or 

amount of pass-through funds for 

management costs provided under 44 

CFR part 207 that the recipient will 

make available to subrecipients, and the 

basis, criteria, or formula for 

determining the subrecipient percentage 

or amount. 

* * * * * 

(d) Approval. The State must submit 

the administrative plan to the Regional 

Administrator for approval. Following 

each major disaster declaration, the 

State must prepare any updates, 

amendments, or plan revisions required 

to meet current policy guidance or 

changes in the administration of the 

Hazard Mitigation Grant Program. 

Funds will not be awarded until the 

State Administrative Plan is approved 

by the FEMA Regional Administrator. 

■ 29. Revise § 206.438 to read as 

follows: 

§ 206.438 Project management. 

(a) General. The State serving as 

recipient has primary responsibility for 

project management and accountability 

of funds as indicated in 2 CFR parts 200 

and 3002 and 44 CFR part 206. The 

State is responsible for ensuring that 

subrecipients meet all program and 

administrative requirements. 

(b) Cost overruns. During the 

execution of work on an approved 

mitigation measure the Governor’s 

Authorized Representative may find 

that actual project costs are exceeding 

the approved estimates. Cost overruns 

which can be met without additional 

Federal funds, or which can be met by 

offsetting cost underruns on other 

projects, need not be submitted to the 

Regional Administrator for approval, so 

long as the full scope of work on all 

affected projects can still be met. For 

cost overruns which exceed Federal 

obligated funds and which require 

additional Federal funds, the Governor’s 

Authorized Representative will evaluate 

each cost overrun and submit a request 

with a recommendation to the Regional 

Administrator for a determination. The 

applicant’s justification for additional 

costs and other pertinent material must 

accompany the request. The Regional 

Administrator will notify the Governor’s 

Authorized Representative in writing of 

the determination and process a 

supplement, if necessary. All requests 

that are not justified must be denied by 

the Governor’s Authorized 

Representative. In no case will the total 

amount obligated to the State exceed the 

funding limits set forth in § 206.432(b). 

Any such problems or circumstances 

affecting project costs must be identified 

through the quarterly progress reports 

required in paragraph (c) of this section. 

(c) Progress reports. The recipient 

must submit a quarterly progress report 

to FEMA indicating the status and 

completion date for each measure 

funded. Any problems or circumstances 

affecting completion dates, scope of 

work, or project costs which are 

expected to result in noncompliance 

with the approved grant conditions 

must be described in the report. 

(d) Payment of claims. The Governor’s 

Authorized Representative will make a 

claim to the Regional Administrator for 

reimbursement of allowable costs for 

each approved measure. In submitting 

such claims the Governor’s Authorized 

Representative must certify that 

reported costs were incurred in the 

performance of eligible work, that the 

approved work was completed and that 

the mitigation measure is in compliance 

with the provisions of the FEMA-State 

Agreement. The Regional Administrator 

will determine the eligible amount of 

reimbursement for each claim and 

approve payment. If a mitigation 

measure is not completed, and there is 

not adequate justification for 

noncompletion, no Federal funding will 

be provided for that measure. 

(e) Audit requirements. Uniform audit 

requirements as set forth in 2 CFR parts 

200 and 3002 and 44 CFR part 206 


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1https://www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/memoranda/2017/M-17- 

22.pdf. 

apply to all grant assistance provided 

under this subpart. FEMA may elect to 

conduct a Federal audit on the disaster 

assistance award or on any of the 

subawards. 

■ 30. Amend § 206.439 by revising the 

second sentence of paragraph (c) to read 

as follows: 

§ 206.439 Allowable costs. 

* * * * * 

(c) * * * Recipients and 

subrecipients may be reimbursed for 

eligible pre-award costs for activities 

directly related to the development of 

the project or planning proposal. * * * 

■ 31. Amend § 206.440 by revising the 

introductory text and paragraphs (a), (b) 

paragraph heading, (c) paragraph 

heading, (c)(2) and (3), (d), and (e)(3) to 

read as follows: 

§ 206.440 Appeals. 

An eligible applicant, subrecipient, or 

recipient may appeal any determination 

previously made related to an 

application for or the provision of 

Federal assistance according to the 

procedures in this section. 

