02-4321. Hazard Mitigation Planning and Hazard Mitigation Grant Program

AGENCY:

Federal Emergency Management Agency.

ACTION:

Interim final rule.

SUMMARY:

This rule addresses State mitigation planning, identifies new local mitigation planning requirements, authorizes Hazard Mitigation Grant Program (HMGP) funds for planning activities, and increases the amount of HMGP funds available to States that develop a comprehensive, enhanced mitigation plan. This rule also requires that repairs or construction funded by a disaster loan or grant must be carried out in accordance with applicable standards and says that FEMA may require safe land use and construction practices as a condition of grantees receiving disaster assistance under the Stafford Act.

DATES:

Effective Date: February 26, 2002.

Comment Date: We will accept written comments through April 29, 2002.

ADDRESSES:

Please send written comments to the Rules Docket Clerk, Office of the General Counsel, Federal Emergency Management Agency, 500 C Street, SW., room 840, Washington, DC 20472, (facsimile) 202-646-4536, or (email) [e-mail].

FOR FURTHER INFORMATION CONTACT:

Margaret E. Lawless, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC, 20472, 202-646-3027, (facsimile) 202-646-3104, or (email) [e-mail].

SUPPLEMENTARY INFORMATION:

Introduction

Throughout the preamble and the rule the terms “we”, “our” and “us” refer to FEMA.

Section 322 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act or the Act), 42 U.S.C. 5165, enacted under § 104 the Disaster Mitigation Act of 2000, (DMA 2000) P.L. 106-390, provides new and revitalized approaches to mitigation planning. This section: (1) Continues the requirement for a Standard State Mitigation plan as a condition of disaster assistance; (2) provides for States to receive an increased percentage of HMGP funds (from 15 to 20 percent of the total estimated eligible Federal assistance) if, at the time of the declaration of a major disaster, they have in effect a FEMA-approved Enhanced State Mitigation Plan that meets the factors listed in this rule; (3) establishes a new requirement for local mitigation plans; and (4) authorizes up to 7 percent of the HMGP funds available to a State to be used for development of State, tribal, and local mitigation plans. We will give Indian tribal governments the opportunity to fulfill the requirements of § 322 either as a grantee or a subgrantee. An Indian tribal government may choose to apply for HMGP funding directly to us and would then serve as a grantee, meeting the State level responsibilities, or it may apply through the State, meeting the local government or subgrantee responsibilities.

Section 322, in concert with other sections of the Act, provides a significant opportunity to reduce the Nation's disaster losses through mitigation planning. In addition, implementation of planned, pre-identified, cost-effective mitigation measures will streamline the disaster recovery process. The Act provides a framework for linking pre- and post-disaster mitigation planning and initiatives with public and private interests to ensure an integrated, comprehensive approach to disaster loss reduction. The language in the Act, taken as a whole, emphasizes the importance of strong State and local planning processes and comprehensive program management at the State level. The new planning criteria also support State administration of the HMGP, and contemplate a significant State commitment to mitigation activities, comprehensive State mitigation planning, and strong program management.

The planning process also provides a link between State and local mitigation programs. Both State level and local plans should address strategies for incorporating post-disaster early mitigation implementation strategies and sustainable recovery actions. We also recognize that governments are involved in a range of planning activities and that mitigation plans may be linked to or reference hazardous materials and other non-natural hazard plans. Improved mitigation planning will result in a better understanding of risks and vulnerabilities, as well as to expedite implementation of measures and activities to reduce those risks, both pre- and post-disaster.

Section 409 of the Stafford Act, 42 U.S.C. 5176, which required mitigation plans and the use of minimum codes and standards, was repealed by the DMA 2000. These issues are now addressed in two separate sections of the law: mitigation planning is in section 322 of the Act, and minimum codes and standards are in section 323 of the Act. We previously implemented section 409 through 44 CFR Part 206, Subpart M. Since current law now distinguishes the planning from the codes and standards in separate sections, we will address them in different sections of the CFR. We address the new planning regulations in Part 201 to reflect the broader relevance of planning to all FEMA mitigation programs, while the minimum standards remain in Part 206, Federal Disaster Assistance, Subpart M. The regulations implementing the Hazard Mitigation Grant Program are in Part 206, Subpart N. This rule also contains changes to Subpart N, to reflect the new planning criteria identified in section 322 of the Act.

The administration is considering changes to FEMA's mitigation programs in the President's Budget for FY 2003. However, States and localities still would be required to have plans in effect, which meet the minimum requirements under this rule, as a condition of receiving mitigation assistance after November 1, 2003.

Implementation Strategy. States must have an approved hazard mitigation plan in order to receive Stafford Act assistance, excluding assistance provided pursuant to emergency provisions. These regulations provide criteria for the new two-tiered State mitigation plan process: Standard State Mitigation Plans, which allow a State to receive HMGP funding based on 15 percent of the total estimated eligible Stafford Act disaster assistance, and Enhanced State Mitigation Plans, which allow a State to receive HMGP funds based on 20 percent of the total estimated eligible Stafford Act disaster assistance. Enhanced State Mitigation Plans must demonstrate that the State has developed a comprehensive mitigation program, that it effectively uses available mitigation funding, and that it is capable of managing the increased funding. All State Mitigations Plans must be reviewed, revised, and re-approved by FEMA every three years. An important requirement of the legislation is that we must approve a completed enhanced plan before a disaster declaration, in order for the State to be eligible for the increased funding.

We will no longer require States to revise their mitigation plan after every disaster declaration, as under former section 409 of the Act, 42 U.S.C. 5176. We recommend, however, that States consider revising their plan if a disaster or other circumstances significantly affect its mitigation priorities. States with existing mitigation plans, approved under former section 409, will continue to be eligible for the 15 percent HMGP funding until November 1, 2003, when all State mitigation plans must meet the requirements of these regulations. If State plans are not revised and approved to meet the Standard State Mitigation Plan requirements by that time, they will be ineligible for Stafford Act assistance, excluding emergency assistance.

Indian tribal governments may choose to apply directly to us for HMGP funding, and would therefore be responsible for having an approved State level mitigation plan, and would act as the grantee. If an Indian tribal government chooses to apply for HMGP grants through the State, they would be responsible for having an approved local level mitigation plan, and would serve as a subgrantee accountable to the State as grantee.

