22438 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

§§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33,

97.35 [Amended]

By amending: § 97.23 VOR, VOR/

DME, VOR or TACAN, and VOR/DME

or TACAN; § 97.25 LOC, LOC/DME,

LDA, LDA/DME, SDF, SDF/DME;

§ 97.27 NDB, NDB/DME; § 97.29 ILS,

ILS/DME, ISMLS, MLS, MLS/DME,

MLS/RNAV; § 97.31 RADAR SIAPs;

§ 97.33 RNAV SIAPs; and § 97.35

COPTER SIAPs, identified as follows:

**Effective May 17, 2001

Pittsburgh, PA, Pittsburgh International, ILS

RWY 10C, Orig

Pittsburgh, PA, Pittsburgh International, ILS

RWY 28C, Orig

Union City, TN, Everett-Stewart, SDF RWY 1,

Amdt 5, CANCELLED

Union City, TN, Everett-Stewart, NDB OR

GPS RWY 1, Amdt 6

Union City, TN, Everett-Stewart, ILS RWY 1,

Orig

***Effective July 12, 2001

Dothan, AL, Dothan Regional, RNAV (GPS)

RWY 14, Orig

Dothan, AL, Dothan Regional, RNAV (GPS)

RWY 18, Orig

Tuskegee, AL, Moton Field Muni, VOR–A,

Amdt 4

Tuskegee, AL, Moton Field Muni, RNAV

(GPS) RWY 13, Orig

Tuskegee, AL, Moton Field Muni, RNAV

(GPS) RWY 31, Orig

Bethel, AK, Bethel, VOR/DME–B, Orig

Bethel, AK, Bethel, RNAV (GPS)–A, Orig

Emmonak, AK, Emmonak, RNAV (GPS) RWY

16, Orig

Emmonak, AK, Emmonak, RNAV (GPS) RWY

34, Orig

Fort Smith, AR, Fort Smith Regional, RNAV

(GPS) RWY 1, Orig

Fort Smith, AR, Fort Smith Regional, RNAV

(GPS) RWY 7, Orig

Fort Smith, AR, Fort Smith Regional, RNAV

(GPS) RWY 25, Orig

Fort Smith, AR, Fort Smith Regional, ILS

RWY 25, Amdt 21

Fort Smith, AR, Fort Smith Regional, NDB

RWY 7, Amdt 8

Fort Smith, AR, Fort Smith Regional, VOR/

DME OR TACAN RWY 7, Amdt 11

Fort Smith, AR, Fort Smith Regional,

RADAR–1, Amdt 8

Gainesville, FL, Gainesville Regional, RNAV

(GPS) RWY 6, Orig

Gainesville, FL, Gainesville Regional, RNAV

(GPS) RWY 10, Orig

Gainesville, FL, Gainesville Regional, RNAV

(GPS) RWY 24, Orig

Gainesville, FL, Gainesville Regional, RNAV

(GPS) RWY 28, Orig

Gainesville, FL, Gainesville Regional, GPS

RWY 6, Orig, CANCELLED

Gainesville, FL, Gainesville Regional, GPS

RWY 10, Orig, CANCELLED

Gainesville, FL, Gainesville Regional, GPS

RWY 24, Orig, CANCELLED

Gainesville, FL, Gainesville Regional, GPS

RWY 28, Orig, CANCELLED

Thomson, GA, Thomson-McDuffie County,

NDB RWY 10, Orig

Thomson, GA, Thomson-McDuffie County,

ILS RWY 10, Orig

Colby, KS, Shaltz Field, RNAV RWY 17, Orig

Colby, KS, Shaltz Field, RNAV RWY 35, Orig

Colby, KS, Shaltz Field, NDB RWY 17, Amdt

1

Pittsburg, KS, Atkinson Muni, RNAV (GPS)

RWY 3, Orig

Pittsburg, KS, Atkinson Muni, RNAV (GPS)

RWY 16, Orig

Pittsburg, KS, Atkinson Muni, RNAV (GPS)

RWY 21, Orig

Pittsburg, KS, Atkinson Muni, RNAV (GPS)

RWY 34, Orig

Pittsburg, KS, Atkinson Muni, NDB–A, Orig

Pittsburg, KS, Atkinson Muni, VOR/DME

RWY 3, Amdt 3

Pittsburg, KS, Atkinson Muni, NDB OR GPS

RWY 16, Amdt 3A, CANCELLED

St. James, MN, St. James Muni, RNAV (GPS)

RWY 15, Orig

St. James, MN, St. James Muni, RNAV (GPS)

