# FEMA's Hazard Mitigation Assistance and Planning Regulations

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-16004

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** August 28, 2020
- **Citation:** 85 FR 53474

## Text

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 Planning Regulations

AGENCY:

Federal Emergency Management Agency, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Federal Emergency Management Agency (FEMA) proposes to amend its Hazard Mitigation Assistance (HMA) program regulations to reflect current statutory authority and agency practice. 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 program regulations. FEMA proposes to revise the FMA grant program regulations to incorporate changes made by amendments to the National Flood Insurance Act of 1968 (NFIA). Finally, FEMA proposes to update terms and definitions throughout the HMA and Mitigation Planning program regulations to better align with uniform administrative requirements that apply to all Federal assistance.

DATES:

Comments are due on or before October 27, 2020.

ADDRESSES:

You may submit comments, identified by Docket ID: FEMA-2019-0011, by one of the following methods:

Federal eRulemaking Portal:

http://www.regulations.gov.
Follow the instructions for submitting comments.

Mail/Hand Delivery/Courier:
Regulatory Affairs Division, Office of Chief Counsel, Federal Emergency Management Agency, Room 8NE, 500 C Street, SW, Washington, DC 20472-3100.

To avoid duplication, please use only one of these methods. All comments received will be posted without change to
http://www.regulations.gov,
including any personal information provided. For instructions on submitting comments, see the Public Participation portion of the
SUPPLEMENTARY INFORMATION
section.

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. Public Participation

We encourage you to participate in this rulemaking by submitting comments and related materials. We will consider all comments and material received during the comment period.

If you submit a comment, identify the agency name and the docket ID for this rulemaking, indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by electronic means, mail, or delivery to the address under the
ADDRESSES
section. Please submit your comments and material by only one means.

Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal e-Rulemaking Portal at
http://www.regulations.gov,
and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to read the Privacy and Security Notice that is available via a link on the homepage of
http://www.regulations.gov.

Viewing comments and documents:
For access to the docket to read background documents or comments received, go to the Federal e-Rulemaking Portal at
http://www.regulations.gov.
Background documents and submitted comments may also be inspected at FEMA, Office of Chief Counsel, Room 8NE, 500 C Street SW, Washington, DC 20472-3100.

Public Meeting:
We do not plan to hold a public meeting, but you may submit a request for one at the address under the
ADDRESSES
section explaining why one would be beneficial. If FEMA determines that a public meeting would aid this rulemaking, it will hold one at a time and place announced by a notice in the
Federal Register
.

II. Background

A. Overview of Hazard Mitigation Assistance Programs

FEMA's Hazard Mitigation Assistance (HMA) grant programs provide funding for eligible mitigation activities that reduce disaster losses and protect life and property from future disaster damages. FEMA currently administers three hazard mitigation assistance programs under the HMA umbrella: (1) The Flood Mitigation Assistance (FMA) program (a grant program, described in 44 CFR parts 78 and 79); (2) the Hazard Mitigation Grant Program (HMGP) (44 CFR part 206, subpart N); and (3) the Pre-Disaster Mitigation (PDM) program (implemented via guidance and the annual grants process without corresponding regulations). Mitigation planning requirements (44 CFR part 201) and requirements for property acquisition and relocation for open space (44 CFR part 80) apply to all three HMA programs. The
Hazard Mitigation Assistance Guidance
(hereinafter “HMA Guidance”) provides comprehensive guidance for all three HMA programs and supplements the FMA program and HMGP program regulations.
1

1
Federal Emergency Management Agency,
Hazard Mitigation Assistance Guidance
(hereinafter “HMA Guidance”), Feb. 27, 2015, available at
https://www.fema.gov/media-library-data/1424983165449-38f5dfc69c0bd4ea8a161e8bb7b79553/HMA_Guidance_022715_508.pdf
(last accessed Feb. 13, 2020). As noted in this preamble, the PDM program does not have implementing regulations, but rather is implemented through the annual grants process, including the Notice of Funding Opportunity, and other policy and guidance statements, including the HMA Guidance.

The majority of the revisions FEMA proposes in this rulemaking apply to the FMA regulations. FEMA proposes a few changes to the HMGP regulations as well. Below, FEMA provides a general description of the FMA and HMGP programs, and then a more detailed discussion of how FEMA administers the FMA program.

1. Flood Mitigation Assistance Program (FMA)

Section 1366 of the National Flood Insurance Act of 1968 (NFIA), 42 U.S.C. 4104c, as amended, authorized the FMA program to reduce or eliminate claims under the National Flood Insurance Program (NFIP). The FMA program provides funds on an annual basis for projects to reduce or eliminate risk of flood damage to buildings, manufactured homes, and other structures insured under the NFIP.
See
42 U.S.C. 4104c(a); 44 CFR 79.1(c). Currently, 44 CFR parts 78 and 79 prescribe actions, procedures, and requirements for the administration of the FMA program. The requirements in part 78 applied only to those FMA grants for which the application period opened prior to December 3, 2007.
See
44 CFR 78.1(a). The requirements in part 79 apply to all FMA funds awarded on or after December 3, 2007.
See
44 CFR 79.1(a).

In accordance with 44 CFR part 201, “Mitigation Planning,” all State and Tribal applicants must have a FEMA-approved State or Tribal mitigation plan as a condition of receiving any FEMA mitigation grant, including FMA grants.
See
44 CFR 201.4(a), 201.7(a)(1). Subapplicants consisting of local governments and Tribal governments

must have a FEMA-approved mitigation plan in order apply for and receive mitigation project grants under FMA and PDM.
See
44 CFR 201.6(a), 201.7(a)(3).

2. Hazard Mitigation Grant Program (HMGP)

Section 404 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5170c, authorized HMGP. Implementing regulations for HMGP are found at 44 CFR part 206, subpart N. The key purpose of HMGP is to substantially reduce the risk of future damage, hardship, loss, or suffering in any area affected by a major disaster.
See
42 U.S.C. 5170c(a). HMGP funding is available, when authorized under a Presidential major disaster declaration,
2

in the areas requested by the Governor or chief executive of the Tribe.
See id.; HMA Guidance Part 1.B(1), p. 4.
State agencies, local governments, private nonprofit organizations, and Indian Tribal governments are eligible to apply for HMGP assistance.
3

The level of HMGP funding available for a given disaster is based on a percentage of the estimated total Federal assistance available under the Stafford Act, excluding administrative costs, for each Presidential major disaster declaration.
See
44 CFR 206.432(b). States and Indian Tribal governments applying for HMGP funding must have a FEMA-approved State or Tribal mitigation plan at the time of the Presidential major disaster declaration and at the time FEMA obligates HMGP funding.
See
42 U.S.C. 5165; 44 CFR 201.4. Subapplicants, including local governments and Indian Tribal governments, must have a FEMA-approved mitigation plan in order to receive HMGP subawards.
See
42 U.S.C. 5165(a), (b); 44 CFR 201.6(a), 201.7(a), 206.434(b).

2
Note that there is an exception to the requirement that there be a Presidential major disaster declaration to receive HMGP funding. This exception is HMGP Post Fire, which provides mitigation assistance under HMGP generally for wildfire. It is triggered not by a Presidential major disaster declaration, but by a Fire Management Assistance Grant declaration under section 420 of the Stafford Act. See 42 U.S.C. 5170c(a).

3
44 CFR 206.434(a). Eligible subapplicants apply to the recipient (also known as the “grantee”) for HMGP subawards. The recipient may be the State for which the major disaster is declared, or an Indian Tribal government choosing to act as a recipient instead of a subrecipient.
See
44 CFR 206.431, definition of “grantee.”

3. Property Acquisition and Relocation for Open Space

Part 80 provides guidance on the administration of FEMA mitigation assistance for projects to acquire property for open space purposes under all FEMA HMA programs.
See
44 CFR 80.1.

B. FMA Program Administration

FMA is a non-disaster program allowing communities to complete mitigation activities so that structures insured under the NFIP are protected from future damages and the need for future insurance claims is lessened. FMA grants are subject to availability of annual Federal appropriations, as well as to any program-specific directive or restrictions with respect to such funds.

The FMA is a competitive grant program, meaning FEMA reviews the applications submitted and selects the most qualified for an award. Each year, FEMA publishes a Notice of Funding Opportunity (NOFO) announcing the availability of funding and program requirements.
4

In addition, projects must meet the minimum eligibility criteria identified in 44 CFR 79.6. The criteria ensure that FEMA selects cost-effective and beneficial mitigation projects for FMA funding.

4
The most recent NOFO was posted on
www.grants.gov
and can be viewed at this link:
https://www.grants.gov/web/grants/search-grants.html.

Applicants for the FMA program can be States and/or Indian Tribal governments.
5

See
44 CFR 79.2(b). Subapplicants can be a State agency, community,
6

or Indian Tribal government.
7

See
44 CFR 79.2(i). Subapplicants must participate in the NFIP.
See
44 CFR 79.6(a)(1). Subapplicants that have withdrawn from the NFIP, or those that FEMA has suspended for failure to comply with floodplain management requirements, are not eligible.
See
44 CFR 79.6(a)(3).

5
An Indian Tribal government is any Federally recognized governing body of an Indian or Alaska Native Tribe, band, nation, pueblo, village, or community that the Secretary of Interior acknowledges to exist as an Indian Tribe under the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a. This does not include Alaska Native corporations, the ownership of which is vested in private individuals. 44 CFR 79.2(e).

6
Community means 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 a political subdivision of a State, or other authority that is designated by a political subdivision to develop and administer a mitigation plan. 44 CFR 79.2(c).

7

See supra
note 5.

Subapplicants submit their applications to the applicant during the open application cycle as noted in the NOFO. Applicants then select, prioritize, and forward subapplications to FEMA by the deadline established in the NOFO. FEMA awards FMA funds to the applicant, who becomes the recipient. The recipient then disburses funding for the approved subawards to the subapplicants, who become subrecipients. Recipients and subrecipients must comply with all program requirements and other applicable Federal, State, territorial, and Tribal laws and regulations.
See
44 CFR 79.3(b)(6) and (d)(4).

A grant recipient/subrecipient must use FMA funds for mitigation planning and mitigation projects that will reduce or eliminate the risk of flood damages to properties insured under the NFIP.
See
44 CFR 79.6(c). An example of a hazard mitigation project is the elevation of a home to reduce risk of flood damage. Eligible mitigation projects must be cost-effective or able to eliminate future payments from the National Flood Insurance Fund (NFIF) for severe repetitive loss structures through an acquisition or relocation activity.
See
42 U.S.C. 4104c(c)(2)(A). To demonstrate cost-effectiveness, a project's anticipated benefits must be equal to or more than the cost of implementing the project, which is demonstrated through a benefit-cost analysis that compares the cost of the project to the benefits anticipated to occur over the lifetime of the project.
8

8

See
HMA Guidance, Part III.E.3, Cost-Effectiveness, p. 44.

FMA applicants must have a FEMA-approved State or Tribal mitigation plan as a condition of receiving an FMA award.
See
44 CFR 79.6(b)(1), 201.4(a), 201.7(a)(1). FMA subapplicants must have a FEMA-approved mitigation plan in order to apply for and receive mitigation project grants.
See
44 CFR 79.6(b)(2), 201.6(a), 201.7(a)(3). Applicants/subapplicants must propose projects for FMA grants that are consistent with the goals and objectives of the State or Tribal Mitigation Plan, and, for subawards, the Local or Tribal Mitigation Plan.
9

9
42 U.S.C. 4104c(c)(1);
see
HMA Guidance, Part III.E.5, Hazard Mitigation Plan Requirement, p. 44.

C. Statutory Changes to FMA

The Biggert-Waters Flood Insurance Reform Act of 2012 (BW-12), Public Law112-141, 126 Stat. 916, reformed and streamlined the NFIA's hazard mitigation grant programs. Before BW-12, the NFIA authorized three distinct grant programs: (1) The FMA program (44 CFR part 79); (2) the Repetitive Flood Claims (RFC) program (implemented through guidance); and (3) the Severe Repetitive Loss (SRL) program (44 CFR part 79). BW-12 eliminated the RFC and SRL programs and consolidated aspects of those

programs into a reformed FMA program.
10

10
The RFC and SRL programs were authorized by the Bunning-Bereuter-Blumenauer Flood Insurance Reform Act of 2004, Public Law 108-264, 118 Stat. 712. The RFC program was designed to reduce the long-term risk of flood damage to structures insured under the NFIP that have had one or more claim payments for flood damage. RFC funds were used to mitigate structures located within a State or community that were not eligible to receive funding under the FMA program at the time. Under the RFC program, funds could only be awarded if the State and community could not meet the FMA's cost share requirement, or if the State or community lacked the capacity to manage the activity under the FMA program. The SRL program was a voluntary pilot program designed to reduce or eliminate the long-term risk of flood damage to severe repetitive loss residential structures insured under the NFIP. Under the SRL program, an SRL property was defined as a residential property that is covered under an NFIP flood insurance policy and: (a) That has at least four NFIP claim payments (including building and contents) over $5,000 each, and the cumulative amount of such claims payments exceeds $20,000; or (b) For which at least two separate claims payments (building payments only) have been made with the cumulative amount of the building portion of such claims exceeding the market value of the building. At least two of the referenced claims must have occurred within any 10-year period, and must be greater than 10 days apart.