This rule also establishes local planning criteria so that these jurisdictions can actively begin the hazard mitigation planning process. This requirement is to encourage the development of comprehensive mitigation plans before disaster events. Section 322 requires local governments to have an approved local mitigation plan to be eligible to receive an HMGP project grant; however, this requirement will not fully take effect until November 1, 2003. FEMA Regional Directors may grant an exception to this requirement in extenuating circumstances. Until November 1, 2003, local governments will be able to receive HMGP project grant funds and may prepare a mitigation plan concurrently with implementation of their project grant. We anticipate that the Predisaster Mitigation program authorized by section 203 of the Act, 42 U.S.C. 5133, will also support this local mitigation planning by making funds available for the development of comprehensive local mitigation plans. Managing States that we approve under new criteria established under section 404 of the Act, 42 U.S.C. 5170c(c), as amended by section 204 of DMA 2000 will have approval authority for local mitigation plans. This provision does not apply to States that we approved under the Managing State program in effect before enactment of DMA 2000.

Our goal is for State and local governments to develop comprehensive and integrated plans that are coordinated through appropriate State, local, and regional agencies, as well as non-governmental interest groups. To the extent feasible and practicable, we would also like to consolidate the planning requirements for different FEMA mitigation programs. This will ensure that one local plan will meet the minimum requirements for all of the different FEMA mitigation programs, such as the Flood Mitigation Assistance Program (authorized by sections 553 and 554 of the National Flood Insurance Reform Act of 1994, 42 U.S.C. 4104c and 42 U.S.C. 4104d), the Community Rating System (authorized by section 541 of the National Flood Insurance Reform Act of 1994, 42 U.S.C. 4022), the Pre-Disaster Mitigation Program (authorized by section 203 of the Stafford Act), the Hazard Mitigation Grant Program (authorized by section 404 of the Stafford Act), and the mitigation activities that are based upon the provisions of section 323 and subsections 406(b) and (e) of the Stafford Act. The mitigation plans may also serve to integrate documents and plans produced under other emergency management programs. State level plans should identify overall goals and priorities, incorporating the more specific local risk assessments, when available, and including projects identified through the local planning process.

Under section 322(d), up to 7 percent of the available HMGP funds may now be used for planning, and we encourage States to use these funds for local plan development. In a memorandum to FEMA Regional Directors dated December 21, 2000, we announced that this provision of section 322 was effective for disasters declared on or after October 30, 2000, the date on which the Disaster Mitigation Act of 2000 became law. Regional Directors are encouraging States to make these funds immediately available to local and Indian tribal governments, although the funds can be used for plan development and review at the State level as well.

As discussed earlier in this Supplementary Information, subsection 323(a) of the Stafford Act, 42 U.S.C. 5166(a), requires as a precondition to receiving disaster assistance under the Act that State and local governments, as well as eligible private nonprofit entities, must agree to carry out repair and reconstruction activities “in accordance with applicable standards of safety, decency, and sanitation and in conformity with applicable codes, specifications, and standards.” In addition, that subsection authorizes the President (FEMA, by virtue of Executive Order 12148, as amended) to “require safe land use and construction practices, after adequate consultation with appropriate State and local officials” in the course of the use of Federal disaster assistance by eligible applicants to repair and restore disaster-damaged facilities.

At the same time that we implement the planning mandates of section 322 of the Stafford Act, we are also implementing the Minimum Standards for Public and Private Structures provision of section 323 of the Act. This rule appears at Subpart M of Part 206 of Title 44 of the Code of Federal Regulations. As mentioned earlier, the section 322 planning regulations are in Part 201, while Part 206, Subpart M includes only the minimum codes and standards regulations mandated in § 323. The rule to implement § 323 of the Act reinforces the link between pre-disaster planning, building and construction standards, and post-disaster reconstruction efforts.

We encourage comments on this interim final rule, and we will make every effort to involve all interested parties prior to the development of the Final Rule.

Justification for Interim Final Rule

In general, FEMA publishes a rule for public comment before issuing a final rule, under the Administrative Procedure Act, 5 U.S.C. 533 and 44 CFR 1.12. The Administrative Procedure Act, however, provides an exception from that general rule where the agency for good cause finds the procedures for comment and response contrary to public interest. Section 322 of the Stafford Act allows States to receive increased post-disaster grant funding for projects designed to reduce future disaster losses. States will only be eligible for these increased funds if they have a FEMA-approved Enhanced State Mitigation Plan.

This interim final rule provides the criteria for development and approval of these plans, as well as criteria for local mitigation plans required by this legislation. In order for State and local governments to be positioned to receive these mitigation funds as soon as possible, these regulations must be in effect. The public benefit of this rule will be to assist States and communities assess their risks and identify activities to strengthen the larger community and the built environment in order to become less susceptible to disasters. Planning serves as the vital foundation to saving lives and protecting properties, having integrated plans in place can serve to both streamline recovery efforts and lessen potential future damages. Therefore, we believe it is contrary to the public interest to delay the benefits of this rule. In accordance with the Administrative Procedure Act, 5 U.S.C. 553(d)(3), we find that there is good cause for the interim final rule to take effect immediately upon publication in the Federal Register in order to meet the needs of States and communities by identifying criteria for mitigation plans in order to reduce risks nationwide, establish criteria for minimum codes and standards in post-disaster reconstruction, and to allow States to adjust their mitigation plans to receive the increase in mitigation funding.

In addition, we believe that, under the circumstances, delaying the effective date of this rule until after the comment period would not further the public interest. Prior to this rulemaking, FEMA hosted a meeting where interested parties provided comments and suggestions on how we could implement these planning requirements. Participants in this meeting included representatives from the National Emergency Management Association, the Association of State Floodplain Managers, the National Governors' Association, the International Association of Emergency Managers, the National Association of Development Organizations, the American Public Works Association, the National League of Cities, the National Association of Counties, the National Conference of State Legislatures, the International City/County Management Association, and the Bureau of Indian Affairs. We took comments and suggestions provided at this meeting into account in developing this interim final rule. Therefore, we find that prior notice and comment on this rule would not further the public interest. We actively encourage and solicit comments on this interim final rule from interested parties, and we will consider them in preparing the final rule. For these reasons, we believe we have good cause to publish an interim final rule.

National Environmental Policy Act

44 CFR 10.8(d)(2)(ii) excludes this rule from the preparation of an environmental assessment or environmental impact statement, where the rule relates to actions that qualify for categorical exclusion under 44 CFR 10.8(d)(2)(iii), such as the development of plans under this section.

