National Flood Insurance Program; Insurance Coverage and Rates, Criteria for Land Management, Use, Identification, and Mapping of Flood Control Restoration Zones

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Parts 59, 60, 64, 65, 70, and 75

RIN 3067-AC17

National Flood Insurance Program; Insurance Coverage and Rates,

Criteria for Land Management, Use, Identification, and Mapping of Flood

Control Restoration Zones

AGENCY: Federal Insurance Administration, FEMA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish a new flood insurance rate

zone for areas designated as flood control restoration zones on

National Flood Insurance Program maps. It would also establish minimum

floodplain management requirements and would provide regulatory

guidance for implementing statutory requirements, including procedures

to identify and map areas as flood control restoration zones.

The intent of the proposed rule is to permit communities to

regulate development through minimum floodplain management requirements

and to use flood insurance rates appropriate to the temporary nature of

flood hazards during the period when a flood protection system no

longer provides 100-year flood protection until it is restored.

DATES: We invite comments, which we must receive on or before May 16,

1994.

ADDRESSES: Please send any comments to the Rules Docket Clerk, Office

of the General Counsel, Federal Emergency Management Agency, 500 C

Street, SW., room 840, Washington, DC 20472, (fax) (202) 646-4536.

FOR FURTHER INFORMATION CONTACT: William R. Locke, Division Director,

Hazard Identification and Risk Assessment Division, Mitigation

Directorate, Federal Emergency Management Agency, 500 C Street, SW.,

Washington, DC 20472, (202) 646-2717.

SUPPLEMENTARY INFORMATION: This proposed rule would establish a new

flood insurance rate zone, Zone AR, for areas designated as flood

control restoration zones on National Flood Insurance Program maps. It

would establish minimum floodplain management requirements and would

provide regulatory guidance for implementing the statutory requirements

of section 928 of Public Law 102-550, 42 U.S.C. 4014(f), including

procedures for identification and mapping of areas as flood control

restoration zones.

Required by section 928 of the Housing and Community Development

Act of 1992, 42 U.S.C. 4014(f), which amended section 1307 of the

National Flood Insurance Act of 1968, the flood control restoration

zone would be applied to areas of a community affected by the

decertification of a Federal flood protection system which previously

provided 100-year or greater flood protection. Where that level of

protection is in the process of being fully restored, this proposed

rule would apply flood insurance rates that are appropriate given the

temporary nature of the flood hazard and would permit a community

participating in the National Flood Insurance Program to regulate

development in affected areas by applying minimum floodplain management

requirements.

Proposed amendments to the National Flood Insurance Program

criteria for mapping and floodplain management would apply where (1)

Communities are in the process of restoring a flood protection

system(s) constructed using Federal funds, (2) FEMA previously had

accredited the flood protection system(s) in those communities as

providing 100-year frequency flood protection but the system(s) no

longer does so, and (3) such system(s) has been decertified by a

Federal agency having flood protection design and construction

responsibility.

Under current procedures, a determination that a flood protection

system no longer provides 100-year flood protection results in the

revision of National Flood Insurance Program maps to show special flood

hazard areas and to establish base flood elevations that reflect the

increased flood risk in the areas previously considered protected. The

identification of new areas of special flood hazard which were

previously protected requires floodplain management measures, flood

insurance coverage and premium rates that reflect the increased flood

risk.

Where the community is restoring a minimum 100-year level of flood

protection, these proposed regulations would provide a reasonable

restoration period for the community to restore the flood protection

system completely, or to achieve adequate progress in the completion of

the system as provided for in 44 CFR 61.12 of the National Flood

Insurance Program regulations, before the floodplain management

requirements of 44 CFR 60.3 (a) through (d) are imposed. The proposed

regulations provide that during the restoration period, National Flood

Insurance Program maps for a community would be revised to identify the

true potential flood risk. During the restoration period, flood

insurance coverage would be available at statutorily mandated

subsidized rates even though there is an increased flood hazard.

Mandatory insurance purchase requirements of the Flood Disaster

Protection Act of 1973 would apply in areas designated as AR Zones. The

proposed regulations would also require that the community inform

permit applicants of the implications of the AR Zone designation and

whether the applicant's proposed structure would be elevated or

protected to or above the AR base flood elevation.

42 U.S.C. 4014(f) requires that FEMA publish regulations to

implement the law on or before October 28, 1994. These proposed

regulations are intended to recognize the community's efforts to

restore flood protection and to address the temporary nature of the

increased flooding hazards during the restoration period. The flood

control restoration zone designation is temporary. When adequate

progress has been made to restore the system, or the system is restored

to provide 100-year level of protection, the proposed rule anticipates

that the community will request a determination based on criteria set

forth in 44 CFR 61.12, or 44 CFR 65.10 of the National Flood Insurance

Program regulations, as appropriate.

The Act sets three criteria by which a community can be considered

to be in the process of restoring a flood protection system. The

proposed regulations elaborate on these criteria and would establish

specific procedures and information needed for the community's

application for designation of a flood control restoration zone. The

information would include a schedule for restoration of the flood

protection system. Failure to restore the flood protection system

completely, or to achieve adequate progress in the completion of the

system as provided for in 44 CFR 61.12 within the restoration period

provided in these proposed regulations would result in the removal of

the flood control restoration zone designation and a redesignation of

those areas as areas of special flood hazard (Zone A, Zone A1-30, AE,

AH, and AO) subject to the applicable floodplain management

requirements, insurance coverage, and rates for those zones.