1. Changes to Method of Program Funding

Before BW-12, FEMA allocated FMA program funding to States each fiscal year based upon the number of NFIP policies within the State, the number of repetitive loss structures within the State, and other criteria the Administrator determined to be in the best interests of the NFIF.
11

FEMA allocated funding under the SRL program to States each fiscal year based upon the percentage of the total number of severe repetitive loss properties located within that State.
12

Funds allocated to States that chose not to participate in either the FMA or SRL program in any given year were reallocated to participating States and Indian Tribal applicants.
13

BW-12 replaced this process with a fully competitive program under which, as described above, FEMA selects subapplications against agency priorities identified in annual appropriations and the NOFO. In addition to involving a simpler formula that is easier to implement, this allows FEMA to better prioritize funding awards to the most at-risk (
i.e.,
severe repetitive loss) properties.

11
Public Law 108-264, 118 Stat. 721; 44 CFR 79.4(a)(2).

12
Public Law 108-264, 118 Stat. 716; 44 CFR 79.4(a)(1).

13
44 CFR 79.4(b).

2. Changes to Cost Share

Before BW-12, FEMA generally contributed up to 75 percent of the eligible activity costs for mitigation projects under the FMA and SRL programs.
14

However, FEMA made available an increased Federal cost share of up to 90 percent for the mitigation of severe repetitive loss properties if the applicant had a repetitive loss strategy in its approved State or Tribal mitigation plan.
15

If neither the applicant nor the subapplicant could meet the FMA non-Federal share requirement, FEMA made available up to 100 percent of the project cost under the RFC program.
16

14
44 CFR 79.4(c)(1).

15
44 CFR 79.4(c)(2).

16
Public Law 108-264, 118 Stat. 722.

Under the FMA program, as amended by BW-12, FEMA may contribute up to 90 percent of the eligible costs of projects that mitigate repetitive loss structures, and up to 100 percent of the eligible costs of projects that mitigate severe repetitive loss structures.
17

For all other mitigation activities, including activities to properties that are NFIP-insured but do not meet the repetitive loss or severe repetitive loss definitions, FEMA may contribute up to 75 percent of the eligible costs.
18

These changes to the FMA program resulted in increased funding to the most vulnerable properties (severe-repetitive loss properties) and decreased funding to less vulnerable (repetitive loss) properties.

17
42 U.S.C. 4104c(d). The term “repetitive loss structure” is defined at 42 U.S.C. 4104c(h)(2) (cross-reference to 42 U.S.C. 4121(a)(7)). The term “severe repetitive loss structure” is defined at 42 U.S.C. 4104c(h)(2)(3).

18
42 U.S.C. 4104c(d).

3. Other Changes

BW-12 made a number of other changes to the FMA program, including eliminating the cap on FMA funding for States and communities (but not changing the overall amount of grant funding available); eliminating the limit on in-kind contributions for the non-Federal cost share; limiting funds for the development or update of mitigation plans to $50,000 Federal share to any applicant or $25,000 Federal share to any subapplicant; and removing the restriction on awarding State or community planning grants more than once every 5 years.

III. Proposed Rule and Section-by-Section Analysis

FEMA implemented the provisions of BW-12 that affected the HMA grant programs through the HMA Guidance.
19

FEMA now proposes to update the FMA program regulations (44 CFR parts 78 and 79) to reflect the revisions made by BW-12. This rule proposes to remove part 78 in its entirety, redesignate part 79 as part 77, and revise the FMA regulations which would be located in the new part 77.

19
While the current HMA Guidance,
supra
note 1, reflects the changes required by BW-12, these changes were first implemented in the Fiscal Year 2013 version of the HMA Guidance.
See
Fiscal Year 2013 Hazard Mitigation Assistance Unified Guidance, July 12, 2013, Part I.B.1, Programmatic Changes, pp. 4-5, available at
https://www.fema.gov/media-library-data/15463cb34a2267a900bde4774c3f42e4/FINAL_Guidance_081213_508.pdf
(last accessed Jan 8, 2020).

FEMA proposes to make the following revisions pursuant to BW-12:

• Remove regulations pertaining to the SRL program;

• revise the cost share provisions to reflect the matching requirements established by BW-12;

• eliminate the cap on FMA funding for States and communities;

• eliminate the limit on in-kind contributions for the non-Federal cost share;

• specify that elevation, relocation or floodproofing of utilities are eligible activities;

• clarify that the required flood mitigation plan may be part of a community's multi-hazard mitigation plan;

• limit funds for the development or update of mitigation plans to $50,000 Federal share to any applicant or $25,000 Federal share to any subapplicant; and

• remove the restriction on awarding State or community planning grants only once every 5 years.

FEMA also proposes revisions to streamline the FMA regulations and clarify current practice. FEMA describes these revisions in detail in this section. FEMA proposes to update terms and references throughout the various HMA-related regulations, including the hazard mitigation assistance and planning regulations in 44 CFR parts 80 (Property Acquisition and Relocation for Open Space), 201 (Mitigation Planning), and 206 subpart N (HMGP).

On December 26, 2013, the Office of Management and Budget (OMB) finalized government-wide guidance entitled Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
20

These standard requirements for Federal awards are codified at 2 CFR part 200. The regulations at 2 CFR part 200 apply to FEMA awards made on or after December 26, 2014, and to awards made under major disaster declarations on or after that date.
21

In this proposed

rule, FEMA proposes to replace outdated terms and definitions with substantively similar terms and definitions that align with 2 CFR part 200 and the HMA Guidance. These are nonsubstantive revisions intended to simplify definitions and improve consistency among FEMA's HMA programs.

20
78 FR 78589.

21
As part of a joint interim final rule effective December 26, 2014, the Department of Homeland

Security (of which FEMA is a component) adopted the requirements of 2 CFR part 200 at 2 CFR part 3002. 79 FR 75871 (Dec. 19, 2014).

A. 44 CFR Part 78, Flood Mitigation Assistance

Part 78 applies to the administration of funds under the FMA program for which the application period opened on or before December 3, 2007. Because all funds appropriated for FMA before December 3, 2007, have been expended, it is unnecessary to retain part 78 and therefore, FEMA proposes to remove part 78 in its entirety.

B. 44 CFR Part 79, Flood Mitigation Grants

The regulations governing the current FMA program are at 44 CFR part 79. FEMA proposes to redesignate part 79 as part 77, which is currently reserved, to establish the revised FMA program regulations. FEMA proposes to reserve part 79. Following is a detailed discussion of the proposed revisions to part 79 (proposed to be redesignated as part 77).

1. Part 79 (Proposed Part 77) Authority

FEMA proposes to revise the authority citation for part 79 (proposed part 77) to remove historical authorities relating to FEMA's organization. FEMA proposes to remove the references to the Reorganization Plan No. 3 of 1978, Executive Order 12127, Executive Order 12148, and Executive Order 13286. The Reorganization Plan and Executive Orders 12127 and 12148 established FEMA as an agency in 1979 and established its functions. Executive Order 13286 revised Executive Order 12148 and transferred some of FEMA's authorities to the Department of Homeland Security (DHS). FEMA proposes to remove these cites but retain the citation to the Homeland Security Act of 2002, 6 U.S.C. 101
et seq.,
which provided organic authority for FEMA and made it a component agency of DHS. FEMA proposes to retain the citations to the NFIA (42 U.S.C. 4001
et seq.;
42 U.S.C. 4104c, 4104d) as they are the main authorities for this part.

2. Section 79.1 (Proposed § 77.1) Purpose

FEMA proposes to change the title from “Purpose” to “Purpose and applicability” to reflect the content of the section. FEMA proposes to revise paragraph (a), addressing the purpose of the part, to incorporate language from current paragraph (c) addressing the purpose of the FMA program. Paragraph (c) states that the FMA program is to provide financial assistance to “State and local governments” to reduce the risk of flood damage to NFIP-insured structures. FEMA proposes to replace “local governments” with “communities” because the term “community” is more inclusive of the entities eligible for assistance.
22

FEMA's definition of “community” at 44 CFR 79.2(c) includes Tribes as well as local governments. In addition to States and communities, FEMA proposes to also include Indian Tribal governments in revised paragraph (a). Indian Tribal governments have a unique and direct relationship with the Federal Government and are recognized as distinct sovereign entities.
23

While Indian Tribal governments can assume the responsibilities of the community (as subapplicant or subrecipient, when applying through the State), they can also be direct recipients of FMA funding.
See
44 CFR 79.2(c), 79.2(d), 79.3(c)(2), and 79.3(c)(3). That an Indian Tribal government is eligible to apply directly to FEMA for FMA funding is already established in the current program regulations in part 79.
See
44 CFR 79.2(d) and 79.3(c)(2). Including Indian Tribal governments in the purpose statement is consistent with the rest of the substantive FMA program regulations in part 79 and gives Indian Tribal governments the level of recognition commensurate with States. FEMA also proposes to remove references to the SRL program in paragraph (a), because BW-12 eliminated the SRL program. FEMA stopped issuing SRL grants in Fiscal Year 2013. FEMA also proposes to remove current paragraph (b), which describes the purpose of the SRL program.

22

See
42 U.S.C. 4104c(a) “The Administrator shall carry out a program to provide financial assistance to States and communities.” FEMA defines “community” in the current regulations at 44 CFR 79.2(c); the definition includes local governments and Tribes.

23

See
FEMA Tribal Policy, FEMA Policy #305-111-1, Dec. 27, 2016, available at
https://www.fema.gov/media-library-data/1483536222523-e549608aa77ec6cb623fae5d5de82930/FEMA_Tribal_Policy.pdf
(last accessed Feb. 13, 2020).

FEMA proposes to add a new paragraph (b) to address the applicability of the part to the administration of funds under the FMA program for which the application period opens on or after the effective date of the rule.

Finally, FEMA proposes to remove paragraph (c), as FEMA has incorporated the language describing the purpose of the FMA program into revised paragraph (a).

3. Section 79.2 (Proposed § 77.2) Definitions

FEMA proposes to revise the definitions section to reflect changes required by BW-12. FEMA proposes to revise the definition of “community” to reflect the definition provided in BW-12.
24

This change is intended to mirror the statutory definition and is not a substantive change to the current definition at 44 CFR 79.2(c).

24

See
42 U.S.C. 4104c(h)(1).

FEMA proposes to replace the definition of “severe repetitive loss properties” with the definition of “severe repetitive loss structure” from BW-12. The definition of “severe repetitive loss properties” at current 44 CFR 79.2(h) reflects the pre-BW-12 definition that was included in the statutory section authorizing the SRL pilot program.
25

BW-12 removed the statutory section for the SRL pilot program, including the definition of “severe repetitive loss property,” and established a definition for “severe repetitive loss structure” that is applicable to the FMA program.
26

The BW-12 definition states that a severe repetitive loss structure is one for which four or more separate claims payments have been made with the amount of each claim exceeding $5,000, and with the cumulative amount of such claims payments exceeding $20,000. FEMA proposes to retain the provision providing that the amount of each claim includes building and contents payments. This is consistent with FEMA's prior interpretation of the definition of “severe repetitive loss property” as well as the HMA Guidance.
27

The BW-12 definition also states that in the alternative, a severe repetitive loss structure is one for which at least two separate flood insurance claims payments have been made, with the cumulative amount of such claims exceeding the value of the insured structure. FEMA proposes to retain the statement that that the claims payments include building payments only because weighing the value of the insured

structure against the amount of building payments is a more direct comparison than weighing the value of the insured structure against the amount of both building
and
contents payments. This is consistent with FEMA's prior interpretation of the definition of “severe repetitive loss property” as well as the HMA Guidance.
28

25

See
Public Law 108-264, 118 Stat. 714.

26
42 U.S.C. 4104c(h)(3).

27

See
44 CFR 79.2(h)(1); HMA Guidance, Part VIII.C.1, Eligible Properties, p. 116.