Executive Order 12866, Regulatory Planning and Review

We have prepared and reviewed this rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The purpose of this rule is to implement section 322 of the Stafford Act which addresses mitigation planning at the State, tribal, and local levels, identifies new local planning requirements, allows Hazard Mitigation Grant Program (HMGP) funds for planning activities, and increases the amount of HMGP funds available to States that develop a comprehensive, enhanced mitigation plan. The rule identifies local mitigation planning requirements before approval of project grants, and requires our approval of an Enhanced State Mitigation plan as a condition for increased mitigation funding. The rule also implements section 323 of the Stafford Act, which requires that repairs or construction funded by disaster loans or grants must comply with applicable standards and safe land use and construction practices. As such the rule itself will not have an effect on the economy of more than $100,000,000.

Therefore, this rule is a significant regulatory action and is not an economically significant rule under Executive Order 12866. The Office of Management and Budget (OMB) has reviewed this rule under Executive Order 12866.

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, February 16, 1994, we incorporate environmental justice into our 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 those programs, policies, and activities do not have the effect of excluding persons from participation in our programs, denying persons the benefits of our programs, or subjecting persons to discrimination because of their race, color, or national origin.

No action that we can anticipate under the final rule will have a disproportionately high or adverse human health and environmental effect on any segment of the population. Section 322 focuses specifically on mitigation planning to: Identify the natural hazards, risks, and vulnerabilities of areas in States, localities, and tribal areas; support development of local mitigation plans; provide for technical assistance to local and tribal governments for mitigation planning; and identify and prioritize mitigation actions that the State will support, as resources become available. Section 323 requires compliance with applicable codes and standards in repair and construction, and use of safe land use and construction standards. Accordingly, the requirements of Executive Order 12898 do not apply to this interim final rule.

Paperwork Reduction Act of 1995

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and concurrent with the publication of this interim final rule, we have submitted a request for review and approval of a new collection of information, which is contained in this interim final rule. Under the Paperwork Reduction Act of 1995, a person may not be penalized for failing to comply with an information collection that does not display a currently valid Office of Management and Budget (OMB) control number. The request was submitted to OMB for approval under the emergency processing procedures in OMB regulation 5 CFR 1320.1. OMB has approved this collection of information for use through August 31, 2002, under OMB Number 3067-0297.

We expect to follow this emergency request with a request for OMB approval to continue the use of the collection of information for a term of three years. The request will be processed under OMB's normal clearance procedures in accordance with provisions of OMB regulation 5 CFR 1320.10. To help us with the timely processing of the emergency and normal clearance submissions to OMB, we invite the general public to comment on the collection of information. This notice and request for comments complies with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)).

Collection of Information

Title: State/Local/Tribal Hazard Mitigation Plans under Section 322 of the Disaster Mitigation Act of 2000.

Abstract: Section 322 of the Robert T. Stafford Disaster Relief and Emergency Assistant Act, as amended by Section 104 of the Disaster Mitigation Act of 2000, provides new and revitalized approaches to mitigation planning. To obtain Federal assistance, new planning provisions require that each state, local, and tribal government prepare a hazard mitigation plan to include sections that describe the planning process, an assessment of the risks, a mitigation strategy, and identification of the plan maintenance and updating process. The Act provides a framework for linking pre- and post-disaster mitigation planning and initiatives with public and private interests to ensure an integrated, comprehensive approach to disaster loss reduction. Under Section 322 there is a two-tiered State mitigation plan process. State mitigation plans must be reviewed, revised, and submitted to us every 3 years.

(1) A Standard State Mitigation Plan must be approved by us in order for States to be eligible to receive Hazard Mitigation Grant Program (HGMP) funding based on 15 percent of the total estimated eligible Federal disaster assistance. This plan demonstrates the State's goals, priorities, and commitment to reduce risks from natural hazards and serves as a guide for State and local decision makers as they commit resources to reducing the effects of natural hazards.

(2) An Enhanced State Mitigation Plan must be approved by us for a State to be eligible to receive HMGP funds based on 20 percent of the total estimated eligible Federal disaster assistance. This plan must be approved by us within the 3 years prior to the current major disaster declaration. It must demonstrate that a State has developed a comprehensive mitigation program, is effectively using available mitigation funding, and is capable of managing the increased funding.

To be eligible to receive HMGP project grants, local governments must develop Local Mitigation Plans that include a risk assessment and mitigation strategy to reduce potential losses and target resources. Plans must be reviewed, revised, and submitted to us for approval every 5 years.

To receive HMGP project grants, tribal governments may apply as a grantee or subgrantee, and will be required to meet the planning requirements of a State or local government.

Estimated Total Annual Burden:

Type of collection/forms	No. of respondents	Hours per response	Annual burden hours
Update state or tribal mitigation plans (standard state mitigation plans)	18	320	5,760
State review of local plans	500 local plans	8	4,000
States develop Enhanced State Mitigation Plans	7	100	700
Local or tribal governments develop mitigation plans	500 local plans	300	150,000
Total burden			160,460

Comments: We are soliciting written comments 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; (c) obtain recommendations to enhance the quality, utility, and clarity of the information to be collected; and (d) evaluate the extent to which automated, electronic, mechanical, or other technological collection techniques may further reduce the respondents' burden. FEMA will accept comments through April 29, 2002.

Addressee: Interested persons should submit written comments to Muriel B. Anderson, Chief, Records Management Section, Program Services and Systems Branch, Facilities Management and Services Division, Administration and Resource Planning Directorate, Federal Emergency Management Agency, 500 C Street, Street, SW., Washington, DC 20472.

FOR FURTHER INFORMATION CONTACT:

You may obtain copies of the OMB paperwork clearance package by contacting Ms. Anderson at [phone] (voice), [phone] (facsimile), or by e-mail at [e-mail].

Executive Order 13132, Federalism

Executive Order 13132, Federalism, dated August 4, 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, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this rule under E.O.13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. We have determined that the 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.

However, we have consulted with State and local officials. In order to assist us in the development of this rule, we hosted a meeting to allow interested parties an opportunity to provide their perspectives on the legislation and options for implementation of § 322. Stakeholders who attended the meeting included representatives from the National Emergency Management Association, the Association of State Floodplain Managers, the National Governors' Association, the International Association of Emergency Managers, the National Association of Development Organizations, the American Public Works Association, the National League of Cities, the National Association of Counties, the National Conference of State Legislatures, the International City/County Management Association, and the Bureau of Indian Affairs. We received valuable input from all parties at the meeting, which we took into account in the development of this rule. Additionally, we actively encourage and solicit comments on this interim final rule from interested parties, and we will consider them in preparing the final rule.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

We have reviewed this interim final rule under Executive Order 13175, which became effective on February 6, 2001. Under the Hazard Mitigation Grant Program (HMGP), Indian tribal governments will have the option to apply for grants directly to us and to serve as “grantee”, carrying out “State” roles. If they choose this option, tribal governments may submit either a State-level Standard Mitigation Plan for the 15 percent HMGP funding or a State-level Enhanced Mitigation Plan for 20 percent HMGP funding. In either case, Indian tribal governments would be able to spend up to 7 percent of those funds on planning. Before developing this rule, we met with representatives from State and local governments and the Bureau of Indian Affairs, to discuss the new planning opportunities and requirements of § 322 of the Stafford Act. We received valuable input from all parties, which helped us to develop this interim final rule.