The proposed rule would apply only to flood control restoration

zones in riverine floodplains. It would not apply to restoration of

flood protection systems in coastal high hazard areas.

The proposed rule would amend 44 CFR 59 to add the definition of a

``developed area,'' and would amend 44 CFR 60 to add a new paragraph to

provide floodplain management regulations for flood control restoration

areas and other conforming changes. The proposed rule would also amend

44 CFR Part 65 to add a new section that would establish the policy and

procedures for remapping areas presently shown on flood insurance rate

maps (FIRMs) as having 100-year protection when new evidence indicates

that this level of protection no longer exists. Finally, the proposed

rule would amend portions of 44 CFR Parts 59, 64, 66, 70, and 75 to add

references to flood control restoration zones (Zones AR, AR/A1-30, AR/

AE, AR/AO, AR/AH, AR/A) at appropriate locations in the listings of

flood insurance zones.

Definition of ``Developed Area''

Developed areas, as defined in the proposed rule at 44 CFR 59.1,

paragraphs (a)(1) and (a)(3), would be those areas generally recognized

as ``urbanized,'' that is, they would consist generally of the urban

core and surrounding areas having an urban density, and would not

include less developed or undeveloped areas, or areas primarily used

for agriculture.

44 CFR 59.1(a)(2) would address those isolated areas beyond the

urban core which are deemed urbanized because the land is primarily in

commercial or industrial uses. Under paragraph (a)(2), the developed

area would be contained within the boundary of a single parcel, tract,

or lot.

44 CFR 59.1(b) would address those urban fringe areas which,

because of their relationship to surrounding developed areas, should be

considered ``infill site'' areas. For purposes of this proposed rule,

an ``infill site'' is a developed area. 44 CFR 59.1(c) would address

``vested rights'' under the Act, and would establish criteria for

determining a developed area that is planned, permitted, and where

construction is underway and infrastructure and structures are being

built. Paragraph (c) would recognize areas as ``developed'' where the

investment in the land and infrastructure is substantial and

development is underway.

The proposed regulations would amend 44 CFR 59.24(a) to refer to

new 44 CFR 60.3(f).

Mapping and Identification of Flood Control Restoration Zones-Zone

AR

Under a new 44 CFR 65.14, the proposed rule would establish

procedures for mapping flood control restoration zones. The rule also

would establish eligibility requirements for being in the process of

restoring the flood control structure under the Act. The first two

criteria required by the Act are relatively clear, that is, that the

flood protection system be deemed restorable by a Federal agency, and

that the restoration is scheduled to be completed within a designated

time period negotiated by the community and FEMA. The proposed rule

would establish a maximum 5-year restoration period during which

eligible communities would be required to restore the flood protection

system completely to provide a minimum 100-year level of protection or

to meet the requirements of 44 CFR 61.12 of the National Flood

Insurance Program regulations.

These proposed regulations would apply nationally and, therefore,

would recognize that the Corps of Engineers and other Federal agencies

may be involved in the design and construction of flood protection

systems. Thus, these proposed regulations would extend flood control

restoration zone eligibility to communities in which the flood

protection systems were decertified by the Corps of Engineers and any

other Federal agency having design or construction responsibility.

The proposed rule is designed to be consistent with the related A99

Zone designation which may apply in certain areas where adequate

progress has been achieved in the completion of a Federal flood

protection system as authorized by 42 U.S.C. 4014(e). Existing FEMA

regulations, 44 CFR 61.12, limit A99 Zone designation to communities

that have made adequate progress on the construction of a flood

protection system involving Federal funds. To ensure consistency with

FEMA rules regarding A99 Zone designations, this proposed rule would

limit eligibility for flood control restoration zone designation to

communities where construction and restoration of a flood protection

system is a Federally funded project and the existing flood protection

system was constructed with Federal funds and has been decertified by a

Federal agency responsible for flood protection design or construction.

The third eligibility criterion required in the Act was that the

decertified flood protection system still provide a minimum level of

flood protection to the community. FEMA proposes that a flood

protection system that provides protection against a 35-year or larger

flood represents a minimum level of protection during the restoration

period. On average, it is estimated that construction which has taken

place in the floodplain prior to the establishment of base flood

elevations by the National Flood Insurance Program has been built at

about the 35-40 year flood elevation level. These structures are

typically eligible to obtain flood insurance coverage at a subsidized

rate. The Act has specified that the same subsidized rate be applied to

structures located in areas designated as AR Zones. Thus, by requiring

that the decertified system provide a minimum 35-year level of

protection, the National Flood Insurance Program assumes an equivalent

degree of risk in insuring structures in AR Zones as it assumes, on

average, in insuring other structures which were built before base

flood elevations were established.

The proposed regulations would require a community to submit its

proposed designation of developed areas to FEMA for approval in the

community's application. FEMA must determine that community

designations are consistent with the definition in the proposed rule at

44 CFR 59.1. If there is an inadequate submission of an official map or

a legal description, the Director shall notify the community. FEMA

encourages communities to coordinate with FEMA on designation of

developed areas before the community adopts an official map or a legal

description of developed areas within the proposed designated flood

control restoration zone. The proposed regulations would provide that

FEMA not designate flood control restoration zones on the effective

flood insurance rate map until all eligibility criteria and application

procedures have been met.

The proposed regulations also would require a community to

designate and adopt either an official community map or a legal

description of those areas within the designated flood control

restoration zone (Zones AR, AR/A1-30, AR/AE, AR/AH, AR/AO or AR/A)

which are developed areas proposed to be defined at 44 CFR 59.1. The

community map or legal description would remain in effect as adopted

initially in areas which are designated as flood control restoration

zones. Communities would not be allowed to modify the map or legal

description to redesignate developed areas while the flood control

restoration zone designation remained in effect.