28

See
44 CFR 79.2(h)(2); HMA Guidance, Part VIII.C.1, Eligible Properties, p. 116.

FEMA proposes to add a definition for “repetitive loss structure” to reflect the definition provided in BW-12. BW-12 established a distinction between repetitive loss structures and severe repetitive loss structures for purposes of the FMA program (which allows FEMA to better target funding based on a property's risk of damage). BW-12 defined the term “repetitive loss structure” to mean “a structure covered by a contract for flood insurance that—(A) has incurred flood-related damage on 2 occasions, in which the cost of repair, on the average, equaled or exceeded 25 percent of the value of the structure at the time of each such flood event; and (B) at the time of the second incidence of flood-related damage, the contract for flood insurance contains increased cost of compliance coverage.” FEMA's proposed definition of “repetitive loss structure” parrots the statutory definition.
See
42 U.S.C. 4121(a)(7) (cross referenced in 42 U.S.C. 4104c(h)(2)).

FEMA proposes to remove the definitions of “market value” and “multifamily property,” currently found at 44 CFR 79.2(f) and (g), respectively, because the statutory definitions of “severe repetitive loss structure” and “repetitive loss structure” no longer include these terms and it is therefore not necessary to use or define these terms in the regulations.

In addition to the revisions to the definitions made pursuant to BW-12, FEMA proposes to add terms and to replace outdated terms and definitions with substantively similar terms and definitions that better align with 2 CFR part 200 and the HMA Guidance. These are nonsubstantive revisions intended to simplify definitions and improve consistency among FEMA's HMA programs. FEMA proposes to add definitions for “closeout,” “Federal award,” “management costs,” “pass-through Entity,” and “State.”

FEMA proposes to add a definition for “closeout” which is nearly identical to the definition in 2 CFR 200.16. FEMA proposes to add this definition for ease of the reader because the term is used in proposed part 77, and also to establish that it has the same meaning as in the grants management regulations at 2 CFR part 200. This is a nonsubstantive change that reflects current practice.

FEMA proposes to add a definition for “Federal award” to reflect the definition in 2 CFR 200.38(a)(1),
29

with two exceptions. First, FEMA proposes to use the terms “recipient” and “subrecipient” instead of the term “non-Federal entity.” The term “non-Federal entity,” as defined at 2 CFR 200.69, includes entities that are not eligible recipients or subrecipients under the FMA program. While FMA recipients and subrecipients are “non-Federal entities” under 2 CFR part 200, FEMA proposes to tailor the definitions in the FMA regulations so that they are program-specific. Second, FEMA proposes to clarify that the terms “award” and “grant” may also be used to describe a “Federal award” under the FMA program regulations. This is a nonsubstantive change to clarify that the terms used throughout proposed part 77 are interchangeable.

29
In 2 CFR 200.38(a)(1), “Federal award” means the Federal financial assistance that a non-Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity.

FEMA proposes to add a definition for “management costs.” “Management costs” are referenced throughout the FMA program regulations, but this term is not currently defined in part 79. FEMA proposes to define “management costs” consistent with existing FEMA regulations
30

and the HMA Guidance.
31

30

See
44 CFR 207.2.

31

See
HMA Guidance, Part III, E.1.5, Management Costs, p. 41.

FEMA proposes to add a definition for “pass-through entity” which is substantively the same as the definition in 2 CFR 200.74, with one exception. FEMA proposes to use the terms “recipient” and “subrecipient” instead of the term “non-Federal entity.” The term “non-Federal entity,” as defined at 2 CFR 200.69, includes entities that are not eligible recipients or subrecipients under the FMA program. While FMA recipients and subrecipients are “non-Federal entities” under 2 CFR part 200, FEMA proposes to tailor the definitions in the FMA regulations so that they are program-specific. The addition of this definition is for ease of the reader since the term is used in other definitions in proposed part 77.

FEMA proposes to add a definition for “State,” which is consistent with 2 CFR 200.90 as well as FEMA's regulations for mitigation planning and HMGP.
32

Although not defined in the authorizing statute for the HMA programs, for purposes of these programs, and consistent with 2 CFR 200.90, FEMA considers a State to be 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.

32

See
the definition for “State” in the mitigation planning regulations at 44 CFR 201.2 and the definitions section of part 206 (§ 206.2(a)(22)) which applies to the HMGP program regulations at part 206 subpart N.
See also,
HMA Guidance, Part III.A, Eligible Applicants, p. 25.

FEMA proposes to replace the definitions “grantee,” “subgrant,” and “subgrantee,” with definitions for “recipient,” “subaward,” and “subrecipient,” respectively, to better align with the terms and definitions used in 2 CFR part 200 and the HMA Guidance. The proposed definition of “recipient” is similar to the definition at 2 CFR 200.86; however, FEMA proposes to use the terms “State or Indian Tribal government” instead of the term “non-Federal entity” to reflect the terms and definitions in this proposed rule, which are tailored to the FMA program. FEMA also proposes to add that the recipient may be a pass-through entity to clarify the relationship between the terms “recipient” and “pass-through entity.”

The proposed definition of “subaward” is the same as the definition at 2 CFR 200.92.

The proposed definition of “subrecipient” is similar to the definition at 2 CFR 200.93; however, FEMA proposes to use the terms “State agency, community, or Indian Tribal government” instead of the term “non-Federal entity” to reflect the terms and definitions in this proposed rule, which are tailored to the FMA program.

FEMA proposes to revise the definitions of “applicant” and “subapplicant.” In the definition of “applicant,” FEMA proposes to replace the term “grant” with the term “Federal award,” which FEMA proposes to define in proposed § 77.2(e). This is a nonsubstantive change to use the newly defined term “Federal award” throughout the definitions. FEMA proposes to remove the provision stating that the applicant will be accountable for the use of the funds because it only serves as a vague reference to other applicable substantive requirements and is not necessary to include in the definition of “applicant.”
33

FEMA also proposes to add that once funds have been awarded, the applicant becomes the recipient and may also be a pass-through entity. This is a nonsubstantive addition to clarify the relationship

between the terms “applicant,” “recipient,” and “pass-through entity” for the ease of the reader. FEMA proposes to revise the definition of “subapplicant” by removing the reference to the SRL program which is no longer authorized pursuant to BW-12. FEMA proposes to clarify that applications submitted by subapplicants are
sub
applications. These are nonsubstantive revisions intended to reflect FEMA's current use of these terms.

33

See, e.g.,
44 CFR 79.9, Grant administration, and 2 CFR 200.300-200.309, Standards for Financial and Program Management.

Finally, FEMA makes no changes to the definitions of “Indian Tribal government,” “Administrator,” and “Regional Administrator.”

4. Section 79.3 (Proposed § 77.3) Responsibilities

In proposed § 77.3, which covers responsibilities of FEMA, the recipient, and subrecipients, FEMA proposes to remove references to the SRL program, to replace terms to conform to the revised definitions in proposed § 77.2, to remove the paragraphs addressing Indian Tribal government responsibilities (as they are covered under the recipient responsibilities), and to add monitoring and closeout provisions.

Paragraph (a) addresses FEMA's responsibilities under the FMA program. FEMA proposes to remove (a)(2), (a)(7), and (a)(8), which pertain to the former SRL program and are no longer necessary. FEMA proposes to add two paragraphs, (a)(6) and (7), regarding monitoring and closeout requirements. Consistent with 2 CFR 200.328 and 200.343, and the HMA Guidance,
34

FEMA proposes to add the following FEMA responsibilities: (1) Monitoring implementation of awards through quarterly reports; and (2) reviewing all closeout documentation for compliance and sending the recipient a request for additional supporting documentation, if needed.
35

These are nonsubstantive revisions intended to reflect and clarify existing requirements; they are already a part of the current grants process.

34

See
HMA Guidance, Part II.M, Project Monitoring, and Part II.N, Closeout, pp. 23-24.

35
These requirements are covered by OMB Information Collection 1660-0072, “Mitigation Grant Programs/e-grants”. This collection is approved by OMB until October 31, 2021.

Paragraph (b) addresses the responsibilities of the State. However, the paragraph actually addresses the responsibilities of all recipients, including territories and Indian Tribal governments.
36

Therefore, FEMA proposes to replace “State” with “recipient” in the heading and introductory paragraph of (b). As proposed in this rulemaking, the term “State” includes territories (see proposed § 77.2(l)), and the term “recipient” includes States and Indian Tribal governments (see proposed § 77.2(i)). This change is clarifying and is not substantive.

36

See
HMA Guidance, Part I.C, Roles and Responsibilities, p. 5.

The introductory paragraph of (b) states that the State will serve as the applicant and grantee through a single point of contact for the FMA and SRL programs. FEMA proposes to remove this sentence because it relates to the former FMA program and the eliminated SRL program, and it is no longer necessary to have a single point of contact as there are no longer two programs being addressed in this part.

Paragraph (b)(2) states the recipient has responsibility to review and submit local mitigation plans to the FEMA Regional Administrator for final review and approval. FEMA proposes to remove this paragraph in its entirety. The requirement to submit plans for review and approval is now located in 44 CFR part 201 (local mitigation plans are specifically covered in § 201.6). FEMA prefers to refer to part 201 to avoid confusion. Repeating the same requirement in part 79 (proposed part 77) is duplicative, can cause confusion as it might appear to be a separate requirement, and is administratively burdensome if FEMA needs to make any changes, as it would have to change them in two different places in the regulations. Finally, submitting plans for review and approval is not an FMA grant requirement; the FMA requirement is to have an approved plan, which is already captured in current § 79.3(b)(1) (proposed § 77.3(b)(1)).

FEMA proposes to replace the term “subgrant(s)” with “subaward(s)” in paragraphs (b)(3) (proposed (b)(2)), (b)(4) (proposed (b)(3)), and (b)(5) (proposed (b)(4)), to reflect the terminology used in 2 CFR part 200. This is a nonsubstantive change and is already used in the HMA Guidance.

FEMA proposes to add two new paragraphs, (b)(5) and (6), regarding monitoring and closeout requirements. Consistent with 2 CFR 200.328 and 200.343, and the HMA Guidance,
37

FEMA proposes to add the following recipient responsibilities: (1) Monitor and evaluate the progress of the mitigation activity in accordance with the approved original scope of work and budget through quarterly reports; and (2) closeout the subaward in accordance with 2 CFR 200.343 and 200.344, and applicable FEMA guidance. These are nonsubstantive revisions intended to reflect and clarify existing requirements; they are already a part of the current grants process.
38

37

See
HMA Guidance, Part II.M, Project Monitoring, and Part II.N, Closeout, pp. 23-24.

38
These requirements are covered by OMB Information Collection 1660-0072, “Mitigation Grant Programs/e-grants”. This collection is approved by OMB until October 31, 2021.

Paragraph (c) addresses the responsibilities of Indian Tribal governments acting as recipients. As these responsibilities would now be covered under paragraph (b), FEMA proposes to remove paragraph (c). Current paragraph (c)(1) states that an Indian Tribal government must have a FEMA approved Tribal mitigation plan in accordance with § 201.7. Proposed paragraph (b)(1) states this requirement generally, to cover both States and Indian Tribal governments, as proposed paragraph (b) would now cover all recipients (States or Indian Tribal governments) instead of just States. Current paragraph (c)(2) states that a federally-recognized Indian Tribal government as defined by the Federally Recognized Indian Tribe List Act of 1994, applying directly to FEMA for mitigation grant funding will assume the responsibilities of the State as the term is used in part 79, as applicant or grantee, described in current paragraphs (b)(3) through (b)(6) (
i.e.,
the responsibilities of the State). This provision is now captured in proposed paragraph (b), which applies to all recipients, including Indian Tribal governments, since Indian Tribal governments are included in the definition of “recipient” in proposed § 77.2(i). Current paragraph (c)(3) states that a federally-recognized Indian Tribal government as defined by the Federally Recognized Indian Tribe list Act of 1994, applying through the State, will assume the responsibilities of the community (as the subapplicant or subgrantee) described in current paragraphs (d)(2) through (4). This provision would be captured in proposed paragraph (c), addressing the responsibilities of subrecipients (which can include Indian Tribal governments), as described below.

Current paragraph (d) addresses the responsibilities of the community. FEMA proposes to redesignate paragraph (d) as paragraph (c) and to change the paragraph heading from “Community” to “Subrecipient.” The responsibilities in this paragraph apply not just to communities, but to any entity that qualifies as a subrecipient,
i.e.,
a State agency, community, or Indian Tribal government (see proposed definition of “subrecipient” in

§ 77.2(o)). This is a nonsubstantive change for clarification purposes only.