RWY 33, Orig

Columbia, MO, Columbia Regional, VOR

RWY 13, Amdt 3

Columbia, MO, Columbia Regional, VOR

RWY 20, Amdt 4

Columbia, MO, Columbia Regional, VOR/

DME RWY 20, Amdt 3

Columbia, MO, Columbia Regional, NDB

RWY 2, Amdt 9

Columbia, MO, Columbia Regional, RNAV

(GPS) RWY 2, Orig

Columbia, MO, Columbia Regional, RNAV

(GPS) RWY 13, Orig

Columbia, MO, Columbia Regional, RNAV

(GPS) RWY 20, Orig

Columbia, MO, Columbia Regional, RNAV

(GPS) RWY 31, Orig

Lebanon, MO, Floyd W. Jones Lebanon,

RNAV RWY 18, Orig

Lebanon, MO, Floyd W. Jones Lebanon,

RNAV RWY 36, Orig

Lebanon, MO, Floyd W. Jones Lebanon, NDB

RWY 36, Amdt 6

Lebanon, MO, Floyd W. Jones Lebanon, SDF

RWY 36, Amdt 5

Salem, MO, Salem Memorial, VOR–A, Orig

Salem, MO, Salem Memorial, RNAV (GPS)

RWY 17 Orig

Salem, MO, Salem Memorial, RNAV (GPS)

RWY 35, Orig

Washington, MO, Washington Memorial,

RNAV RWY 16, Orig

Washington, MO, Washington Memorial,

RNAV RWY 34, Orig

Washington, MO, Washington Memorial,

VOR RWY 16, Amdt 2

Lehighton, PA, Jake Arner Memorial, NDB

RWY 8, Amdt 3

Lehighton, PA, Jake Arner Memorial, NDB

RWY 26, Amdt 4

Lehighton, PA, Jake Arner Memorial, RNAV

(GPS) RWY 8, Orig

Lehighton, PA, Jake Arner Memorial, RNAV

(GPS) RWY 26, Orig

Rapid City, SD, Rapid City Regional, VOR OR

TACAN RWY 14, Orig-B

Rapid City, SD, Rapid City Regional, RNAV

(GPS) RWY 14, Orig

Knoxville, TN, McGhee Tyson, RNAV (GPS)

RWY 5L, Orig

Knoxville, TN, McGhee Tyson, RNAV (GPS)

RWY 23R, Orig

Appleton, WI, Outagamie County Regional,

RNAV (GPS) RWY 29, Orig

Note: The FAA published the following

procedures in Docket No. 30243, Amdt. No.

2046 to Part 97 of the Federal Aviation

Regulation (VOL 66, No. 78, Page 20392,

dated Monday, April 23, 2001) under section

97.33 effective May 17, 2001, which are

hereby amended as follows:

Change effective date to 12 July 2001 for

the following procedures:

Dothan, AL, Dothan Regional, RNAV (GPS)

RWY 14, Orig

Dothan, AL, Dothan Regional, RNAV (GPS)

RWY 18, Orig

Emmonak, AK, Emmonak, RNAV (GPS) RWY

16, Orig

Emmonak, AK, Emmonak, RNAV (GPS) RWY

34, Orig

Note: The FAA published the following

procedures in Docket No. 30243, Amdt. No.

2046 to Part 97 of the Federal Aviation

Regulation (VOL 66, No. 78, Page 20392,

dated Monday, April 23, 2001) under section

97.33 effective July 12, 2001, which are

hereby amended as follows:

Wilmington, NC, Wilmington Intl, GPS RWY

6, Amdt 1A, Should Read: GPS RWY 6

Amdt 1A CANCELLED

Wilmington, NC, Wilmington Intl, GPS RWY

24, Amdt 1A, Should Read: GPS RWY 24

Amdt 1A CANCELLED

[FR Doc. 01–11255 Filed 5–3–01; 8:45 am]

BILLING CODE 4910–13–M

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 65

RIN 3067–AD13

National Flood Insurance Program

(NFIP); Letter of Map Revision and

Letter of Map Revision Based on Fill

Requests

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Final rule.

SUMMARY: This final rule changes

procedures for issuing Letters of Map

Revision (also referred to as LOMRs)

and Letters of Map Revision Based on

Fill (also referred to as LOMR–Fs). We

use these criteria to determine whether

a LOMR–F can be issued to remove

unimproved land or land with

structures from the Special Flood

Hazard Area (SFHA) by raising ground

elevations using engineered earthen fill.

EFFECTIVE DATE: June 4, 2001.

FOR FURTHER INFORMATION CONTACT:

Matthew B. Miller, P.E., Chief, Hazards

Study Branch, Technical Services

Division, Mitigation Directorate, Federal

Emergency Management Agency, 500 C

Street, SW., Washington, DC 20472,

(202) 646–3461, (facsimile) (202) 646–

4596, or (email) matt.miller@fema.gov.

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22439

SUPPLEMENTARY INFORMATION:

Comments

On October 10, 2000, we (FEMA)

published a proposed rule at 65 FR

60159 that would revise the procedures

under which we issue LOMRs and

LOMR–Fs.