In reviewing the interim final rule, we find that it does not have “tribal implications” as defined in Executive Order 13175 because it will 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. Moreover, the interim final rule does not impose substantial direct compliance costs on tribal governments, nor does it preempt tribal law, impair treaty rights or limit the self-governing powers of tribal governments.

Congressional Review of Agency Rulemaking

We have sent this interim final rule to the Congress and to the General Accounting Office under the Congressional Review of Agency Rulemaking Act, Public Law 104-121. The rule is a not “major rule” within the meaning of that Act. It is an administrative action in support of normal day-to-day mitigation planning activities required by section 322 and compliance under section 323 of the Stafford Act, as enacted in DMA 2000.

The rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises. This final rule is subject to the information collection requirements of the Paperwork Reduction Act, and OMB has assigned Control No. 3067-0297. The rule is not an unfunded Federal mandate within the meaning of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, and any enforceable duties that we impose are a condition of Federal assistance or a duty arising from participation in a voluntary Federal program.

List of Subjects in 44 CFR Part 201 and Part 206

• Administrative practice and procedure
• Disaster assistance
• Grant programs
• Mitigation planning
• Reporting and recordkeeping requirements

Accordingly, Amend 44 CFR, Subchapter D—Disaster Assistance, as follows:

1. Add Part 201 to read as follows:

PART 201—MITIGATION PLANNING

201.1

Purpose.

201.2

Definitions.

201.3

Responsibilities.

201.4

Standard State Mitigation Plans.

201.5

Enhanced State Mitigation Plans.

201.6

Local Mitigation Plans.

Authority: Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214.

§ 201.1

Purpose.

(a) The purpose of this part is to provide information on the polices and procedures for mitigation planning as required by the provisions of section 322 of the Stafford Act, 42 U.S.C. 5165.

(b) The purpose of mitigation planning is for State, local, and Indian tribal governments to identify the natural hazards that impact them, to identify actions and activities to reduce any losses from those hazards, and to establish a coordinated process to implement the plan, taking advantage of a wide range of resources.

§ 201.2

Definitions.

Grantee means the government to which a grant is awarded, which is accountable for the use of the funds provided. The grantee is the entire legal entity even if only a particular component of the entity is designated in the grant award document. Generally, the State is the grantee. However, after a declaration, an Indian tribal government may choose to be a grantee, or may act as a subgrantee under the State. An Indian tribal government acting as grantee will assume the responsibilities of a “state”, as described in this part, for the purposes of administering the grant.

Hazard mitigation means any sustained action taken to reduce or eliminate the long-term risk to human life and property from hazards.

Hazard Mitigation Grant Program means the program authorized under section 404 of the Stafford Act, 42 U.S.C 5170c and implemented at 44 CFR Part 206, Subpart N, which authorizes funding for certain mitigation measures identified through the evaluation of natural hazards conducted under section 322 of the Stafford Act 42 U.S.C 5165.

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

Local government is any county, municipality, city, town, township, public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government; any Indian tribe or authorized tribal organization, or Alaska Native village or organization; and any rural community, unincorporated town or village, or other public entity.

Managing State means a State to which FEMA has delegated the authority to administer and manage the HMGP under the criteria established by FEMA pursuant to 42 U.S.C. 5170c(c). FEMA may also delegate authority to tribal governments to administer and manage the HMGP as a Managing State.

Regional Director is a director of a regional office of FEMA, or his/her designated representative.

Small and impoverished communities means a community of 3,000 or fewer individuals that is identified by the State as a rural community, and is not a remote area within the corporate boundaries of a larger city; is economically disadvantaged, by having an average per capita annual income of residents not exceeding 80 percent of national, per capita income, based on best available data; the local unemployment rate exceeds by one percentage point or more, the most recently reported, average yearly national unemployment rate; and any other factors identified in the State Plan in which the community is located.

The Stafford Act refers to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended (42 U.S.C. 5121-5206).

State is any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

State Hazard Mitigation Officer is the official representative of State government who is the primary point of contact with FEMA, other Federal agencies, and local governments in mitigation planning and implementation of mitigation programs and activities required under the Stafford Act.

Subgrantee means the government or other legal entity to which a subgrant is awarded and which is accountable to the grantee for the use of the funds provided. Subgrantees can be a State agency, local government, private non-profit organizations, or Indian tribal government. Indian tribal governments acting as a subgrantee are accountable to the State grantee.

§ 201.3

Responsibilities.

(a) General. This section identifies the key responsibilities of FEMA, States, and local/tribal governments in carrying out section 322 of the Stafford Act, 42 U.S.C. 5165.

(b) FEMA. The key responsibilities of the Regional Director are to:

(1) Oversee all FEMA related pre- and post-disaster hazard mitigation programs and activities;

(2) Provide technical assistance and training to State, local, and Indian tribal governments regarding the mitigation planning process;

(3) Review and approve all Standard and Enhanced State Mitigation Plans;

(4) Review and approve all local mitigation plans, unless that authority has been delegated to the State in accordance with § 201.6(d);

(5) Conduct reviews, at least once every three years, of State mitigation activities, plans, and programs to ensure that mitigation commitments are fulfilled, and when necessary, take action, including recovery of funds or denial of future funds, if mitigation commitments are not fulfilled.

(c) State. The key responsibilities of the State are to coordinate all State and local activities relating to hazard evaluation and mitigation and to:

(1) Prepare and submit to FEMA a Standard State Mitigation Plan following the criteria established in § 201.4 as a condition of receiving Stafford Act assistance (except emergency assistance).

(2) In order to be considered for the 20 percent HMGP funding, prepare and submit an Enhanced State Mitigation Plan in accordance with § 201.5, which must be reviewed and updated, if necessary, every three years from the date of the approval of the previous plan.

(3) At a minimum, review and, if necessary, update the Standard State Mitigation Plan by November 1, 2003 and every three years from the date of the approval of the previous plan in order to continue program eligibility.

(4) Make available the use of up to the 7 percent of HMGP funding for planning in accordance with § 206.434.