FEMA proposes to replace “community” with “subrecipient” in the introductory sentence as well, and to add that this can mean subapplicant because some of these responsibilities occur before the award. This is also a nonsubstantive change for clarification purposes only.

FEMA proposes to remove paragraph (d)(1), stating that the community must prepare and submit a FEMA approved local mitigation plan, consistent with 44 CFR part 201. The requirement to prepare and submit plans for review and approval is now located in 44 CFR part 201 (local mitigation plans are specifically covered in § 201.6). FEMA prefers to refer to part 201 to avoid confusion. Repeating the same requirement in part 79 (proposed part 77) is duplicative, can cause confusion as it might appear to be a separate requirement, and is administratively burdensome if FEMA needs to make any changes, as it would have to change them in two different places in the regulations. Finally, submitting plans for review and approval is not an FMA grant requirement; the requirement is to have an approved plan in order to be eligible for FMA project grants, which is already captured in current § 79.6(b)(2) (proposed § 77.6(b)(2)).

Current paragraph (d)(2) states that the community (proposed: subrecipient) must complete and submit subgrant applications to the State POC for FMA planning, project and management cost subgrants, and for SRL project and management costs subgrants. FEMA proposes to replace “subgrant” with “subaward,” consistent with the terminology in 2 CFR part 200. FEMA proposes to replace “State POC” with “recipient” as “recipient” captures the universe of entities to which a subrecipient would submit an application (
i.e.,
in addition to a State, the recipient can be a territory or Indian Tribal government). FEMA proposes to replace the phrase “FMA planning, project and management cost subgrants” with “FMA planning and project subawards” because FEMA proposes to replace the term “subgrant” with the term “subaward,” and because “management costs” are not a separate type of grant. Rather, “management costs” are defined under proposed § 77.2(g) and eligible as described under proposed § 77.7(a)(1). FEMA proposes to remove the clause pertaining to SRL subgrants, as the SRL program is no longer authorized under the NFIA. FEMA proposes to redesignate current paragraph (d)(2) as paragraph (c)(1). The proposed changes to paragraph (d)(2) are nonsubstantive to clarify and conform the regulations with the changed definitions described above.

Current paragraph (d)(3) states that the community (proposed: subrecipient) must implement all approved subgrants; notifying each holder of a record interest in severe repetitive loss properties when an offer of mitigation assistance has been made under the SRL program, and when such offer has been refused. FEMA proposes to revise this provision to simply state that the subrecipient must “implement all approved subawards.” As the SRL program is no longer authorized under the NFIA, the clause pertaining to SRL assistance is not necessary. However, it is a current responsibility of all subrecipients to implement any approved subawards, so FEMA proposes to retain this portion of current paragraph (d)(3). FEMA proposes to redesignate current paragraph (d)(3) as paragraph (c)(2). These are nonsubstantive clarifying revisions.

FEMA proposes to add two paragraphs to address the monitoring and closeout requirements that are currently part of the grants process. Consistent with 2 CFR part 200 and the HMA Guidance, FEMA proposes to add paragraph (c)(3), stating that the subrecipient must monitor and evaluate the progress of the mitigation activity in accordance with the approved original scope of work and budget through quarterly reports, and paragraph (c)(5), stating that the subrecipient must closeout the subaward in accordance with 2 CFR 200.343 and 200.344, and the HMA Guidance.
39

These are nonsubstantive revisions reflecting existing requirements.
40

39

See
2 CFR 200.328, 200.343; HMA Guidance, Part II. M, Project Monitoring, and Part II.N, Closeout, pp. 23-24.

40
These requirements are covered by OMB Information Collection 1660-0072, “Mitigation Grant Programs/e-grants.” This collection is approved by OMB until October 31, 2021.

Current paragraph (d)(4) states that the community must comply with program requirements under this part, grant management requirements under 2 CFR parts 200 and 3002, the grant agreement articles, and other applicable Federal, State, Tribal and local laws and regulations. FEMA proposes to retain this language and redesignate current paragraph (d)(4) as paragraph (c)(4).

5. Section 79.4 (Proposed § 77.4) Availability of Funding

Section 79.4 addresses the method of funding under the SRL and FMA programs prior to BW-12. As explained in the Background section of this preamble, prior to BW-12, FMA program funding was allocated to States each fiscal year based upon the number of NFIP policies within the State, the number of repetitive loss structures within the State, and other criteria the Administrator determined to be in the best interests of the NFIF.

Paragraph (a) addresses automatic allocations. FEMA proposes to remove paragraph (a)(1), which addresses the SRL program, as that program is no longer authorized under the NFIA. Paragraph (a)(2) describes how the automatic allocation process worked for the FMA program prior to BW-12. Pursuant to the introductory language of current paragraph (a)(2), for the amount made available for the FMA program, the Administrator allocates the available funds each fiscal year. Funds are distributed based upon the number of NFIP policies, repetitive loss structures, and any other such criteria the Administrator determines are in the best interest of the NFIF. FEMA proposes to revise the introductory language of current paragraph (a)(2) to state that the Administrator will allocate funds based upon criteria established for each application period rather than “each fiscal year,” because this is more accurate. Although each application period is usually tied to the specific fiscal year, referring to “each application period” would allow flexibility in the event that a particular application period did not line up exactly with a particular fiscal year (for example, if the appropriations process delayed the announcement of an application period beyond the normal schedule). FEMA also proposes to add “severe repetitive loss structures” to the list of criteria because under the NFIA, as amended by BW-12, these structures are defined separately and subject to different cost share provisions.
41

FEMA proposes to renumber revised paragraph (a)(2) as § 77.4(a)(1).

41

See
42 U.S.C. 4104c(d)(1) and (h)(3).

Current paragraph (a)(2)(i) states that a maximum of 7.5 percent of the amount made available in any fiscal year may be allocated for FMA planning grants nationally, that a planning grant will not be awarded to a State or community more than once every 5 years, and an individual planning grant will not exceed $150,000 to any State agency applicant, or $50,000 to any community subapplicant. It states that the total planning grant made in any fiscal year to any State, including all communities located in the State, will not exceed $300,000. FEMA proposes to redesignate this paragraph as paragraph (a)(2). FEMA also proposes to revise this paragraph because BW-12 revised the

$150,000 and $50,000 caps, and explicitly removed the 7.5 percent cap, the 5-year limit, and the $300,000 total cap. Under the current statutory authority, the amount of an individual planning grant under the FMA program shall not exceed $50,000 for any mitigation plan of a State (or, a “recipient” as defined in this proposed rule) or $25,000 for any mitigation plan of a community (or, a “subrecipient” as defined in this proposed rule).
42

FEMA proposes to reflect these revised caps in proposed § 77.4(a)(2). This removal is a nonsubstantive change to the FMA program as FEMA has already implemented this provision of BW-12.
43

42
42 U.S.C. 4104c(c)(3)(F).

43

See
HMA Guidance, Part IV.E.3, FMA Funding Restrictions, p. 54.

Current paragraph (a)(2)(ii) states that the total amount of FMA project grant funds provided during any 5-year period will not exceed $10,000,000 to any State agency(s) or $3,300,000 to any community. It states that the total amount of project grant funds provided to any State, including all communities located in the State will not exceed $20,000,000 during any 5-year period. The Administrator may waive the limits of this paragraph for any 5-year period when a major disaster or emergency is declared pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act for flood conditions. FEMA proposes to remove this paragraph because BW-12 removed these caps and time period restrictions. Under the current statutory authority, FMA project grants must meet the eligibility requirements in 42 U.S.C. 4104c(c), are subject to the availability of funds, and may be subject to additional restrictions as Congress may establish in the annual appropriation for the FMA program. This removal is a nonsubstantive change to the FMA program as FEMA has already implemented this provision of BW-12.
44

44

See
HMA Guidance, Part VIII.C, Additional Program Guidance: Flood Mitigation Assistance Program, pp. 116-18.

Paragraph (b) addresses redistribution. It states that funds allocated to States that choose not to participate in either the FMA or SRL program in any given year will be reallocated to participating States and Indian Tribal applicants. It states that any funds allocated to a State, and the communities within the State, which have not been obligated within the timeframes established by the Administrator shall be redistributed by the Administrator to other States and communities to carry out eligible activities in accordance with this part. FEMA proposes to remove this paragraph because BW-12 eliminated automatic allocations. As there are no automatic allocations, there is no need for a provision regarding re-allocations. Under the current program post-BW-12, FEMA considers all eligible subapplications and selects subapplications against agency priorities identified in annual appropriations and the NOFO.
45

45

See
HMA Guidance, Part IV.H.1, Required Components, p. 59.

Current paragraph (c) addresses the cost share provisions that were applicable prior to BW-12. Under current paragraph (c)(1), FEMA may provide up to 75 percent of the eligible cost of activities for grants approved for funding. Under current paragraph (c)(2), FEMA may contribute up to 90 percent of the cost of the eligible activities for severe repetitive loss properties if the applicant has an approved mitigation plan meeting the repetitive loss requirements identified in § 201.4 or § 201.7.

FEMA proposes to redesignate current paragraph (c) as paragraph (b) and to replace current paragraphs (c)(1) and (2) with proposed paragraphs (b)(1) through (3) to reflect the new cost share structure under BW-12. FEMA proposes to add a new paragraph (b)(1) to state that for each severe repetitive loss structure, FEMA may contribute up to 100 percent of all eligible costs if the activities are technically feasible and cost-effective, or, up to the amount of the expected savings to the NFIP for acquisition or relocation activities.
46

FEMA is not retaining the requirement that severe repetitive loss properties have an approved mitigation plan meeting the repetitive loss requirements identified in part 201 because BW-12 removed this requirement.
47

Note that all applicants must still have a FEMA-approved mitigation plan that addresses flood losses to structures covered by the NFIP, but the mitigation planning requirements are no longer tied to specific cost shares.
48

FEMA proposes to clarify the mitigation planning requirements in proposed § 77.6(b), discussed elsewhere in this preamble.

46
42 U.S.C. 4104c(c)(2) and (d)(1); implemented via HMA Guidance at section VIII.C.3, Cost Sharing, p. 117.

47

See
Public Law 112-141, section 100225(a)(1), (9); 42 U.S.C. 4104c(d).

48

See
42 U.S.C. 4104c(b).

FEMA proposes to add a new paragraph (b)(2) to state that for repetitive loss structures, FEMA may contribute up to 90 percent of eligible costs.
49

Prior to BW-12, repetitive loss structures received a 75 percent cost share.

49
42 U.S.C. 4104c(d)(2); implemented via HMA Guidance at section VIII.C.3, Cost Sharing, p. 118.

FEMA proposes to add a new paragraph (b)(3) to state that for all other mitigation activities, FEMA may contribute up to 75 percent of all eligible costs.
50

FEMA has implemented this new cost structure in the HMA Guidance.
51

50
42 U.S.C. 4104c(d)(3); implemented via HMA Guidance at section VIII.C.3, Cost Sharing, p. 118.

51

See
HMA Guidance, Part VIII. C.3, Cost Sharing, pp. 117-18.

Some projects include different types of structures. FEMA proposes to add a new paragraph (b)(4) stating that for projects that contain a combination of severe repetitive loss, repetitive loss, and/or insured structures, FEMA will calculate the cost share as appropriate for each type of structure submitted in the project subapplication, meaning that FEMA will determine the cost share based on the type of structure, even if the structure is combined with other types in the same project. FEMA is adding this provision to make clear that a structure is not eligible to receive an increased Federal cost share just because it is included in the same project as structures that are eligible to receive an increased Federal cost share. For example, the cost of mitigating a repetitive loss structure is still subject to the 90 percent Federal/10 percent non-Federal cost share requirement, even if it is included in a project that also mitigates severe repetitive loss structures. This is not a substantive change and reflects FEMA's current practice. FEMA proposes to add this provision to ensure that potential subrecipients do not mistakenly expect to receive increased cost shares for which they are ineligible.

Current paragraph (c)(3) states that for the FMA program only, of the non-Federal contribution, not more than one half can be provided from in-kind contributions. FEMA proposes to remove this paragraph because BW-12 eliminated the limit on the amount of in-kind contributions that may make up the non-Federal portion of an FMA award.
52

52

See
Public Law 112-141, section 100225(a); 42 U.S.C. 4104c(d).