We received eight letters and e-mail

messages about the proposed rule. Many

of these contained multiple comments

and, in a number of cases, the

submissions raised similar issues and

concerns. One organization submitted

two sets of comments.

The following submitted comments

on the proposed rule:

• Four State water resource agencies;

• One State association for the

building industry;

• One national association for

floodplain management;

• One regional association for

communities;

• One private legal firm.

Each of the following sections treats

an issue raised by the public during the

comment period and explains our

reasons for adopting, modifying, or

rejecting a given recommendation.

General Comments. One commenter

supported the proposed rule as written

and urged its expeditious adoption. One

commenter generally supported the rule

change.

Our Response: None.

Burden on Local Officials. Two

commenters expressed the opinion that

the requirement for local communities

to assure a building site as ‘‘reasonably

safe from flooding’’ would impose a

burden on them, and one suggested that

FEMA should make the review and

provide the assurance, if appropriate.

Our Response: It is important to note

that the requirement for local

communities to determine ‘‘whether

proposed building sites will be

reasonably safe from flooding’’ is not a

new requirement. It has been a part of

the NFIP regulations since at least

January 8, 1973 (36 FR 24762, December

22, 1971, as amended at 38 FR 1001,

January 8, 1973). Currently, this

requirement applies to any community

that has applied for and been accepted

for participation in the NFIP. Further,

the community may require that the

property owner’s design professional

provide the assurance that the structure

is ‘‘reasonably safe from flooding’’. We

are also providing Technical Bulletin

10–00 to assist communities and design

professionals in evaluating structures.

This final rule simply emphasizes the

long-standing requirement outlined in

paragraph 60.3(a)(3) and therefore, does

not impose any new burden on local

communities.

Certification of Data. One commenter

felt that the determination that land or

structures are ‘‘reasonably safe from

flooding’’ was beyond the expertise of

many registered professional engineers

and certified land surveyors. They

suggested that the determination be

made by a qualified design professional

with appropriate expertise.

Our Response: The complexity of

these determinations is highly

dependent on site-specific conditions

that will vary within the participating

community. Furthermore, the ability of

local governments to make these

decisions will vary from community to

community as will State laws regarding

professional accreditation, certification,

and licensing. This variability makes it

difficult to prescribe a single solution

applicable in all cases. We therefore will

rely upon the judgment of the

participating community and expect

them to meet all State or local

requirements regarding the use of design

professionals when making these

determinations.

Communities May Lack Qualified

Staff. One commenter felt that many

communities may not have qualified

staff or resources to determine whether

land or a structure is ‘‘reasonably safe

from flooding’’, and may choose not to

make the determination.

Our Response: The technical bulletin

is being provided to give guidance for

determining when land or structures

can be considered ‘‘reasonably safe from

flooding’’. In lieu of using the guidance

in the technical bulletin, a community

may choose to require the floodplain

map revision requester’s qualified

design professional assure the land or

structures to be removed from the SFHA

are ‘‘reasonably safe from flooding’’. The

participating community can then rely

on the qualified design professional’s

assurance if it so chooses. However, it

is ultimately the participating

community’s responsibility for assuring

that the areas being removed from the

SFHA are ‘‘reasonably safe from

flooding.’’

Conflict with Section 60.3. Three

commenters noted that the proposed

change to paragraph 65.5(a)(4) violates

the provisions of paragraph 60.3(c)(2),

in that it allows lowest floor elevations

to be below the Base (100-year) Flood

Elevation (BFE) and allows the structure

to be removed from the SFHA, which in

turn allows Federal financial assistance

without the requirement of flood

insurance coverage.

Our Response: It is not the intent of

the rule to encourage or allow violations

of existing Federal regulations.

Therefore, the rule has been reworded to

emphasize the minimum floodplain

management requirements of § 60.3

must be met before a revision to the

SFHA can be made. The rule does allow

for the removal of land or a structure

when violations have occurred, but only

after all violations have been remedied

by the community to the maximum

extent possible and the land or

structures have been determined by the

community to be ‘‘reasonably safe from

flooding.’’

Use of Design Professionals. Two

commenters felt that a determination of

‘‘reasonably safe from flooding’’ should

be made by a qualified design

professional instead of the participating

community.

Our Response: The participating

community may, if it wishes, require

that the party requesting removal of

land or structures from the SFHA

provide assurance by a qualified design

professional that standard professional

practices have been applied and that the

criteria described in Technical Bulletin

10–00 have been, or will be met. If it so

chooses, the community may rely on the

design professional for assurance that

the land or structures being removed

from the SHFA are ‘‘reasonably safe

from flooding.’’ However, it is

ultimately the participating

community’s responsibility to assure

areas being removed from the SFHA are

‘‘reasonably safe from flooding.’’

Education Needed Before Rule

Change. One commenter supported the

rule change but felt that education for

community officials and property

owners was needed first.

