The Background [to the Intent document] states that ``Federal
agencies have the flexibility to select from the approaches of the
FFRMS to establish the floodplain for a given action.'' While
flexibility may be warranted, the interagency coordination provision
must come into play in establishing the ``floodplain'' by various
agencies. The Framework language needs to be revised from ``. . .
should coordinate early . . .'' to ``. . . shall coordinate early.''
This needs to be a required action whereby the most protective,
conservative delineation of the floodplain is achieved and applied
by all [F]ederal agencies for all purposes.

    FEMA agrees with this comment and in the supplementary policy, FEMA
proposes that when FEMA is funding a FEMA Federally Funded Project
with, or in the same area as, another Federal agency, FEMA will
coordinate with the applicable Federal agency early in the planning
process.
    Multiple commenters stated that the use of the FVA may create a
disincentive to update flood maps. Their concern was that the use of
the FFRMS-FVA rather than the FFRMS-CISA might create a sense that
flood map updates and associated funding are less critical because of
the safety standard provided by freeboard. Commenters stated that:

[t]he freeboard provision is a positive, protective step, however,
it should not become a default standard to replace updated flood
mapping.

    FEMA disagrees with the statement that using the FVA will eliminate
the desire to update flood maps. FEMA has stated that the FFRMS will
not affect FEMA's flood mapping standards. While FEMA's FIS and FIRMs
may be used as sources of best available information to establish the
FFRMS elevation, the primary function of FIS and FIRMs is not to
establish the FFRMS. The production of FIS and FIRMs are managed for
other purposes, such as to serve the mission of the NFIP.
    Two commenters requested that FEMA address how changing flood
hazard information will be used in establishing the FFRMS elevation.
One commenter stated:

    [i]n all the talk I hear about flood mitigation and resolution I
never hear any discussion as how standard measurements, what you
call base line, do not take into account or even look at how those
base lines have moved due to erosion.

    Another commenter asked:

    On occasion, FEMA has issued Advisory Base Flood Elevations
(ABFEs) following a major flooding event, when it has been
determined that the effective [Base Flood Elevations (BFEs)]
significantly underestimate the base flood [. . .] What will FEMA
consider to be the advisory ``BFE'' when adding freeboard under EO
13690?

    Section 2(a)(1) of the Executive Order directs agencies to use
approaches based on the best available information and FEMA's effective
FIRM. Because flood risk can change over time, FEMA's mapping program
continually updates its inventory of flood hazard information. Flood
zone designations may be established or revised when new and more
accurate information becomes available because of a FEMA-contracted
restudy or because the community makes the information available to
FEMA. More accurate information may include more accurate or updated
topographic information which would capture changes in the ground
elevation due to factors including erosion. Information from a
preliminary FIRM or ABFE may serve as best available information if the
information shows that a site previously located outside the floodplain
is now in the floodplain, or that the existing FEMA Base Flood
Elevation has increased. In response to the commenter's question, when
determining what is the appropriate ``BFE'' when adding freeboard under
Executive Order 13690, FEMA would use the best available information.
    One comment received from a local government stated that the FVA is
one-size fits-all, and the FVA would not reflect local conditions when
establishing the FFRMS elevation. FEMA uses the best available
information to establish the base flood elevation, which reflects local
flooding conditions. Therefore, FEMA disagrees with the comment that
the FVA would not reflect local conditions.
    Five commenters stated that FEMA should use the 0.2 percent annual
chance floodplain approach (500-year floodplain) to establish the
minimum FFRMS elevation and floodplain for critical actions. One
commenter stated that:

    In some instances, the 500-year floodplain may provide a higher
elevation than the other options, and in those instances the 500-
year floodplain should be used. Critical actions are actions for
which even a slight chance of flooding would be too great. As such,
an all three FFRMS approaches should be considered to achieve the
highest level of protection.

    Another commenter stated the FVA may provide too restrictive a
standard when the FVA elevation is higher than the 0.2 percent annual
chance floodplain elevation:

    For example, in areas where the 500-year water surface is less
than 2 feet above the 100-year water surface, the freeboard value
approach may be overly conservative and go well above the 500-year
level protection.

    FEMA recognizes that the FVA may be more or less conservative than
the 0.2PFA. However, FEMA is proposing in the supplementary policy to
select to use the FVA but not the 0.2PFA. FEMA feels it is more
pragmatic to only establish the elevation using one approach to manage
the level of effort and costs needed to establish the FFRMS elevation.
Additionally, by establishing only one FFRMS approach as the default
approach, FEMA believes the supplementary policy would be clearer for
stakeholders and applicants to identify which FFRMS approach FEMA would
require for FEMA Federally Funded Projects. When using the CISA, the
supplementary policy proposes that FEMA would evaluate if the CISA
methodology is appropriate to the action being considered. In
accordance with the Revised Guidelines, the CISA methodology should
consider the criticality of the action. Flood elevations informed by
the CISA can be adjusted to be higher to account for the increased
consequences associated with flood damage.\57\ This consideration
should assist FEMA in making appropriate decisions about data sources
to use in the CISA analysis to account for the flood risk to the FEMA
Federally Funded Project.
---------------------------------------------------------------------------

    \57\ Revised Guidelines at 55.
---------------------------------------------------------------------------

    Four commenters generally stated FEMA should require use of the
CISA for critical and/or non-critical actions. Specifically, one
commenter stated:

    FEMA has an obligation to protect taxpayer dollars and thus to
use climate informed science when its experts determine the data is
adequate to accurately calculate the FFRMS flood level and
floodplain.

    Another commenter stated:

    Failure to evaluate sea level rise over the next several decades
would be an egregious oversight when deciding what to build, where
to build, and how to build in coastal environments.

    Executive Order 13690 and the FFRMS do not prescribe a particular
approach regardless of the individual circumstance. Instead, they
intentionally provide for flexibility in application to allow Federal
agencies to develop an implementation approach that meets the needs and
mission of the particular agency. FEMA had to take into account many
considerations when making its determination, such as: (1) Consistency:
The need to create an approach which would allow stakeholders and
applicants to consistently determine which standard FEMA would apply to
FEMA Federally Funded Projects; (2) disaster considerations: the
ability to implement the approaches in both a non-disaster and post-
disaster environment. In a post-disaster environment, FEMA needs to be
able to make decisions quickly to assist communities in their recovery.
Other considerations included cost as well as resilience. FEMA balanced
consideration of the preference in the FFRMS for the CISA against these
implementation considerations when making the decision to propose
optional use of the CISA. FEMA is not proposing to require the CISA for
non-critical projects; however, as the FFRMS is reevaluated annually
and updated in 5 years as required by Executive Order 13690, this may
change.
    Four commenters stated that FEMA should comply with State, Tribal,
territorial, or local government flood risk standards, when those
standards are more restrictive than the FFRMS. One comment stated:

    Any critical or non-critical FEMA actions or FEMA-funded
projects should thus comply with all applicable [S]tate and local
floodplain protection standards.

    FEMA has and will continue to comply with more restrictive local
floodplain management standards. FEMA is not proposing to amend Sec.
9.11(d)(6), which prohibits FEMA from taking an action if it is
inconsistent with any more restrictive Federal, State, local, Tribal,
and territorial, floodplain management standards.
    One comment received from an environmental action organization
stated that:

    The threshold for what constitutes substantial improvement/
damage should be a maximum of 50%. A cumulative approach to
calculate substantial improvement/damage over projects' lifetimes
should be utilized.

    FEMA is not proposing to amend the definition of substantial
improvement in Sec.  9.4. Substantial improvement is defined as any
repair, reconstruction or other improvement of a structure or facility,
which has been damaged in excess of, or the cost of which equals or
exceeds, 50 percent of the market value of the structure or replacement
cost of the facility. FEMA is not proposing to adopt a cumulative
approach to calculate substantial improvement because FEMA does not
track improvements made by applicants, without FEMA funding, to their
own public facilities. If a local community has adopted a cumulative
approach to calculating substantial improvement or substantial damage,
FEMA will comply with the more restrictive local standard in accordance
with Sec.  9.11(d)(6).
    Another commenter addressed use of the emergency action exception
of the FFRMS:

    While we support the provision in EO 13690 that exempts
emergency action from the Federal Flood Risk Management Standard, we
urge the agency to narrowly define what constitutes an emergency
action [. . .] [P]ermanent work under the PA Program (PA) [. . .]
should not be classified as emergency work for the purposes of
exemption.

    FEMA is not proposing to exempt permanent work (Categories C-G)
funded by the Public Assistance program under the emergency action
exception of the FFRMS.
    Two commenters encouraged FEMA to address how structural flood risk
management systems will affect the FFRMS floodplain. One commenter
stated:

    Structural flood risk management systems are intended to reduce
flood risk--not eliminate flood risk. As such, the agency should
evaluate flood risks if building behind such structures, including
the risk of flooding should the structure fail or be breached.

    FEMA will consider the factors described in section 1.B.6 of the
Revised Guidelines, Structural Flood Risk Management Systems, when
considering whether an action which is landward of a structural flood
risk management system is in the FFRMS floodplain. Per the direction in
the Revised Guidelines, flood control structures' status on effective
FIRMs will not be the sole resource used to determine if a project is
within the FFRMS floodplain. FEMA determinations of accreditation
status, Zone AR,\58\ and Zone A99 \59\ may not convey the full hazard
to projects landward of a flood control structure.\60\ Additional
information, as fully listed in the Revised Guidelines, would need to
be gathered to inform the determination of if the project is within the
FFRMS floodplain.
---------------------------------------------------------------------------

    \58\ Zone AR is defined as the area of special flood hazard that
results from the decertification of a previously accredited flood
protection system that is determined to be in the process of being
restored to provide base flood protection. Mandatory flood insurance
purchase requirements and floodplain management standards apply. See
44 CFR 64.3(a)(1).
    \59\ Zone A99 is defined as the area of special flood hazard
where enough progress has been made on a protective system, such as
dikes, dams, and levees, to consider it complete for insurance
rating purposes. See 44 CFR 64.3(a)(1).
    \60\ See Revised Guidelines at 58.
---------------------------------------------------------------------------

    One commenter suggested FEMA should adopt a comprehensive
definition of resilience, stating:

    The more comprehensive definition laid out in [the Water
Resources, Reform and Development Act of 2014] provides guidelines
that FEMA can incorporate into its guidance [and][. . .] gives more
detail and guidance to regulators and the regulated community,
thereby increasing certainty.
    FEMA is not proposing to define resilience in Part 9. There is no
universal definition of resilience, nor is one associated with FEMA's
implementation of Executive Order 13690. Section 9.11 requires FEMA to
minimize potential harm to the investment at risk from flooding. With
the exception of specific minimization standards in Sec.  9.11(d), FEMA
does not specify the techniques which must be used to achieve
minimization of harm and improve the resilience of actions within the
floodplain.
    The same commenter also supported the inclusion of structures and
facilities in the Revised Guidelines, stating:

    FEMA has expanded the scope of the guidelines by including their
application to [F]ederal ``facilities,'' in addition to structures
[. . .] By expanding the scope of the guidelines to include roads
and bridges, FEMA has made an important step toward establishing
more resilient and disaster-resistant communities located within
[F]ederal floodplains.