(5) Provide technical assistance and training to local governments to assist them in applying for HMGP planning grants, and in developing local mitigation plans.

(6) For Managing States that have been approved under the criteria established by FEMA pursuant to 42 U.S.C. 5170c(c), review and approve local mitigation plans in accordance with § 201.6(d).

(d) Local governments. The key responsibilities of local governments are to:

(1) Prepare and adopt a jurisdiction-wide natural hazard mitigation plan as a condition of receiving project grant funds under the HMGP, in accordance with § 201.6.

(2) At a minimum, review and, if necessary, update the local mitigation plan every five years from date of plan approval to continue program eligibility.

(e) Indian tribal governments. Indian tribal governments will be given the option of applying directly to us for Hazard Mitigation Grant Program funding, or they may choose to apply through the State. If they apply directly to us, they will assume the responsibilities of the State, or grantee, and if they apply through the State, they will assume the responsibilities of the local government, or subgrantee.

§ 201.4

Standard State Mitigation Plans.

(a) Plan requirement. By November 1, 2003, States must have an approved Standard State Mitigation plan meeting the requirements of this section, in order to receive assistance under the Stafford Act, although assistance authorized under disasters declared prior to November 1, 2003 will continue to be made available. In any case, emergency assistance provided under 42 U.S.C. 5170a, 5170b, 5173, 5174, 5177, 5179, 5180, 5182, 5183, 5184, 5192 will not be affected. The mitigation plan is the demonstration of the State's commitment to reduce risks from natural hazards and serves as a guide for State decision makers as they commit resources to reducing the effects of natural hazards. States may choose to include the requirements of the HMGP Administrative Plan in their mitigation plan.

(b) Planning process. An effective planning process is essential in developing and maintaining a good plan. The mitigation planning process should include coordination with other State agencies, appropriate Federal agencies, interested groups, and be integrated to the extent possible with other ongoing State planning efforts as well as other FEMA mitigation programs and initiatives.

(c) Plan content. To be effective the plan must include the following elements:

(1) Description of the planning process used to develop the plan, including how it was prepared, who was involved in the process, and how other agencies participated.

(2) Risk assessments that provide the factual basis for activities proposed in the strategy portion of the mitigation plan. Statewide risk assessments must characterize and analyze natural hazards and risks to provide a statewide overview. This overview will allow the State to compare potential losses throughout the State and to determine their priorities for implementing mitigation measures under the strategy, and to prioritize jurisdictions for receiving technical and financial support in developing more detailed local risk and vulnerability assessments. The risk assessment shall include the following:

(i) An overview of the type and location of all natural hazards that can affect the State, including information on previous occurrences of hazard events, as well as the probability of future hazard events, using maps where appropriate;

(ii) An overview and analysis of the State's vulnerability to the hazards described in this paragraph (c)(2), based on estimates provided in local risk assessments as well as the State risk assessment. The State shall describe vulnerability in terms of the jurisdictions most threatened by the identified hazards, and most vulnerable to damage and loss associated with hazard events. State owned critical or operated facilities located in the identified hazard areas shall also be addressed;

(iii) An overview and analysis of potential losses to the identified vulnerable structures, based on estimates provided in local risk assessments as well as the State risk assessment. The State shall estimate the potential dollar losses to State owned or operated buildings, infrastructure, and critical facilities located in the identified hazard areas.

(3) A Mitigation Strategy that provides the State's blueprint for reducing the losses identified in the risk assessment. This section shall include:

(i) A description of State goals to guide the selection of activities to mitigate and reduce potential losses.

(ii) A discussion of the State's pre- and post-disaster hazard management policies, programs, and capabilities to mitigate the hazards in the area, including: an evaluation of State laws, regulations, policies, and programs related to hazard mitigation as well as to development in hazard-prone areas; a discussion of State funding capabilities for hazard mitigation projects; and a general description and analysis of the effectiveness of local mitigation policies, programs, and capabilities.

(iii) An identification, evaluation, and prioritization of cost-effective, environmentally sound, and technically feasible mitigation actions and activities the State is considering and an explanation of how each activity contributes to the overall mitigation strategy. This section should be linked to local plans, where specific local actions and projects are identified.

(iv) Identification of current and potential sources of Federal, State, local, or private funding to implement mitigation activities.

(4) A section on the Coordination of Local Mitigation Planning that includes the following:

(i) A description of the State process to support, through funding and technical assistance, the development of local mitigation plans.

(ii) A description of the State process and timeframe by which the local plans will be reviewed, coordinated, and linked to the State Mitigation Plan.

(iii) Criteria for prioritizing communities and local jurisdictions that would receive planning and project grants under available funding programs, which should include consideration for communities with the highest risks, repetitive loss properties, and most intense development pressures. Further, that for non-planning grants, a principal criterion for prioritizing grants shall be the extent to which benefits are maximized according to a cost benefit review of proposed projects and their associated costs.

(5) A Plan Maintenance Process that includes:

(i) An established method and schedule for monitoring, evaluating, and updating the plan.

(ii) A system for monitoring implementation of mitigation measures and project closeouts.

(iii) A system for reviewing progress on achieving goals as well as activities and projects identified in the Mitigation Strategy.

(6) A Plan Adoption Process. The plan must be formally adopted by the State prior to submittal to us for final review and approval.

(7) Assurances. The plan must include assurances that the State will comply with all applicable Federal statutes and regulations in effect with respect to the periods for which it receives grant funding, in compliance with 44 CFR 13.11(c). The State will amend its plan whenever necessary to reflect changes in State or Federal laws and statutes as required in 44 CFR 13.11(d).

(d) Review and updates. Plan must be reviewed and revised to reflect changes in development, progress in statewide mitigation efforts, and changes in priorities and resubmitted for approval to the appropriate Regional Director every three years. The Regional review will be completed within 45 days after receipt from the State, whenever possible. We also encourage a State to review its plan in the post-disaster timeframe to reflect changing priorities, but it is not required.

§ 201.5

Enhanced State Mitigation Plans.

(a) A State with a FEMA approved Enhanced State Mitigation Plan at the time of a disaster declaration is eligible to receive increased funds under the HMGP, based on twenty percent of the total estimated eligible Stafford Act disaster assistance. The Enhanced State Mitigation Plan must demonstrate that a State has developed a comprehensive mitigation program, that the State effectively uses available mitigation funding, and that it is capable of managing the increased funding. In order for the State to be eligible for the 20 percent HMGP funding, FEMA must have approved the plan within three years prior to the disaster declaration.