Our Response: The technical bulletin

is being provided to guide and educate

community officials, design

professionals, and property owners

considering development in SFHAs.

The technical bulletin discourages

unwise and unsafe building practices

and emphasizes elevation as the

preferred means of ensuring land and

structures are ‘‘reasonably safe from

flooding.’’

Flood-Proofed Residential Basements.

One commenter felt that the rule would

create a variance for floodproofed

residential basements outlined in

§ 60.6(c) without formal FEMA

recognition, which would lead to

requests for floodproofed rates for the

structures. Another commenter felt that

the requirements outlined in § 60.6(c)

should be simplified so that all

communities could allow floodproofed

basements.

Our Response: The purpose of the

rule is not to allow planning and

construction of lowest floors below the

BFE in filled floodplains. Rather the

purpose is to provide a means of

removing from the floodplain lands that

22440 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

have been filled to or above the BFE. In

some situations this process may result

in revising flood hazard areas where

violations of NFIP minimum floodplain

management regulations have occurred.

However, this will only occur if the

violations are remedied to the maximum

extent possible and the land or

structures have been determined by the

community to be ‘‘reasonably safe from

flooding.’’ If the community cannot do

so, the LOMR–F will not be issued. If an

area or structure is removed from the

SFHA, the federally mandated purchase

of flood insurance will not apply and

the cost of flood insurance will likely go

down. Flood-proofed residential

structures built in communities in

compliance with approved basement

exception procedures are eligible for

consideration under paragraph 65.5

(a)(4) of this final rule.

Infrastructure. One commenter asked

the meaning of ‘‘infrastructure’’ in the

proposed definition in § 65.2(c).

Our Response: The term

‘‘infrastructure’’ has been removed from

the definition in the final rule.

Insurance Waiver. Two commenters

suggested that, instead of allowing

removal of land or structures from the

SFHA designation, FEMA should

simply issue a waiver of the insurance

requirement.

Our Response: The requirement for

flood insurance coverage for property

located in an SFHA is statutory (42

U.S.C. 4012a(b)). The Flood Disaster

Protection Act of 1973, as amended,

requires that regulated lending

institutions, Federal agency lenders, and

government sponsored enterprises for

housing examine the NFIP map to

determine whether a property for which

it is contemplating making, extending,

or renewing a loan is in an SFHA. If so,

they must place the requirement for

flood insurance coverage on the

property before completing the loan

transaction. The requirement for flood

insurance purchase is placed by the

lending institution underwriting the

loan and cannot be waived by any other

party without a change in the Act.

Status of States. One commenter

asked whether a State is considered a

‘‘community’’ with respect to the rule.

Our Response: A State is considered

an NFIP community when it regulates

its own actions on State lands and is

exempt from local permitting

requirements. Most States have separate

statutory authority, regulations, or

executive orders that apply to their own

actions. In these situations the State

agency responsible for overseeing

floodplain development by the State

would determine if an area was

‘‘reasonably safe from flooding.’’ In

some instances a State and a community

may both have permitting authority over

development that takes place in that

community. In these situations it is a

matter of State law to determine

whether the State or the community is

the appropriate body to determine if an

area is ‘‘reasonably safe from flooding.’’

Unimproved Land Removed From

SFHA. Two commenters questioned

how structures built after filled areas are

removed from the SFHA would be

affected by NFIP and community

floodplain management requirements.

Our Response: Once the filled area is

removed from the SFHA, it is by

definition no longer subject to the

minimum Federal requirements of

§ 60.3. However, this does not preclude

participating communities or States

from imposing additional restrictions

should they choose to do so. Before land

or structures can be removed from the

SFHA, the community must assure that

the areas are and will be ‘‘reasonably

safe from flooding.’’ It is up to the

participating community to decide how

this will be accomplished. However, in

order to make this assurance they will

likely have to know the location or

proposed location of any buildings on

the site or have other requirements in

place to ensure that future development

is constructed so that it will not be

damaged during the base flood. See the

Technical Bulletin 10–00 for further

guidance on this issue.

Revised Procedures

This section discusses changes in the

procedures used to process LOMR–F

requests. These procedures will apply to

single and multi-lot LOMR–F requests,

which may involve one structure or

multiple structures. These procedures

also apply to LOMRs and they

supersede the interim procedures

published September 1, 1999, at 64 FR

47813. We will process all LOMR and

LOMR–F requests received after June 4,

2001, as follows:

• Paragraphs 65.5(a)(1) through

65.5(a)(7) will apply to requests to

remove land and structures involving

the placement of engineered earthen fill.

• Paragraphs 65.6(a)(1) through

65.6(a)(15) will apply to requests for

LOMRs.

• Community officials must continue

to review map revision requests

involving the placement of engineered

earthen fill within the SFHA on the

community’s FIRM. As part of the

community acknowledgement of LOMR

and LOMR–F requests, the community

must continue to assure that the

minimum floodplain management

criteria outlined in § 60.3 have been

met.

