[Federal Register Volume 59, Number 63 (Friday, April 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7839]
[[Page Unknown]]
[Federal Register: April 1, 1994]
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FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Parts 59, 60, 64, 65, 70, and 75
RIN 3067-AC17
National Flood Insurance Program; Insurance Coverage and Rates,
Criteria for Land Management, Use, Identification, and Mapping of Flood
Control Restoration Zones
AGENCY: Federal Insurance Administration, FEMA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would establish a new flood insurance rate
zone for areas designated as flood control restoration zones on
National Flood Insurance Program maps. It would also establish minimum
floodplain management requirements and would provide regulatory
guidance for implementing statutory requirements, including procedures
to identify and map areas as flood control restoration zones.
The intent of the proposed rule is to permit communities to
regulate development through minimum floodplain management requirements
and to use flood insurance rates appropriate to the temporary nature of
flood hazards during the period when a flood protection system no
longer provides 100-year flood protection until it is restored.
DATES: We invite comments, which we must receive on or before May 16,
1994.
ADDRESSES: Please send any comments to the Rules Docket Clerk, Office
of the General Counsel, Federal Emergency Management Agency, 500 C
Street, SW., room 840, Washington, DC 20472, (fax) (202) 646-4536.
FOR FURTHER INFORMATION CONTACT: William R. Locke, Division Director,
Hazard Identification and Risk Assessment Division, Mitigation
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472, (202) 646-2717.
SUPPLEMENTARY INFORMATION: This proposed rule would establish a new
flood insurance rate zone, Zone AR, for areas designated as flood
control restoration zones on National Flood Insurance Program maps. It
would establish minimum floodplain management requirements and would
provide regulatory guidance for implementing the statutory requirements
of section 928 of Public Law 102-550, 42 U.S.C. 4014(f), including
procedures for identification and mapping of areas as flood control
restoration zones.
Required by section 928 of the Housing and Community Development
Act of 1992, 42 U.S.C. 4014(f), which amended section 1307 of the
National Flood Insurance Act of 1968, the flood control restoration
zone would be applied to areas of a community affected by the
decertification of a Federal flood protection system which previously
provided 100-year or greater flood protection. Where that level of
protection is in the process of being fully restored, this proposed
rule would apply flood insurance rates that are appropriate given the
temporary nature of the flood hazard and would permit a community
participating in the National Flood Insurance Program to regulate
development in affected areas by applying minimum floodplain management
requirements.
Proposed amendments to the National Flood Insurance Program
criteria for mapping and floodplain management would apply where (1)
Communities are in the process of restoring a flood protection
system(s) constructed using Federal funds, (2) FEMA previously had
accredited the flood protection system(s) in those communities as
providing 100-year frequency flood protection but the system(s) no
longer does so, and (3) such system(s) has been decertified by a
Federal agency having flood protection design and construction
responsibility.
Under current procedures, a determination that a flood protection
system no longer provides 100-year flood protection results in the
revision of National Flood Insurance Program maps to show special flood
hazard areas and to establish base flood elevations that reflect the
increased flood risk in the areas previously considered protected. The
identification of new areas of special flood hazard which were
previously protected requires floodplain management measures, flood
insurance coverage and premium rates that reflect the increased flood
risk.
Where the community is restoring a minimum 100-year level of flood
protection, these proposed regulations would provide a reasonable
restoration period for the community to restore the flood protection
system completely, or to achieve adequate progress in the completion of
the system as provided for in 44 CFR 61.12 of the National Flood
Insurance Program regulations, before the floodplain management
requirements of 44 CFR 60.3 (a) through (d) are imposed. The proposed
regulations provide that during the restoration period, National Flood
Insurance Program maps for a community would be revised to identify the
true potential flood risk. During the restoration period, flood
insurance coverage would be available at statutorily mandated
subsidized rates even though there is an increased flood hazard.
Mandatory insurance purchase requirements of the Flood Disaster
Protection Act of 1973 would apply in areas designated as AR Zones. The
proposed regulations would also require that the community inform
permit applicants of the implications of the AR Zone designation and
whether the applicant's proposed structure would be elevated or
protected to or above the AR base flood elevation.
42 U.S.C. 4014(f) requires that FEMA publish regulations to
implement the law on or before October 28, 1994. These proposed
regulations are intended to recognize the community's efforts to
restore flood protection and to address the temporary nature of the
increased flooding hazards during the restoration period. The flood
control restoration zone designation is temporary. When adequate
progress has been made to restore the system, or the system is restored
to provide 100-year level of protection, the proposed rule anticipates
that the community will request a determination based on criteria set
forth in 44 CFR 61.12, or 44 CFR 65.10 of the National Flood Insurance
Program regulations, as appropriate.
The Act sets three criteria by which a community can be considered
to be in the process of restoring a flood protection system. The
proposed regulations elaborate on these criteria and would establish
specific procedures and information needed for the community's
application for designation of a flood control restoration zone. The
information would include a schedule for restoration of the flood
protection system. Failure to restore the flood protection system
completely, or to achieve adequate progress in the completion of the
system as provided for in 44 CFR 61.12 within the restoration period
provided in these proposed regulations would result in the removal of
the flood control restoration zone designation and a redesignation of
those areas as areas of special flood hazard (Zone A, Zone A1-30, AE,
AH, and AO) subject to the applicable floodplain management
requirements, insurance coverage, and rates for those zones.
The proposed rule would apply only to flood control restoration
zones in riverine floodplains. It would not apply to restoration of
flood protection systems in coastal high hazard areas.
