[Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
[Proposed Rules]
[Pages 53474-53514]
[FR Doc No: 2020-16004]

Vol. 85

Friday,

No. 168

August 28, 2020

Part III

Department of Homeland Security

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Federal Emergency Management Agency

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44 CFR Parts 77, 78, 79, et al.

FEMA's Hazard Mitigation Assistance and Planning Regulations; Proposed
Rule

Federal Register / Vol. 85, No. 168 / Friday, August 28, 2020 /
Proposed Rules

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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.

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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,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
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\
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    \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.
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    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).
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    \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.''
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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.
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    \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.
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    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).
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    \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.
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    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\
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    \8\ See HMA Guidance, Part III.E.3, Cost-Effectiveness, p. 44.
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    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\
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    \9\ 42 U.S.C. 4104c(c)(1); see HMA Guidance, Part III.E.5,
Hazard Mitigation Plan Requirement, p. 44.
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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\
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    \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.
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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.
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    \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).
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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\
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    \14\ 44 CFR 79.4(c)(1).
    \15\ 44 CFR 79.4(c)(2).
    \16\ Public Law 108-264, 118 Stat. 722.
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    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.
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    \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).
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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.
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    \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).
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    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.
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    \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).
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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 Sec.  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.
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    \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).
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    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 Sec.  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).
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    \24\ See 42 U.S.C. 4104c(h)(1).
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    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\
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    \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
(Sec.  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 Sec.  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
subapplications. 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 Sec.  77.3) Responsibilities
    In proposed Sec.  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 Sec.  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 Sec.
77.2(l)), and the term ``recipient'' includes States and Indian Tribal
governments (see proposed Sec.  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 Sec.  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 Sec.
79.3(b)(1) (proposed Sec.  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 Sec.
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 Sec.  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

Sec.  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 Sec.  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
Sec.  79.6(b)(2) (proposed Sec.  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 Sec.
77.2(g) and eligible as described under proposed Sec.  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 Sec.  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
Sec.  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 Sec.  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
Sec.  201.4 or Sec.  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 Sec.  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 Sec.  77.5) Application Process
    Current Sec.  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 Sec.  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 Sec.  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 Sec.  79.6 (proposed Sec.  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 Sec.  79.6 (proposed
Sec.  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 Sec.  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 Sec.  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, Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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
Sec.  79.4 (proposed Sec.  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., Sec. Sec.  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 Sec.  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 Sec.
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.\92\ 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.
---------------------------------------------------------------------------

    \92\ 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 Sec.
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),\93\ 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.
---------------------------------------------------------------------------

    \93\ 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 Sec.
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 Sec.  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
Sec.  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 Sec.  77.2.

6. Section 201.6 Local Mitigation Plans
    In Sec.  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 Sec.  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 Sec.  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,\94\ 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.
---------------------------------------------------------------------------

    \94\ See, e.g., Sec. Sec.  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