• FEMA will not review a request for

a LOMR or LOMR–F without

community assurances that the request

meets the requirements of § 60.3.

• We will consider structures built in

identified SFHAs that do not meet the

requirements of § 60.3 violations of

NFIP regulations and will take

appropriate action. Further, we will

suspend review of these requests and

others that are potentially in violation of

NFIP regulations until the issues are

resolved and all identified violations

have been remedied through

appropriate State and Federal entities

including FEMA or its designee. Once

all violations have been remedied by the

community to the maximum extent

possible and the community assures the

land or structures are ‘‘reasonably safe

from flooding,’’ we will process the map

revision request using the criteria

outlined in § 65.5(a). Technical Bulletin

10–00 provides further guidance to

community officials when determining

whether land or structures are

‘‘reasonably safe from flooding.’’

• FEMA will review previously

issued determinations for conformity

with these revised procedures upon

written request.

• New LOMR and LOMR–F requests

and requests for redeterminations will

be subject to the current fee schedule

established in 44 CFR part 72.

National Environmental Policy Act

FEMA will not prepare an

environmental analysis under NEPA

since this rule would address an

apparent administrative inconsistency

that has no bearing on building

practices or on the built or natural

environment. This rule removes the

current distinction between fill placed

in an SFHA containing structures and

fill placed in an SFHA without

structures, both of which are allowable

under current laws and regulations

governing participation in the National

Flood Insurance Program. Removing

this distinction resolves an apparent

inconsistency in the floodprone status

of a subset of structures built on fill

within the SFHA. These apparent

inconsistencies resulted from

differences in the administrative

processes followed by communities who

permit development in floodplains

rather than from physical differences in

the built environment. We will continue

to allow earthen fill and other types of

development within the SFHA when

applicable, and we will continue to

require residential structures built in

identified flood hazard areas have their

lowest floor (including basement)

elevated to or above the base flood.

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22441

Regulatory Planning and Review

We have prepared and reviewed this

rule under the provisions of Executive

Order 12866, Regulatory Planning and

Review. Under Executive Order 12866,

58 FR 51735, October 4, 1993, a

significant regulatory action is subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The Executive

Order defines ‘‘significant regulatory

action’’ as one that is likely to result in

a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

This rule changes the criteria that we

use to determine whether we can issue

a LOMR or LOMR–F to remove

unimproved land or land with

structures from the SFHA by raising

ground elevations using earthen fill. We

know of no conditions that would

qualify the rule as a ‘‘significant

regulatory action’’ within the definition

of section 3(f) of the Executive Order. To

the extent possible this rule adheres to

the principles of regulation as set forth

in Executive Order 12866. This rule has

been reviewed by the Office of

Management and Budget under the

provisions of Executive Order 12866.

Paperwork Reduction Act

In accordance with the provisions of

the Paperwork Reduction Act of 1995,

44 U.S.C. 3501 et seq., the OMB

approved the collections of information

applicable to this rule: OMB Number

3067–0147, Report to Submit Technical

or Scientific Data to Correct Mapping

Deficiencies Unrelated to CommunityWide Elevation Determinations

(Amendments & Revisions to National

Flood Insurance Program Map).

Following is a summary of how each

form will be used:

(a) FEMA Form 81–87. Property

Information. This form describes the

location of the property, what is being

requested, and what data are required to

support the request.

(b) FEMA Form 81–87E. Credit Card

Information. This form outlines the

information needed to process a request

when the requester is paying processing

fees by credit card.

(c) FEMA Form 81–87A. Elevation

Information. This form indicates what

the BFE for the property is, how the BFE

was determined, the lowest ground

elevation on the property, and/or the

elevation of the lowest adjacent grade to

any structures on the property. This

information is required for FEMA to

determine whether the property that is

being requested to be removed from the

SFHA is at or above the BFE.

(d) FEMA Form 81–87C. Community

Acknowledgment of Requests Involving

Fill. This form ensures that the

participating community is aware of the

revision request and that the

requirements of § 60.3 have been met.

(e) FEMA Form 81–87D. Summary of

Elevations—Individual Lot Breakdown.

This form is used in conjunction with

the Elevation Information Form for

requests involving multiple lots or

structures. It provides a table to allow

the required submitted data to be

presented in a manner for quick and

efficient review.