Proposed 44 CFR 65.14 also provides for a ``dual'' flood insurance

rate zone that recognizes that certain areas, delineated as flood

control restoration zones, would experience residual flooding after the

flood protection system is completely restored due to flooding from

other flooding sources that the flood protection system does not

contain. This proposed rule would establish ``dual'' flood insurance

zones, known as Zones AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A. These

``dual'' zones would imply special considerations for floodplain

management requirements and for flood insurance rates.

Floodplain Management and Land Use Requirements in a Flood Control

Restoration Zone

FEMA proposes to apply base flood elevations caused by the failure

of the flood protection system in undeveloped areas where the flood

depth is greater than five feet. In developed areas the elevation of

new construction could not be required to exceed 3 feet above the

highest adjacent grade. Under this proposed rule floodplain management

requirements of the National Flood Insurance Program would not be

applied to substantial improvements of existing structures located in

an AR Zone. However, in ``dual'' zone areas, structures that are

substantially improved must be elevated (for residential or non-

residential buildings) or floodproofed (for non-residential buildings

only) to the underlying AE, AO, AH, or A zone base flood elevation due

to the residual flood hazard that will continue to exist after the

flood protection system has been completely restored and the AR Zone

designation has been removed.

Specifically, the floodplain management requirements seek to

accommodate the needs of developed areas while providing a higher level

of protection in undeveloped areas. This balance is appropriate where

restoration of a project to 100-year or greater level of protection is

feasible; where the project will be completed within a specified time;

and where at least a 35-year level of protection is still afforded by

the decertified system.

As part of the development of floodplain management regulations,

FEMA recognized that once a flood control restoration zone is

designated, areas that were previously designated as a B, C, or X Zone

may become an AR Zone. Areas that were previously designated Zone A,

A1-30, AE, AH, or AO may become a dual zone consisting of AR/A1-30, AR/

AE, AR/AH, AR/AO, or AR/A. In the dual zone situation, when the flood

control restoration zone designation is removed, a residual flood risk

still exists; hence the proposed regulations take into consideration

the underlying special flood hazard area designation with base flood

elevations which would remain in effect once the flood control project

is completed.

The proposed rule would amend 44 CFR 60.3 by adding a new paragraph

(f). Section 60.3(f)(1) refers to Sec. 60.3 (c)(1) through (14) and

(d)(1) through (4) since the community will generally have other flood

hazard areas. In addition, development within a flood control

restoration zone will have to meet the general floodplain management

performance standards for new construction contained in these

subsections. No additional construction standards need be established.

Section 60.3(f)(2) requires the community to designate and adopt

either an official map or a legal description of those areas within

Zone AR, AR/A1-30, AR/AE, AR/AH, AR/AO or AR/A that are designated

developed areas.

Section 60.3(f)(3) through (6) establishes the elevation that must

be used for applying the floodplain management requirements. Basically,

the applicable elevation, the AR base flood elevation, the underlying

A, AE, A1-30, AH, AO base flood elevation, or the elevation that is 3

feet above highest adjacent grade must be determined first depending on

the location of the structure. Using this elevation, the community must

require the standards in Sec. 60.3(c)(1) through (14).

There are no elevation requirements in Zone AR for substantial

improvements to existing structures. However, in paragraph (f)(6), all

substantial improvements to existing structures must be elevated to at

least the underlying (AE, A1-30, AH, AO) base flood elevation. Figure 1

is a diagram showing the decision-making process for determining

National Flood Insurance Program requirements in Zones AR, AR/A1-30,

AR/AE, AR/AH, AR/AO, and AR/A.

Also, the regulations under Sec. 60.3(f) are likely to be far less

complicated when applied to individual communities since communities

may not be subject to all of the conditions in Sec. 60.3(f)(3) to (6).

For example, a community may be entirely developed and have no

underlying AE, AO, AH, or A zones. In this example, the community would

be subject only to one of the conditions.

Finally, Sec. 60.3(f)(7) requires the community to notify the

permit applicant whether the structure will be elevated or protected

to, or above, the base flood elevation determined for the flood control

restoration zone (AR base flood elevation). This provision is intended

to ensure that the permit applicant is fully aware of the risk of

flooding if the structure is not elevated to the AR base flood

elevation.

The proposed rule would also amend 44 CFR 60.2(a) to add two

references to the new Sec. 60.3(f).

The criteria established in this proposed rule are the minimum

standards for the adoption of floodplain management regulations within

those areas designated as a flood control restoration zone (Zone AR,

AR/A1-30, AR/AE, AR/AH, AR/AO or AR/A). Any community may exceed the

minimum standards by adopting more restrictive requirements.

BILLING CODE 6718-03-P

TP01AP94.012

BILLING CODE 6718-03-C

Flood Insurance Requirements in Flood Control Restoration Zones

The proposed rule would establish a new flood control restoration

zone for flood insurance rating purposes by including references to the

Zone AR, AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A at pertinent locations

in 44 CFR parts 59, 64, 70, and 75, relating to insurance coverage and

premiums.

Structures located in areas designated as flood control restoration

zones (AR Zones) on Flood Insurance Rate Maps are subject to the

mandatory insurance purchase requirements of the National Flood

Insurance Program. The Act specified that insurance be made available

to structures located in flood control restoration zones at premium

rates which do not exceed those applicable to pre-FIRM construction

located in a special flood hazard area.