The proposed rule would amend 44 CFR 59 to add the definition of a
``developed area,'' and would amend 44 CFR 60 to add a new paragraph to
provide floodplain management regulations for flood control restoration
areas and other conforming changes. The proposed rule would also amend
44 CFR Part 65 to add a new section that would establish the policy and
procedures for remapping areas presently shown on flood insurance rate
maps (FIRMs) as having 100-year protection when new evidence indicates
that this level of protection no longer exists. Finally, the proposed
rule would amend portions of 44 CFR Parts 59, 64, 66, 70, and 75 to add
references to flood control restoration zones (Zones AR, AR/A1-30, AR/
AE, AR/AO, AR/AH, AR/A) at appropriate locations in the listings of
flood insurance zones.
Definition of ``Developed Area''
Developed areas, as defined in the proposed rule at 44 CFR 59.1,
paragraphs (a)(1) and (a)(3), would be those areas generally recognized
as ``urbanized,'' that is, they would consist generally of the urban
core and surrounding areas having an urban density, and would not
include less developed or undeveloped areas, or areas primarily used
for agriculture.
44 CFR 59.1(a)(2) would address those isolated areas beyond the
urban core which are deemed urbanized because the land is primarily in
commercial or industrial uses. Under paragraph (a)(2), the developed
area would be contained within the boundary of a single parcel, tract,
or lot.
44 CFR 59.1(b) would address those urban fringe areas which,
because of their relationship to surrounding developed areas, should be
considered ``infill site'' areas. For purposes of this proposed rule,
an ``infill site'' is a developed area. 44 CFR 59.1(c) would address
``vested rights'' under the Act, and would establish criteria for
determining a developed area that is planned, permitted, and where
construction is underway and infrastructure and structures are being
built. Paragraph (c) would recognize areas as ``developed'' where the
investment in the land and infrastructure is substantial and
development is underway.
The proposed regulations would amend 44 CFR 59.24(a) to refer to
new 44 CFR 60.3(f).
Mapping and Identification of Flood Control Restoration Zones-Zone
AR
Under a new 44 CFR 65.14, the proposed rule would establish
procedures for mapping flood control restoration zones. The rule also
would establish eligibility requirements for being in the process of
restoring the flood control structure under the Act. The first two
criteria required by the Act are relatively clear, that is, that the
flood protection system be deemed restorable by a Federal agency, and
that the restoration is scheduled to be completed within a designated
time period negotiated by the community and FEMA. The proposed rule
would establish a maximum 5-year restoration period during which
eligible communities would be required to restore the flood protection
system completely to provide a minimum 100-year level of protection or
to meet the requirements of 44 CFR 61.12 of the National Flood
Insurance Program regulations.
These proposed regulations would apply nationally and, therefore,
would recognize that the Corps of Engineers and other Federal agencies
may be involved in the design and construction of flood protection
systems. Thus, these proposed regulations would extend flood control
restoration zone eligibility to communities in which the flood
protection systems were decertified by the Corps of Engineers and any
other Federal agency having design or construction responsibility.
The proposed rule is designed to be consistent with the related A99
Zone designation which may apply in certain areas where adequate
progress has been achieved in the completion of a Federal flood
protection system as authorized by 42 U.S.C. 4014(e). Existing FEMA
regulations, 44 CFR 61.12, limit A99 Zone designation to communities
that have made adequate progress on the construction of a flood
protection system involving Federal funds. To ensure consistency with
FEMA rules regarding A99 Zone designations, this proposed rule would
limit eligibility for flood control restoration zone designation to
communities where construction and restoration of a flood protection
system is a Federally funded project and the existing flood protection
system was constructed with Federal funds and has been decertified by a
Federal agency responsible for flood protection design or construction.
The third eligibility criterion required in the Act was that the
decertified flood protection system still provide a minimum level of
flood protection to the community. FEMA proposes that a flood
protection system that provides protection against a 35-year or larger
flood represents a minimum level of protection during the restoration
period. On average, it is estimated that construction which has taken
place in the floodplain prior to the establishment of base flood
elevations by the National Flood Insurance Program has been built at
about the 35-40 year flood elevation level. These structures are
typically eligible to obtain flood insurance coverage at a subsidized
rate. The Act has specified that the same subsidized rate be applied to
structures located in areas designated as AR Zones. Thus, by requiring
that the decertified system provide a minimum 35-year level of
protection, the National Flood Insurance Program assumes an equivalent
degree of risk in insuring structures in AR Zones as it assumes, on
average, in insuring other structures which were built before base
flood elevations were established.
The proposed regulations would require a community to submit its
proposed designation of developed areas to FEMA for approval in the
community's application. FEMA must determine that community
designations are consistent with the definition in the proposed rule at
44 CFR 59.1. If there is an inadequate submission of an official map or
a legal description, the Director shall notify the community. FEMA
encourages communities to coordinate with FEMA on designation of
developed areas before the community adopts an official map or a legal
description of developed areas within the proposed designated flood
control restoration zone. The proposed regulations would provide that
FEMA not designate flood control restoration zones on the effective
flood insurance rate map until all eligibility criteria and application
procedures have been met.
The proposed regulations also would require a community to
designate and adopt either an official community map or a legal
description of those areas within the designated flood control
restoration zone (Zones AR, AR/A1-30, AR/AE, AR/AH, AR/AO or AR/A)
which are developed areas proposed to be defined at 44 CFR 59.1. The
community map or legal description would remain in effect as adopted
initially in areas which are designated as flood control restoration
zones. Communities would not be allowed to modify the map or legal
description to redesignate developed areas while the flood control
restoration zone designation remained in effect.