(b) Enhanced State Mitigation Plans must include all elements of the Standard State Mitigation Plan identified in § 201.4, as well as document the following:

(1) Demonstration that the plan is integrated to the extent practicable with other State and/or regional planning initiatives (comprehensive, growth management, economic development, capital improvement, land development, and/or emergency management plans) and FEMA mitigation programs and initiatives that provide guidance to State and regional agencies.

(2) Documentation of the State's project implementation capability, identifying and demonstrating the ability to implement the plan, including:

(i) Established eligibility criteria for multi-hazard mitigation measures.

(ii) A system to determine the cost effectiveness of mitigation measures, consistent with OMB Circular A-94, Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs, and to rank the measures according to the State's eligibility criteria.

(iii) Demonstration that the State has the capability to effectively manage the HMGP as well as other mitigation grant programs, including a record of the following:

(A) Meeting HMGP and other mitigation grant application timeframes and submitting complete, technically feasible, and eligible project applications with appropriate supporting documentation;

(B) Preparing and submitting accurate environmental reviews and benefit-cost analyses;

(C) Submitting complete and accurate quarterly progress and financial reports on time; and

(D) Completing HMGP and other mitigation grant projects within established performance periods, including financial reconciliation.

(iv) A system and strategy by which the State will conduct an assessment of the completed mitigation actions and include a record of the effectiveness (actual cost avoidance) of each mitigation action.

(3) Demonstration that the State effectively uses existing mitigation programs to achieve its mitigation goals.

(4) Demonstration that the State is committed to a comprehensive state mitigation program, which might include any of the following:

(i) A commitment to support local mitigation planning by providing workshops and training, State planning grants, or coordinated capability development of local officials, including Emergency Management and Floodplain Management certifications.

(ii) A statewide program of hazard mitigation through the development of legislative initiatives, mitigation councils, formation of public/private partnerships, and/or other executive actions that promote hazard mitigation.

(iii) The State provides a portion of the non-Federal match for HMGP and/or other mitigation projects.

(iv) To the extent allowed by State law, the State requires or encourages local governments to use a current version of a nationally applicable model building code or standard that addresses natural hazards as a basis for design and construction of State sponsored mitigation projects.

(v) A comprehensive, multi-year plan to mitigate the risks posed to existing buildings that have been identified as necessary for post-disaster response and recovery operations.

(vi) A comprehensive description of how the State integrates mitigation into its post-disaster recovery operations.

(c) Review and updates. (1) A State must review and revise its plan to reflect changes in development, progress in statewide mitigation efforts, and changes in priorities, and resubmit it for approval to the appropriate Regional Director every three years. The Regional review will be completed within 45 days after receipt from the State, whenever possible.

(2) In order for a State to be eligible for the 20 percent HMGP funding, the Enhanced State Mitigation plan must be approved by FEMA within the three years prior to the current major disaster declaration.

§ 201.6

Local Mitigation Plans.

The local mitigation plan is the representation of the jurisdiction's commitment to reduce risks from natural hazards, serving as a guide for decision makers as they commit resources to reducing the effects of natural hazards. Local plans will also serve as the basis for the State to provide technical assistance and to prioritize project funding.

(a) Plan requirement. (1) For disasters declared after November 1, 2003, a local government must have a mitigation plan approved pursuant to this section in order to receive HMGP project grants. Until November 1, 2003, local mitigation plans may be developed concurrent with the implementation of the project grant.

(2) Regional Directors may grant an exception to the plan requirement in extraordinary circumstances, such as in a small and impoverished community, when justification is provided. In these cases, a plan will be completed within 12 months of the award of the project grant. If a plan is not provided within this timeframe, the project grant will be terminated, and any costs incurred after notice of grant's termination will not be reimbursed by FEMA.

(3) Multi-jurisdictional plans (e.g. watershed plans) may be accepted, as appropriate, as long as each jurisdiction has participated in the process and has officially adopted the plan. State-wide plans will not be accepted as multi-jurisdictional plans.

(b) Planning process. An open public involvement process is essential to the development of an effective plan. In order to develop a more comprehensive approach to reducing the effects of natural disasters, the planning process shall include:

(1) An opportunity for the public to comment on the plan during the drafting stage and prior to plan approval;

(2) An opportunity for neighboring communities, local and regional agencies involved in hazard mitigation activities, and agencies that have the authority to regulate development, as well as businesses, academia and other private and non-profit interests to be involved in the planning process; and

(3) Review and incorporation, if appropriate, of existing plans, studies, reports, and technical information.

(c) Plan content. The plan shall include the following:

(1) Documentation of the planning process used to develop the plan, including how it was prepared, who was involved in the process, and how the public was involved.

(2) A risk assessment that provides the factual basis for activities proposed in the strategy to reduce losses from identified hazards. Local risk assessments must provide sufficient information to enable the jurisdiction to identify and prioritize appropriate mitigation actions to reduce losses from identified hazards. The risk assessment shall include:

(i) A description of the type, location, and extent of all natural hazards that can affect the jurisdiction. The plan shall include information on previous occurrences of hazard events and on the probability of future hazard events.

(ii) A description of the jurisdiction's vulnerability to the hazards described in paragraph (c)(2)(i) of this section. This description shall include an overall summary of each hazard and its impact on the community. The plan should describe vulnerability in terms of:

(A) The types and numbers of existing and future buildings, infrastructure, and critical facilities located in the identified hazard areas;

(B) An estimate of the potential dollar losses to vulnerable structures identified in paragraph (c)(2)(i)(A) of this section and a description of the methodology used to prepare the estimate;

(C) Providing a general description of land uses and development trends within the community so that mitigation options can be considered in future land use decisions.

(iii) For multi-jurisdictional plans, the risk assessment section must assess each jurisdiction's risks where they vary from the risks facing the entire planning area.

(3) A mitigation strategy that provides the jurisdiction's blueprint for reducing the potential losses identified in the risk assessment, based on existing authorities, policies, programs and resources, and its ability to expand on and improve these existing tools. This section shall include:

(i) A description of mitigation goals to reduce or avoid long-term vulnerabilities to the identified hazards.

(ii) A section that identifies and analyzes a comprehensive range of specific mitigation actions and projects being considered to reduce the effects of each hazard, with particular emphasis on new and existing buildings and infrastructure.

(iii) An action plan describing how the actions identified in paragraph (c)(2)(ii) of this section will be prioritized, implemented, and administered by the local jurisdiction. Prioritization shall include a special emphasis on the extent to which benefits are maximized according to a cost benefit review of the proposed projects and their associated costs.