    However, FEMA disagrees with the comment that FEMA has expanded the
scope of the guidelines. Executive Order 11988 applies to Federal
actions, meaning (a) acquiring, managing and disposing of Federal lands
and facilities; (b) providing federally undertaken, financed or
assisted construction and improvements; and (c) conducting Federal
activities and programs affecting land use, including, but not limited
to, water and related land resources, planning, regulating and
licensing activities. The definition of action encompasses providing
federally assisted construction to both structures and facilities.
    Finally, one commenter suggested FEMA should incorporate the FFRMS
into agency regulations and procedures within 18 months, requesting:

[p]lease identify which regulations, and guidance, documents will
require amendment.

    FEMA has identified the regulations which will require amendment to
implement Executive Order 13690 and the FFRMS in this Notice of
Proposed Rulemaking.

VI. FFRMS FY 2016 Appropriations Language

    Section 750 of Division E of the Consolidated Appropriations Act,
2016 (Act) (Pub. L. 114-113, 129 Stat. 2242) provides that none of the
funds made available under that Act or any other Act could be used to
(1) implement, administer, carry out, modify, revise or enforce
Executive Order 13690 other than for (a) acquiring, managing, or
disposing of Federal lands or facilities; (b) providing federally
undertaken, financed, or assisted construction or improvements; or (c)
conducting Federal activities or programs affecting land use, including
water and related land resources planning, regulating, and licensing
activities; or (2) implement Executive Order 13690 in a manner that
modifies the non-grant components of the National Flood Insurance
Program.
    FEMA does not interpret this prohibition on the use of appropriated
funds to have any effect on this rulemaking or its policy development.
Paragraph 750(a)(1) effectively allows for action to be taken to
implement Executive Order 13690 as long as it is within the original
scope of responsibilities outlined in Section 1 of Executive Order
11988. Subsection (a)(2) prohibits FEMA from implementing Executive
Order 13690 in a way that modifies the non-grant components of the
NFIP. Neither this rulemaking nor FEMA's policy development goes beyond
the scope of Section 1 of Executive Order 11988 or modifies the non-
grant components of the NFIP. Although FEMA has always applied the 8-
step decision-making process to program-wide NFIP actions, such actions
do not qualify as FEMA Federally Funded Projects under this rule.
Therefore, the prohibition on the use of appropriated funds does not
apply to this Notice of Proposed Rulemaking.

VII. Regulatory Analyses

A. Executive Order 12866, Regulatory Planning and Review & Executive
Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget.
    As noted, FEMA is proposing to amend 44 CFR part 9, ``Floodplain
Management and Protection of Wetlands'' and issue a supplementary
policy to implement the Executive Order 13690 and the FFRMS.
    The FFRMS is a flexible framework to increase resilience against
flooding and to help preserve the natural values of floodplains. FEMA
is proposing to incorporate the FFRMS into its existing processes, to
ensure that the floodplain for FEMA Federally Funded Projects is
expanded from the current base flood level to a higher vertical
elevation and corresponding horizontal floodplain and that, where
possible, natural systems, ecosystem processes, and nature-based
approaches would be used when developing alternatives to locating
Federal actions in the floodplain.
    FEMA estimates that for the 10-year period after the rule goes into
effect, the benefits would justify the costs. Flooding is the most
common type of natural disaster in the United States, and floods are
expected to be more frequent and more severe over the next century due
to the projected effects of climate change.\61\ The ocean has warmed,
polar ice has melted, and porous landmasses have subsided.\62\ Global
sea level has risen by about 8 inches since reliable record keeping
began in 1880 and is projected to rise another 1 to 4 feet by 2100.\63\
Floods are costly natural disasters; between 1980 and 2013, the United
States suffered more than $260 billion in flood-related damages.\64\
This proposed rule would help protect Federal investments from future
floods, and would help minimize harm in floodplains, by changing how
FEMA defines the floodplain for FEMA-funded new construction and
substantial improvement (i.e., ``Federally Funded Projects''). The
expected costs of this proposed rule are primarily due to increased
elevation or floodproofing requirements of structures in the FFRMS
floodplain, with the majority of these costs expected to be incurred by
FEMA itself through several

grant programs, which will be either passed through to taxpayers or
result in lower levels of Government services. FEMA grant recipients
would bear approximately 25 percent of the project costs for those
grant programs that have a cost-share requirement.
---------------------------------------------------------------------------

    \61\ Walsh, J., D. Wuebbles, K. Hayhoe, J. Kossin, K. Kunkel, G.
Stephens, P. Thorne, R. Vose, M. Wehner, J. Willis, D. Anderson, S.
Doney, R. Feely, P. Hennon, V. Kharin, T. Knutson, F. Landerer, T.
Lenton, J. Kennedy, and R. Somerville, 2014: Ch. 2: Our Changing
Climate. ``Climate Change Impacts in the United States: The Third
National Climate Assessment'', J. M. Melillo, Terese (T.C.)
Richmond, and G. W. Yohe, Eds., U.S. Global Change Research Program,
19-67. Doi.10.7930/J0KW5CXT. Page 20.
    \62\ Ibid [page 21].
    \63\ Ibid [page 21].
    \64\ NOAA, National Weather Service. ``Hydrologic Information
Center--Flood Loss Data''. http://www.nws.noaa.gov/hic/.
---------------------------------------------------------------------------

    The cost components of this proposed rule relate to grants under
FEMA's IA, PA, HMA, and GPD programs, as well as FEMA facilities and
the Integrated Public Alert Warning System (IPAWS). To estimate the
cost of the proposed elevation requirements FEMA uses data from the
NFIP. Table 1 and Table 2 show the costs and benefits by program, that
FEMA has available, annualized for the first 10 years. Most of the
estimated costs come from PA Category C, which includes replacements of
bridges.
BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.014

BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.015

BILLING CODE 9111-66-P
IA Projects
    IA Permanent Housing Construction (PHC) projects and sales of
Manufactured Housing Units (MHUs) would be affected by the proposed
rule. Although floodproofing is a valid option in some instances, FEMA
regulations prohibit the floodproofing of residential structures. In
these cases, elevation is the only option. FEMA calculated the cost of
elevating structures under PHC

structures by adding the cost of elevating projects between 1 foot and
3 feet above the BFE, depending on location and type of project. FEMA
subtracted certain costs that it determined to be part of the baseline.
Specifically, numerous States and localities have existing freeboard
requirements that would result in elevation costs and benefits
regardless of this proposed rule, so costs and benefits for these areas
were reduced based on existing requirements. The total PHC cost is
estimated to range between $1,690 and $24,071 per year for FEMA (PHCs
are funded fully by FEMA). FEMA estimates that an average of 2.22 PHCs
per year would be subject to FFRMS requirements. IA also includes the
sale of MHUs. The total MHU cost is estimated to range between $238 and
$3,383 per year. FEMA estimates that an average of 4.88 MHUs per year
would be subject to FFRMS requirements. An MHU elevation must be paid
fully by an IA grant recipient who ultimately purchases the MHU.
PA Projects
    PA Categories C, D, E, F, and G projects would be affected by the
proposed rule, but FEMA is only able to provide partial estimates of
costs associated with Categories C (Roads and Bridges) and E (Public
Buildings).
    FEMA cannot estimate the costs of improving flood resiliency of
roads because of the highly project-specific nature of road projects,
and numerous options for making roads resilient. Damage to roads during
flood events can be caused by erosion and scour, inundation by
floodwater, or debris blockage, and can be worsened by issues such as
misaligned culverts, insufficient culvert capacity, embankment erosion,
road and shoulder damage, and obstructions that reduce culvert
capacity. A sampling of mitigation actions that can improve the
resiliency of a road to flooding include installing low water
crossings, increasing culvert size, installing a relief culvert, adding
rip rap to a road embankment to provide slope protection, installing
structures such as aprons and baffle structures that dissipate the
energy of floodwater, realigning culverts, and installing road shoulder
subsurface drains.\65\
---------------------------------------------------------------------------

    \65\ See FEMA, ``FEMA B-797 Hazard Mitigation Field Book:
Roadways'', (2010), available at http://www.fema.gov/media-library/assets/documents/19299.
---------------------------------------------------------------------------

    FEMA considers all PA Category C grants used to replace publicly-
owned bridges to be critical actions for the purposes of this analysis.
There are a variety of techniques that can be used to floodproof a
bridge, but the specific techniques depends on the specific bridge,
location, and circumstances. FEMA estimates that the costs of this
proposed rule for Category C bridge grants would range from a low of
$5,645,515 per year to a high of $33,873,085 per year. FEMA estimates
that an average of 7.10 PA Category C bridge projects per year would be
subject to FFRMS requirements. The total cost to the PA program is
estimated to be between $5,904,826 and $37,310,281 per year. With the
75 percent cost share, the cost to FEMA would be between $4,428,620 and
$27,982,711 per year, while the cost to grant recipients would be
between $1,476,207 and $9,327,570 per year.
    FEMA used data from PA grant approvals from 2006-2015 and used a
multi-step process to estimate the range of costs for elevating
Category E structures. FEMA estimates that the elevation cost for
Category E non-critical actions would be a low of $219,301 per year and
a high of $3,123,171 per year. FEMA estimates that an average of 19.19
PA Category E projects per year would be subject to FFRMS requirements.
In addition, FEMA estimates that the total cost for Category E critical
actions would range from a low of $40,009 per year to a high of
$314,026 per year.
HMA Projects
    FEMA used data from HMA grant approvals for elevation and
floodproofing of structures from 2006-2015 and a multi-step process to
estimate the range of costs for elevating or floodproofing these
structures. FEMA estimates that the total cost for HMA non-critical
actions for elevation projects would range from a low of $138,999 per
year to a high of $1,979,591 per year. In addition, FEMA estimates that
the total cost for HMA critical actions for elevation projects would
range from a low of $10,858 per year to a high of $85,229 per year.
FEMA estimates that an average of 73.69 HMA elevation projects per year
would be subject to FFRMS requirements. The total cost for HMA non-
critical actions for floodproofing projects would be a low of $2,188
per year and a high of $31,165 per year. In addition, FEMA estimates
that the total cost for HMA critical actions for floodproofing projects
would be a low of $176 per year and a high of $1,397 per year. FEMA
estimates that an average of 4.70 HMA floodproofing projects per year
would be subject to FFRMS requirements. FEMA estimates the total cost
of this rule for the HMA program to be between $152,221 and $2,097,382
per year. With the 75 percent cost share, the cost to FEMA would be
between $114,165 and $1,573,037 per year, while the cost to grant
recipients would be between $38,055 and $524,346 per year.
    HMA also funds various other types of projects, such as minor flood
control, property acquisition, generators, and mitigation
reconstruction, but FEMA is unable to estimate the potential costs
associated with these projects because the manner in which each
applicant meets the resiliency standards will be fact-specific and
dependent upon the nature of the design and purpose of the project.
Additional minor mitigation measures would have to be taken for these
projects, if located in the expanded FFRMS floodplain. FEMA requests
public comments.
    The costs of the proposed rule would be from IA, PA, and HMA
programs, as well as administrative costs. FEMA expects minimal costs
associated with GPD and IPAWS because these programs do not fund new
construction or substantial improvement projects. These projects are
also by nature typically resilient from flooding. FEMA facilities may
also be subject to additional requirements due to the implementation of
the proposed rule.
    FEMA estimates that the total additional grants costs as a result
of the proposed rule would be between $906,696 and $7.8 million per
year for FEMA and between $301,906 and $2.6 million per year for grant
recipients due to the increased elevation or floodproofing requirements
of FEMA Federally Funded Projects.
    In addition, FEMA expects to incur some administrative costs as a
result of this proposed rule. FEMA estimates initial training costs of
around $100,000 the first two years after the rule is implemented, and
administrative and training costs of around $16,000 per year
thereafter. FEMA estimates that the total annual cost of this rule
after year two would be between $6.1 million and $39.5 million.
    FEMA estimates the quantified cost of this proposed rule over the
next 10 years would range between $60.1 million and $394.7 million. The
present value (PV) of these estimated costs using a 7 percent discount
rate would range between $42.9 million and $277.3 million. The PV using
a 3 percent discount rate would range between $52.0 million and $336.7
million. These costs would be split between FEMA (75 percent) and
recipients (25 percent) of FEMA grants in the floodplain. The low
estimates of the 10-year costs of this rule, discounted at 3 percent
and 7 percent are presented in Table 3. The high estimates of the 10-
year costs of