Proposed 44 CFR 65.14 also provides for a ``dual'' flood insurance
rate zone that recognizes that certain areas, delineated as flood
control restoration zones, would experience residual flooding after the
flood protection system is completely restored due to flooding from
other flooding sources that the flood protection system does not
contain. This proposed rule would establish ``dual'' flood insurance
zones, known as Zones AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A. These
``dual'' zones would imply special considerations for floodplain
management requirements and for flood insurance rates.
Floodplain Management and Land Use Requirements in a Flood Control
Restoration Zone
FEMA proposes to apply base flood elevations caused by the failure
of the flood protection system in undeveloped areas where the flood
depth is greater than five feet. In developed areas the elevation of
new construction could not be required to exceed 3 feet above the
highest adjacent grade. Under this proposed rule floodplain management
requirements of the National Flood Insurance Program would not be
applied to substantial improvements of existing structures located in
an AR Zone. However, in ``dual'' zone areas, structures that are
substantially improved must be elevated (for residential or non-
residential buildings) or floodproofed (for non-residential buildings
only) to the underlying AE, AO, AH, or A zone base flood elevation due
to the residual flood hazard that will continue to exist after the
flood protection system has been completely restored and the AR Zone
designation has been removed.
Specifically, the floodplain management requirements seek to
accommodate the needs of developed areas while providing a higher level
of protection in undeveloped areas. This balance is appropriate where
restoration of a project to 100-year or greater level of protection is
feasible; where the project will be completed within a specified time;
and where at least a 35-year level of protection is still afforded by
the decertified system.
As part of the development of floodplain management regulations,
FEMA recognized that once a flood control restoration zone is
designated, areas that were previously designated as a B, C, or X Zone
may become an AR Zone. Areas that were previously designated Zone A,
A1-30, AE, AH, or AO may become a dual zone consisting of AR/A1-30, AR/
AE, AR/AH, AR/AO, or AR/A. In the dual zone situation, when the flood
control restoration zone designation is removed, a residual flood risk
still exists; hence the proposed regulations take into consideration
the underlying special flood hazard area designation with base flood
elevations which would remain in effect once the flood control project
is completed.
The proposed rule would amend 44 CFR 60.3 by adding a new paragraph
(f). Section 60.3(f)(1) refers to Sec. 60.3 (c)(1) through (14) and
(d)(1) through (4) since the community will generally have other flood
hazard areas. In addition, development within a flood control
restoration zone will have to meet the general floodplain management
performance standards for new construction contained in these
subsections. No additional construction standards need be established.
Section 60.3(f)(2) requires the community to designate and adopt
either an official map or a legal description of those areas within
Zone AR, AR/A1-30, AR/AE, AR/AH, AR/AO or AR/A that are designated
developed areas.
Section 60.3(f)(3) through (6) establishes the elevation that must
be used for applying the floodplain management requirements. Basically,
the applicable elevation, the AR base flood elevation, the underlying
A, AE, A1-30, AH, AO base flood elevation, or the elevation that is 3
feet above highest adjacent grade must be determined first depending on
the location of the structure. Using this elevation, the community must
require the standards in Sec. 60.3(c)(1) through (14).
There are no elevation requirements in Zone AR for substantial
improvements to existing structures. However, in paragraph (f)(6), all
substantial improvements to existing structures must be elevated to at
least the underlying (AE, A1-30, AH, AO) base flood elevation. Figure 1
is a diagram showing the decision-making process for determining
National Flood Insurance Program requirements in Zones AR, AR/A1-30,
AR/AE, AR/AH, AR/AO, and AR/A.
Also, the regulations under Sec. 60.3(f) are likely to be far less
complicated when applied to individual communities since communities
may not be subject to all of the conditions in Sec. 60.3(f)(3) to (6).
For example, a community may be entirely developed and have no
underlying AE, AO, AH, or A zones. In this example, the community would
be subject only to one of the conditions.
Finally, Sec. 60.3(f)(7) requires the community to notify the
permit applicant whether the structure will be elevated or protected
to, or above, the base flood elevation determined for the flood control
restoration zone (AR base flood elevation). This provision is intended
to ensure that the permit applicant is fully aware of the risk of
flooding if the structure is not elevated to the AR base flood
elevation.
The proposed rule would also amend 44 CFR 60.2(a) to add two
references to the new Sec. 60.3(f).
The criteria established in this proposed rule are the minimum
standards for the adoption of floodplain management regulations within
those areas designated as a flood control restoration zone (Zone AR,
AR/A1-30, AR/AE, AR/AH, AR/AO or AR/A). Any community may exceed the
minimum standards by adopting more restrictive requirements.
BILLING CODE 6718-03-P
TP01AP94.012
BILLING CODE 6718-03-C
Flood Insurance Requirements in Flood Control Restoration Zones
The proposed rule would establish a new flood control restoration
zone for flood insurance rating purposes by including references to the
Zone AR, AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A at pertinent locations
in 44 CFR parts 59, 64, 70, and 75, relating to insurance coverage and
premiums.
Structures located in areas designated as flood control restoration
zones (AR Zones) on Flood Insurance Rate Maps are subject to the
mandatory insurance purchase requirements of the National Flood
Insurance Program. The Act specified that insurance be made available
to structures located in flood control restoration zones at premium
rates which do not exceed those applicable to pre-FIRM construction
located in a special flood hazard area.