BW-12 includes a provision stating that for any application for a grant for which FEMA fails to make a grant award within 5 years of the date of application, the grant application is considered to be denied and any funding amounts allocated for such grant application will remain available

for other FMA grants.
53

FEMA proposes to add a new paragraph (c) to implement this provision. FEMA notes that while the statute uses the term “application,” FEMA is interpreting this to mean subapplications as well. While FEMA makes awards to the applicant, it is the applicant who awards funds to the subapplicant. Therefore FEMA is applying the 5-year requirement to applicants to ensure they in turn are timely in making the subawards to their subapplicants. Otherwise, the intent of the statute would not be fully realized if FEMA makes the award within 5 years, but the applicant does not in turn make a timely award to the subapplicant. FEMA interprets “date of application” to mean date of submission, meaning the date the applicant/subapplicant submits the application to FEMA. This is to avoid any potential confusion about the date that marks the beginning of the 5-year period. FEMA has implemented this provision in the HMA Guidance.
54

53

See
42 U.S.C. 4104c(g).

54

See
HMA Guidance, Part VIII.C.6, Failure to Make Federal Award within 5 Years, p. 118.

6. Section 79.5 (Proposed § 77.5) Application Process

Current § 79.5 addresses the application process. Paragraph (a) is entitled “Applicant or grantee.” FEMA proposes to remove the reference to grantee so that the title of paragraph (a) would just be “Applicant.” While 2 CFR part 200 uses recipient rather than grantee, this section addresses the point in the grants process where money has not yet been awarded, so the appropriate term for this paragraph is applicant rather than recipient. Current paragraph (a)(1) states that States will be notified of the amount allocated to them for the SRL and FMA programs each fiscal year, along with the application timeframes. As discussed above, automatic allocations are no longer used under the FMA program, and the SRL program is no longer authorized. Further, FEMA prefers to use “applicant” rather than State, as applicant captures the full universe of entities who may be an applicant (
i.e.,
States (including territories) and Indian Tribal governments).
55

Therefore FEMA proposes to revise paragraph (a)(1) to state that applicants will be notified of the availability of funding for the FMA program pursuant to 2 CFR 200.202 and 200.203. Section 200.202 requires agencies to provide public notice of grant fund availability, and § 200.203 lists the requirements surrounding these notices (including the information they must contain). As discussed above, FEMA publishes a NOFO when funds become available. The NOFO includes the application timeframes, and therefore FEMA did not retain in paragraph (a)(1) the specific requirement to provide application timeframes.

55

See
proposed § 77.2(b).

Paragraph (a)(2) states that the State 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. FEMA proposes to replace “State” with “applicant” to cover the entire universe of potential applicants (States (including territories) and Indian Tribal governments).
56

56

Id.

Paragraph (a)(3) states that participation in these flood mitigation grant programs is voluntary, and States may elect not to participate in either the SRL or FMA program in any fiscal year without compromising their eligibility in future years. FEMA proposes to remove this paragraph because it was relevant pre-BW-12 when the programs were allocation based and each eligible State received an annual allocation. While the current FMA program is voluntary, this is not necessary to repeat in the regulations relating to the application process because the voluntary nature of the program is established in the statute and made clear in § 79.6 (proposed § 77.6), each annual NOFO, and the HMA Guidance.
57

57

See
42 U.S.C. 4104c(a); 44 CFR 79.6; HMA Guidance, Part II, Frontloading HMA Program Eligibility Requirements, p. 13.

Paragraph (a)(4) states that Indian Tribal governments interested in applying directly to FEMA for either the FMA or SRL program grants should contact the appropriate FEMA Regional Administrator for application information. FEMA proposes to remove this paragraph because proposed paragraphs (a)(1) and (2) would apply to Indian Tribal government applicants and eliminate the need to address these applicants in a separate paragraph.

Paragraph (b) is entitled “Subapplicant or subgrantee.” FEMA proposes to remove the term “subgrantee” because the paragraph applies to subapplicants before they become subgrantees (proposed “subrecipients”), and thus it is only necessary to include “subapplicant” in the paragraph title. No substantive change is intended. The first sentence states that participation in the SRL and the FMA program is voluntary, and communities may elect not to apply. FEMA proposes to remove this sentence because it was relevant pre-BW-12 when the programs were allocation based and each eligible State received an annual allocation. While the current FMA program is voluntary, this is not necessary to repeat in the regulations relating to the application process because the voluntary nature of the program is established in the statute and made clear in § 79.6 (proposed § 77.6), each annual NOFO, and the HMA Guidance.
58

58

Id.

The second sentence states that communities or other subapplicants who choose to apply must develop applications within the timeframes and requirements established by FEMA and must submit applications to the State. FEMA proposes to replace “State” with “applicant” for reasons discussed above, and proposes to replace “applications” with “subapplications,” which is the proper terminology. Subapplicants submit subapplications, while applicants submit applications. This is not a substantive change.

7. Section 79.6 (Proposed § 77.6) Eligibility

i. Paragraph (a) Eligible Applicants and Subapplicants

FEMA proposes to change the heading of paragraph (a) from “Eligible applicants and subapplicants” to “NFIP requirements” to better reflect the provisions of this paragraph.

Paragraph (a)(1) states that States, Indian Tribal governments, and communities participating in the NFIP may apply for planning and project grants and associated management costs. FEMA proposes to revise this paragraph to say that States, Indian Tribal governments, and communities must be participating in the NFIP and may not be suspended or withdrawn under the program. FEMA proposes to omit “planning and project grants and associated management costs” from this paragraph because eligible activities are covered in paragraph (c) and need not be listed here as well. FEMA also proposes to incorporate into paragraph (a)(1) the eligibility restriction for communities that are suspended or withdrawn under the NFIP. This requirement is currently listed in paragraph (a)(3), which FEMA proposes to remove. This is a nonsubstantive revision intended to incorporate the relevant NFIP participation requirements into a simplified paragraph (a)(1).

Paragraph (2) states that States, Indian Tribal governments, and communities

participating in the NFIP may apply for SRL project grants and associated management costs. FEMA proposes to remove this paragraph because the SRL program is no longer authorized under the NFIA.

Paragraph (3) states that communities withdrawn, suspended, or not participating under part 60 (Criteria for Land Management and Use) of the NFIP are not eligible for either the FMA or SRL programs. FEMA proposes to remove this paragraph because the SRL program was eliminated by BW-12, and the NFIP participation requirement for the FMA program is already covered under proposed § 77.6(a)(1). While paragraph (3) specifically references part 60, FEMA proposes to omit the reference to part 60 in proposed paragraph (a)(1) because it is unnecessary. The reference to part 60 effectively means communities that are participating in the NFIP and who are not suspended or withdrawn
under the program.
FEMA intends proposed paragraph (a)(1) to have the same meaning, but proposes to reference the NFIP generally so that the meaning remains clear even if the regulations at part 60 are revised or renumbered.

While current part 79 addresses NFIP requirements in terms of applicant and subapplicant eligibility, it does not address NFIP requirements specific to property eligibility. FEMA proposes to add a new paragraph (a)(2) to clarify that, for projects that impact individual structures, 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. This is consistent with the HMA Guidance, which explains that properties must be NFIP-insured at the time of the application submittal and prior to the period of availability or application start date and be maintained for the life of the structure.
59

In the absence of such a requirement, a property owner could obtain an NFIP policy immediately before receiving an FMA award and drop the policy after taking advantage of NFIF funds. The establishment of a clear and measurable eligibility requirement will help ensure that FMA funding is awarded to policy holders who consistently maintain coverage for eligible structures. This requirement is consistent with the NFIA's statutory mandate to use funds for activities designed to reduce the risk of flood damage to structures covered under contracts for flood insurance,
60

and is intended to support good stewardship of NFIF funds.

59

See
HMA Guidance, Part VIII.C.1, Eligible Properties, p. 116.

60

See
42 U.S.C. 4104c(a).

ii. Paragraph (b) Plan Requirement

FEMA proposes to revise paragraph (b),
Plan requirement,
to remove the reference to the SRL program and to clarify current mitigation planning requirements consistent with BW-12. To be eligible for FMA awards, applicants and subapplicants must have a FEMA-approved mitigation plan that describes the mitigation activities to be carried out with FMA awards and provides for the reduction of flood losses to structures covered under the NFIP.
61

61

See
42 U.S.C. 4104c(b).

Paragraph (1) states that States must have an approved mitigation plan meeting the requirements of 44 CFR 201.4 or 201.5 in order to apply for grants through the FMA or SRL programs. FEMA proposes to remove the reference to 201.5 as this section addresses enhanced State mitigation plans which are not necessary for eligibility. FEMA also proposes to revise this sentence to clarify that the plan must be approved by FEMA. While it is implied in part 201 that the plan must be approved by FEMA, it is not explicit, so FEMA proposes to add this clarification to avoid any potential confusion. This is not a substantive change and is intended only to improve clarity and consistency with part 201.
62

FEMA also proposes to add language specifying that the FEMA-approved mitigation plan “provides for reduction of flood losses to structures for which NFIP coverage is available” to make the language more consistent with the current statutory requirement at 42 U.S.C. 4104c(b). FEMA proposes to remove the language “in order to apply for grants through the FMA or SRL programs,” first because the SRL is no longer authorized, and second, even though FMA is still an authorized program, it is not necessary because the regulation already makes it clear that a plan is required.

62

See
44 CFR 201.3(b).

The second sentence of paragraph (1) states that Indian Tribal governments must have an approved plan meeting the requirements of 44 CFR 201.7 at the time of application. As with States, FEMA proposes to revise this provision to clarify that the plan must be approved by FEMA. While it is implied in part 201 that the plan must be approved by FEMA, it is not explicit, so FEMA proposes to add this clarification to avoid any potential confusion. FEMA proposes to add “mitigation” before “plan” for the sake of clarity. As with State mitigation plans, FEMA proposes to add language specifying that the FEMA-approved mitigation plan “provides for reduction of flood losses to structures for which NFIP coverage is available” to make the language more consistent with the current statutory requirement at 42 U.S.C. 4104c(b). Finally, FEMA proposes to remove the language “at the time of application” and address this requirement in a separate sentence as described below.

Applicants must have a FEMA-approved mitigation plan at the time of application and award. This comports with the NFIA, which requires applicants to have a FEMA-approved mitigation plan as a condition of eligibility for FMA awards.
63

Currently, the regulation is silent as to this requirement for States. For Indian Tribal governments, the current regulation states only “at the time of application.” FEMA proposes to add a sentence stating that both States and Indian Tribal governments must have a FEMA-approved mitigation plan at the time of application and award. This is a nonsubstantive change intended for clarification purposes only.
64

63

See
42 U.S.C. 4104c(b).

64

See
HMA Guidance, Part III.E.5.1, Applicant Mitigation Plan Requirement, p. 45.

Paragraph (2) states that in order to be eligible for FMA and SRL grants, subapplicants must have an approved mitigation plan at the time of application in accordance with 44 CFR part 201 that at a minimum addresses flood hazards. As with applicants, FEMA proposes to revise this provision to clarify that the plan must be approved by FEMA. While it is implied in part 201 that the plan must be approved by FEMA, it is not explicit, so FEMA proposes to add this clarification to avoid any potential confusion. Also as with applicants, FEMA proposes to add that the plan must provide for reduction of flood losses to structures for which NFIP coverage is available. FEMA proposes to remove the language “at a minimum, addresses flood hazards” and replace it with the language “provides for reduction of flood losses to structures for which NFIP coverage is available” to make the language more consistent with the current statutory requirement at 42 U.S.C. 4104c(b).

FEMA proposes to add a sentence stating that the FEMA-approved mitigation plan is required at the time of application and award for reasons described above.
65

65

See
HMA Guidance, Part III.E.5.2, Subapplicant Mitigation Plan Requirement, p. 45.

Finally, FEMA proposes to add paragraph headings to aid the reader. It proposes to add the header “applicants” for paragraph (b)(1), and the header “subapplicants” for paragraph (b)(2) to make the paragraph structure easier to follow.

iii. Paragraph (c) Eligible Activities

FEMA proposes to revise paragraph (c),
Eligible activities,
to reflect the changes from BW-12.

Paragraph (1) addresses planning and states that FMA planning grants are limited to those activities necessary to develop or update the flood portion of any mitigation plan. FEMA proposes to remove this sentence because the NFIA, as amended by BW-12, explicitly provides that a mitigation plan that provides for the reduction of flood losses to structures for which NFIP coverage is available
may be included in a multi-hazard mitigation plan.
66

FEMA proposes to remove the “flood portion” language because there may be multi-hazard mitigation plans that meet the statutory requirements but that do not distinguish and address all flood-related provisions in a separate “flood portion” of the plan. FEMA proposes to say, instead, that the plans must provide for reduction of flood losses to structures for which NFIP coverage is available. This change is intended to reflect the statutory language at 42 U.S.C. 4104c(b).