this rule, discounted at 3 percent and 7 percent are presented in Table
4.

                             Table 3--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates (Low Estimate, 2015$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Annual costs    Annual costs
                          Year                              FEMA Admin.     FEMA Grant    Recipient cost   Undiscounted    discounted at   discounted at
                                                               costs           costs           share       annual costs         3%              7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        $135,291      $4,544,475      $1,514,499      $6,194,265      $6,013,850      $5,789,033
2.......................................................         105,336       4,544,475       1,514,499       6,164,310       5,810,454       5,384,147
3.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,559,471       4,958,997
4.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,397,545       4,634,576
5.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,240,335       4,331,380
6.......................................................          16,010       4,544,475       1,514,499       6,074,984       5,087,704       4,048,019
7.......................................................          16,010       4,544,475       1,514,499       6,074,984       4,939,518       3,783,195
8.......................................................          16,010       4,544,475       1,514,499       6,074,984       4,795,649       3,535,696
9.......................................................          16,010       4,544,475       1,514,499       6,074,984       4,655,970       3,304,389
10......................................................          16,010       4,544,475       1,514,499       6,074,984       4,520,359       3,088,214
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................         368,707      45,444,751      15,144,992      60,958,451      52,020,854      42,857,646
                                                         -----------------------------------------------------------------------------------------------
    Annualized..........................................  ..............  ..............  ..............  ..............       6,098,431       6,101,965
--------------------------------------------------------------------------------------------------------------------------------------------------------

                            Table 4--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates (High Estimate, 2015$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Annual costs    Annual costs
                          Year                              FEMA Admin.     FEMA Grant    Recipient cost   Undiscounted    discounted at   discounted at
                                                               costs           costs           share       annual costs         3%              7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        $135,291     $29,579,819      $9,855,299     $39,570,409     $38,417,873     $36,981,691
2.......................................................         105,336      29,579,819       9,855,299      39,540,454      37,270,670      34,536,164
3.......................................................          16,010      29,579,819       9,855,299      39,451,128      36,103,371      32,203,872
4.......................................................          16,010      29,579,819       9,855,299      39,451,128      35,051,817      30,097,077
5.......................................................          16,010      29,579,819       9,855,299      39,451,128      34,030,890      28,128,109
6.......................................................          16,010      29,579,819       9,855,299      39,451,128      33,039,699      26,287,953
7.......................................................          16,010      29,579,819       9,855,299      39,451,128      32,077,378      24,568,180
8.......................................................          16,010      29,579,819       9,855,299      39,451,128      31,143,085      22,960,916
9.......................................................          16,010      29,579,819       9,855,299      39,451,128      30,236,005      21,458,800
10......................................................          16,010      29,579,819       9,855,299      39,451,128      29,355,345      20,054,953
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................         368,707     295,798,190      98,552,993     394,719,890     336,726,132     277,277,715
                                                         -----------------------------------------------------------------------------------------------
    Annualized..........................................  ..............  ..............  ..............  ..............      39,474,575      39,478,109
--------------------------------------------------------------------------------------------------------------------------------------------------------

Benefits
    FEMA anticipates that the benefits of the proposed rule would
justify the costs. FEMA has provided qualitative benefits, including
the reduction in damage to properties and contents from future floods,
potential lives saved, public health and safety benefits, reduced
recovery time from floods, and increased community resilience to
flooding.
    FEMA believes this proposed rule would result in savings in time
and money from a reduced recovery period after a flood and increased
safety of individuals. Generally, if properties are protected, there
would be less damage, resulting in less clean-up time. In addition,
higher elevations help to protect people, leading to increased safety.
FEMA is unable to quantify these benefits, but improving the resiliency
of bridges has significant qualitative benefits, including: Protecting
evacuation and escape routes; limiting blockages of floodwaters passing
under the bridge that may lead to more severe flooding upstream; and,
avoiding the cost of replacing the bridge again if it is damaged during
a subsequent flood. Any estimates of these savings would be dependent
on the specific circumstances and FEMA is not able to provide a numeric
value on these savings.
    A 2008 FEMA report analyzes potential savings from damage avoidance
associated with including freeboard in the construction of new
residential structures in coastal areas at various freeboard
levels.\66\ According to this report, in some contexts a dollar spent
on elevation activities could result in a $1.30 to $8.92 return on
investment, due to damage avoidance only. This report shows that the
benefits of incorporating freeboard exceed the costs for certain
projects located in coastal flood zones. However, the report's scope is
limited to new construction of houses in coastal areas. Due to the
relatively narrow scope of the study, FEMA has not used the results of
this report to estimate monetized benefits of freeboard to the
nationwide projects that would be affected by this rule. FEMA requests
information and studies from the public that examine the benefits of
freeboard for a more diverse set of projects, such as non-residential
structures, retrofitting substantial improvement projects, projects in
non-coastal floodplains. If FEMA receives additional information that
informs an estimate of the monetized benefits of freeboard to a broad
range of structures, we may provide a monetized estimate of benefits in
the final rule.
---------------------------------------------------------------------------

    \66\ FEMA, ``2008 Supplement to the 2006 Evaluation of the
National Flood Insurance Program's Building Standards''. http://www.fema.gov/media-library-data/20130726-1911-25045-9876/2008_freeboard_report.pdf.
---------------------------------------------------------------------------

    For more in-depth review of these costs and benefits, please see
the Regulatory Evaluation, which can be found in the docket for this
rulemaking.

B. Regulatory Flexibility Act

    This section considers the effects that this proposed rule would
have on small entities as required by the Regulatory Flexibility Act
(RFA, 5. U.S.C. 601 et seq., Pub. L. 96-354) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
``significant economic impact on a substantial number of small
entities.'' 5 U.S.C. 605(b). Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    FEMA prepared an Initial Regulatory Flexibility Analysis (IRFA) for
this proposed rule. This analysis is detailed in this section and
represents FEMA's assessment of the impacts of this proposed rule on
small entities. Section 1 outlines FEMA's initial assessment of small
entities that would be affected by the proposed regulations. Section 2
presents FEMA's analysis and summarizes the steps taken by FEMA to
comply with the RFA.
1. Initial Assessment of Small Entities Affected by the Proposed
Regulations
    The proposed rule would affect FEMA grant recipients that receive
Federal funds for new construction, substantial improvement to
structures, or to address substantial damage to structures and
facilities. Many of these grants are available to local governmental
jurisdictions and non-profit organizations. FEMA does not provide
grants to for-profit businesses.
2. Analysis and Steps Taken To Comply With the Regulatory Flexibility
Act
    The following IRFA addresses the following requirements of the RFA:
    (1) A description of the reasons why action by the agency is being
considered;
    (2) a succinct statement of the objectives of, and legal basis for,
the proposed rule;
    (3) a description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
    (4) a description of the projected reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
    (5) an identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the
proposed rule;
    (6) a description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities. Consistent with the stated objectives of applicable
statutes, the analysis shall discuss significant alternatives such as:
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; the use of performance rather than design standards; and an
exemption from coverage of the rule, or any part thereof, for such
small entities.
2.1 Description of the Reasons Why Action by the Agency Is Being
Considered
    On January 30, 2015, the President issued Executive Order 13690,
which amended Executive Order 11988 and established a new flood risk
management standard called the FFRMS. Executive Order 13690 directs
agencies to issue or amend their existing regulations and procedures to
comply with the Order; therefore, FEMA is updating its regulations at
44 CFR part 9 and issuing an FFRMS policy.
    The FFRMS is intended to reduce flood risk by expanding the
floodplain with respect to Federally Funded Projects, revising the
definition of the floodplain, adding a definition of ``critical
action,'' and requiring agencies to use natural systems, ecosystem
processes, and nature-based approaches in the development of
alternatives for Federal actions in the floodplain.
2.2 Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
    FEMA is responsible for publishing information on floodplain areas
and identifying special hazards. FEMA is also responsible for several
grant programs that use Federal funds to assist in construction or
reconstruction following a disaster, as well as grants for hazard
mitigation and recovery. These grants can potentially be used for
locations within a floodplain.
    To meet the requirements of section 2(d) of Executive Order 11988,
requiring agencies to issue or amend existing regulations and
procedures to implement the Executive Order, FEMA promulgated
regulations which are located at 44 CFR part 9. FEMA is revising 44 CFR
part 9 to reflect the changes to Executive Order 11988 made via
Executive Order 13690.
    The objective of the proposed rule is to revise the regulations for
locating FEMA Federally Funded Projects in an expanded floodplain to
reduce the risk of flooding to those projects. In addition, for actions
that are determined to be ``critical actions'' as defined by the
proposed rule, the proposed rule would impose more stringent elevation
and resiliency requirements. This is necessary to protect actions where
even a slight chance of flooding is too great.
    The rule would also require the use of nature-based approaches,
where possible, when considering alternatives for development in the
floodplain. Nature-based approaches can include both natural and
engineered features. The objective of requiring the use, where
possible, of nature-based approaches is to help to restore the
floodplain's natural processes. The use of nature-based approaches may
result in reduced flood risks. In addition, nature-based approaches
have less potential to degrade the natural and beneficial values of
floodplains. Some examples of nature-based approaches could include
restoring wetland functions along a coastal or riverine system to
create a living shoreline or using green infrastructure measures to
reduce runoff.
2.3 Description Of and Where Feasible, an Estimate of the Number of
Small Entities To Which the Proposed Rule Will Apply
    This rule would affect certain recipients of FEMA grants. These
would primarily be PA and HMA grant recipients, which include States,
Tribal governments, local governments and certain non-profit
organizations. The PA grant recipients would include Categories C, D,
E, F, and G projects however, FEMA is only able to provide reasonable
estimates of the number of entities and costs associated with
Categories C (roads and bridges) and E (public buildings). IA and GPD
are not discussed in this analysis. IA provides grants directly to
individuals and individuals are not small entities as defined in 5
U.S.C. 601(6). FEMA finds that this rule would likely have no effect on
GPD grants because GPD projects are not typically substantial
improvement or new construction.
    PA provides grants to States, Tribal governments, local governments
and certain non-profit organizations for rebuilding, replacement, or
repair of public and non-profit facilities damaged