Structures that are not built in compliance with minimum National
Flood Insurance Program floodplain management requirements would be
rated using actuarial rates based on the lowest floor relationship to
the AR Zone base flood elevation.
For as long as the AR Zone is designated, structures built prior to
the effective date of the original flood insurance rate map will be
eligible for insurance at the lower of the applicable pre-FIRM rate or
the AE Zone actuarial rate based on the lowest floor relationship to
the AR Zone base flood elevation, and the grandfathering rules and
provisions of the National Flood Insurance Program will apply. Pre-FIRM
buildings are to be insured as follows:
(1) A pre-FIRM building that is currently in an area designated as
Zone B, C, or X will continue to be rated using the pre-FIRM rate for
that zone, as long as coverage is continuous. After a lapse in
coverage, the building will be rated as described below in paragraph
(4).
(2) A pre-FIRM building that is currently in an AE Zone will
continue to be rated using the AE Zone pre-FIRM rate. Coverage does not
have to be continuous.
(3) A pre-FIRM building that is currently in an AE Zone and is
elevated to or above the AE Zone base flood elevation can continue to
be rated using that elevation difference rate as long as coverage is
continuous. After a lapse in coverage, the building will be rated as
described below in paragraph (4).
(4) A pre-FIRM building that is insured after the AR Zone is
designated can be insured at the lower of the AE Zone pre-FIRM rate or
the AE Zone actuarial rate based on the lowest floor relationship to
the AR Zone base flood elevation.
For as long as the AR Zone is designated, post-FIRM buildings
(those built on or after the effective date of the original flood
insurance rate map), are to be insured as follows and the
grandfathering rules and provisions of the National Flood Insurance
Program are applicable:
(1) A post-FIRM building that is built in compliance with National
Flood Insurance Program floodplain management requirements can be
insured at the lowest of the post-FIRM rate applicable to the zone in
which the structure was built, the pre-FIRM AE Zone rate, or the AE
Zone actuarial rate based on the lowest floor relationship to the AR
Zone base flood elevation.
(2) A post-FIRM building that is built prior to the designation of
AR Zones and which is not built in compliance with National Flood
Insurance Program floodplain management requirements is to be rated
using the AE Zone actuarial rate based on the lowest floor relationship
to the AE Zone base flood elevation in effect at the time of policy
issuance, provided that coverage is continuous.
(3) A building which is built while the AR Zone is in effect that
is not built in compliance with National Flood Insurance Program
floodplain management requirements is to be rated using the AE Zone
actuarial rate based on the lowest floor relationship to the AR Zone
base flood elevation. This can produce an extremely high rate.
National Environmental Policy Act
FEMA has determined, based upon an environmental assessment, that
this rule will not have a significant impact upon the quality of the
human environment. As a result, an Environmental Impact Statement will
not be prepared. A finding of no significant impact is included in the
formal docket file and is available for public inspection and copying
at the Rules Docket Clerk, Office of the General Counsel, Federal
Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.
Regulatory Flexibility Act
The Director certifies that this rule is exempt from the
requirements of the Regulatory Flexibility Act because the proposed
flood control restoration zone is required by statute, 42 U.S.C.
4014(f), and is required to enhance and maintain community eligibility
in the National Flood Insurance Program during the period needed to
restore flood protection systems to provide a minimum 100-year level of
protection required for accreditation on National Flood Insurance
Program maps. A regulatory flexibility analysis has not been prepared.
Paperwork Reduction Act
FEMA has determined that this proposed rule does not contain a
collection of information as described in section 3504(h) of the
Paperwork Reduction Act.
Executive Order 12612, Federalism
This proposed rule involves no policies that have federalism
implications under Executive Order 12612, Federalism, dated October 26,
1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
Executive Order 12866, Regulatory Planning and Review
Promulgation of this proposed rule is required by statute, 42
U.S.C. 4014(f), which also specifies the regulatory approach taken in
the proposed rule. To the extent possible under the statutory
requirements of 42 U.S.C. 4014(f), this proposed rule adheres to the
principles of regulation as set forth in this Executive Order.
List of Subjects in 44 CFR Parts 59, 60, 64, 65, 70, and 75
Administrative practice and procedure, Flood insurance, Flood
plains, Reporting and recordkeeping requirements.
Accordingly, 44 CFR parts 59, 60, 64, 65, 70, and 75 are proposed
to be amended as follows:
PART 59--GENERAL PROVISIONS
1. The authority citation for part 59 is proposed to be revised to
read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.
376.
Sec. 59.1
[Amended]
2. Section 59.1 is proposed to be amended as follows:
A. The definition of ``Area of shallow flooding'' is proposed to be
revised to read as follows:
Sec. 59.1 Definitions.
* * * * *
Area of shallow flooding means a designated AO, AH, AR/AO, AR/AH,
or VO zone on a community's Flood Insurance Rate Map (FIRM) with a one
percent or greater annual chance of flooding to an average depth of one
to three feet where a clearly defined channel does not exist, where the
path of flooding is unpredictable, and where velocity flow may be
evident. Such flooding is characterized by ponding or sheet flow.
* * * * *
B. The definition of ``Area of Special Flood Hazard'' is proposed
to be revised to read as follows:
Sec. 59.1 Definitions.
* * * * *
Area of special flood hazard is the land in the flood plain within
a community subject to a one percent or greater chance of flooding in
any given year. The area may be designated as Zone A on the FHBM. After
detailed ratemaking has been completed in preparation for publication
of the flood insurance rate map, Zone A usually is refined into Zones
A, AO, AH, A1-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO,
or V1-30, VE, or V. For purposes of these regulations, the term
``special flood hazard area (SFHA)'' is synonymous in meaning with the
phrase ``area of special flood hazard''.