Structures that are not built in compliance with minimum National

Flood Insurance Program floodplain management requirements would be

rated using actuarial rates based on the lowest floor relationship to

the AR Zone base flood elevation.

For as long as the AR Zone is designated, structures built prior to

the effective date of the original flood insurance rate map will be

eligible for insurance at the lower of the applicable pre-FIRM rate or

the AE Zone actuarial rate based on the lowest floor relationship to

the AR Zone base flood elevation, and the grandfathering rules and

provisions of the National Flood Insurance Program will apply. Pre-FIRM

buildings are to be insured as follows:

(1) A pre-FIRM building that is currently in an area designated as

Zone B, C, or X will continue to be rated using the pre-FIRM rate for

that zone, as long as coverage is continuous. After a lapse in

coverage, the building will be rated as described below in paragraph

(4).

(2) A pre-FIRM building that is currently in an AE Zone will

continue to be rated using the AE Zone pre-FIRM rate. Coverage does not

have to be continuous.

(3) A pre-FIRM building that is currently in an AE Zone and is

elevated to or above the AE Zone base flood elevation can continue to

be rated using that elevation difference rate as long as coverage is

continuous. After a lapse in coverage, the building will be rated as

described below in paragraph (4).

(4) A pre-FIRM building that is insured after the AR Zone is

designated can be insured at the lower of the AE Zone pre-FIRM rate or

the AE Zone actuarial rate based on the lowest floor relationship to

the AR Zone base flood elevation.

For as long as the AR Zone is designated, post-FIRM buildings

(those built on or after the effective date of the original flood

insurance rate map), are to be insured as follows and the

grandfathering rules and provisions of the National Flood Insurance

Program are applicable:

(1) A post-FIRM building that is built in compliance with National

Flood Insurance Program floodplain management requirements can be

insured at the lowest of the post-FIRM rate applicable to the zone in

which the structure was built, the pre-FIRM AE Zone rate, or the AE

Zone actuarial rate based on the lowest floor relationship to the AR

Zone base flood elevation.

(2) A post-FIRM building that is built prior to the designation of

AR Zones and which is not built in compliance with National Flood

Insurance Program floodplain management requirements is to be rated

using the AE Zone actuarial rate based on the lowest floor relationship

to the AE Zone base flood elevation in effect at the time of policy

issuance, provided that coverage is continuous.

(3) A building which is built while the AR Zone is in effect that

is not built in compliance with National Flood Insurance Program

floodplain management requirements is to be rated using the AE Zone

actuarial rate based on the lowest floor relationship to the AR Zone

base flood elevation. This can produce an extremely high rate.

National Environmental Policy Act

FEMA has determined, based upon an environmental assessment, that

this rule will not have a significant impact upon the quality of the

human environment. As a result, an Environmental Impact Statement will

not be prepared. A finding of no significant impact is included in the

formal docket file and is available for public inspection and copying

at the Rules Docket Clerk, Office of the General Counsel, Federal

Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.

Regulatory Flexibility Act

The Director certifies that this rule is exempt from the

requirements of the Regulatory Flexibility Act because the proposed

flood control restoration zone is required by statute, 42 U.S.C.

4014(f), and is required to enhance and maintain community eligibility

in the National Flood Insurance Program during the period needed to

restore flood protection systems to provide a minimum 100-year level of

protection required for accreditation on National Flood Insurance

Program maps. A regulatory flexibility analysis has not been prepared.

Paperwork Reduction Act

FEMA has determined that this proposed rule does not contain a

collection of information as described in section 3504(h) of the

Paperwork Reduction Act.

Executive Order 12612, Federalism

This proposed rule involves no policies that have federalism

implications under Executive Order 12612, Federalism, dated October 26,

1987.

Executive Order 12778, Civil Justice Reform

This rule meets the applicable standards of section 2(b)(2) of

Executive Order 12778.

Executive Order 12866, Regulatory Planning and Review

Promulgation of this proposed rule is required by statute, 42

U.S.C. 4014(f), which also specifies the regulatory approach taken in

the proposed rule. To the extent possible under the statutory

requirements of 42 U.S.C. 4014(f), this proposed rule adheres to the

principles of regulation as set forth in this Executive Order.

List of Subjects in 44 CFR Parts 59, 60, 64, 65, 70, and 75

Administrative practice and procedure, Flood insurance, Flood

plains, Reporting and recordkeeping requirements.

Accordingly, 44 CFR parts 59, 60, 64, 65, 70, and 75 are proposed

to be amended as follows:

PART 59--GENERAL PROVISIONS

1. The authority citation for part 59 is proposed to be revised to

read as follows:

Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of

1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.

376.

Sec. 59.1

[Amended]

2. Section 59.1 is proposed to be amended as follows:

A. The definition of ``Area of shallow flooding'' is proposed to be

revised to read as follows:

Sec. 59.1 Definitions.

* * * * *

Area of shallow flooding means a designated AO, AH, AR/AO, AR/AH,

or VO zone on a community's Flood Insurance Rate Map (FIRM) with a one

percent or greater annual chance of flooding to an average depth of one

to three feet where a clearly defined channel does not exist, where the

path of flooding is unpredictable, and where velocity flow may be

evident. Such flooding is characterized by ponding or sheet flow.

* * * * *

B. The definition of ``Area of Special Flood Hazard'' is proposed

to be revised to read as follows:

Sec. 59.1 Definitions.