by disasters. Where such rebuilding, replacement or repair involves new
construction, substantial improvement, and repair of substantial damage
of structures in the expanded FFRMS floodplain, PA recipients would
incur additional costs to comply with proposed elevation and
floodproofing requirements. Out of a population \67\ of 20,341
individual PA Category E grant recipients, a random sample of 96
recipients \68\ shows that 79 projects (approximately 82 percent) would
meet the definition of small entities under the Regulatory Flexibility
Act. This was made up of 45 small governments, 33 private non-profits,
and one Tribal government. According to historical data, there have
been an average of 44 new construction, substantial improvement, or
repair of substantial damage PA Category E projects annually over the
past 10 years with approximately 19 of these located in the 1 percent
annual chance floodplain or expanded FFRMS floodplain. Therefore, FEMA
estimates that 16 small entities would be affected each year through PA
Category E projects (19 x 82 percent). As discussed earlier, FEMA did
not include Categories D, F, and G projects therefore the total number
of affected entities could be higher.
---------------------------------------------------------------------------

    \67\ PA Category C grant recipients (Roads & Bridges) were not
included in this population as the dataset that FEMA used lists the
project grantees (States and Tribes), and not subgrantees (local
governments and private non-profits). Therefore FEMA is not able to
estimate the number of small entities affected by Category C grants.
Over the past 10 years, PA has funded the replacement of 71 bridges.
FEMA requests data and/or comments to determine how many bridge
replacement project grants go to small entities.
    \68\ The population of PA Category E projects includes all
``Public Buildings'' grants from 2006-2015. Because of the large
population, a random sample of 96 projects was drawn, using a
confidence level of 95 percent and a 10 percent confidence interval.
---------------------------------------------------------------------------

    HMA provides mitigation grants to States, Tribal governments, local
governments and certain non-profit organizations to, among other
things, relocate property outside of the floodplain, or to elevate or
floodproof structures to the flood level. As noted in the Regulatory
Evaluation, HMA has funded an average of 67 projects per year from
2006-2015. Unlike PA grants, the majority of HMA grants are for
projects located in the floodplain, so for this analysis FEMA assumes
that all HMA projects are in the floodplain. FEMA has estimated that
the freeboard requirements would expand the floodplain by 16.8 percent
based on studies conducted in 24 U.S. counties with varied topography.
With the 16.8 percent expansion of the floodplain, HMA would have an
additional 11 projects per year (67 x 16.8 percent = 11) for a total of
78 projects located in the 1 percent annual chance floodplain or
expanded FFRMS floodplain. Assuming 82 percent \69\ of HMA grant
recipients are small entities, the proposed rule would affect
approximately 64 small entities per year (78 projects x 82 percent).
---------------------------------------------------------------------------

    \69\ In FEMA's dataset, HMA recipients only included project
titles and not the name of the grantee. This prevented FEMA from
determining if a grant recipient was a small entity. Since PA and
HMA provide funding to similar entities (States, Tribal governments,
local governments and certain non-profit organizations) for disaster
related activity, FEMA used the percentages of small entity grant
recipients found in PA Category E as a proxy for HMA small entities.
---------------------------------------------------------------------------

2.4 Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for Preparation of the
Report or Record
    FEMA will not be changing the application process for its grant
programs. The majority of the costs of this proposed rule would fall on
FEMA. Small entities, like all entities, would be subject to additional
costs associated with floodproofing, elevation of structures, and flood
resiliency measures required by the proposed rule. For the purposes of
this analysis, and based on historical data, FEMA presents the costs
such that most projects would choose to elevate because of the
additional level of safety elevation provides over floodproofing and a
historically higher number of projects that involved elevation as
opposed to floodproofing.\70\ FEMA uses an NFIP report to estimate the
cost of the proposed elevation requirements.\71\ The report provides
estimates for the cost of elevating structures as a percentage of total
construction cost.
---------------------------------------------------------------------------

    \70\ According to historical HMA data, there have been an
average of 63 elevation projects and only 4 floodproofing projects
per year.
    \71\ FEMA, ``2008 Supplement to the 2006 Evaluation of the
national Flood Insurance Program's Building Standards'' Table 3.
http://www.fema.gov/media-library-data/20130726-1911-25045-9876/2008_freeboard_report.pdf.
---------------------------------------------------------------------------

    According to HMA data, the average cost of floodproofing is 50
percent of the cost of freeboard elevation. Floodproofing involves
sealing off areas below the flood level so that water cannot enter, or
altering the use of these areas so that flood waters may pass through
without causing serious damage. Non-residential structures where
elevation is not feasible may be floodproofed rather than elevated.
Additionally, floodproofing preexisting properties may be less costly
than elevating an existing property. So, where a project may floodproof
rather than elevate, costs may be lower for some projects than the
costs presented here. However, for existing properties that choose to
elevate rather than floodproof, costs may be higher for some projects
than the costs presented here because the NFIP report cost estimates
are for when freeboard is included in the design of a structure. FEMA
requests comments on these assumptions.
    The Federal cost-share of eligible PA work is generally 75 percent,
so PA recipients would be required to fund 25 percent of the costs to
comply with the requirements of the proposed rule.\72\ FEMA estimates
that the average annual cost of the proposed rule for PA Category E
projects would be between $13,648 and $180,905 \73\ per project. Using
the Federal cost share, each small entity would have an average
expected cost between $3,412 ($13,648 x 25 percent cost share) and
$45,226 ($180,905 x 25 percent).
---------------------------------------------------------------------------

    \72\ In extraordinary circumstances the Federal share for PA may
be 90 percent when actual Federal obligations exceed a qualifying
threshold. See 44 CFR 206.47.
    \73\ According to the Regulatory Evaluation for this proposed
rule, FEMA estimates the average annual cost for 19 PA Category E
projects is between $259,311 and $3,437,197. The estimated cost per
project is between $13,648 ($259,311/19) and $180,905 ($3,437,197/
19). For information about how FEMA arrived at these estimates,
please see the Regulatory Evaluation for this proposed rule located
in the docket.
---------------------------------------------------------------------------

    The cost-sharing arrangement for HMA is 75 percent Federal and 25
percent recipient, so HMA recipients would be required to fund 25
percent of the costs to comply with the requirements of the proposed
rule. FEMA estimates the average cost of the proposed rule for HMA
projects would be between $1,952 and $26,890 annually.\74\ Using the
Federal cost share, each small entities would have an average cost
between $488 ($1,952 x 0.25) and $6,722 ($26,890 x 0.25).
---------------------------------------------------------------------------

    \74\ According to the Regulatory Evaluation for this proposed
rule, FEMA estimates the annual cost for 78 HMA projects is between
$152,221 and $2,097,382. The estimated cost per project is between
$1,952 ($152,221/78 projects) and $26,890 ($2,097,382/78 projects).
For information about how FEMA arrived at these estimates, please
see the Regulatory Evaluation for this proposed rule located in the
docket.
---------------------------------------------------------------------------

    Reporting and recordkeeping is not expected to change with the
exception of minor changes to FEMA's Mitigation Grant Program/e-Grants
system. This is an automated grant application and management system
that would have one question changed as a result of this proposed rule.
FEMA would still make the determination if a project would take place
in an FFRMS floodplain. (See

the Paperwork Reduction Act section of this preamble below for
information about the proposed revision to this collection of
information.)
2.5 Identification, to the Extent Practicable, of Relevant Federal
Rules Which may Duplicate, Overlap, or Conflict With the Proposed Rule
    This rule does not duplicate, overlap, or conflict with other
Federal rules as the proposed rule only relates for FEMA Federally
Funded Projects. Existing FEMA rules relating to compliance with
Executive Order 11988, Floodplain Management are being modified to
comply with Executive Order 13690, which amends Executive Order 11988.
2.6 Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
    The standards proposed in this rule represent FEMA's efforts to
implement Executive Order 13690, which establishes executive branch-
wide policy in this area. Small entities would have the option to
relocate outside of the floodplain. This may be preferable in cases
where property can be obtained and new facilities built for less cost
than elevating or floodproofing to the freeboard level in the
floodplain, and the recipient has the ability to relocate.
    Executive Order 13690 allows several approaches to determine the
FFRMS floodplain, but FEMA is proposing to adopt the FFRMS-FVA in most
cases. The FFRMS-FVA uses the most easily attainable data for elevation
and floodproofing standards and is the most consistent with existing
State and local regulations. As a result, FEMA's proposed approach
would reduce the burden on small entities by not requiring a separate
set of Federal requirements that are more likely to be different from
existing State and local requirements. Section F of this NPRM, FEMA's
Implementation of Executive Order 13690 and FFRMS, describes the FFRMS
approaches allowed by Executive Order 13690 and FEMA's considerations
when selecting between the FFRMS approaches.
    FEMA invites all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the proposals in this proposed rule. FEMA will consider all comments
received in the public comment process.

C. Unfunded Mandates Reform Act

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Public Law 104-4, 2 U.S.C. 1531), each Federal agency shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and Tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law). Section 202 of the
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) further requires
that before promulgating any general notice of proposed rulemaking that
is likely to result in the promulgation of any rule that includes any
Federal mandate that may result in expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any 1 year, and
before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement detailing the effect on State, local, and Tribal governments
and the private sector. The proposed rule would not result in such an
expenditure, and thus preparation of such a statement is not required.