* * * * *
C. The definition of ``Special Hazard Area'' is proposed to be
revised to read as follows:
Sec. 59.1 Definitions.
* * * * *
Special hazard area means an area having special flood, mudslide
(i.e., mudflow), and/or flood-related erosion hazards, and shown on a
Flood Hazard Boundary Map or Flood Insurance Rate Map as Zone A, AO,
A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, AH, VO, V1-30,
VE, V, M, or E.
D. A new definition, ``developed area,'' is proposed to be added
after ``Deductible'' and before ``Development'' to read as follows:
Sec. 59.1 Definitions.
* * * * *
Developed area means an area of a community that is:
(a) A primarily urbanized, built-up area that is a minimum of 20
contiguous acres, has basic urban infrastructure, including roads,
utilities, communications, and public facilities, to sustain
industrial, residential, and commercial activities, and
(1) Within which 75 percent or more of the parcels, tracts, or lots
contain commercial, industrial, or residential structures or uses; or
(2) Is a single parcel, tract, or lot in which 75 percent of the
area contains existing commercial or industrial structures or uses; or
(3) Is a subdivision developed at a density of at least two
residential structures per acre within which 75 percent or more of the
lots contain existing residential structures at the time designation is
adopted.
(b) An undeveloped single parcel, tract, or lot of less than 20
acres that is contiguous on at least three sides to areas meeting the
criteria of paragraph (a) at the time the designation is adopted.
(c) A subdivision that is a minimum of 20 contiguous acres meeting
the density criteria in paragraph (a)(3) that has obtained all
necessary government approvals, provided that the actual start of
construction of residential structures has occurred on at least 10
percent of the lots at the time the designation is adopted and
construction is underway.
* * * * *
3. Section 59.24(a) is proposed to be revised to read as follows:
Sec. 59.24 Suspension of community eligibility.
(a) A community eligible for the sale of flood insurance shall be
subject to suspension from the Program for failing to submit copies of
adequate flood plain management regulations meeting the minimum
requirements of paragraph (b), (c), (d), (e) or (f) of Sec. 60.3 or
paragraph (b) of Sec. 60.4 or Sec. 60.5, within six months from the
date the Director provides the data upon which the flood plain
regulations for the applicable paragraph shall be based. Where there
has not been any submission by the community, the Director shall notify
the community that 90 days remain in the six month period in order to
submit adequate flood plain management regulations. Where there has
been an inadequate submission, the Director shall notify the community
of the specific deficiencies in its submitted flood plain management
regulations and inform the community of the amount of time remaining
within the six month period. If, subsequently, copies of adequate flood
plain management regulations are not received by the Director, he
shall, no later than 30 days before the expiration of the original six
month period, provide written notice to the community and to the state
and assure publication in the Federal Register under part 64 of this
subchapter, of the community's loss of eligibility for the sale of
flood insurance, such suspension to become effective upon the
expiration of the six month period. Should the community remedy the
defect and the Director receive copies of adequate flood plain
management regulations within the notice period, the suspension notice
shall be rescinded by the Director. If the Director receives notice
from the State that it has enacted adequate flood plain management
regulations for the community within the notice period, the suspension
notice shall be rescinded by the Director. The community's eligibility
shall remain terminated after suspension until copies of adequate flood
plain management regulations have been received and approved by the
Director.
* * * * *
PART 60--CRITERIA FOR LAND MANAGEMENT AND USE
4. The authority citation for part 60 is proposed to be revised to
read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.
376.
5. Section 60.2(a) is proposed to be revised to read as follows:
Sec. 60.2 Minimum compliance with flood plain management criteria.
(a) A flood-prone community applying for flood insurance
eligibility shall meet the standards of Sec. 60.3(a) in order to become
eligible if a FHBM has not been issued for the community at the time of
application. Thereafter, the community will be given a period of six
months from the date the Director provides the data set forth in
Sec. 60.3(b), (c), (d), (e) or (f), in which to meet the requirements
of the applicable paragraph. If a community has received a FHBM, but
has not yet applied for Program eligibility, the community shall apply
for eligibility directly under the standards set forth in Sec. 60.3(b).
Thereafter, the community will be given a period of six months from the
date the Director provides the data set forth in Sec. 60.3 (c), (d),
(e) or (f) in which to meet the requirements of the applicable
paragraph.
* * * * *
6. Section 60.3(f) is proposed to be added to read as follows:
Sec. 60.3 Flood plain management criteria for flood-prone areas.
* * * * *
(f) When the Director has provided a notice of final base flood
elevations within Zones A1-30 or AE on the community's Flood Insurance
Rate Map, and, if appropriate, has designated AH zones, AO zones, A99
zones, and A zones on the community's Flood Insurance Rate Map, and has
identified flood protection restoration areas by designating Zones AR,
AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A, the community shall:
(1) Meet the requirements of paragraphs (c)(1) through (14) and
(d)(1) through (4) of this section; and
(2) Adopt the official map or legal description of those areas
within Zones AR, AR/A1-30, AR/AE, AR/AH, AR/A, or AR/AO that are
designated developed areas as defined in Sec. 59.1 in accordance with
the eligibility procedures under Sec. 65.14.
(3) For all new construction of structures in areas within Zone AR
that are designated as developed areas and in other areas within Zone
AR where the AR flood depth is five feet or less,
(i) Determine the lower of either the AR base flood elevation or
the elevation that is 3 feet above highest adjacent grade, and
(ii) Using this elevation, require the standards of paragraphs
(c)(1) through (14).