* * * * *

Area of special flood hazard is the land in the flood plain within

a community subject to a one percent or greater chance of flooding in

any given year. The area may be designated as Zone A on the FHBM. After

detailed ratemaking has been completed in preparation for publication

of the flood insurance rate map, Zone A usually is refined into Zones

A, AO, AH, A1-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO,

or V1-30, VE, or V. For purposes of these regulations, the term

``special flood hazard area (SFHA)'' is synonymous in meaning with the

phrase ``area of special flood hazard''.

* * * * *

C. The definition of ``Special Hazard Area'' is proposed to be

revised to read as follows:

Sec. 59.1 Definitions.

* * * * *

Special hazard area means an area having special flood, mudslide

(i.e., mudflow), and/or flood-related erosion hazards, and shown on a

Flood Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO,

A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, AH, VO, V1-30,

VE, V, M, or E.

D. A new definition, ``developed area,'' is proposed to be added

after ``Deductible'' and before ``Development'' to read as follows:

Sec. 59.1 Definitions.

* * * * *

Developed area means an area of a community that is:

(a) A primarily urbanized, built-up area that is a minimum of 20

contiguous acres, has basic urban infrastructure, including roads,

utilities, communications, and public facilities, to sustain

industrial, residential, and commercial activities, and

(1) Within which 75 percent or more of the parcels, tracts, or lots

contain commercial, industrial, or residential structures or uses; or

(2) Is a single parcel, tract, or lot in which 75 percent of the

area contains existing commercial or industrial structures or uses; or

(3) Is a subdivision developed at a density of at least two

residential structures per acre within which 75 percent or more of the

lots contain existing residential structures at the time designation is

adopted.

(b) An undeveloped single parcel, tract, or lot of less than 20

acres that is contiguous on at least three sides to areas meeting the

criteria of paragraph (a) at the time the designation is adopted.

(c) A subdivision that is a minimum of 20 contiguous acres meeting

the density criteria in paragraph (a)(3) that has obtained all

necessary government approvals, provided that the actual start of

construction of residential structures has occurred on at least 10

percent of the lots at the time the designation is adopted and

construction is underway.

* * * * *

3. Section 59.24(a) is proposed to be revised to read as follows:

Sec. 59.24 Suspension of community eligibility.

(a) A community eligible for the sale of flood insurance shall be

subject to suspension from the Program for failing to submit copies of

adequate flood plain management regulations meeting the minimum

requirements of paragraph (b), (c), (d), (e) or (f) of Sec. 60.3 or

paragraph (b) of Sec. 60.4 or Sec. 60.5, within six months from the

date the Director provides the data upon which the flood plain

regulations for the applicable paragraph shall be based. Where there

has not been any submission by the community, the Director shall notify

the community that 90 days remain in the six month period in order to

submit adequate flood plain management regulations. Where there has

been an inadequate submission, the Director shall notify the community

of the specific deficiencies in its submitted flood plain management

regulations and inform the community of the amount of time remaining

within the six month period. If, subsequently, copies of adequate flood

plain management regulations are not received by the Director, he

shall, no later than 30 days before the expiration of the original six

month period, provide written notice to the community and to the state

and assure publication in the Federal Register under part 64 of this

subchapter, of the community's loss of eligibility for the sale of

flood insurance, such suspension to become effective upon the

expiration of the six month period. Should the community remedy the

defect and the Director receive copies of adequate flood plain

management regulations within the notice period, the suspension notice

shall be rescinded by the Director. If the Director receives notice

from the State that it has enacted adequate flood plain management

regulations for the community within the notice period, the suspension

notice shall be rescinded by the Director. The community's eligibility

shall remain terminated after suspension until copies of adequate flood

plain management regulations have been received and approved by the

Director.

* * * * *

PART 60--CRITERIA FOR LAND MANAGEMENT AND USE

4. The authority citation for part 60 is proposed to be revised to

read as follows:

Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of

1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.

376.

5. Section 60.2(a) is proposed to be revised to read as follows:

Sec. 60.2 Minimum compliance with flood plain management criteria.

(a) A flood-prone community applying for flood insurance

eligibility shall meet the standards of Sec. 60.3(a) in order to become

eligible if a FHBM has not been issued for the community at the time of

application. Thereafter, the community will be given a period of six

months from the date the Director provides the data set forth in

Sec. 60.3(b), (c), (d), (e) or (f), in which to meet the requirements

of the applicable paragraph. If a community has received a FHBM, but

has not yet applied for Program eligibility, the community shall apply

for eligibility directly under the standards set forth in Sec. 60.3(b).

Thereafter, the community will be given a period of six months from the

date the Director provides the data set forth in Sec. 60.3 (c), (d),

(e) or (f) in which to meet the requirements of the applicable

paragraph.

* * * * *

6. Section 60.3(f) is proposed to be added to read as follows:

Sec. 60.3 Flood plain management criteria for flood-prone areas.

* * * * *

(f) When the Director has provided a notice of final base flood

elevations within Zones A1-30 or AE on the community's Flood Insurance

Rate Map, and, if appropriate, has designated AH zones, AO zones, A99

zones, and A zones on the community's Flood Insurance Rate Map, and has

identified flood protection restoration areas by designating Zones AR,

AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A, the community shall:

(1) Meet the requirements of paragraphs (c)(1) through (14) and

(d)(1) through (4) of this section; and

(2) Adopt the official map or legal description of those areas

within Zones AR, AR/A1-30, AR/AE, AR/AH, AR/A, or AR/AO that are

designated developed areas as defined in Sec. 59.1 in accordance with

the eligibility procedures under Sec. 65.14.