The estimated burden on individual

property owners is:

Property Information—1.63 hours

Credit Card Form—0.1 hour

Elevation Information—0.63 hour

Community Acknowledgment of

Requests Involving Fill—0.88 hour

Summary of Elevations—Individual Lot

Breakdown—0.67 hour

The number of requesters will vary

from year to year, as we have no control

over the number of people who will

seek to have determinations made for

their properties. For the purposes of this

rule we estimate the following annual

burdens:

Requesters—2,500

Hours per response—3.91

Total hours—9,775

Regulatory Flexibility Act, 5 U.S.C. 601

Under the Regulatory Flexibility Act

agencies must consider the impact of

their rulemakings on ‘‘small entities’’

(small businesses, small organizations

and local governments). When an

agency is required by 5 U.S.C. 553 to

publish a notice of rulemaking, a

regulatory flexibility analysis is required

for both the notice and the final rule if

the rulemaking could ‘‘have a

significant economic impact on a

substantial number of small entities.’’

The Act also provides that if a

regulatory flexibility analysis is not

required, the agency must certify in the

rulemaking document that the

rulemaking will not ‘‘have a significant

economic impact on a substantial

number of small entities.’’

For the reasons that follow I certify

that a regulatory flexibility analysis is

not required for this rule because it

would not have a significant economic

impact on a substantial number of small

entities. This rule is a clarification of

existing policy and removes confusion

and apparent inconsistencies in the

current rule. We expect the rule to

remove the current rule’s adverse

impact on property owners, including

small entities. We expect the rule to

enhance the ability of local officials to

make sound floodplain management

decisions more readily than under the

current rule. We also expect the rule to

reduce the administrative burden on

property owners, including small

entities. We further expect the rule will

reduce certain building costs, without

increasing the risks of flooding either to

the owners or to the National Flood

Insurance Program.

Executive Order 13132, Federalism

Executive Order 13132, Federalism,

dated August 4, 1999, sets forth

principles and criteria to which

agencies must adhere in formulating

and implementing policies that have

federalism implications, that is,

regulations that have substantial direct

effects on the States, or on the

distribution of power and

responsibilities among the various

levels of government. Federal agencies

must closely examine the statutory

authority supporting any action that

would limit the policymaking discretion

of the States, and to the extent

practicable, must consult with State and

local officials before implementing any

such action.

We have reviewed this rule under

E.O.13132 and have concluded that the

rule does not have federalism

implications as defined by the Executive

Order. As noted under Regulatory

Planning and Review, this rule changes

the criteria that we would use to

determine whether we can issue a

LOMR or LOMR–F to remove

unimproved land or land with

structures from the SFHA by raising

ground elevations using engineered

earthen fill. We know of no substantial

direct effects on the States, or on the

distribution of power and

responsibilities among the various

levels of government that would result

from this rule.

The OMB has reviewed this rule

under the provisions of Executive Order

13132.

22442 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

List of Subjects in 44 CFR Part 65

Flood insurance, Reporting and

recordkeeping requirements.

Accordingly, amend 44 CFR part 65 as

follows:

PART 65—IDENTIFICATION AND

MAPPING OF SPECIAL HAZARD

AREAS

1. The authority citation for part 65

continues to read as follows:

Authority: 42 U.S.C. 4001 et seq.,

Reorganization Plan No. 3 of 1978, 43 FR

41943, 3 CFR, 1978 Comp., p. 329; E.O.

12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR,

1979 Comp., p. 376.

2. Amend § 65.2 by adding paragraph

(c) to read as follows:

§ 65.2 Definitions.

* * * * *

(c) For the purposes of this part,

‘‘reasonably safe from flooding’’ means

base flood waters will not inundate the

land or damage structures to be removed

from the SFHA and that any subsurface

waters related to the base flood will not

damage existing or proposed buildings.

3. Revise § 65.5 to read as follows:

§ 65.5 Revision to special hazard area

boundaries with no change to base flood

elevation determinations.

(a) Data requirements for topographic

changes. In many areas of special flood

hazard (excluding V zones and

floodways) it may be feasible to elevate

areas with engineered earthen fill above

the base flood elevation. Scientific and

technical information to support a

request to gain exclusion from an area

of special flood hazard of a structure or

parcel of land that has been elevated by

the placement of engineered earthen fill

will include the following:

(1) A copy of the recorded deed

indicating the legal description of the

property and the official recordation

information (deed book volume and

page number) and bearing the seal of the

appropriate recordation official (e.g.,

County Clerk or Recorder of Deeds).

(2) If the property is recorded on a

plat map, a copy of the recorded plat

indicating both the location of the

property and the official recordation

information (plat book volume and page

number) and bearing the seal of the

appropriate recordation official. If the

property is not recorded on a plat map,

FEMA requires copies of the tax map or

other suitable maps to help in locating

the property accurately.

(3) A topographic map or other

information indicating existing ground

elevations and the date of fill. FEMA’s

determination to exclude a legally

defined parcel of land or a structure

from the area of special flood hazard

will be based upon a comparison of the

base flood elevations to the lowest

ground elevation of the parcel or the

lowest adjacent grade to the structure. If

the lowest ground elevation of the entire

legally defined parcel of land or the

lowest adjacent grade to the structure

are at or above the elevations of the base

flood, FEMA will exclude the parcel

and/or structure from the area of special

flood hazard.