(4) For all new construction of structures in those areas within
Zone AR that are not designated as developed areas where the AR flood
depth is greater than 5 feet,
(i) Determine the AR base flood elevation, and
(ii) Using that elevation require the standards of paragraphs
(c)(1) through (14).
(5) For all new construction of structures in areas within Zone AR/
A1-30, AR/AE, AR/AH, AR/AO, and AR/A,
(i) Determine the applicable elevation for Zone AR from paragraphs
(f)(3) and (4) of this section,
(ii) Determine the base flood elevation or flood depth for the
underlying A1-30, AE, AH, AO and A Zone, and
(iii) Using the higher elevation from paragraphs (f)(5)(i) and (ii)
of this section require the standards of paragraphs (c)(1) through (14)
of this section.
(6) For all substantial improvements to existing construction
within Zones AR/A1-30, AR/AE, AR/AH, AR/AO, and AR/A,
(i) Determine the A1-30 or AE, AH, AO, or A Zone base flood
elevation, and
(ii) Using this elevation apply the requirements of paragraphs
(c)(1) through (c)(14) of this section.
(7) Notify the permit applicant that the area has been designated
as an AR, AR/A1-30, AR/AE, AR/AH, AR/AO, or AR/A Zone and whether the
structure will be elevated or protected to or above the AR base flood
elevation.
PART 64--COMMUNITIES ELIGIBLE FOR THE SALE OF INSURANCE
7. The authority citation for part 64 is proposed to be revised to
read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.
376.
8. Section 64.3 is proposed to be amended as follows: An ``AR''
entry is added in the chart in Sec. 64.3(a)(1) after the ``AH'' entry
and paragraph (b) is revised to read as follows:
Sec. 64.3 Flood Insurance Maps.
(a) * * *
(1) * * *
AR........ Area of special flood hazard that results from the
decertification of a previously accredited flood protection
system that is determined to be in the process of being
restored to provide a 100-year or greater level of flood
protection.
* * * * *
(b) Notice of the issuance of new or revised FHBMs or Flood
Insurance Rate Maps is given in part 65 of this subchapter. The
mandatory purchase of insurance is required within designated Zones A,
A1-30, AE, A99, AO, AH, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, V1-30,
VE, V, VO, M, and E.
* * * *
PART 65--IDENTIFICATION AND MAPPING OF SPECIAL HAZARD AREAS
9. The authority citation for part 65 is proposed to be revised to
read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.
376.
Sec. 65.14 [Redesignated as Sec. 65.15]
10. Part 65 is proposed to be amended by redesignating Sec. 65.14
as Sec. 65.15.
11. Part 65 is proposed to be amended by adding a new Sec. 65.14 to
read as follows:
Sec. 65.14 Remapping of areas for which local flood protection systems
no longer provide 100-year flood protection.
(a) General. (1) This section describes the procedures to follow
and the types of information FEMA requires to designate flood control
restoration zones. A community may be eligible to apply for this zone
designation if the Director determines that it is engaged in the
process of restoring a flood protection system that was:
(i) Constructed using Federal funds,
(ii) Recognized as providing 100-year flood protection on the
community's effective Flood Insurance Rate Map, and
(iii) Decertified by a Federal agency responsible for flood
protection design or construction.
(2) Where the Director determines that a community is in the
process of restoring its flood protection system to provide 100-year
minimum flood protection, a Flood Insurance Rate Map will be prepared
that designates the temporary flood hazard areas as a flood control
restoration zone (Zone AR). Existing Special Flood Hazard Areas shown
on the community's effective Flood Insurance Rate Map that are further
inundated by Zone AR flooding shall be designated as a ``dual'' flood
insurance rate zone, Zone AR/AE or AR/AH with Zone AR base flood
elevations, and AE or AH with base flood elevations and Zone AR/AO with
Zone AR base flood elevations and Zone AO with flood depths, or Zone
AR/A with Zone AR base flood elevations and Zone A without base flood
elevations.
(b) Limitations. A community may have a flood control restoration
zone designation only once for the purposes of restoring a given flood
protection system and must complete restoration of the system or meet
the requirements of 44 CFR 61.12 within a specified period, not to
exceed five (5) years from the date of submittal of the community's
application for designation of a flood control restoration zone. The
community may not extend this period. The information specified in this
section must be supplied to FEMA by the community as part of its
request for designation of a flood control restoration zone.
(c) Exclusions. The provisions of these regulations do not apply in
a coastal high hazard area as defined in 44 CFR 59.1, including areas
that would be subject to coastal high hazards as a result of the
decertification of a flood protection system shown on the community's
effective Flood Insurance Rate Map (FIRM) as providing 100-year
protection.
(d) Effective date for risk premium rates. The effective date for
any risk premium rates established for Zone AR shall be the effective
date of the revised Flood Insurance Rate Map showing AR Zone
designations.