(3) For all new construction of structures in areas within Zone AR

that are designated as developed areas and in other areas within Zone

AR where the AR flood depth is five feet or less,

(i) Determine the lower of either the AR base flood elevation or

the elevation that is 3 feet above highest adjacent grade, and

(ii) Using this elevation, require the standards of paragraphs

(c)(1) through (14).

(4) For all new construction of structures in those areas within

Zone AR that are not designated as developed areas where the AR flood

depth is greater than 5 feet,

(i) Determine the AR base flood elevation, and

(ii) Using that elevation require the standards of paragraphs

(c)(1) through (14).

(5) For all new construction of structures in areas within Zone AR/

A1-30, AR/AE, AR/AH, AR/AO, and AR/A,

(i) Determine the applicable elevation for Zone AR from paragraphs

(f)(3) and (4) of this section,

(ii) Determine the base flood elevation or flood depth for the

underlying A1-30, AE, AH, AO and A Zone, and

(iii) Using the higher elevation from paragraphs (f)(5)(i) and (ii)

of this section require the standards of paragraphs (c)(1) through (14)

of this section.

(6) For all substantial improvements to existing construction

within Zones AR/A1-30, AR/AE, AR/AH, AR/AO, and AR/A,

(i) Determine the A1-30 or AE, AH, AO, or A Zone base flood

elevation, and

(ii) Using this elevation apply the requirements of paragraphs

(c)(1) through (c)(14) of this section.

(7) Notify the permit applicant that the area has been designated

as an AR, AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A Zone and whether the

structure will be elevated or protected to or above the AR base flood

elevation.

PART 64--COMMUNITIES ELIGIBLE FOR THE SALE OF INSURANCE

7. The authority citation for part 64 is proposed to be revised to

read as follows:

Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of

1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.

376.

8. Section 64.3 is proposed to be amended as follows: An ``AR''

entry is added in the chart in Sec. 64.3(a)(1) after the ``AH'' entry

and paragraph (b) is revised to read as follows:

Sec. 64.3 Flood Insurance Maps.

(a) * * *

(1) * * *

AR........ Area of special flood hazard that results from the

decertification of a previously accredited flood protection

system that is determined to be in the process of being

restored to provide a 100-year or greater level of flood

protection.

* * * * *

(b) Notice of the issuance of new or revised FHBMs or Flood

Insurance Rate Maps is given in part 65 of this subchapter. The

mandatory purchase of insurance is required within designated Zones A,

A1-30, AE, A99, AO, AH, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, V1-30,

VE, V, VO, M, and E.

* * * *

PART 65--IDENTIFICATION AND MAPPING OF SPECIAL HAZARD AREAS

9. The authority citation for part 65 is proposed to be revised to

read as follows:

Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of

1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.

376.

Sec. 65.14 [Redesignated as Sec. 65.15]

10. Part 65 is proposed to be amended by redesignating Sec. 65.14

as Sec. 65.15.

11. Part 65 is proposed to be amended by adding a new Sec. 65.14 to

read as follows:

Sec. 65.14 Remapping of areas for which local flood protection systems

no longer provide 100-year flood protection.

(a) General. (1) This section describes the procedures to follow

and the types of information FEMA requires to designate flood control

restoration zones. A community may be eligible to apply for this zone

designation if the Director determines that it is engaged in the

process of restoring a flood protection system that was:

(i) Constructed using Federal funds,

(ii) Recognized as providing 100-year flood protection on the

community's effective Flood Insurance Rate Map, and

(iii) Decertified by a Federal agency responsible for flood

protection design or construction.

(2) Where the Director determines that a community is in the

process of restoring its flood protection system to provide 100-year

minimum flood protection, a Flood Insurance Rate Map will be prepared

that designates the temporary flood hazard areas as a flood control

restoration zone (Zone AR). Existing Special Flood Hazard Areas shown

on the community's effective Flood Insurance Rate Map that are further

inundated by Zone AR flooding shall be designated as a ``dual'' flood

insurance rate zone, Zone AR/AE or AR/AH with Zone AR base flood

elevations, and AE or AH with base flood elevations and Zone AR/AO with

Zone AR base flood elevations and Zone AO with flood depths, or Zone

AR/A with Zone AR base flood elevations and Zone A without base flood

elevations.

(b) Limitations. A community may have a flood control restoration

zone designation only once for the purposes of restoring a given flood

protection system and must complete restoration of the system or meet

the requirements of 44 CFR 61.12 within a specified period, not to

exceed five (5) years from the date of submittal of the community's

application for designation of a flood control restoration zone. The

community may not extend this period. The information specified in this

section must be supplied to FEMA by the community as part of its

request for designation of a flood control restoration zone.

(c) Exclusions. The provisions of these regulations do not apply in

a coastal high hazard area as defined in 44 CFR 59.1, including areas

that would be subject to coastal high hazards as a result of the

decertification of a flood protection system shown on the community's

effective Flood Insurance Rate Map (FIRM) as providing 100-year

protection.

(d) Effective date for risk premium rates. The effective date for

any risk premium rates established for Zone AR shall be the effective

date of the revised Flood Insurance Rate Map showing AR Zone

designations.