66
42 U.S.C. 4104c(b).

FEMA proposes to also remove the following sentence, which states that planning grants are not eligible for funding under the SRL program; as the SRL program is no longer authorized, this provision is no longer necessary.

Paragraph (c)(2) addresses projects. The first sentence of the introductory text states that projects funded under the SRL program are limited to those activities that specifically reduce or eliminate flood damages to severe repetitive loss properties. FEMA proposes to remove this sentence and make necessary grammatical adjustments to this paragraph because the SRL program is no longer authorized.

In paragraph (c)(2)(v), FEMA proposes to remove language that limits the eligibility of demolition and rebuilding of properties to the SRL program. The demolition and rebuilding of properties to at least base flood levels or higher, if required by FEMA or by State or local ordinance, has been an eligible activity under the FMA program since before BW-12's passage. FEMA implemented this provision in the HMA Guidance.
67

67

See
HMA Guidance Addendum, Feb. 27, 2015, Part D, Mitigation Reconstruction Projects, p. 59, available at
https://www.fema.gov/media-library-data/1424983165449-38f5dfc69c0bd4ea8a161e8bb7b79553/HMA_Addendum_022715_508.pdf
(last accessed Feb. 13, 2020).

Paragraph (c)(2)(vi) lists as an eligible project “minor physical localized flood reduction measures” that lessen the frequency or severity of flooding and decrease predicted flood damages. FEMA proposes to replace “minor physical localized flood reduction measures” with “localized flood risk reduction projects.” The following sentence states that “major flood control projects” such as dikes, levees, floodwalls, seawalls, groins, jetties, dams and large-scale waterway channelization projects are not eligible. FEMA proposes to replace “major flood control projects” with “non-localized flood risk reduction projects.” Major flood control projects are known as “non-localized flood risk reduction projects” for purposes of FMA. FEMA proposes to replace major flood control projects with non-localized flood risk reduction projects so that these projects are known by one common name. These changes are intended to ensure consistency between program implementation, guidance, and regulation, and do not impose new requirements. The terms “localized flood risk reduction projects” and “non-localized flood risk reduction projects” are used throughout the HMA Guidance.
68

68

See, e.g.,
HMA Guidance, Part III.E.1.1, Mitigation Projects, p. 36.

BW-12 added elevation, relocation, and floodproofing of utilities as eligible activities.
69

FEMA proposes to add these activities to a new paragraph (c)(2)(vii). These activities were implemented in the HMA Guidance.
70

69

See
42 U.S.C. 4104c(c)(3)(D), Public Law112-141, section 100225(a)(5)(D).

70
HMA Guidance, Part III.E.1.1, Mitigation Projects, pp. 34 -35.

BW-12 provides that eligible activities may include mitigation activities that are described in the mitigation plan of a State or community but not specified by statute or regulation.
71

FEMA proposes to implement this provision in a new paragraph (c)(2)(viii) for mitigation activities described in a State, Tribal, or local mitigation plan that are not listed in paragraphs (c)(2)(i) through (vii). This flexibility is important because it allows FEMA to consider innovative or novel projects that are consistent with the goals of the FMA program but are not specifically identified in statute or regulation. This is a nonsubstantive change; FEMA has already implemented this provision in the HMA Guidance.
72

71

See
42 U.S.C. 4104c(c)(3)(I).

72
HMA Guidance, Part III.E.1.1, Mitigation Projects, p. 38.

BW-12 provides that if a State applied for and was awarded at least $1,000,000 in FMA grants in the prior fiscal year, FEMA may provide funding for technical assistance to communities not to exceed $50,000 per State in any fiscal year to identify eligible activities, to develop grant applications, and to implement FMA grants.
73

FEMA proposes to add new paragraph (c)(3) to implement this provision. The new paragraph would state that 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. FEMA has already implemented this provision in the HMA Guidance.
74

The HMA Guidance lists potential eligible activities under this grant, such as promoting FMA to communities, visiting sites with communities/applicants, developing and reviewing project applications and mitigation plans, participating in planning meetings, providing planning workshops and materials, performing benefit cost analyses and providing grants management workshops and materials, funding (in part) salaries and expenses of staff working to develop, review, monitor, and close FMA grants.
75

73

See
42 U.S.C. 4104c(c)(3)(J).

74
HMA Guidance, Part III.E.1.4, Technical Assistance, pp. 40-41.

75

Id.

iv. Paragraph (d) Minimum Project Criteria

Paragraph (d) addresses minimum project criteria which lists specific criteria FMA grant projects must meet in addition to being an eligible project type as described in paragraph (c). Paragraph (d)(1) states that projects must be in conformance with mitigation plans approved under 44 CFR part 201 for the State and community where the project is located. FEMA proposes to revise this provision for the sake of clarity, to state that projects must be in conformance with “State, Tribal, and/or local” mitigation plans approved under part 201 for the “jurisdiction” where the project is located.

Paragraph (d)(2) states that projects must be in conformance with part 9 of this chapter, Floodplain Management and Protection of Wetlands, § 60.3 of this subchapter, Flood plain management criteria for floodprone areas, and other applicable Federal, State, Tribal, and local laws and regulations. FEMA proposes to revise

this provision to state that the project must 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. FEMA proposes to remove the reference to § 60.3 and replace it with a more general reference to part 60, which captures additional requirements that fall under current paragraph (d)(2). FEMA also proposes to emphasize that projects must be in conformance “with applicable environmental and historic preservation laws, regulations, and agency policy,” which includes FEMA regulations at parts 9 and 60. Applicable environmental and historic preservation requirements also include the requirements in DHS Directive and Instruction 023-01, “Implementation of the National Environmental Policy Act,” and FEMA Directive and Instruction 108-1, “Environmental Planning and Historic Preservation Responsibilities and Program Requirements.”
76

This is a nonsubstantive change intended to capture all applicable legal requirements and to highlight applicable environmental and historic preservation requirements, which are particularly relevant to the implementation of mitigation grants.
77

76

See
81 FR 56514 and 81 FR 56682.

77

See
HMA Guidance, Part III.E.6, Environmental Planning and Historic Preservation Requirements, pp. 47-48.

Paragraph (d)(3) states that mitigation grant projects must “be technically feasible.” Under the NFIA, as amended by BW-12, mitigation projects must be “technically feasible and cost-effective” or “eliminate future payments from the [NFIF] for severe repetitive loss structures through an acquisition or relocation activity.”
78

FEMA proposes to add to paragraph (d)(3) “and cost-effective; or, eliminate future payments from the NFIF for severe repetitive loss structures through an acquisition or relocation activity.” FEMA proposes this revision to capture all of the statutory requirements in 42 U.S.C. 4104c(c)(2)(A) in the same regulatory provision. This is not a substantive change; FEMA had already implemented this provision prior to BW-12.
79

78
42 U.S.C. 4104c(c)(2)(A).

79
HMA Guidance, Part III.E.3, Cost Effectiveness, and Part III.E.4, Feasibility and Effectiveness, p.44.

Paragraph (d)(5) states that the project must be cost effective and reduce the risk of future flood damage. FEMA proposes to remove this paragraph because cost-effectiveness is addressed in the proposed revisions to paragraph (d)(3). Proposed paragraph (d)(3) does not include the language “reduce the risk for future flood damage” because FEMA is proposing language that mirrors the statutory provision at 42 U.S.C. 4104c(c)(2)(A)(ii), as explained above.

Finally, FEMA proposes to replace “subgrantee” with “subrecipient” in current paragraph (d)(6) to reflect the terminology in 2 CFR part 200, and to redesignate current paragraph (d)(6) as paragraph (d)(5), and current paragraph (d)(7) as paragraph (d)(6).

8. Section 79.7 Offers and Appeals Under the SRL Program

Section 79.7 deals solely with the SRL program, which is no longer authorized under the NFIA. Accordingly, FEMA proposes to remove this section in its entirety.

9. Section 79.8 (Proposed § 77.8) Allowable Costs

This section addresses allowable costs under the FMA program. Paragraph (a)'s introductory text states that general policies for allowable costs are addressed in 2 CFR 200.101, 200.102, 200.400-200.475. FEMA proposes to revise this provision to clarify that the allowable costs are “for implementing awards and subawards.” This is a nonsubstantive change.

Paragraph (a)(1) is entitled “Eligible management costs.” Paragraph (a)(1)(i) is entitled “grantee.” FEMA proposes to replace “grantee” with “recipient” to reflect the updated terminology in 2 CFR part 200. The first sentence of paragraph (a)(1)(i) states that States are eligible to receive management costs consisting of a maximum of 10 percent of the planning and project activities awarded to the State, each fiscal year under FMA and SRL, respectively. FEMA proposes to replace “State(s)” with “recipient(s)” to reflect the terminology in 2 CFR part 200 and to capture all possible applicants (States (including territories) and Indian Tribal governments).
80

FEMA proposes to remove the reference to the SRL program, which is no longer authorized under the NFIA. The last sentence states that an Indian Tribal government applying directly to FEMA is eligible for management costs consisting of a maximum of 10 percent of grants awarded for planning and project activities under the SRL and FMA programs respectively. FEMA proposes to remove this sentence as it would no longer be necessary under the proposed revisions to this paragraph, which replaces “States” with “recipients.” The term “recipients” includes Indian Tribal governments.

80

See
proposed 77.2(i).

FEMA proposes to replace the header of paragraph (a)(1)(ii), “subgrantee,” with “subrecipient” to reflect the terminology in 2 CFR part 200. FEMA proposes to replace the term “State” with “recipient” to capture the full universe of entities to which a subapplicant may apply (States (including territories) and Indian Tribal governments).

Paragraph (a)(2) is entitled “Indirect Costs.” FEMA proposes to remove the reference to the SRL program, as the program is no longer authorized under the NFIA. FEMA proposes to replace “grantee” with “recipient” and “subgrantee” with “subrecipient” to reflect the terminology in 2 CFR part 200.

Paragraph (b) is entitled “Pre-award costs.” The first sentence states that FEMA may fund eligible pre-award planning or project costs at its discretion and as funds are available. FEMA proposes to revise this sentence to state that FEMA may fund eligible pre-award costs related to developing the application or subapplication at its discretion and as funds are available. FEMA interprets “pre-award planning or project costs” to mean pre-award costs related to developing an application or subapplication. This revision is intended to clarify the regulatory language, consistent with FEMA's interpretation established in the HMA Guidance, and is not a substantive change.
81

FEMA proposes to replace “grantees” with “recipients” and “subgrantees” with “subrecipients” to reflect the terminology in 2 CFR part 200. Finally, FEMA proposes to make nonsubstantive grammatical changes to reflect that this section applies just to FMA grants, and proposes to replace the phrase “incurred prior to grant award” with “incurred prior to award” as the word “grant” is not necessary.

81

See
HMA Guidance, Part IV.F.2, Pre-award costs, p. 55.

Paragraph (c) is entitled “Duplication of Benefits.” FEMA proposes to replace “grantee” with “recipient” and “subgrant award” with “subaward” to reflect the terminology in 2 CFR part 200.

10. Section 79.9 (Proposed § 77.9) Grant Administration

Paragraph (a) states that the grantee must follow FEMA grant requirements, including submission of performance and financial status reports, and shall follow adequate competitive procurement procedures, and that grantees are responsible for ensuring

that all subgrantees are aware of and follow the requirements of 2 CFR parts 200 and 3002. Finally, it states that the grantee must follow FEMA grant requirements, including submission of performance and financial status reports. FEMA proposes to revise this paragraph for a more streamlined approach and to eliminate some of the repetition in the current paragraph. Accordingly, FEMA proposes to revise paragraph (a) to state that recipients must comply with the requirements of 2 CFR parts 200 and 3002, and FEMA award requirements, including submission of performance and financial status reports, and that recipients must also ensure that subrecipients are aware of and comply with 2 CFR parts 200 and 3002. Finally, FEMA proposes to add a header to paragraph (a), entitled “General,” to distinguish it from the other paragraphs and for the ease of the reader. These are nonsubstantive changes.