(e) Application and submittal requirements for designation of a
Flood Control Restoration Zone. A community must submit a written
request to the Director, signed by the community's Chief Executive
Officer, for a flood plain designation of a flood control restoration
zone. The request must include a legislative action by the community
requesting the designation. The Director will not initiate any action
to designate flood control restoration zones without receipt of the
formal request from the community that complies with all requirements
of this section. The Director reserves the right to request additional
information from the community to support or further document the
community's formal request for designation of a flood control
restoration zone, if deemed necessary. At a minimum, each request must
include the following:
(1) A statement whether, to the best of the knowledge of the
community's Chief Executive Officer, the flood protection system is
currently the subject matter of litigation before any Federal, State or
local court or administrative agency, and if so, the purpose of that
litigation;
(2) A statement whether the community has previously requested a
determination with respect to the same subject matter from the
Director, and if so, a statement that details the disposition of such
previous request;
(3) A statement from the community and certification by a Federal
agency responsible for flood protection design or construction that the
existing flood control system shown on the effective Flood Insurance
Rate Map was built using Federal funds, that it no longer provides 100-
year flood protection, but that it continues to provide at least a 35-
year level of protection;
(4) A statement identifying the local project sponsor responsible
for restoration of the flood protection system to the 100-year or
greater level of flood protection;
(5) A copy of a feasibility study, performed by a Federal agency
responsible for flood protection design or construction in consultation
with the local project sponsor, which deems that the flood protection
system is restorable to a 100-year or greater level of flood
protection;
(6) A joint statement from the Federal agency responsible for flood
protection design or construction involved in restoration of the flood
protection system and the local project sponsor certifying that the
design and construction of the flood control system involves Federal
funds, and that the restoration of the flood protection system will
provide 100-year or greater flood protection;
(7) A restoration plan to return the system to a 100-year or
greater level of protection. At a minimum, this plan must:
(i) List all important project elements, such as acquisition of
permits, approvals, and contracts and construction schedules of planned
features;
(ii) Identify anticipated start and completion dates for each
element, as well as significant milestones and dates;
(iii) Identify the date on which ``as built'' drawings and
certification for the completed restoration project will be submitted.
This date must provide for a restoration period not to exceed five (5)
years from the date of submittal of the community's application for
designation of a flood control restoration zone, or;
(iv) Identify the date on which the community will submit a request
for a finding of adequate progress that meets all requirements of
Sec. 61.12. This date may not exceed five (5) years from the date of
submittal of the community's application for designation of a flood
control restoration zone;
(8) An official map of the community or legal description, with
supporting documentation, that the community will adopt as part of its
floodplain management measures, which designates developed areas as
defined in Sec. 59.1 and as further defined in Sec. 60.3(f).
(f) Review and response by the Director. The review and response by
the Director shall be in accordance with procedures specified in
Sec. 65.9.
(g) Requirements for maintaining designation of a flood control
restoration zone. During the restoration period, the community and the
cost-sharing Federal agency must certify annually to the FEMA Regional
Office having jurisdiction that the restoration will be completed in
accordance with the restoration plan within the time period specified
by the plan. In addition, the community and the Federal agency will
update the restoration plan and will identify any permitting or
construction problems that will delay the project completion from the
restoration plan previously submitted to the Director. The FEMA
Regional Office having jurisdiction will make an annual assessment and
recommendation to the Director as to the viability of the restoration
plan and will conduct periodic on-site inspections of the flood
protection system under restoration.
(h) Criteria for removing flood control restoration zone
designation due to adequate progress or complete restoration of the
flood protection system. At any time during the restoration period, the
community may provide written evidence of certification from a Federal
agency having flood protection design or construction responsibility
that the necessary improvements have been completed and that the system
has been restored to provide a minimum 100-year level of protection, or
may submit a request for a finding of adequate progress that meets all
requirements of Sec. 61.12. If the Director determines that adequate
progress has been made, FEMA will revise the zone designation from a
flood control restoration zone designation to Zone A99. After the
improvements have been completed and certified by a Federal agency as
providing a minimum 100-year level of protection, FEMA will revise the
Flood Insurance Rate Map to reflect the completed flood control system.
(i) Criteria for removing flood control restoration zone
designation due to non-compliance with the restoration schedule or as a
result of a finding that satisfactory progress is not being made to
complete the restoration. At any time during the restoration period,
should the Director determine that satisfactory progress is not being
made to restore complete flood protection by the flood protection
system in accordance with the restoration plan, or that there is
sufficient cause to find that the restoration will not be completed in
accordance with the time-frame specified in the restoration plan, the
Director shall notify the community and the responsible Federal agency
of that determination. Based on the Director's determination, the
Director shall revise the Flood Insurance Rate Map, removing the flood
control restoration zone designations and redesignating those areas as
Zone A1-30, AE, AH, AO, or A.
PART 70--PROCEDURE FOR MAP CORRECTION
12. The authority citation for part 70 is proposed to be revised to
read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.
376.
13. Section 70.1 is proposed to be revised to read as follows:
Sec. 70.1 Purpose of part.
The purpose of this part is to provide an administrative procedure
whereby the Director will review the scientific or technical
submissions of an owner or lessee of property who believes his property
has been inadvertently included in designated A, AO, A1-30, AE, AH,
A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE, and V
Zones, as a result of the transposition of the curvilinear line to
either street or to other readily identifiable features. The necessity
for this part is due in part to the technical difficulty of accurately
delineating the curvilinear line on either a Flood Hazard Boundary Map
or Flood Insurance Rate Map. These procedures shall not apply when
there has been any alteration of topography since the effective date of
the first National Flood Insurance Program map (i.e., Flood Hazard
Boundary Map or Flood Insurance Rate Map) showing the property within
an area of special flood hazard. Appeals in such circumstances are
subject to the provisions of part 65 of this subchapter.
14. Section 70.3(a) is proposed to be revised to read as follows:
Sec. 70.3 Right to submit technical information.