(4) Written assurance by the

participating community that they have

complied with the appropriate

minimum floodplain management

requirements under § 60.3. This

includes the requirements that:

(i) Existing residential structures built

in the SFHA have their lowest floor

elevated to or above the base flood;

(ii) The participating community has

determined that the land and any

existing or proposed structures to be

removed from the SFHA are ‘‘reasonably

safe from flooding’’, and that they have

on file, available upon request by

FEMA, all supporting analyses and

documentation used to make that

determination;

(iii) The participating community has

issued permits for all existing and

proposed construction or other

development; and

(iv) All necessary permits have been

received from those governmental

agencies where approval is required by

Federal, State, or local law.

(5) If the community cannot assure

that it has complied with the

appropriate minimum floodplain

management requirements under § 60.3,

of this chapter, the map revision request

will be deferred until the community

remedies all violations to the maximum

extent possible through coordination

with FEMA. Once the remedies are in

place, and the community assures that

the land and structures are ‘‘reasonably

safe from flooding,’’ we will process a

revision to the SFHA using the criteria

set forth in § 65.5(a). The community

must maintain on file, and make

available upon request by FEMA, all

supporting analyses and documentation

used in determining that the land or

structures are ‘‘reasonably safe from

flooding.’’

(6) Data to substantiate the base flood

elevation. If we complete a Flood

Insurance Study (FIS), we will use those

data to substantiate the base flood

elevation. Otherwise, the community

may submit data provided by an

authoritative source, such as the U.S.

Army Corps of Engineers, U.S.

Geological Survey, Natural Resources

Conservation Service, State and local

water resource departments, or

technical data prepared and certified by

a registered professional engineer. If

base flood elevations have not

previously been established, we may

also request hydrologic and hydraulic

calculations.

(7) A revision of floodplain

delineations based on fill must

demonstrate that any such fill does not

result in a floodway encroachment.

(b) New topographic data. A

community may also follow the

procedures described in paragraphs

(a)(1) through (6) of this section to

request a map revision when no

physical changes have occurred in the

area of special flood hazard, when no

fill has been placed, and when the

natural ground elevations are at or

above the elevations of the base flood,

where new topographic maps are more

detailed or more accurate than the

current map.

(c) Certification requirements. A

registered professional engineer or

licensed land surveyor must certify the

items required in paragraphs (a)(3) and

(6) and (b) of this section. Such

certifications are subject to the

provisions under § 65.2.

(d) Submission procedures. Submit all

requests to the appropriate address

serving the community’s geographic

area or to the FEMA Headquarters Office

in Washington, DC.

4. Amend § 65.6 by adding paragraphs

(a)(14) and (15) as follows:

§ 65.6 Revision of base flood elevation

determinations.

(a) * * *

(14) The participating community

must provide written assurance that

they have complied with the

appropriate minimum floodplain

management requirements under § 60.3

of this chapter. This includes the

requirements that:

(i) Existing residential structures built

in the SFHA have their lowest floor

elevated to or above the base flood;

(ii) The participating community has

determined that the land and any

existing or proposed structures to be

removed from the SFHA are ‘‘reasonably

safe from flooding,’’ and that they have

on file, available upon request by

FEMA, all supporting analyses and

documentation used to make that

determination;

(iii) The participating community has

issued permits for all existing and

proposed construction or other

development; and

(iv) All necessary permits have been

received from those governmental

agencies where approval is required by

Federal, State, or local law.

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22443

(15) If the community cannot assure

that it has complied with the

appropriate minimum floodplain

management requirements under § 60.3,

of this chapter the map revision request

will be deferred until the community

remedies all violations to the maximum

extent possible through coordination

with FEMA. Once the remedies are in

place, and the community assures that

the land and structures are ‘‘reasonably

safe from flooding,’’ we will process a

revision to the SFHA using the criteria

set forth under § 65.6. The community

must maintain on file, and make

available upon request by FEMA, all

supporting analyses and documentation

used in determining that the land or

structures are ‘‘reasonably safe from

flooding.’’

* * * * *

Dated: April 30, 2001.

Joe M. Allbaugh,

Director.

[FR Doc. 01–11156 Filed 5–3–01; 8:45 am]

BILLING CODE 6718–05–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 206

RIN 3067–AD20

Disaster Assistance; Public Assistance

Program and Community Disaster

Loan Program

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Interim final rule.

SUMMARY: We, FEMA, are publishing an

interim final rule to implement portions

of the Disaster Mitigation Act of 2000

that affect large in-lieu contributions

(alternate projects), irrigation facilities,

critical/non-critical private nonprofit

facilities, and community disaster loans.

DATE: Effective October 30, 2000.

Comments on this interim final rule

should be received by July 3, 2001.