FEMA proposes to add a header to paragraph (b), “Cost overruns,” for the ease of the reader. In paragraph (b)'s introductory text, FEMA proposes to replace “State POC” with “recipient” to capture the universe of all possible recipients (States (including territories) and Indian Tribal governments). FEMA proposes to redesignate the introductory text of paragraph (b) as paragraph (b)(1), and to redesignate paragraph (b)(1) as (b)(1)(i), and paragraph (b)(2) as (b)(1)(ii). Current paragraph (b)(2) (proposed paragraph (b)(1)(ii)), which lists one of the requirements for reimbursement of an overrun, states that the amended grant award must meet the cost share requirements identified in this section. FEMA proposes to revise this to state that the amended grant award must meet the eligibility requirements, including cost share requirements, identified in this section. FEMA proposes this change to capture all eligibility requirements, including but not limited to cost share requirements. This is a nonsubstantive change, because all FMA eligibility requirements apply to amended grant awards, and is consistent with the HMA Guidance.
82

82

See
HMA Guidance, Part IV.D.3.3, Cost overruns and Underruns, p. 85.

Paragraph (b)(3) limits cost overrun reimbursements so that the total amount obligated to the State does not exceed the maximum funding amounts set in § 79.4(a)(2). FEMA proposes to remove this provision because BW-12 eliminated automatic allocations under the FMA program and the NFIA no longer establishes maximum funding amounts for project awards.
83

83

See
discussion
supra
regarding the proposed revisions to § 79.4 (proposed § 77.4).

Current paragraph (c) addresses the ability of grantees to use cost underruns to offset overruns in other awards. FEMA proposes to redesignate paragraph (c) as paragraph (b)(2), since it more appropriately belongs in the paragraph on cost overruns rather than as a stand-alone paragraph. The first sentence of current paragraph (c) (proposed paragraph (b)(2)) states that grantees may use cost underruns from ongoing subawards to offset overruns incurred by another subgrant(s) awarded under the same grant. FEMA proposes to replace “grantees” with “recipients” and “subgrants” with “subawards” to reflect the terminology in 2 CFR part 200, and to replace the final word of the sentence (“grant”) with “award.” These are nonsubstantive changes. The second sentence of current paragraph (c) (proposed paragraph (b)(2)) states that all costs for which funding is requested must have been included in the original application's cost estimate. FEMA proposes to replace “application” with “subapplication” because the need for an overrun is at the subaward level. This is a nonsubstantive change for clarification purposes—the program currently applies this to the subapplication amount for a specific project, not the application amount which encompasses all projects under the recipient's award. FEMA proposes to add that in cases where an underrun is not available to cover an overrun, the Administrator may, with justification from the recipient or subrecipient, use other available FMA funds to cover the cost overrun. FEMA implements this practice pursuant to 42 U.S.C. 4104c(c)(1), which requires FEMA to provide FMA assistance to the extent amounts are available in the NFIF pursuant to appropriation Acts, subject only to the absence of approvable mitigation plans. This practice is consistent with the HMA Guidance which provides that “[t]he pass-through entity may request additional Federal funds for identified overruns, which FEMA may approve if program funds are available.”
84

This flexibility allows FEMA and recipients to address unanticipated needs.

84

See
HMA Guidance, Part VI.D.3.3, Cost overruns and Underruns, p. 85.

Current paragraph (d) addresses the requirement that the request for an overrun be in writing to the FEMA Regional Administrator. FEMA proposes to redesignate this paragraph as paragraph (b)(3), as it appropriately belongs in the paragraph that addresses overruns rather than as a stand-alone paragraph. FEMA proposes to replace “grant” with “award” for the sake of clarity, and to replace “State POC” with “recipient” to capture the universe of potential recipients (States (including territories) and Indian Tribal governments). FEMA proposes to replace “shall” with “must” and “will” pursuant to the Office of the Federal Register's Principles of Clear Writing.
85

85

https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html.

Current paragraph (e) addresses the circumstances under which FEMA recaptures funds. FEMA proposes to redesignate this paragraph as paragraph (c) and to add a paragraph heading “Recapture” for the ease of the reader. FEMA proposes to replace “these programs” with “this part” for the sake of clarity.

FEMA proposes to add a new paragraph (d) to address remedies for noncompliance, consistent with 2 CFR part 200. FEMA proposes to add that FEMA may terminate an award or take other remedies for noncompliance in accordance with 2 CFR 200.338 through 200.342.

Finally, FEMA proposes to add a new paragraph (e) to address the reconsideration process under the FMA program. FEMA proposes to state that it will reconsider determinations of noncompliance, additional award conditions, or its decision to terminate a Federal award. Requests for reconsideration must be made in writing 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. FEMA proposes to add these provisions to reflect the existing opportunity to request reconsideration
86

and the procedures for when a recipient/subrecipient challenges a remedy for noncompliance, as required by 2 CFR 200.341.
87

FEMA believes that a 60 calendar day deadline for submitting requests for reconsideration is appropriate and consistent with the

amount of time provided to submit appeals or requests for reconsideration in other FEMA programs.
88

This is a nonsubstantive change that codifies current practice.

86

See
HMA Guidance, Part V.B.3, Reconsideration Process, p. 77.

87

See
2 CFR 200.341,
Opportunities to object, hearings and appeals,
providing that “[U]pon taking any remedy for non-compliance, the Federal awarding agency must provide the non-Federal entity an opportunity to object and provide information and documentation challenging the suspension or termination action, in accordance with written processes and procedures published by the Federal awarding agency.”

88

See, e.g.,
44 CFR 206.101(m), 206.115(a), 206.171(f)(5), 206.204(e)(2), 206.206(c), and 206.366(d)(4).

C. 44 CFR part 80, Property Acquisition and Relocation for Open Space

Throughout part 80,
89

FEMA proposes to replace outdated terms and definitions with substantively similar terms and definitions that better align with 2 CFR part 200 and the HMA Guidance. These are nonsubstantive revisions intended to simplify definitions and improve consistency among FEMA's HMA programs. FEMA also proposes to replace the word “shall” with the word “will” or “must,” as appropriate, and to remove references to the SRL program.

89
See,
e.g.,
§§ 80.5 (Roles and responsibilities), 80.9 (Eligible and ineligible costs), 80.11 (Project eligibility), 80.13 (Application information), 80.17 (Project implementation), 80.19 (Land use and oversight), and 80.21 (Closeout requirements).

1. Part 80 Authority

FEMA proposes to revise the authority citation for part 80 to remove historical authorities relating to FEMA's organization. FEMA proposes to remove the references to the Reorganization Plan No. 3 of 1978, Executive Order 12127, Executive Order 12148, and Executive Order 13286. The Reorganization Plan and Executive Orders 12127 and 12148 established FEMA as an agency in 1979 and established its functions. Executive Order 13286 revised Executive Order 12148 and transferred some of FEMA's authorities to DHS. The Homeland Security Act of 2002, 6 U.S.C. 101
et seq.,
superseded previous organizational authorities and provided organic authority for FEMA as a component agency of DHS. FEMA proposes to remove the superseded authorities and retain the citation to the Homeland Security Act of 2002.

2. Section 80.3 Definitions

FEMA proposes nonsubstantive revisions to simplify definitions and improve consistency among FEMA's HMA programs. FEMA proposes to simplify the definition of “market value” to provide clearer meaning and reflect the definition found in widely recognized resources.
90

90

See, e.g,
The Law Dictionary, Black's Law Dictionary Free Online Legal Dictionary, 2nd ed.; West's Encyclopedia of American Law, 2nd ed.

FEMA proposes to add a definition for “Federal award” to reflect the definition in 2 CFR part 200. FEMA's proposed definition is similar to the definition in 2 CFR 200.38(a)(1),
91

with two exceptions. First, FEMA's proposed definition uses the terms “recipients” and “subrecipients” instead of the term “non-Federal entities.” The term “non-Federal entity,” as defined at 2 CFR 200.69, includes entities that are not eligible recipients or subrecipients under all of FEMA's HMA programs. While all HMA recipients and subrecipients are “non-Federal entities” under 2 CFR part 200, FEMA proposes to tailor the definitions in part 80 so that they are program-specific and work when read in conjunction with the regulations for the FMA Program and HMGP. Second, FEMA proposes to add a sentence to the definition to clarify that the terms “award” and “grant” may also be used to describe a “Federal award.” This is a nonsubstantive change to make it clear that the terms are interchangeable.

91
2 CFR 200.38(a)(1) (the Federal financial assistance that a non-Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity).

FEMA proposes to add a definition for “pass-through entity” to reflect the definition in 2 CFR part 200. FEMA's proposed definition of “pass-through entity” is substantively the same as the definition in 2 CFR 200.74, with one exception. FEMA's proposed definition uses the terms “recipients” and “subrecipients” instead of the term “non-Federal entities.” The term “non-Federal entity,” as defined at 2 CFR 200.69, includes entities that are not eligible recipients or subrecipients under all of FEMA's HMA programs. While all HMA recipients and subrecipients are “non-Federal entities” under 2 CFR part 200, FEMA proposes to tailor the definitions in part 80 so that they are program-specific and work when read in conjunction with the regulations for the FMA Program and HMGP.

FEMA proposes to replace the definitions “grantee,” “subgrant,” and “subgrantee,” with definitions for “recipient,” “subaward,” and “subrecipient,” respectively, to better align with the terms and definitions used in 2 CFR part 200 and the HMA Guidance. The proposed definition of “recipient” is similar to the definition at 2 CFR 200.86; however, FEMA proposes to use the terms “State or Indian Tribal government” instead of the term “non-Federal entity” to reflect the terms and definitions in this proposed rule, which are tailored to part 80 and reflect which entities are eligible recipients for purposes of part 80. The proposed definition of “subaward” is similar to the definition at 2 CFR 200.92; however, FEMA proposes to use the terms “recipient” and “subrecipient” instead of the term “non-Federal entity” to reflect the terms and definitions in this proposed rule, which are tailored to part 80. The proposed definition of “subrecipient” is similar to the definition at 2 CFR 200.93; however, FEMA proposes to use the terms “State agency, community, or Indian Tribal government” instead of the term “non-Federal entity” to reflect which entities are eligible subrecipients for purposes of part 80.

Finally, FEMA proposes to revise the definitions of “applicant” and “subapplicant.” FEMA proposes to replace the term “grant” in the current definition of “applicant” with the term “Federal award.” This is a nonsubstantive change to use the newly defined term “Federal award” (proposed § 80.3(c)) throughout the definitions. FEMA also proposes to add that once funds have been awarded, the applicant becomes the recipient and may also be a pass-through entity. This is a nonsubstantive addition to clarify the relationship between the terms “applicant,” “recipient,” and “pass-through entity” for the ease of the reader. FEMA proposes to revise the definition of “subapplicant” to replace “grantee” with “recipient” and “subgrantee” with “subrecipient” to reflect the terms and definitions in this proposed rule, which are tailored to part 80. FEMA proposes to make conforming amendments to these terms throughout part 80.

3. Section 80.13 Application Information

In paragraph (a)(3), FEMA proposes to replace “FEMA's Office of General Counsel” with “FEMA's Office of Chief Counsel.” This is a nonsubstantive change intended to reflect FEMA's current organizational structure (FEMA's Office of General Counsel became the Office of Chief Counsel when FEMA became a component of DHS).

4. Section 80.19 Land Use and Oversight

In addition to replacing outdated terms with substantively similar terms that better align with 2 CFR part 200 and the HMA Guidance (
i.e.,
replacing “grantee” with “recipient,” etc.), FEMA proposes in paragraph (e) to move the sentence in (e)(1)(i) to paragraph (e)(1), and redesignate paragraphs (e)(1)(ii), and (e)(1)(ii)(A) through (C) as (e)(2), and (e)(2)(i) through (iii), respectively. This nonsubstantive redesignation is intended to conform this section to the

regulatory drafting principle of proper subordination (
e.g.,
it is improper to have an (e)(1) where there is not an (e)(2)).

5. Section 80.21 Closeout Requirements

In paragraph (d), FEMA proposes to replace the word “property” with the word “structure” to conform to the definition of “repetitive loss structure” provided in BW-12 and proposed § 77.2, discussed above.

D. 44 CFR Part 201, Mitigation Planning

FEMA proposes to replace outdated terms and definitions throughout part 201 with substantively similar terms and definitions that better align with 2 CFR part 200 and the HMA and Mitigation Planning programs guidance documents. These are nonsubstantive revisions intended to simplify definitions and improve consistency among FEMA's HMA and Mitigation Planning programs. FEMA also proposes to replace the word “shall” with the word “will” or “must,” as appropriate.

1. Part 201 Authority

FEMA proposes to revise the authority citation for part 201 to remove historical authorities relating to FEMA's organization. FEMA proposes to remove the references to the Reorganization Plan No. 3 of 1978, Executive Order 12127, Executive Order 12148, and Executive Order 13286. The Reorganization Plan and Executive Orders 12127 and 12148 established FEMA as an agency in 1979 and established its functions. Executive Order 13286 revised Executive Order 12148 and transferred some of FEMA's authorities to DHS. The Homeland Security Act of 2002, 6 U.S.C. 101
et seq.,
superseded previous organizational authorities and provided organic authority for FEMA as a component agency of DHS. FEMA proposes to remove the superseded authorities and retain the citation to the Homeland Security Act of 2002.