D. National Environmental Policy Act (NEPA) of 1969

    Section 102 of the National Environmental Policy Act of 1969
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
et seq.) requires agencies to consider the impacts of their actions on
the quality of the human environment. The Council on Environmental
Quality's procedures for implementing NEPA, 40 CFR 1500 through 1508,
require Federal agencies to prepare Environmental Impact Statements
(EIS) for major Federal actions significantly affecting the quality of
the human environment. Each agency can develop categorical exclusions
to cover actions that have been demonstrated to not typically trigger
significant impacts to the human environment individually or
cumulatively. Agencies develop environmental assessments (EA) to
evaluate those actions that do not fit an agency's categorical
exclusion and those actions for which a categorical exclusion applies
but extraordinary circumstances exist. At the end of the EA process the
agency will determine whether to make a Finding of No Significant
Impact or whether to initiate the EIS process.
    Rulemaking is a major Federal action subject to NEPA. Categorical
exclusion A3 included in the list of exclusion categories at Department
of Homeland Security Instruction Manual 023-01-001-01, Revision 01,
Implementation of the National Environmental Policy Act, Appendix A,
issued November 6, 2014, covers the promulgation of rules, issuance of
rulings or interpretations, and the development and publication of
policies, orders, directives, notices, procedures, manuals, and
advisory circulars. The purpose of this proposed rule is to update the
Floodplain Management and Protection of Wetland requirements to adopt
the approaches outlined in Executive Order 13690 to establish the
floodplain and associated flood elevation that must be used in the
decision-making process to be followed by FEMA in applying Executive
Orders 11988 and 13690 to its actions. The decision-making process
requires FEMA to determine whether a proposed action is located in a
wetland and/or the floodplain. FEMA is required to take mitigative
measures, if it makes the determination to carry out an action in the
floodplain. The rule would also add a requirement to use natural
systems, ecosystem processes, and nature-based approaches in the
development of alternatives for Federal actions in a floodplain. The
result of applying the approaches outlined in Executive Order 13690 to
establish the floodplain and associated flood elevation may be
additional structures elevated or structures elevated to a higher
level. Federal assistance for the reconstruction, elevation,
retrofitting, upgrading to current codes and standards, and
improvements to pre-existing facilities when the immediate project area
has already been disturbed and when those actions do not alter basic
functions, do not exceed the capacity of other system components, or
modify intended land use are categorically excluded under Department of
Homeland Security Instruction Manual 023-01-001-01, Revision 01,
Implementation of the National Environmental Policy Act, Appendix A
(N7). New construction upon or improvement of land where the proposed
use is compatible with applicable planning and zoning standards and
coastal management programs, the site is in a developed or previously-
disturbed site, the proposed use will not substantially increase the
number of motor vehicles in the area, the site and scale of
construction are consistent with nearby buildings, and the construction
or improvement will not result in uses that exceed the existing support
infrastructure capacities are categorically excluded under Department
of Homeland

Security Instruction Manual 023-01-001-01, Revision 01, Implementation
of the National Environmental Policy Act, Appendix A (E2). No
extraordinary circumstances exist that will trigger the need to develop
an EA or EIS. See Department of Homeland Security Instruction Manual
023-01-001-01, Revision 01, Implementation of the National
Environmental Policy Act, section (V)(B)(2). An EA will not be prepared
because a categorical exclusion applies to this rulemaking action and
no extraordinary circumstances exist.

E. Paperwork Reduction Act (PRA) of 1995

    As required by the Paperwork Reduction Act of 1995 (PRA), Public
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.),
FEMA may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number.
    In this proposed rule, FEMA is seeking a revision to the already
existing collection of information, OMB Control Number 1660-0072,
because FEMA is proposing to replace question E.1. on screenshot #10 in
order to comply with the proposed FFRMS requirements. Currently, 1660-
0072's screenshot #10, E.1. reads: ``Does a Flood Insurance Rate Map
(FIRM), Flood Hazard Boundary Map (FHBM), hydrologic study, or some
other source indicate that the project is located in or will affect a
100-year floodplain, a 500-year floodplain if a critical facility, an
identified regulatory floodway, or an area prone to flooding?'' We are
proposing to change it to: ``Does a Flood Insurance Rate Map (FIRM),
Flood Hazard Boundary Map (FHBM), hydrologic study, or some other
source indicate that the project is located in or will affect a
floodplain (including a base floodplain, 500-year floodplain, or FFRMS
floodplain), an identified regulatory floodway, or an area prone to
flooding?'' This proposed rule serves as the 60-day comment period for
this proposed change pursuant to 5 CFR 1320.11. FEMA invites the
general public to comment on the proposed collection of information.
Collection of Information
    Title: Mitigation Grant Program/e-Grants.
    Type of Information Collection: Revision of a currently approved
collection.
    OMB Number: 1660-0072.
    FEMA Forms: FEMA Form 101-0-0-1, Benefit Cost Determination; FEMA
Form 093-0-0-1, Environmental Review; FEMA Form 080-0-0-12, Project
Narrative-Sub-grant Application.
    Abstract: The FEMA pre-disaster mitigation grant programs--FMA and
PDM--both utilize an automated grant application and management system
known as e-Grants to apply for these grants. These programs provide
funding to allow for the reduction or elimination of the risks to lives
and property from hazards. The e-Grants system also provides the
mechanism to provide quarterly reports of the financial status of the
project and the final closeout report.
    Affected Public: State, local and Tribal Governments.
    Estimated Number of Respondents: 56.
    Estimated Number of Responses: 5,264.
    Estimated Total Annual Burden Hours: 43,848.
    Estimated Cost: There are no operation and maintenance, or capital
and start-up costs associated with this collection of information.
Comments
    Comments may be submitted as indicated in the ADDRESSES caption
above. Comments are solicited to (a) evaluate whether the proposed data
collection is necessary for the proper performance of the agency,
including whether the information shall have practical utility; (b)
evaluate the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (c) enhance the quality, utility, and
clarity of the information to be collected; and (d) minimize the burden
of the collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses.

F. Privacy Act

    Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a proposed regulation would result
in a system of records. A ``record'' is any item, collection, or
grouping of information about an individual that is maintained by an
agency, including, but not limited to, his/her education, financial
transactions, medical history, and criminal or employment history and
that contains his/her name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of
records'' is a group of records under the control of an agency from
which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual. An agency cannot disclose any record, which is
contained in a system of records, except by following specific
procedures.
    In accordance with DHS policy, FEMA has completed a Privacy
Threshold Analysis for this proposed rule. This proposed rule does not
affect the 1660-0072 OMB Control Number's current compliance with the
Privacy Act of 1974, as amended, or the E-Government Act of 2002. OMB
Control Number 1660-0072 is covered by the DHS/FEMA/PIA-006--FEMA
National Emergency Management Information System Mitigation Electronic
Grants Management System Privacy Impact Assessment (PIA). As a result,
no update to DHS/FEMA/PIA-006 is necessary. OMB Control Number 1660-
0072 is covered under the System of Records Notice (SORN) for DHS/FEMA-
009 Hazard Mitigation, Disaster Public Assistance, and Disaster Loan
Programs, 79 FR 16015, Mar. 24, 2014. This proposed rule does not
create a new system of records and no update to this SORN is necessary.

G. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments,'' 65 FR 67249, Nov. 9, 2000, applies to agency
regulations that have Tribal implications, that is, regulations that
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
Under this Executive Order, to the extent practicable and permitted by
law, no agency shall promulgate any regulation that has Tribal
implications, that imposes substantial direct compliance costs on
Indian Tribal governments, and that is not required by statute, unless
funds necessary to pay the direct costs incurred by the Indian Tribal
government or the Tribe in complying with the regulations are provided
by the Federal Government, or the agency consults with Tribal
officials.
    FEMA has reviewed this proposed rule under Executive Order 13175
and

has determined that this rule does not have a substantial direct effect
on one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
    Part 9 applies to FEMA disaster and non-disaster assistance
programs, including PA, Individual Assistance, HMA, and grants
processed by GPD. Pursuant to section 8 of Executive Order 11988, Part
9 does not apply to assistance provided for emergency work essential to
save lives and protect property and public health and safety, performed
pursuant to sections 403 and 502 of the Stafford Act, as amended (42
U.S.C. 5170b and 5192).
    Indian Tribes have the same opportunity to participate in FEMA's
grant programs as other eligible participants, and participation is
voluntary. The requirements of this rule do not affect Tribes
differently than other grant recipients. Therefore, FEMA does not
expect this proposed rule to have a substantial direct effect on one or
more Indian Tribes or impose substantial direct compliance costs on
Indian Tribal governments, but will consider any information provided
in comments to inform its analysis of this issue as part of a final
rule.
    Notwithstanding FEMA's conclusion that this proposed rule does not
have tribal implications, FEMA recognizes the importance of engaging
with Tribes with respect to the FFRMS. FEMA therefore summarizes below
the extensive engagement process that precedes this rule, including
significant engagement with Tribal leaders. As noted above, in the
aftermath of Hurricane Sandy, the President issued Executive Order
13632,\75\ which created the Federal Interagency Hurricane Sandy
Rebuilding Task Force (Sandy Task Force). This Task Force was chaired
by the Secretary of HUD, who led the effort in coordination with
multiple Federal partners, as well as an advisory group composed of
State, local, and Tribal elected leaders.
---------------------------------------------------------------------------

    \75\ 77 FR 74341, Dec. 14, 2012.
---------------------------------------------------------------------------

    In June 2013, the President issued a Climate Action Plan which
directs agencies to take the appropriate actions to reduce risk to
Federal investments, specifically directing agencies to build on the
work done by the Sandy Task Force and update their flood risk reduction
standards for ``federally-funded projects'' to ensure that ``projects
funded with taxpayer dollars last as long as intended.'' In November
2013, the Climate Task Force convened, with 26 Governors, mayors, and
local and Tribal leaders serving as members. After a year-long process
of receiving input from across State, local, Tribal and territorial
governments; private businesses; trade associations; academic
organizations; civil society; and other stakeholders, the Task Force
provided a recommendation to the President in November 2014 that, in
order to ensure resiliency, Federal agencies, when taking actions in
and around floodplains, should include considerations of the effects of
climate change, including sea level rise, more frequent and severe
storms, and increasing river flood risks.
    Executive Order 13690 amended Executive Order 11988 and established
the FFRMS. It also set forth a process by which additional input from
stakeholders could be solicited and considered before agencies took any
action to implement the FFRMS. It required FEMA to publish, on behalf
of the MitFLG, an updated draft version of the 1978 Guidelines \76\
revised to incorporate the changes required by Executive Order 13690
and the FFRMS in the Federal Register for notice and comment. After the
MitFLG received and adjudicated the comments, Executive Order 13690
required the MitFLG to submit to the WRC recommendations for finalizing
the draft Guidelines.
---------------------------------------------------------------------------

    \76\ The 1978 Guidelines were the original interpretation of
Executive Order 11988.
---------------------------------------------------------------------------

    FEMA, on behalf of MitFLG, published a Federal Register notice for
a 60-day notice and comment period seeking comments on a draft of the
Revised Guidelines, 80 FR 6530, Feb. 5, 2015. Additionally, on February
27, 2015, FEMA wrote to Tribal Leaders specifically asking for their
comments regarding the Executive Order establishing the FFRMS.
    In response to multiple requests, the MitFLG extended the comment
period for an additional 30 days to end on May 6, 2015. The
Administration also attended or hosted over 25 meetings across the
country with State, local, and Tribal officials (including 26 mayors)
and interested stakeholders to discuss Executive Order 13690 and the
Guidelines. The MitFLG held 9 public listening sessions across the
country that were attended by over 700 participants from State, local,
and Tribal governments and other stakeholder organizations to discuss
the Guidelines. There were Tribal representatives at both the Ames,
Iowa and Sacramento, California listening sessions; however, the
specific Tribes that they were representing were not identified. The
MitFLG published notice of these public listening sessions in the
Federal Register.
    The public comment period closed on May 6, 2015. Two Tribes
submitted formal comments on the Guidelines during the Federal Register
comment period. The MitFLG adjudicated all comments and presented its
adjudication and recommendations to the WRC as required. The WRC issued
the Revised Guidelines on October 8, 2015 and the corresponding Notice
published in the October 22, 2015 Federal Register at 80 FR 64008.
    FEMA welcomes Tribal comments on all aspects of this proposed rule.