(e) Application and submittal requirements for designation of a

Flood Control Restoration Zone. A community must submit a written

request to the Director, signed by the community's Chief Executive

Officer, for a flood plain designation of a flood control restoration

zone. The request must include a legislative action by the community

requesting the designation. The Director will not initiate any action

to designate flood control restoration zones without receipt of the

formal request from the community that complies with all requirements

of this section. The Director reserves the right to request additional

information from the community to support or further document the

community's formal request for designation of a flood control

restoration zone, if deemed necessary. At a minimum, each request must

include the following:

(1) A statement whether, to the best of the knowledge of the

community's Chief Executive Officer, the flood protection system is

currently the subject matter of litigation before any Federal, State or

local court or administrative agency, and if so, the purpose of that

litigation;

(2) A statement whether the community has previously requested a

determination with respect to the same subject matter from the

Director, and if so, a statement that details the disposition of such

previous request;

(3) A statement from the community and certification by a Federal

agency responsible for flood protection design or construction that the

existing flood control system shown on the effective Flood Insurance

Rate Map was built using Federal funds, that it no longer provides 100-

year flood protection, but that it continues to provide at least a 35-

year level of protection;

(4) A statement identifying the local project sponsor responsible

for restoration of the flood protection system to the 100-year or

greater level of flood protection;

(5) A copy of a feasibility study, performed by a Federal agency

responsible for flood protection design or construction in consultation

with the local project sponsor, which deems that the flood protection

system is restorable to a 100-year or greater level of flood

protection;

(6) A joint statement from the Federal agency responsible for flood

protection design or construction involved in restoration of the flood

protection system and the local project sponsor certifying that the

design and construction of the flood control system involves Federal

funds, and that the restoration of the flood protection system will

provide 100-year or greater flood protection;

(7) A restoration plan to return the system to a 100-year or

greater level of protection. At a minimum, this plan must:

(i) List all important project elements, such as acquisition of

permits, approvals, and contracts and construction schedules of planned

features;

(ii) Identify anticipated start and completion dates for each

element, as well as significant milestones and dates;

(iii) Identify the date on which ``as built'' drawings and

certification for the completed restoration project will be submitted.

This date must provide for a restoration period not to exceed five (5)

years from the date of submittal of the community's application for

designation of a flood control restoration zone, or;

(iv) Identify the date on which the community will submit a request

for a finding of adequate progress that meets all requirements of

Sec. 61.12. This date may not exceed five (5) years from the date of

submittal of the community's application for designation of a flood

control restoration zone;

(8) An official map of the community or legal description, with

supporting documentation, that the community will adopt as part of its

floodplain management measures, which designates developed areas as

defined in Sec. 59.1 and as further defined in Sec. 60.3(f).

(f) Review and response by the Director. The review and response by

the Director shall be in accordance with procedures specified in

Sec. 65.9.

(g) Requirements for maintaining designation of a flood control

restoration zone. During the restoration period, the community and the

cost-sharing Federal agency must certify annually to the FEMA Regional

Office having jurisdiction that the restoration will be completed in

accordance with the restoration plan within the time period specified

by the plan. In addition, the community and the Federal agency will

update the restoration plan and will identify any permitting or

construction problems that will delay the project completion from the

restoration plan previously submitted to the Director. The FEMA

Regional Office having jurisdiction will make an annual assessment and

recommendation to the Director as to the viability of the restoration

plan and will conduct periodic on-site inspections of the flood

protection system under restoration.

(h) Criteria for removing flood control restoration zone

designation due to adequate progress or complete restoration of the

flood protection system. At any time during the restoration period, the

community may provide written evidence of certification from a Federal

agency having flood protection design or construction responsibility

that the necessary improvements have been completed and that the system

has been restored to provide a minimum 100-year level of protection, or

may submit a request for a finding of adequate progress that meets all

requirements of Sec. 61.12. If the Director determines that adequate

progress has been made, FEMA will revise the zone designation from a

flood control restoration zone designation to Zone A99. After the

improvements have been completed and certified by a Federal agency as

providing a minimum 100-year level of protection, FEMA will revise the

Flood Insurance Rate Map to reflect the completed flood control system.

(i) Criteria for removing flood control restoration zone

designation due to non-compliance with the restoration schedule or as a

result of a finding that satisfactory progress is not being made to

complete the restoration. At any time during the restoration period,

should the Director determine that satisfactory progress is not being

made to restore complete flood protection by the flood protection

system in accordance with the restoration plan, or that there is

sufficient cause to find that the restoration will not be completed in

accordance with the time-frame specified in the restoration plan, the

Director shall notify the community and the responsible Federal agency

of that determination. Based on the Director's determination, the

Director shall revise the Flood Insurance Rate Map, removing the flood

control restoration zone designations and redesignating those areas as

Zone A1-30, AE, AH, AO, or A.

PART 70--PROCEDURE FOR MAP CORRECTION

12. The authority citation for part 70 is proposed to be revised to

read as follows:

Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of

1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.

376.

13. Section 70.1 is proposed to be revised to read as follows:

Sec. 70.1 Purpose of part.

The purpose of this part is to provide an administrative procedure

whereby the Director will review the scientific or technical

submissions of an owner or lessee of property who believes his property

has been inadvertently included in designated A, AO, A1-30, AE, AH,

A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE, and V

Zones, as a result of the transposition of the curvilinear line to

either street or to other readily identifiable features. The necessity

for this part is due in part to the technical difficulty of accurately

delineating the curvilinear line on either a Flood Hazard Boundary Map

or Flood Insurance Rate Map. These procedures shall not apply when

there has been any alteration of topography since the effective date of

the first National Flood Insurance Program map (i.e., Flood Hazard

Boundary Map or Flood Insurance Rate Map) showing the property within

an area of special flood hazard. Appeals in such circumstances are

subject to the provisions of part 65 of this subchapter.

14. Section 70.3(a) is proposed to be revised to read as follows:

Sec. 70.3 Right to submit technical information.