(iv) For multi-jurisdictional plans, there must be identifiable action items specific to the jurisdiction requesting FEMA approval or credit of the plan.

(4) A plan maintenance process that includes:

(i) A section describing the method and schedule of monitoring, evaluating, and updating the mitigation plan within a five-year cycle.

(ii) A process by which local governments incorporate the requirements of the mitigation plan into other planning mechanisms such as comprehensive or capital improvement plans, when appropriate.

(iii) Discussion on how the community will continue public participation in the plan maintenance process.

(5) Documentation that the plan has been formally adopted by the governing body of the jurisdiction requesting approval of the plan (e.g., City Council, County Commissioner, Tribal Council). For multi-jurisdictional plans, each jurisdiction requesting approval of the plan must document that it has been formally adopted.

(d) Plan review. (1) Plans must be submitted to the State Hazard Mitigation Officer for initial review and coordination. The State will then send the plan to the appropriate FEMA Regional Office for formal review and approval.

(2) The Regional review will be completed within 45 days after receipt from the State, whenever possible.

(3) Plans must be reviewed, revised if appropriate, and resubmitted for approval within five years in order to continue to be eligible for HMGP project grant funding.

(4) Managing States that have been approved under the criteria established by FEMA pursuant to 42 U.S.C. 5170c(c) will be delegated approval authority for local mitigation plans, and the review will be based on the criteria in this part. Managing States will review the plans within 45 days of receipt of the plans, whenever possible, and provide a copy of the approved plans to the Regional Office.

PART 206—FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR AFTER NOVEMBER 23, 1988

2. The authority citation for part 206 is revised to read as follows:

Authority: Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214.

2a. Revise Part 206, Subpart M to read as follows:

Subpart M—Minimum Standards

206.400

General.

206.401

Local standards.

206.402

Compliance.

§ 206.400

General.

(a) As a condition of the receipt of any disaster assistance under the Stafford Act, the applicant shall carry out any repair or construction to be financed with the disaster assistance in accordance with applicable standards of safety, decency, and sanitation and in conformity with applicable codes, specifications and standards.

(b) Applicable codes, specifications, and standards shall include any disaster resistant building code that meets the minimum requirements of the National Flood Insurance Program (NFIP) as well as being substantially equivalent to the recommended provisions of the National Earthquake Hazards Reduction Program (NEHRP). In addition, the applicant shall comply with any requirements necessary in regards to Executive Order 11988, Floodplain Management, Executive Order 12699, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, and any other applicable Executive orders.

(c) In situations where there are no locally applicable standards of safety, decency and sanitation, or where there are no applicable local codes, specifications and standards governing repair or construction activities, or where the Regional Director determines that otherwise applicable codes, specifications, and standards are inadequate, then the Regional Director may, after consultation with appropriate State and local officials, require the use of nationally applicable codes, specifications, and standards, as well as safe land use and construction practices in the course of repair or construction activities.

(d) The mitigation planning process that is mandated by section 322 of the Stafford Act and 44 CFR part 201 can assist State and local governments in determining where codes, specifications, and standards are inadequate, and may need to be upgraded.

§ 206.401

Local standards.

The cost of repairing or constructing a facility in conformity with minimum codes, specifications and standards may be eligible for reimbursement under section 406 of the Stafford Act, as long as such codes, specifications and standards meet the criteria that are listed at 44 CFR 206.226(b).

§ 206.402

Compliance.

A recipient of disaster assistance under the Stafford Act must document for the Regional Director its compliance with this subpart following the completion of any repair or construction activities.

Subpart N—Hazard Mitigation Grant Program

3. Revise § 206.431 to read as follows:

§ 206.431

Definitions.

Activity means any mitigation measure, project, or action proposed to reduce risk of future damage, hardship, loss or suffering from disasters.

Applicant means a State agency, local government, Indian tribal government, or eligible private nonprofit organization, submitting an application to the grantee for assistance under the HMGP.

Enhanced State Mitigation Plan is the hazard mitigation plan approved under 44 CFR part 201 as a condition of receiving increased funding under the HMGP.

Grant application means the request to FEMA for HMGP funding, as outlined in § 206.436, by a State or tribal government that will act as grantee.

Grant award means total of Federal and non-Federal contributions to complete the approved scope of work.

Grantee means the government to which a grant is awarded and which is accountable for the use of the funds provided. The grantee is the entire legal entity even if only a particular component of the entity is designated in the grant award document. Generally, the State is the grantee. However, an Indian tribal government may choose to be a grantee, or it may act as a subgrantee under the State. An Indian tribal government acting as a grantee will assume the responsibilities of a “state”, under this subpart, for the purposes of administering the grant.

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

Local Mitigation Plan is the hazard mitigation plan required of a local or Indian tribal government acting as a subgrantee as a condition of receiving a project subgrant under the HMGP as outlined in 44 CFR 201.6.

Standard State Mitigation Plan is the hazard mitigation plan approved under 44 CFR part 201, as a condition of receiving Stafford Act assistance as outlined in § 201.4.

State Administrative Plan for the Hazard Mitigation Grant Program means the plan developed by the State to describe the procedures for administration of the HMGP.

Subgrant means an award of financial assistance under a grant by a grantee to an eligible subgrantee.

Subgrant application means the request to the grantee for HMGP funding by the eligible subgrantee, as outlined in § 206.436.

Subgrantee means the government or other legal entity to which a subgrant is awarded and which is accountable to the grantee for the use of the funds provided. Subgrantees can be a State agency, local government, private non-profit organizations, or Indian tribal government as outlined in § 206.433. Indian tribal governments acting as a subgrantee are accountable to the State grantee.

4. Revise § 206.432(b) to read as follows:

§ 206.432

Federal grant assistance.

* * * * *

(b) Amounts of assistance. The total of Federal assistance under this subpart shall not exceed either 15 or 20 percent of the total estimated Federal assistance (excluding administrative costs) provided for a major disaster under 42 U.S.C. 5170b, 5172, 5173, 5174, 5177, 5178, 5183, and 5201 as follows:

(1) Fifteen (15) percent. Effective November 1, 2003, a State with an approved Standard State Mitigation Plan, which meets the requirements outlined in 44 CFR 201.4, shall be eligible for assistance under the HMGP not to exceed 15 percent of the total estimated Federal assistance described in this paragraph. Until that date, existing, approved State Mitigation Plans will be accepted.

(2) Twenty (20) percent. A State with an approved Enhanced State Mitigation Plan, in effect prior to the disaster declaration, which meets the requirements outlined in 44 CFR 201.5 shall be eligible for assistance under the HMGP not to exceed 20 percent of the total estimated Federal assistance described in this paragraph.