H. Executive Order 13132, Federalism

    Executive Order 13132, ``Federalism,'' 64 FR 43255, Aug. 10, 1999,
sets forth principles and criteria that agencies must adhere to in
formulating and implementing policies that have federalism
implications, that is, regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Federal
agencies must closely examine the statutory authority supporting any
action that would limit the policymaking discretion of the States, and
to the extent practicable, must consult with State and local officials
before implementing any such action.
    FEMA has reviewed this proposed rule under Executive Order 13132
and has determined that this rule does not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, and therefore
does not have federalism implications as defined by the Executive
Order.
    Part 9 applies to FEMA disaster and non-disaster assistance
programs, including Public Assistance, Individual Assistance, HMA, and
grants processed from GPD. Pursuant to section 8 of Executive Order
11988, Part 9 does not apply to assistance provided for emergency work
essential to save lives and protect property and public health and
safety, performed pursuant to section 403 and 502 of the Stafford Act,
as amended (42 U.S.C. 5170b and 5192). The proposed rule does not
significantly affect the rights, roles, and responsibilities of States,
and involves no preemption of State law nor does it limit State
policymaking discretion.

I. Executive Order 12898, Environmental Justice

    Under Executive Order 12898, ``Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' (59 FR 7629, Feb. 16, 1994), as amended by Executive
Order 12948, (60 FR 6381, Feb. 1, 1995), FEMA incorporates
environmental justice into its policies and programs. The Executive
Order requires each Federal agency to conduct its programs, policies,
and activities that substantially affect human health or the
environment, in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons from
participation in programs, denying persons the benefits of programs, or
subjecting persons to discrimination because of race, color, national
origin or income level.
    FEMA does not expect this rule to have a disproportionately high
and adverse human health or environmental effect on low income or
minority populations, but will consider any information provided in
comments to inform its analysis of this issue as part of a final rule.

J. Executive Order 12630, Taking of Private Property

    This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, ``Governmental
Actions and Interference With Constitutionally Protected Property
Rights'' (53 FR 8859, Mar. 18, 1988).

K. Executive Order 12988, Civil Justice Reform

    This NPRM meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 7,
1996), to minimize litigation, eliminate ambiguity, and reduce burden.

L. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    This NPRM will not create environmental health risks or safety
risks for children under Executive Order 13045, ``Protection of
Children From Environmental Health Risks and Safety Risks'' (62 FR
19885, Apr. 23, 1997).

M. Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities, OMB
Circular A-119

    ``Voluntary consensus standards'' are standards developed or
adopted by voluntary consensus standards bodies, both domestic and
international. These standards include provisions requiring that owners
of relevant intellectual property have agreed to make that intellectual
property available on a non-discriminatory, royalty-free or reasonable
royalty basis to all interested parties. OMB Circular A-119 directs
agencies to use voluntary consensus standards in their regulatory
actions in lieu of government-unique standards except where
inconsistent with law or otherwise impractical. The policies in the
Circular are intended to reduce to a minimum the reliance by agencies
on government-unique standards.
    Consistent with President Obama's Climate Action Plan,\77\ the
National Security Council staff coordinated an interagency effort to
create a new flood risk reduction standard for Federally Funded
Projects. The views of Governors, mayors, and other stakeholders were
solicited and considered as efforts were made to establish a new flood
risk reduction standard for Federally Funded Projects. The FFRMS is the
result of these efforts.
---------------------------------------------------------------------------

    \77\ The White House, ``President Obama's Climate Action Plan,
2nd Anniversary Progress Report--Continuing to cut carbon,
pollution, protect American communities, and lead internationally.''
June 2015. https://www.whitehouse.gov/sites/default/files/docs/cap_progress_report_final_w_cover.pdf.
---------------------------------------------------------------------------

List of Subjects in 44 CFR Part 9

    Flood plains and Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, FEMA proposes to amend
44 CFR part 9, as follows:

PART 9--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS

0
1. The authority citation for part 9 is revised to read as follows:

    Authority: E.O. 11988 of May 24, 1977. 3 CFR, 1977 Comp., p.
117; E.O. 11990 of May 24, 1977, 3 CFR, 1977 Comp. p. 121;
Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp.,
p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 CFR, 1979
Comp., p. 412, as amended; 42 U.S.C. 5201; E.O. 13690, 80 FR 6425.

0
2. Revise Sec.  9.1 to read as follows:

Sec.  9.1  Purpose of part.

    This regulation sets forth the policy, procedure, and
responsibilities to implement and enforce Executive Order 11988,
Floodplain Management, as amended, and Executive Order 11990,
Protection of Wetlands.
0
3. Amend Sec.  9.2 by revising paragraph (b)(3) to read as follows:

Sec.  9.2  Policy.

* * * * *
    (b) * * *
    (3) Reduce the risk of flood loss to life and property and improve
the resilience of communities and Federal assets against the impacts of
flooding based on the best-available and actionable science;
* * * * *
0
4. In Sec.  9.3:
0
a. Amend paragraph (a) by adding ``and was amended by Executive Order
13690, January 30, 2015,'' to the end of the phrase; and
0
b. Revise the third sentence of paragraph (d).
    The revision reads as follows:

Sec.  9.3  Authority.

* * * * *
    (d) * * * Section 2(d) of Executive Order 11988 and Section 3(c) of
Executive Order 13690 require issuance of new or amended regulations
and procedures to satisfy their substantive and procedural provisions.
* * *
0
5. In Sec.  9.4:
0
a. Add in alphanumeric order definitions for ``0.2 Percent Annual
Chance Flood,'' ``0.2 Percent Annual Chance Floodplain,'' ``1 Percent
Annual Chance Flood or Base Flood,'' ``1 Percent Annual Chance Flood
Elevation or Base Flood Elevation,'' ``1 Percent Annual Chance
Floodplain or Base Floodplain,'' and ``Associate Administrator;''
0
b. Remove the definitions of ``Base Flood'' and ``Base Floodplain;''
0
c. Revise the definition of ``Critical Action;''
0
d. Remove the definition of ``Emergency Actions;''
0
e. Add in alphabetical order definitions for ``Emergency Work,''
``Federal Flood Risk Management Standard (FFRMS),'' ``Federal Flood
Risk Management Standard Floodplain,'' ``FEMA Federally Funded
Project,'' and ``FIMA;''
0
f. Remove the definitions of ``Five Hundred Year Floodplain'' and
``FIA,''
0
g. Revise the definition of ``Floodplain;''
0
h. Remove the definition of ``Mitigation Directorate;''
0
i. Add in alphabetical order a definition for ``Nature-Based
Approaches;'' and
0
j. Revise the definitions of ``New Construction,'' ``Orders,'' and
``Substantial Improvement.''
    The additions and revisions read as follows:

Sec.  9.4  Definitions.