2. Section 201.1 Purpose

FEMA proposes to replace the word “polices” with “policies” in paragraph 201.1(a) as the word “polices” is a typographical error.

3. Section 201.2 Definitions

FEMA proposes to revise the definition of “severe repetitive loss” properties and to add a new definition for “repetitive loss structure” to reflect the definitions provided in BW-12 and proposed in this rulemaking.
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FEMA proposes to remove the definitions of the “repetitive flood claims” and “severe repetitive loss” programs as BW-12 eliminated the RFC and SRL programs.

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42 U.S.C. 4104c(h), 4121(a)(7); proposed 44 CFR 77.2.

FEMA proposes to add definitions for the terms “applicant” and “subapplicant” to reflect the terms and definitions in proposed § 77.2. FEMA also proposes to add new definitions for “Federal award” and “pass-through Entity” to reflect the definitions in 2 CFR part 200. FEMA's proposed definition of “Federal award” is similar to the definition in 2 CFR 200.38(a)(1),
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with two exceptions. First, FEMA's proposed definition uses the terms “recipients” and “subrecipients” instead of the term “non-Federal entities.” The term “non-Federal entity,” as defined at 2 CFR 200.69, includes entities that are not eligible recipients or subrecipients under FEMA's HMA programs. While FMA recipients and subrecipients are “non-Federal entities” under 2 CFR part 200, FEMA proposes to tailor the definitions so that they work in conjunction with the regulations for the FMA program and HMGP. Second, FEMA proposes to add a sentence to the definition to clarify that the terms “award” and “grant” may also be used to describe a “Federal award” under the FMA program regulations. This is a nonsubstantive change to make it clear that the terms are interchangeable. FEMA proposes to add a definition for “pass-through entity” to reflect the definition in 2 CFR part 200. FEMA's proposed definition of “pass-through entity” is substantively the same as the definition in 2 CFR 200.74, with one exception. FEMA's proposed definition uses the terms “recipients” and “subrecipients” instead of the term “non-Federal entities.” The term “non-Federal entity,” as defined at 2 CFR 200.69, includes entities that are not eligible recipients or subrecipients under FEMA's HMA programs. While all HMA recipients and subrecipients are “non-Federal entities” under 2 CFR part 200, FEMA proposes to tailor the definitions so that they work in conjunction with regulations for the FMA program and HMGP.

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2 CFR 200.38(a)(1) (the Federal financial assistance that a non-Federal entity receives directly from a Federal awarding agency or indirectly from a pass-through entity).

FEMA proposes to replace the definitions of “grantee” and “subgrantee” with definitions for “recipient” and “subrecipient,” respectively, to better align with the terms and definitions used in 2 CFR part 200 and the HMA Guidance. The proposed definition of “recipient” is similar to the definition at 2 CFR 200.86; however, FEMA proposes to use the terms “State or Indian Tribal government” instead of the term “non-Federal entity” to reflect the terms and definitions in this proposed rule, which are tailored to part 201 and reflect which entities are eligible recipients for purposes of part 201. The proposed definition of “subrecipient” is similar to the definition at 2 CFR 200.93; however, FEMA proposes to specify which entities are eligible subrecipients for purposes of part 201. 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. Finally, FEMA proposes to add a definition of “subaward” similar to the definition at 2 CFR 200.92; however, FEMA proposes to use the terms “recipient” and “subrecipient” instead of the term “non-Federal entity” to reflect the terms and definitions tailored to part 201 in this proposed rule.

4. Section 201.3 Responsibilities

FEMA proposes to revise paragraph (c)(1) to reflect the elimination of the SRL program and to conform to the mitigation planning requirements proposed in this rulemaking.
See
proposed 44 CFR 77.6. The last sentence of paragraph (c)(1) would be removed and replaced with a sentence describing the mitigation plan requirement in proposed § 77.6(b).
See
proposed 44 CFR 201.3(c)(1). FEMA proposes similar revisions to paragraph (e)(1). The last two sentences of paragraph (e)(1) would be removed and replaced with a sentence describing the mitigation plan requirement in proposed § 77.6(b).
See
proposed 44 CFR 201.3(e)(1).

5. Section 201.4 Standard State Mitigation Plans

FEMA proposes to revise paragraph (c)(3)(v) to reflect the elimination of the SRL program and to conform to the mitigation planning requirements proposed in this rulemaking.
See
proposed 44 CFR 77.6. The current language would be removed and replaced with a sentence describing the mitigation plan requirement found in proposed § 77.6(b).
See
proposed 44 CFR 201.4(c)(3)(v). In paragraph (c)(4)(iii), FEMA proposes to replace the word “properties” with the word “structures” to reflect the definition of “repetitive loss structure” used in BW-12 and proposed § 77.2.

6. Section 201.6 Local Mitigation Plans

In § 201.6(a)(1), FEMA proposes to remove the reference to the RFC program, which was eliminated by BW-12.

7. Section 201.7 Tribal Mitigation Plans

FEMA proposes to revise § 201.7 to reflect the elimination of the SRL and RFC programs and to conform to the mitigation planning requirements proposed in this rulemaking.
See
proposed 44 CFR 77.6. FEMA proposes to remove paragraph (a)(2) to reflect the elimination of the SRL program and to remove the reference to the RFC program in paragraph (a)(3). FEMA proposes to redesignate current paragraphs (a)(3) and (4) as (a)(2) and (3), respectively. The language in current paragraph (c)(3)(vi) would be removed and replaced with a sentence describing the mitigation plan requirement in proposed § 77.6(b).
See
proposed 44 CFR 201.7(c)(3)(vi).

E. 44 CFR part 206 Subpart N, Hazard Mitigation Grant Program

Throughout part 206,
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FEMA proposes to replace outdated terms and definitions with substantively similar terms and definitions that better align with 2 CFR part 200 and the HMA guidance. These are nonsubstantive revisions intended to simplify definitions and improve consistency among FEMA's HMA programs. FEMA also proposes to replace the word “shall” with the word “will” or “must,” as appropriate.

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See, e.g.,
§§ 206.433 (State responsibilities), 206.435 (Project identification and selection criteria), 206.436 (Application procedures), 206.437 (State Administrative Plan), 206.438 (Project management), 206.439 (Allowable costs), and 206.440 (Appeals).

1. Section 206.431 Definitions

FEMA proposes to add a definition for “pass-through entity” to reflect the definition in 2 CFR part 200. FEMA's proposed definition of “pass-through entity” is substantively the same as the definition in 2 CFR 200.74, with one exception. FEMA's proposed definition uses the terms “recipients” and “subrecipients” instead of the term “non-Federal entities.” The term “non-Federal entity,” as defined at 2 CFR 200.69, includes entities that are not eligible recipients or subrecipients under HMGP. While all HMGP recipients and subrecipients are “non-Federal entities” under 2 CFR part 200, FEMA proposes to tailor the definitions in part 206 subpart N so that they are program-specific and work when read in conjunction with the HMA-related regulations in parts 79 (proposed part 77), 80, and 201.

FEMA proposes to replace the definitions “grantee,” “subgrant,” and “subgrantee,” with definitions for “recipient,” “subaward,” and “subrecipient,” respectively, to better align with the terms and definitions used in 2 CFR part 200 and the HMA Guidance. The proposed definition of “recipient” is similar to the definition at 2 CFR 200.86; however, FEMA proposes to use the terms “State or Indian Tribal government” instead of the term “non-Federal entity” to reflect the terms and definitions in this proposed rule, which are tailored to reflect which entities are eligible recipients of HMGP. The proposed definition of “subaward” is similar to the definition at 2 CFR 200.92; however, FEMA proposes to use the terms “recipient” and “subrecipient” instead of the term “non-Federal entity” to reflect the terms and definitions in this proposed rule, which are tailored to the HMGP regulations. The proposed definition of “subrecipient” is similar to the definition at 2 CFR 200.93; however, instead of the term “non-Federal entity,” FEMA proposes to keep the language explaining which entities are eligible subrecipients of HMGP. FEMA proposes to make conforming amendments to these terms throughout part 206 subpart N.

FEMA also proposes to revise the definitions of “applicant” and “Indian Tribal government” and add a definition for “subapplicant.” Section 206.431 currently defines “applicant” as a State agency, local government, Indian Tribal government, or eligible private nonprofit organization, submitting an application to the grantee for assistance under the HMGP. FEMA proposes to clarify that an “applicant” is the non-Federal entity consisting of a State or Indian Tribal government, applying to FEMA for a Federal award under HMGP, and that upon award, the applicant becomes the recipient and may also be a pass-through entity. FEMA proposes this revision because the current definition mistakenly includes local governments and private nonprofit organizations (they are subapplicants, not applicants) and applicants do not submit an application to a recipient, but rather to FEMA. FEMA proposes to add a sentence to the end of the current definition of “Indian Tribal government” to clarify that Indian Tribal governments have the option to apply as an applicant or subapplicant. Lastly, FEMA's proposed definition for “subapplicant” would clarify that it 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, and that upon award, the subapplicant becomes the subrecipient. FEMA proposes adding this definition to more clearly distinguish the entities which may be subapplicants from those which may be applicants.

2. Section 206.432 Federal Grant Assistance

FEMA proposes to revise 206.432(b),
Amounts of Assistance,
to remove the references to specific sections of the Stafford Act. Pursuant to 42 U.S.C. 5170c(a), the total contributions for HMGP in each disaster should be based upon the estimated aggregate amount of grants to be made under the Stafford Act for the major disaster. Although 42 U.S.C. 5170c originally specified that the total should be based on the estimated aggregate amount of grants to be made under
Section 406
of the Act,
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Congress later amended this provision to remove the specific section reference.
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FEMA included specific section references when it promulgated the HMGP regulations in 1990 to reflect the level of specificity in the statute at that time.
97

FEMA subsequently revised 206.432(b) to include additional sections of the Stafford Act under which major disaster assistance is made.
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However, this approach requires FEMA to update 206.432(b) whenever statutory amendments change the section numbers or authorize assistance under new sections of the Act.
99

FEMA now proposes to remove specific section references from 206.432(b) so that the regulation mirrors the statutory provision and captures all of the sections under which grants are made with respect to a major disaster. This change would improve consistency with the statute and eliminate the need to continuously update a list of Stafford Act sections.

95
Public Law 100-707, 102 Stat. 4698 (Nov. 23, 1988).

96
Public Law 103-181, 107 Stat. 2054 (Dec. 3, 1993).

97

See
55 FR 35537 (Aug. 30, 1990).

98

See
59 FR 24356 (May 11, 1994).

99

See, e.g.,
67 FR 8853 (Feb. 26, 2002); 72 FR 61750 (Oct. 31, 2007); 74 FR 47482 (Sep. 16, 2009).

FEMA also proposes to remove the second sentence of paragraph (c), which provides the cost share under HMGP for major disasters declared before June 10, 1993. As this date has long since passed, it is no longer necessary to include in the HMGP regulations.

3. Section 206.434 Eligibility

Paragraph (a),
Applicants,
currently describes the entities which are eligible

to apply for the Hazard Mitigation Grant Program, listing States and local governments, private nonprofit organizations owning or operating a private nonprofit facility, and Indian Tribes. FEMA proposes to remove the word “Applicants” from the first sentence, clarify in subparagraph (a)(1) that applicants include States and Indian Tribal governments, and revise subparagraph (a)(2) to clarify that State agencies and local governments, eligible private nonprofit organizations, and Indian Tribal governments may be subapplicants. FEMA proposes to remove the language at subparagraph (a)(3) (Indian Tribes or authorized Tribal organizations and Alaska Native villages or organizations, but not Alaska native corporations with ownership vested in private individuals) because this language refers to non-federally recognized Tribes, which are included under local governments. 42 U.S.C. 5122(8)(B). FEMA proposes this revision to more clearly distinguish the entities which may be applicants from those which may be subapplicants.

In paragraph (e),
Property acquisitions and relocation requirements,
FEMA proposes to retain the first sentence and remove the rest of the paragraph. FEMA proposes to remove this language because it addresses requirements for major disasters declared before December 3, 2007. For all major disasters declared on or after December 3, 2007, the property acquisitions and relocation requirements are found in part 80.

IV. Regulatory Analysis

A. Executive Order 12866, as Amended, Regulatory Planning and Review; Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs

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. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

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. This rule

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-16004. Public record. Not legal advice.