(3) The estimates of Federal assistance under this paragraph (b) shall be based on the Regional Director's estimate of all eligible costs, actual grants, and appropriate mission assignments.

* * * * *

5. Section 206.434 is amended by redesignating paragraphs (b) through (g) as paragraphs (c) through (h), respectively; adding a new paragraph (b); revising redesignated paragraphs (c) introductory text and (c)(1); and revising redesignated paragraph (d) to read as follows:

§ 206.434

Eligibility.

* * * * *

(b) Plan requirement. (1) For all disasters declared on or after November 1, 2003, local and tribal government applicants for subgrants, must have an approved local mitigation plan in accordance with 44 CFR 201.6 prior to receipt of HMGP subgrant funding. Until November 1, 2003, local mitigation plans may be developed concurrent with the implementation of subgrants.

(2) Regional Directors may grant an exception to this requirement in extraordinary circumstances, such as in a small and impoverished community when justification is provided. In these cases, a plan will be completed within 12 months of the award of the project grant. If a plan is not provided within this timeframe, the project grant will be terminated, and any costs incurred after notice of grant's termination will not be reimbursed by FEMA.

(c) Minimum project criteria. To be eligible for the Hazard Mitigation Grant Program, a project must:

(1) Be in conformance with the State Mitigation Plan and Local Mitigation Plan approved under 44 CFR part 201;

* * * * *

(d) Eligible activities. (1) Planning. Up to 7% of the State's HMGP grant may be used to develop State, tribal and/or local mitigation plans to meet the planning criteria outlined in 44 CFR part 201.

(2) Types of projects. Projects may be of any nature that will result in protection to public or private property. Eligible projects include, but are not limited to:

(i) Structural hazard control or protection projects;

(ii) Construction activities that will result in protection from hazards;

(iii) Retrofitting of facilities;

(iv) Property acquisition or relocation, as defined in paragraph (e) of this section;

(v) Development of State or local mitigation standards;

(vi) Development of comprehensive mitigation programs with implementation as an essential component;

(vii) Development or improvement of warning systems.

* * * * *

6. Revise § 206.435(a) to read as follows:

§ 206.435

Project identificaiton and selection criteria.

(a) Identification. It is the State's responsibility to identify and select eligible hazard mitigation projects. All funded projects must be consistent with the State Mitigation Plan. Hazard Mitigation projects shall be identified and prioritized through the State, Indian tribal, and local planning process.

* * * * *

7. Revise § 206.436 to read as follows:

§ 206.436

Application procedures.

(a) General. This section describes the procedures to be used by the grantee in submitting an application for HMGP funding. Under the HMGP, the State or Indian tribal government is the grantee and is responsible for processing subgrants to applicants in accordance with 44 CFR part 13 and this part 206. Subgrantees are accountable to the grantee.

(b) Governor's Authorized Representative. The Governor's Authorized Representative serves as the grant administrator for all funds provided under the Hazard Mitigation Grant Program. The Governor's Authorized Representative's responsibilities as they pertain to procedures outlined in this section include providing technical advice and assistance to eligible subgrantees, and ensuring that all potential applicants are aware of assistance available and submission of those documents necessary for grant award.

(c) Hazard mitigation application. Upon identification of mitigation measures, the State (Governor's Authorized Representative) will submit its Hazard Mitigation Grant Program application to the FEMA Regional Director. The application will identify one or more mitigation measures for which funding is requested. The application must include a Standard Form (SF) 424, Application for Federal Assistance, SF 424D, Assurances for Construction Programs, if appropriate, and an narrative statement. The narrative statement will contain any pertinent project management information not included in the State's administrative plan for Hazard Mitigation. The narrative statement will also serve to identify the specific mitigation measures for which funding is requested. Information required for each mitigation measure shall include the following:

(1) Name of the subgrantee, if any;

(2) State or local contact for the measure;

(3) Location of the project;

(4) Description of the measure;

(5) Cost estimate for the measure;

(6) Analysis of the measure's cost-effectiveness and substantial risk reduction, consistent with § 206.434(c);

(7) Work schedule;

(8) Justification for selection;

(9) Alternatives considered;

(10) Environmental information consistent with 44 CFR part 9, Floodplain Management and Protection of Wetlands, and 44 CFR part 10, Environmental Considerations.

(d) Application submission time limit. The State's application may be amended as the State identifies and selects local project applications to be funded. The State must submit all local HMGP applications and funding requests for the purpose of identifying new projects to the Regional Director within 12 months of the date of disaster declaration.

(e) Extensions. The State may request the Regional Director to extend the application time limit by 30 to 90 day increments, not to exceed a total of 180 days. The grantee must include a justification in its request.

(f) FEMA approval. The application and supplement(s) will be submitted to the FEMA Regional Director for approval. FEMA has final approval authority for funding of all projects.

(g) Indian tribal grantees. Indian tribal governments may submit a SF 424 directly to the Regional Director.

Subpart H—Public Assistance Eligibility

* * * * *

8. Revise § 206.220 to read as follows:

§ 206.220

General.

This subpart provides policies and procedures for determinations of eligibility of applicants for public assistance, eligibility of work, and eligibility of costs for assistance under sections 402, 403, 406, 407, 418, 419, 421(d), 502, and 503 of the Stafford Act. Assistance under this subpart must also conform to requirements of 44 CFR part 201, Mitigation Planning, and 44 CFR part 206, subparts G—Public Assistance Project Administration, I—Public Assistance Insurance Requirements, J—Coastal Barrier Resources Act, and M—Minimum Standards. Regulations under 44 CFR part 9—Floodplain Management and 44 CFR part 10—Environmental Considerations, also apply to this assistance.

9. Section 206.226 is amended by redesignating paragraphs

(b) through (j) as paragraphs (c) through (k), respectively; adding a new paragraph (b); and revising redesignated paragraph (g)(5) to read as follows:

§ 206.226

Restoration of damaged facilities.

* * * * *

(b) Mitigation planning. In order to receive assistance under this section, as of November 1, 2003, the State must have in place a FEMA approved State Mitigation Plan in accordance with 44 CFR part 201.

* * * * *

(g) * * *

(5) If relocation of a facility is not feasible or cost effective, the Regional Director shall disapprove Federal funding for the original location when he/she determines in accordance with 44 CFR parts 9, 10, 201, or subpart M of this part 206, that restoration in the original location is not allowed. In such cases, an alternative project may be applied for.

* * * * *

Dated: February 19, 2002.

Michael D. Brown,

General Counsel.