    0.2 Percent Annual Chance Flood means the flood which has a 0.2
percent

chance of being equaled or exceeded in any given year.
    0.2 Percent Annual Chance Floodplain means the area subject to
flooding by the 0.2 percent annual chance flood.
    1 Percent Annual Chance Flood or Base Flood means the flood that
has a 1 percent chance of being equaled or exceeded in any given year.
    1 Percent Annual Chance Flood Elevation or Base Flood Elevation
means the computed elevation to which floodwater is anticipated to rise
during the 1 percent annual chance or base flood. The specific term
``base flood elevation'' or BFE is used in the National Flood Insurance
Program (NFIP) and shown on FEMA Flood Insurance Rate Maps (FIRMs) and
on the flood profiles in the FEMA Flood Insurance Study (FIS) Reports
to indicate the minimum level of flooding to be used by a community in
its floodplain management regulations.
    1 Percent Annual Chance Floodplain or Base Floodplain means the
area subject to flooding by the 1 percent annual chance or base flood.
* * * * *
    Associate Administrator means the Associate Administrator of the
Federal Insurance and Mitigation Administration.
* * * * *
    Critical Action means an action for which even a slight chance of
flooding is too great. Critical actions include, but are not limited
to, those which create or extend the useful life of structures or
facilities:
    (1) Such as those which produce, use or store highly volatile,
flammable, explosive, toxic or water-reactive materials;
    (2) Such as hospitals and nursing homes, and housing for the
elderly, which are likely to contain occupants who may not be
sufficiently mobile to avoid the loss of life or injury during flood
and storm events;
    (3) Such as emergency operation centers, or data storage centers
which contain records or services that may become lost or inoperative
during flood and storm events; and
    (4) Such as generating plants, and other principal points of
utility lines.
* * * * *
    Emergency Work means work essential to save lives and protect
property and public health and safety performed under sections 403 and
502 of the Robert T. Stafford Disaster Relief and Emergency Assistance
Act of 1988 (42 U.S.C. 5170b and 5192). See 44 CFR part 206, subpart C.
* * * * *
    Federal Flood Risk Management Standard (FFRMS) means the Federal
flood risk management standard established by Executive Order 13690 to
be incorporated into existing processes used to implement Executive
Order 11988.
    Federal Flood Risk Management Standard (FFRMS) Floodplain means the
floodplain established using one of the following approaches:
    (1) Climate-Informed Science Approach (CISA)--the elevation and
flood hazard area that result from using a climate-informed science
approach that uses the best-available, actionable hydrologic and
hydraulic data and methods that integrate current and future changes in
flooding based on climate science. This approach will also include an
emphasis on whether the action is a critical action as one of the
factors to be considered when conducting the analysis;
    (2) Freeboard Value Approach (FVA)--the elevation and flood hazard
area that result from using the freeboard value, reached by adding an
additional 2 feet to the base flood elevation for non-critical actions
and by adding an additional 3 feet to the base flood elevation for
critical actions;
    (3) 0.2 Percent Annual Chance Flood Approach (0.2PFA)--the area
subject to flooding by the 0.2 percent annual chance flood; or
    (4) The elevation and flood hazard area that result from using any
other method identified in an update to the FFRMS.
    FEMA Federally Funded Project means actions where FEMA funds are
used for new construction, substantial improvement, or to address
substantial damage to a structure or facility.
* * * * *
    FIMA means the Federal Insurance and Mitigation Administration.
* * * * *
    Floodplain means the lowland and relatively flat areas adjoining
inland and coastal waters. The floodplain may be more specifically
identified as the 1 percent annual chance (base) floodplain, the 0.2
percent annual chance floodplain, or the FFRMS floodplain.
``Floodplain'' does not include areas subject only to mudflow until
FIMA adopts maps identifying ``M'' Zones.
* * * * *
    Nature-Based Approaches means the features (sometimes referred to
as ``green infrastructure'') designed to mimic natural processes and
provide specific services such as reducing flood risk and/or improving
water quality. Nature-based approaches are created by human design (in
concert with and to accommodate natural processes) and generally, but
not always, must be maintained in order to reliably provide the
intended level of service.
    New Construction means the construction of a new structure or
facility or the replacement of a structure or facility which has been
totally destroyed.
* * * * *
    Orders means Executive Order 11988, Floodplain Management, as
amended by Executive Order 13690, and Executive Order 11990, Protection
of Wetlands.
* * * * *
    Substantial Improvement means any repair, reconstruction or other
improvement of a structure or facility, which has been damaged in
excess of, or the cost of which equals or exceeds, 50% of the market
value of the structure or replacement cost of the facility (including
all ``public facilities'' as defined in the Robert T. Stafford Disaster
Relief and Emergency Assistance Act of 1988) before the repair or
improvement is started, or if the structure or facility has been
damaged and is proposed to be restored, before the damage occurred. If
a facility is an essential link in a larger system, the percentage of
damage will be based on the relative cost of repairing the damaged
facility to the replacement cost of the portion of the system which is
operationally dependent on the facility. The term ``substantial
improvement'' does not include any alteration of a structure or
facility listed on the National Register of Historic Places or a State
Inventory of Historic Places.
* * * * *
0
6. In Sec.  9.5:
0
a. Revise paragraph (a)(3) and the last sentence in paragraph (c)
introductory text, and paragraphs (c)(1) through (12);
0
b. Remove paragraphs (c)(13) and (14);
0
c. Revise the last sentence of paragraph (d) introductory text,
paragraphs (d)(1) through (3), paragraph (d)(4) introductory text, the
second sentence of paragraph (e), paragraph (f)(1), paragraph (f)(2)
introductory text, and the fourth and fifth sentences of paragraph (g)
introductory text.
    The revisions read as follows:

Sec.  9.5  Scope.

    (a) * * *
    (3) The amendments to this part incorporating the changes required
by Executive Order 13690 and the FFRMS apply to new actions commenced
on or after.
* * * * *
    (c) * * * The provisions of these regulations do not apply to the
following (all references are to the

Robert T. Stafford Disaster Relief and Emergency Assistance Act of
1988, Public Law 93-288, as amended, except as noted):
    (1) Assistance provided for emergency work essential to save lives
and protect property and public health and safety performed pursuant to
sections 403 and 502;
    (2) Emergency Support Teams (section 303);
    (3) Unemployment Assistance (section 410);
    (4) Emergency Communications (section 418);
    (5) Emergency Public Transportation (section 419);
    (6) Fire Management Assistance (Section 420);
    (7) Community Disaster Loans (section 417), except to the extent
that the proceeds of the loan will be used for repair of facilities or
structures or for construction of additional facilities or structures;
    (8) The following Federal Assistance to Individuals and Households
Program (section 408) categories of financial assistance:
    (i) Housing needs or expenses, except for restoring, repairing or
building private bridges, purchase of mobile homes and provision of
structures as minimum protective measures;
    (ii) Personal property needs or expenses;
    (iii) Transportation expenses;
    (iv) Medical/dental expenses;
    (v) Funeral expenses;
    (vi) Flood insurance premium;
    (vii) Temporary Housing.
    (9) Use of existing resources in the temporary housing assistance
program [section 408], except that Step 1 (Sec.  9.7) shall be carried
out;
    (10) Debris removal (section 407), except those grants involving
non-emergency disposal of debris within a floodplain or wetland;
    (11) Repairs or replacements under section 406, of less than $5,000
to damaged structures or facilities;
    (12) Placement of families in existing resources and Temporary
Relocation Assistance provided to those families so placed under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, Public Law 96-510.
    (d) * * * The references are to the Robert T. Stafford Disaster
Relief and Emergency Assistance Act of 1988, Public Law 93-288, as
amended.
    (1) Actions performed under the Federal Assistance to Individuals
and Households Program (section 408) for restoring or repairing a
private bridge, except where two or more individuals or families are
authorized to pool their grants for this purpose.
    (2) Small project grants (section 422), except to the extent that
Federal funding involved is used for construction of new facilities or
structures.
    (3) Replacement of building contents, materials and equipment.
(sections 406 and 422).
    (4) Repairs under section 406 to damaged facilities or structures,
except any such action for which one or more of the following is
applicable:
* * * * *
    (e) * * * This finding will be made in consultation with the
Federal Insurance and Mitigation Administration and the Council on
Environmental Quality as provided in section 2(d) of Executive Order
11988. * * *
    (f) The National Flood Insurance Program (NFIP). (1) Most of what
is done by FIMA in administering the National Flood Insurance Program
is performed on a program-wide basis. For all regulations, procedures
or other issuances making or amending program policy, FIMA shall apply
the 8-step decision-making process to that program-wide action. The
action to which the 8-step process must be applied is the establishment
of programmatic standards or criteria, not the application of
programmatic standards or criteria to specific situations. Thus, for
example, FIMA would apply the 8-step process to a programmatic
determination of categories of structures to be insured, but not to
whether to insure each individual structure. The two prime examples of
where FIMA does take site specific actions which would require
individual application of the 8-step process are property acquisition
under section 1362 of the National Flood Insurance Act of 1968, as
amended, and the issuance of an exception to a community under Sec.
60.6(b) of this chapter.
    (2) The provisions set forth in this regulation are not applicable
to the actions enumerated below except that the FIMA Associate
Administrator shall comply with the spirit of the Orders to the extent
practicable:
* * * * *
    (g) * * * The references are to the Robert T. Stafford Disaster
Relief and Emergency Assistance Act of 1988, Public Law 93-288. The
above requirements apply to repairs, under section 406, between $5,000
and $25,000 to damaged structures of facilities except for:
* * * * *
0
7. In Sec.  9.6, in paragraph (b), revise Step 1 to read as follows:

Sec.  9.6  Decision-making process.

* * * * *
    (b) * * *
    Step 1. Determine whether the proposed action is located in a
wetland and/or a floodplain; and whether it has the potential to affect
or be affected by a floodplain or wetland (see Sec.  9.7);
* * * * *
0
8. In Sec.  9.7, revise paragraphs (a), (b), and (c) to read as
follows:

Sec.  9.7  Determination of proposed action's location.

    (a) The purpose of this section is to establish Agency procedures
for determining whether any action as proposed is located in or affects
a floodplain or a wetland.
    (b) Information needed. (1) The Agency shall obtain enough
information so that it can fulfill the requirements of the Orders to:
    (i) Avoid floodplain and wetland locations unless they are the only
practicable alternatives; and
    (ii) Minimize harm to and within floodplains and wetlands. In all
cases, FEMA shall determine whether the proposed action is located in a
floodplain or wetland. In the absence of a finding to the contrary,
FEMA may assume that a proposed action involving a facility or
structure that has been flooded is in the floodplain. Information about
the 1 percent annual chance (base) floodplain, 0.2 percent annual
chance floodplain, and FFRMS floodplain and location of floodways and
coastal high hazard areas may also be needed to comply with these
regulations, especially Sec.  9.11.
    (2) The following additional flooding characteristics shall be
identified by the Regional Administrator as appropriate:
    (i) Velocity of floodwater;
    (ii) Rate of rise of floodwater;
    (iii) Duration of flooding;
    (iv) Available warning and evacuation time and routes;
    (v) Special problems:
    (A) Levees;
    (B) Erosion;
    (C) Subsidence;
    (D) Sink holes;
    (E) Ice jams;
    (F) Debris load;
    (G) Pollutants;
    (H) Wave heights;
    (I) Groundwater flooding;
    (J) Mudflow.
    (c) Floodplain determination. (1) In making the floodplain
determination, FEMA shall follow this sequence:
    (i) Determine whether the project is a FEMA Federally Funded
Project as defined in Sec.  9.4. If the project is a FEMA Federally
Funded Project, FEMA shall establish the FFRMS floodplain and

associated flood elevation by using one of the following approaches:
    (A) Climate-Informed Science Approach (CISA): The elevation and
flood hazard area that result from using a climate-informed science
approach that uses the best-available, actionable hydrologic and
hydraulic data and methods that integrate current and future changes in
flooding based on climate science. This approach will also include an
emphasis on whether the action is a critical action as one of the
factors to be considered when conducting the analysis;
    (B) Freeboard Value Approach (FVA): The elevation and flood hazard
area that result from using the freeboard value, reached by adding an
additional 2 feet to the base flood elevation as determined using the
process defined in paragraph (c)(1)(iii) of this section for non-
critical actions and by adding an additional 3 feet to the base flood
elevation as determined in paragraph (c)(1)(iii) of this section for
critical actions;
    (C) 0.2 Percent Annual Chance Flood Approach (0.2PFA): The area
subject to flooding by the 0.2 percent annual chance flood; or
    (D) The elevation and flood hazard area that result from using any
other method identified in an update to the FFRMS.
    (ii) Notwithstanding any other provision of FEMA regulations, FEMA
may select among and prioritize the approaches in paragraph (c)(1)(i)
of this section by separate policy. In addition, FEMA may provide an
exception to using the FFRMS floodplain for FEMA Federally Funded
Projects and instead use the 1 percent annual chance (base) floodplain
for non-critical actions or the 0.2 percent annual chance floodplain
for critical actions where the action is in the interest of national
security, where the action is an emergency action, where application to
a Federal facility or structure is demonstrably inappropriate, or where
the action is a mission-critical requirement related to a national
security interest or an emergency action.
    (iii) If the project is not a FEMA Federally Funded Project as
defined in Sec.  9.4, FEMA shall use, at a minimum, the 1 percent
annual chance floodplain for non-critical actions and the 0.2 percent
annual chance floodplain for critical actions. FEMA shall establish the
floodplain and associated elevation by following this sequence:
    (A) The Regional Administrator shall consult the FEMA Flood
Insurance Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and
the Flood Insurance Study (FIS).
    (B) If a detailed map (FIRM or FBFM) is not available, the Regional
Administrator shall consult a FEMA Flood Hazard Boundary Map (FHBM). If
data on flood elevations, floodways, or coastal high hazard areas are
needed, or if the map does not delineate the flood hazard boundaries in
the vicinity of the proposed site, the Regional Administrator shall
seek the necessary detailed information and assistance from other
sources, such as the following Sources of Maps and Technical
Information:
    (1) U.S. Department of Agriculture: Natural Resources Conservation
Service;
    (2) Department of Defense: U.S. Army Corps of Engineers;
    (3) Department of Commerce: National Oceanic and Atmospheric
Administration;
    (4) Department of Homeland Security: FEMA;
    (5) Department of the Interior: Bureau of Reclamation; U.S. Fish
and Wildlife Service; United States Geological Survey;
    (6) Tennessee Valley Authority;
    (7) Department of Transportation;
    (8) Environmental Protection Agency;
    (9) General Services Administration; or
    (10) States and Regional Agencies.
    (C) If the sources listed do not have or know of the information
necessary to comply with the Orders' requirements, the Regional
Administrator shall seek the services of a Federal or other engineer
experienced in this type of work.
    (2) If the determination of the floodplain involves an area or
location within extensive Federal or State holdings or a headwater
area, and an FIS, FIRM, FBFM, or FHBM is not available, the Regional
Administrator shall seek information from the land administering agency
before information and/or assistance is sought as described in
paragraph (c)(1)(iii)(B) of this section. If none of these sources has
information or can provide assistance, the services of an experienced
Federal or other engineer shall be sought as described in paragraph
(c)(1)(iii)(C) of this section.
* * * * *
0
 9. In Sec.  9.8, revise paragraph (c)(5)(ii) to read as follows:

Sec.  9.8  Public notice requirements.

* * * * *
    (c) * * *
    (5) * * *
    (ii) Based on the factors in paragraph (c)(3) of this section, a
map of the area or other identification of the floodplain and/or
wetland areas which is of adequate scale and detail so that the
location is discernible; instead of publication of such map, FEMA may
state that such map is available for public inspection, including the
location at which such map may be inspected and a telephone number to
call for information;
* * * * *
0
10. In Sec.  9.9:
0
a. In paragraph (b)(2), remove ``; and'' and add a period in its place
and add a sentence to the end of paragraph (b)(2);
0
b. Revise paragraph (d)(1);
0
c. Remove paragraph (d)(2);
0
d. Redesignate paragraph (d)(3) as paragraph (d)(2); and
0
e. Lift the suspension of paragraph (e)(6) and remove the paragraph.
    The addition and revision read as follows:

Sec.  9.9  Analysis and reevaluation of practicable alternatives.

* * * * *
    (b) * * *
    (2) * * * In developing the alternative actions, the Agency shall
use, where possible, natural systems, ecosystem processes, and nature-
based approaches; and
* * * * *
    (d) * * *
    (1) The Agency shall not locate the proposed action in the
floodplain as established by Sec.  9.7(c) or in a wetland if a
practicable alternative exists outside the floodplain or wetland.
0
11. In Sec.  9.11:
0
a. Revise paragraph (c)(1);
0
b. Revise the first sentence of paragraph (d) introductory text, the
second sentence of paragraph (d)(2), and paragraphs (d)(3) and (d)(9);
0
c. Revise paragraphs (e)(1), (e)(2) introductory text, and (e)(2)(ii)
introductory text;
0
d. Revise the last sentence in the undesignated paragraph following the
National Flood Insurance Program address in paragraph (e)(3)(i)(E);
0
e. Revise paragraph (e)(3)(ii); and
0
f. Lift the suspension of paragraph (e)(4) and remove the paragraph.
    The revisions read as follows:

Sec.  9.11  Mitigation.

* * * * *
    (c) * * *
    (1) Potential harm to lives and the investment at risk in the
floodplain as established in Sec.  9.7(c);
* * * * *
    (d) * * * The Agency shall apply at a minimum, the following
standards to its actions to comply with the requirements of paragraphs
(b) and (c), of this section (except as provided in Sec.  9.5(c), (d),
and (g) regarding categories of partial or total exclusion). * * *
* * * * *

    (2) * * * There shall be no construction of a new or substantially
improved structure in a coastal high hazard area unless it is elevated
on adequately anchored pilings or columns, and securely anchored to
such piles or columns so that the lowest portion of the structural
members of the lowest floor (excluding the pilings or columns) is
elevated to or above the FFRMS floodplain.* * *
    (3) Elevation of structures. (i) There shall be no new construction
or substantial improvement of structures unless the lowest floor of the
structures (including basement) is at or above the level of the FFRMS
floodplain.
    (ii) There shall be no new construction or substantial improvement
of structures involving a critical action unless the lowest floor of
the structure (including the basement) is at or above the level of the
FFRMS floodplain.
    (iii) If the subject structure is nonresidential, FEMA may, instead
of elevating the structure, approve the design of the structure and its
attendant utility and sanitary facilities so that below the flood level
the structure is water tight with walls substantially impermeable to
the passage of water and with structural components having the
capability of resisting hydrostatic and hydrodynamic loads and effects
of buoyancy.
    (iv) The provisions of paragraphs (d)(3)(i), (ii), and (iii) of
this section do not apply to the extent that the Federal Insurance and
Mitigation Administration has granted an exception under Sec.  60.6(b)
of this chapter (formerly 24 CFR 1910.6(b)), or the community has
granted a variance which the Regional Administrator determines is
consistent with Sec.  60.6(a) of this chapter (formerly 24 CFR
1910.6(a)). In a community which does not have a FIRM in effect, FEMA
may approve a variance from the standards of paragraphs (d)(3)(i),
(ii), and (iii) of this section, after compliance with the standards of
Sec.  60.6(a) of this chapter.
* * * * *
    (9) In the replacement of building contents, materials and
equipment, the Regional Administrator shall require as appropriate,
disaster proofing of the building and/or elimination of such future
losses by relocation of those building contents, materials and
equipment outside or above the floodplain as established in Sec.
9.7(c).
    (e) * * *
    (1) The Federal Insurance and Mitigation Administration shall make
identification of all coastal high hazard areas a priority;
    (2) Beginning October 1, 1981, the Federal Insurance and Mitigation
Administration of FEMA may only provide flood insurance for new
construction or substantial improvements in a coastal high hazard area
if:
* * * * *
    (ii) The structure is rated by FEMA-FIMA based on a system which
reflects the capacity to withstand the effects of the 100-year
frequency flood including, but not limited to, the following factors:
* * * * *
    (3)(i) * * *
    (E) * * * Unless a property owner is seeking an adjustment of the
rate prescribed by FEMA-FIMA, this information need not be submitted.
    (ii) FIMA shall notify communities with coastal high hazard areas
and federally related lenders in such communities, of the provisions of
this paragraph. Notice to the lenders may be accomplished by the
Federal instrumentalities to which the lenders are related.
* * * * *
0
 12. In Sec.  9.13,
0
a. Revise paragraph (d)(1) and the first sentence of paragraph (d)(3)
introductory text;
0
b. Add a sentence to the end of paragraph (d)(4)(i); and
0
c. Revise the first sentence of paragraph (d)(4)(ii), and revise
paragraph (e).
    The revisions and addition read as follows:

Sec.  9.13  Particular types of temporary housing.

* * * * *
    (d) * * *
    (1) The temporary housing action shall be evaluated in accordance
with the provisions of Sec.  9.7 to determine if it is in or affects
the 1 percent annual chance (base) floodplain or wetland.
* * * * *
    (3) An individual or family shall not be housed in the 1 percent
annual chance (base) floodplain or wetland unless the Regional
Administrator has complied with the provisions of Sec.  9.9 to
determine that such site is the only practicable alternative. * * *
* * * * *
    (4) * * *
    (i) * * * Actual elevation levels will be based on manufacturer
specifications and applicable Agency guidance.
    (ii) No mobile home or readily fabricated dwelling may be placed if
such placement is inconsistent with the criteria of the National Flood
Insurance Program (44 CFR parts 59-60) or any more restrictive Federal,
State, or local floodplain management standard. * * *
* * * * *
    (e)(1) FEMA shall not sell or otherwise dispose of mobile homes or
other readily fabricated dwellings which would be located in floodways
or coastal high hazard areas. FEMA shall not sell or otherwise dispose
of mobile homes or other readily fabricated dwellings which would be
located in floodplains or wetlands unless there is full compliance with
the 8-step process. Given the vulnerability of mobile homes to
flooding, a rejection of a non-floodplain location alternative and of
the no-action alternative shall be based on--
    (i) A compelling need of the family or individual to buy a mobile
home for permanent housing; and
    (ii) A compelling requirement to locate the unit in a floodplain.
    (2) FEMA shall not sell or otherwise dispose of mobile homes or
other readily fabricated dwellings in the FFRMS floodplain unless they
are elevated at least to the level of the FFRMS floodplain.
    (3) The Regional Administrator shall notify the Assistant
Administrator for Mitigation of each instance where a floodplain
location has been found to be the only practicable alternative for a
mobile home sale.
0
 13. In Sec.  9.17, revise the first sentence of paragraph (a) and
paragraph (b) introductory text to read as follows:

Sec.  9.17  Instructions to applicants.

    (a) * * * In accordance with Executive Orders 11988, as amended,
and 11990, the Federal executive agencies must respond to a number of
floodplain management and wetland protection responsibilities before
carrying out any of their activities, including the provision of
Federal financial and technical assistance. * * *
    (b) Responsibilities of Applicants. Based upon the guidance
provided by the Agency under Sec.  9.16, that guidance included in the
U.S. Water Resources Council's ``Guidelines for Implementing Executive
Order 11988, Floodplain Management, and Executive Oder 13690,
Establishing a Federal Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder Input,'' and based upon
the provisions of the Orders and this regulation, applicants for Agency
assistance shall recognize and reflect in their application:
* * * * *
0
14. In Sec.  9.18, revise the second sentence of paragraph (b)(1) and
the first

sentence of paragraph (b)(2) to read as follows:

Sec.  9.18  Responsibilities.

* * * * *
    (b) * * *
    (1) * * * When a decision of a Regional Administrator relating to
disaster assistance is appealed, the Associate Administrator for FIMA
may make determinations under these regulations on behalf of the
Agency.
    (2) Prepare and submit to the Office of Chief Counsel reports to
the Office of Management and Budget in accordance with section 2(b) of
Executive Order 11988, as amended, and section 3 of Executive Order
11990. * * *

Appendix A to Part 9 [Removed]

0
 15. Remove appendix A to part 9.

    Dated: August 15, 2016.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2016-19810 Filed 8-19-16; 8:45 am]
BILLING CODE 9111-66-P