ADDRESSES: Please send any comments

to the Rules Docket Clerk, Office of the

General Counsel, Federal Emergency

Management Agency, room 840, 500 C

Street, SW., Washington, DC 20472, or

(fax) (202) 646–4536, or (email)

rules@fema.gov.

FOR FURTHER INFORMATION CONTACT:

Margaret Earman, Response and

Recovery Directorate, Federal

Emergency Management Agency, room

401, 500 C Street, SW., Washington, DC

20472, or call (202) 646–4172 or (email)

margie.earman@fema.gov.

SUPPLEMENTARY INFORMATION:

Large in-lieu contributions. The

Disaster Mitigation Act of 2000 (DMA

2000), Pub. L. 106–390, 114 Stat. 1552

et seq., amended the Federal

contribution for Large in Lieu

Contributions, which is known as

‘‘alternate projects’’ and is authorized

under section 406(c) of the Robert T.

Stafford Disaster Relief and Emergency

Assistance Act (Stafford Act), 42 U.S.C.

5172, from 90 percent of the Federal

share of the Federal estimate to 75

percent of the Federal share of the

Federal estimate of the cost of repairing,

restoring, reconstructing, or replacing

the facility. There is an exception to this

change for publicly-owned or

-controlled facilities. When a State or

local government applicant selects an

alternate project because unstable soil at

the site of the damaged facility makes

repair or restoration of that facility

infeasible, the Federal contribution

remains at 90 percent. The soil

conditions at the project site, which

make restoration infeasible, will be

established in a geo-technical report that

the applicant must submit. All alternate

projects are still approved on a projectby-project basis.

Irrigation facilities. The DMA 2000

amended section 102(9) of the Stafford

Act, 42 U.S.C 5122 to add ‘‘irrigation’’

to the definition of private nonprofit

(PNP) facilities. However, not all PNP

irrigation facilities are eligible for

assistance. The legislative history

indicates that eligible irrigation facilities

include those that supply water for

‘‘essential services of a governmental

nature to the general public’’ (which is

the requirement for any PNP to be

eligible), such as fire suppression,

generating and supplying electricity,

and drinking water supply. They do not

include those that supply water for

agricultural purposes. If an irrigation

system serves both eligible and

ineligible purposes, assistance for those

portions that serve both purposes will

be prorated on the basis of the

proportional share of water used. For

those portions that serve an eligible

purpose exclusively, all disaster-related

damages to that portion would be

eligible. Those portions serving an

ineligible purpose exclusively will not

be eligible.

Critical/non-critical PNP facilities.

Under section 406(a)(3) of the Stafford

Act, 42 U.S.C. 5172, as amended by the

DMA 2000 and before receiving

assistance under the Stafford Act certain

non-critical PNP facilities must apply

first to the Small Business

Administration (SBA) for a disaster loan

for permanent restoration work in those

disasters when the SBA activates its

disaster loan program. DMA 2000

defines those critical services where the

owner or operator need not apply to

SBA to include: Water (including water

provided by an irrigation organization

or facility as discussed above), sewer,

wastewater treatment, communications,

and emergency medical care. We

propose to add fire department services,

emergency rescue, and nursing homes to

the list of critical services.

Communication services means

transmission, switching and distribution

of telephone traffic. Emergency medical

care includes essential direct patient

care to persons and includes hospitals,

clinics, outpatient services, and nursing

homes. Owners and operators of these

critical service facilities may apply

directly to FEMA for assistance.

Other eligible, but non-critical, PNP

facility owners or operators must apply

to SBA for a disaster loan, and if SBA

declines their application they may

apply to FEMA for a grant. In addition,

if the maximum loan for which they are

eligible does not cover all eligible

damages, they may apply to FEMA for

the excess damages. The requirement for

owners or operators of non-critical

facilities to go first to SBA applies only

to permanent restoration work. All

eligible PNP facility owners and

operators may make requests for

assistance for debris removal and

emergency protective measures directly

to FEMA.

Community Disaster Loans. The DMA

2000 made two amendments to the

Community Disaster Loan (CDL)

program, section 417 of the Stafford Act,

42 U.S.C. 5184. The DMA 2000 sets a

cap of $5,000,000 on the amount of any

community disaster loan that FEMA

might make, and states that a local

government will not be eligible for

further community disaster loan

assistance if the community is in arrears

on any required repayment of a previous

community disaster loan. We propose to

amend 44 CFR 206.361 and 206.363 to

reflect these statutory changes.

Administrative Procedure Act

Statement

This interim final rule implements

certain mandatory provisions of the

Disaster Mitigation Act of 2000 that

relate to the Public Assistance Program

and the Community Disaster Loan

Program, provisions that the Congress

intended to go into effect upon

enactment. In keeping with that intent,

we are making this rule retroactively

effective as of the date of enactment,

October 30, 2000, for all disasters

declared on or after that date. We seek

and invite public comments,

nevertheless, on this interim final rule,