(a) Format and content. The applicant 

or recipient will make the appeal in 

writing through the recipient to the 

Regional Administrator. The recipientwill review and evaluate all 

subrecipient appeals before submission 

to the Regional Administrator. The 

recipient may make recipient-related 

appeals to the Regional Administrator. 

The appeal must contain documented 

justification supporting the appellant’s 

position, specifying the monetary figure 

in dispute and the provisions in Federal 

law, regulation, or policy with which 

the appellant believes the initial action 

was inconsistent. 

* * * * * 

(b) Levels of appeal. * * * 

(c) Time limits. * * * 

(2) The recipient will review and 

forward appeals from an applicant or 

subrecipient, with a written 

recommendation, to the Regional 

Administrator within 60 days of receipt. 

(3) Within 90 days following receipt 

of an appeal, the Regional Administrator 

(for first appeals) or Assistant 

Administrator for the Mitigation 

Directorate (for second appeals) will 

notify the recipient in writing of the 

disposition of the appeal or of the need 

for additional information. A request by 

the Regional Administrator or Assistant 

Administrator for the Mitigation 

Directorate for additional information 

will include a date by which the 

information must be provided. Within 

90 days following the receipt of the 

requested additional information or 

following expiration of the period for 

providing the information, the Regional 

Administrator or Assistant 

Administrator for the Mitigation 

Directorate will notify the recipient in 

writing of the disposition of the appeal. 

If the decision is to grant the appeal, the 

Regional Administrator will take 

appropriate implementing action. 

(d) Technical advice. In appeals 

involving highly technical issues, the 

Regional Administrator or Assistant 

Administrator for the Mitigation 

Directorate may, at his or her discretion, 

submit the appeal to an independent 

scientific or technical person or group 

having expertise in the subject matter of 

the appeal for advice or 

recommendation. The period for this 

technical review may be in addition to 

other allotted time periods. Within 90 

days of receipt of the report, the 

Regional Administrator or Assistant 

Administrator for the Mitigation 

Directorate will notify the recipient in 

writing of the disposition of the appeal. 

(e) * * * 

(3) The decision of the FEMA official 

at the next higher appeal level will be 

the final administrative decision of 

FEMA. 

Deanne B. Criswell, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. 2021–19186 Filed 9–9–21; 8:45 am] 

BILLING CODE 9110–11–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 501 

[Docket No. 21–07] 

RIN 3027–AC88 

Internal Commission Organization and 

Delegations of Authority 

AGENCY: Federal Maritime Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Maritime 

Commission (Commission) amends its 

rules governing the Commission’s 

organization and the delegation and 

redelegation of authorities. These 

regulatory changes also reflect the 

implementation of the Commission’s 

Agency Reform and Long-Term 

Workforce Plan. 

DATES: This final rule is effective 

September 10, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Rachel E. Dickon, Secretary. Phone: 

(202) 523–5725. Email: secretary@

fmc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Final Rule 

Part 501 describes the basic statutory 

requirements of the Commission, the 

internal structure of the Commission, 

the functions of the Commission’s 

organizational component offices, and 

outlines the delegation of the 

Commission’s duties and authorities to 

these offices. The final rule reflects 

changes made as part of the 

Commission’s Agency Reform and LongTerm Workforce Plan, developed under 

the guidance of Office of Management 

and Budget Memorandum 17–22, 

Comprehensive Plan for Reforming the 

Federal Government and Reducing the 

Federal Civilian Workforce,1 as well as 

subsequent organizational changes. The 

Commission is amending its rules at 46 

CFR part 501 to reflect the realignment 

of various offices and the elimination of 

certain positions, clarify the authority of 

office heads to delegate duties in their 

absence, and eliminate or modify 

certain out-of-date provisions. 

In addition to making necessary 

updates to part 501, the final rule 

streamlines the information provided in 

part 501, removing certain information 

that the Commission will instead 

publish on its website or that is 

currently provided in other parts of the 

Code of Federal Regulations. The chart 

below describes the existing sections in 

part 501 and the nature of the changes 

made in the final rule. 

Section Summary of existing section Changes made in this final rule 

501.1 .................. Purpose of part 501 ................................................................. Retain in part 501 and revise to reflect the changes below. 

501.2 .................. Lists the Commission’s statutory functions and describes the 

terms, appointment, and regulations that apply to the Commissioners.

Retain in part 501 and update. 


jbell on DSKJLSW7X2PROD with RULES