(a) Any owner or lessee of property (applicant) who believes his

property has been inadvertently included in a designated A, AO, A1-30,

AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE,

and V Zones on a Flood Hazard Boundary Map or a Flood Insurance Rate

Map, may submit scientific or technical information to the Director for

the Director's review.

* * * * *

15. Paragraphs (a) and (b) of Sec. 70.4 are proposed to be revised

to read as follows:

Sec. 70.4 Review by the Director.

(a) The property is within a designated A, AO, A1-30, AE, AH, A99,

AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE, or V Zone, and

shall set forth the basis of such determination; or

(b) The property should not be included within a designated A, AO,

A1-30, AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30,

VE, or V Zone and that the Flood Hazard Boundary Map or Flood Insurance

Rate Map will be modified accordingly; or

* * * * *

16. Paragraph (c) of section 70.5 is proposed to be revised to read

as follows:

Sec. 70.5 Letter of Map Amendment.

* * * * *

(c) The identification of the property to be excluded from a

designated A, AO, A1-30, AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/

AH, AR/A, VO, V1-30, VE, or V Zone.

PART 75--EXEMPTION OF STATE-OWNED PROPERTIES UNDER SELF-INSURANCE

PLAN

17. The authority citation for part 75 is proposed to be revised to

read as follows:

Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of

1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.

376.

18. Section 75.1 is proposed to be revised to read as follows:

Sec. 75.1 Purpose of part.

The purpose of this part is to establish standards with respect to

the Director's determinations that a State's plan of self-insurance is

adequate and satisfactory for the purposes of exempting such State,

under the provisions of section 102(c) of the Act, from the requirement

of purchasing flood insurance coverage for State-owned structures and

their contents in areas identified by the Director as A, AO, AH, A1-30,

AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE,

and E Zones, in which the sale of insurance has been made available,

and to establish the procedures by which a State may request exemption

under section 102(c).

19. Section 75.10 is proposed to be revised to read as follows:

Sec. 75.10 Applicability.

A State shall be exempt from the requirement to purchase flood

insurance in respect to State-owned structures and, where applicable,

their contents located or to be located in areas identified by the

Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH,

AR/A, A99, M, V, VO, V1-30, VE, and E Zones, and in which the sale of

flood insurance has been made available under the National Flood

Insurance Act of 1968, as amended, provided that the State has

established a plan of self-insurance determined by the Director to

equal or exceed the standards set forth in this subpart.

20. Paragraphs (a)(4), (a)(5), and (a)(7) of section 75.11 are

proposed to be revised to read as follows:

Sec. 75.11 Standards.

(a) * * *

(4) Consist of a self-insurance fund and/or a commercial policy of

insurance or reinsurance for which provision is made in statute or

regulation and which is funded by periodic premiums or charges

allocated for state-owned structures and their contents in areas

identified by the Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/

AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones. The

person or persons responsible for such self-insurance fund shall report

on its status to the chief executive authority of the State, or to the

legislature, or both, not less frequently than annually. The loss

experience shall be shown for each calendar or fiscal year from

inception to current date based upon loss and loss adjustment expense

incurred during each separate calendar or fiscal year compared to the

premiums or charges for each of the respective calendar or fiscal

years. Such incurred losses shall be reported in aggregate by cause of

loss under a loss coding system adequate, as a minimum, to identify and

isolate loss caused by flood, mudslide (i.e., mudflow) or flood-related

erosion. The Director may, subject to the requirements of paragraph

(a)(5) of this section, accept and approve in lieu of, and as the

reasonable equivalent of the self-insurance fund, an enforceable

commitment of funds by the State, the enforceability of which shall be

certified to by the State's Attorney General, or other principal legal

officer. Such funds, or enforceable commitment of funds in amounts not

less than the limits of coverage which would be applicable under

Standard Flood Insurance Policies, shall be used by the State for the

repair or restoration of State-owned structures and their contents

damaged as a result of flood-related losses occurring in areas

identified by the Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/

AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones.

(5) Provide for the maintaining and updating by a designated State

official or agency not less frequently than annually of an inventory of

all State-owned structures and their contents within A, AO, AH, A1-30,

AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE,

and E zones. The inventory shall:

(i) Include the location of individual structures;

(ii) Include an estimate of the current replacement costs of such

structures and their contents, or of their current economic value; and

(iii) Include an estimate of the anticipated annual loss due to

flood damage.

* * * * *

(7) Include, pursuant to Sec. 60.12 of this subchapter, a certified

copy of the flood plain management regulations setting forth standards

for State-owned properties within A, AO, AH, A1-30, AE, AR, AR/A1-30,

AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones.

* * * * *

21. Paragraph (c) of section 75.13 is proposed to be revised to

read as follows:

Sec. 75.13 Review by the Director.

* * * * *

(c) Upon determining that the State's plan of self-insurance equals

or exceeds the standards set forth in Sec. 75.11 of this subpart, the

Director shall certify that the State is exempt from the requirement

for the purchase of flood insurance for State-owned structures and

their contents located or to be located in areas identified by the

Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH,

AR/A, A99, M, V, VO, V1-30, VE, and E Zones. Such exemption, however,

is in all cases provisional. The Director shall review the plan for

continued compliance with the criteria set forth in this part and may

request updated documentation for the purpose of such review. If the

plan is found to be inadequate and is not corrected within ninety days

from the date that such inadequacies were identified, the Director may

revoke his certification.

Dated: March 28, 1994.

James L. Witt,

Director.

[FR Doc. 94-7839 Filed 3-31-94; 8:45 am]

BILLING CODE 6718-03-P