(a) Any owner or lessee of property (applicant) who believes his
property has been inadvertently included in a designated A, AO, A1-30,
AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE,
and V Zones on a Flood Hazard Boundary Map or a Flood Insurance Rate
Map, may submit scientific or technical information to the Director for
the Director's review.
* * * * *
15. Paragraphs (a) and (b) of Sec. 70.4 are proposed to be revised
to read as follows:
Sec. 70.4 Review by the Director.
(a) The property is within a designated A, AO, A1-30, AE, AH, A99,
AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE, or V Zone, and
shall set forth the basis of such determination; or
(b) The property should not be included within a designated A, AO,
A1-30, AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30,
VE, or V Zone and that the Flood Hazard Boundary Map or Flood Insurance
Rate Map will be modified accordingly; or
* * * * *
16. Paragraph (c) of section 70.5 is proposed to be revised to read
as follows:
Sec. 70.5 Letter of Map Amendment.
* * * * *
(c) The identification of the property to be excluded from a
designated A, AO, A1-30, AE, AH, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/
AH, AR/A, VO, V1-30, VE, or V Zone.
PART 75--EXEMPTION OF STATE-OWNED PROPERTIES UNDER SELF-INSURANCE
PLAN
17. The authority citation for part 75 is proposed to be revised to
read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 3 CFR, 1979 Comp., p.
376.
18. Section 75.1 is proposed to be revised to read as follows:
Sec. 75.1 Purpose of part.
The purpose of this part is to establish standards with respect to
the Director's determinations that a State's plan of self-insurance is
adequate and satisfactory for the purposes of exempting such State,
under the provisions of section 102(c) of the Act, from the requirement
of purchasing flood insurance coverage for State-owned structures and
their contents in areas identified by the Director as A, AO, AH, A1-30,
AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE,
and E Zones, in which the sale of insurance has been made available,
and to establish the procedures by which a State may request exemption
under section 102(c).
19. Section 75.10 is proposed to be revised to read as follows:
Sec. 75.10 Applicability.
A State shall be exempt from the requirement to purchase flood
insurance in respect to State-owned structures and, where applicable,
their contents located or to be located in areas identified by the
Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH,
AR/A, A99, M, V, VO, V1-30, VE, and E Zones, and in which the sale of
flood insurance has been made available under the National Flood
Insurance Act of 1968, as amended, provided that the State has
established a plan of self-insurance determined by the Director to
equal or exceed the standards set forth in this subpart.
20. Paragraphs (a)(4), (a)(5), and (a)(7) of section 75.11 are
proposed to be revised to read as follows:
Sec. 75.11 Standards.
(a) * * *
(4) Consist of a self-insurance fund and/or a commercial policy of
insurance or reinsurance for which provision is made in statute or
regulation and which is funded by periodic premiums or charges
allocated for state-owned structures and their contents in areas
identified by the Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/
AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones. The
person or persons responsible for such self-insurance fund shall report
on its status to the chief executive authority of the State, or to the
legislature, or both, not less frequently than annually. The loss
experience shall be shown for each calendar or fiscal year from
inception to current date based upon loss and loss adjustment expense
incurred during each separate calendar or fiscal year compared to the
premiums or charges for each of the respective calendar or fiscal
years. Such incurred losses shall be reported in aggregate by cause of
loss under a loss coding system adequate, as a minimum, to identify and
isolate loss caused by flood, mudslide (i.e., mudflow) or flood-related
erosion. The Director may, subject to the requirements of paragraph
(a)(5) of this section, accept and approve in lieu of, and as the
reasonable equivalent of the self-insurance fund, an enforceable
commitment of funds by the State, the enforceability of which shall be
certified to by the State's Attorney General, or other principal legal
officer. Such funds, or enforceable commitment of funds in amounts not
less than the limits of coverage which would be applicable under
Standard Flood Insurance Policies, shall be used by the State for the
repair or restoration of State-owned structures and their contents
damaged as a result of flood-related losses occurring in areas
identified by the Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/
AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones.
(5) Provide for the maintaining and updating by a designated State
official or agency not less frequently than annually of an inventory of
all State-owned structures and their contents within A, AO, AH, A1-30,
AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE,
and E zones. The inventory shall:
(i) Include the location of individual structures;
(ii) Include an estimate of the current replacement costs of such
structures and their contents, or of their current economic value; and
(iii) Include an estimate of the anticipated annual loss due to
flood damage.
* * * * *
(7) Include, pursuant to Sec. 60.12 of this subchapter, a certified
copy of the flood plain management regulations setting forth standards
for State-owned properties within A, AO, AH, A1-30, AE, AR, AR/A1-30,
AR/AE, AR/AO, AR/AH, AR/A, A99, M, V, VO, V1-30, VE, and E Zones.
* * * * *
21. Paragraph (c) of section 75.13 is proposed to be revised to
read as follows:
Sec. 75.13 Review by the Director.
* * * * *
(c) Upon determining that the State's plan of self-insurance equals
or exceeds the standards set forth in Sec. 75.11 of this subpart, the
Director shall certify that the State is exempt from the requirement
for the purchase of flood insurance for State-owned structures and
their contents located or to be located in areas identified by the
Director as A, AO, AH, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH,
AR/A, A99, M, V, VO, V1-30, VE, and E Zones. Such exemption, however,
is in all cases provisional. The Director shall review the plan for
continued compliance with the criteria set forth in this part and may
request updated documentation for the purpose of such review. If the
plan is found to be inadequate and is not corrected within ninety days
from the date that such inadequacies were identified, the Director may
revoke his certification.
Dated: March 28, 1994.
James L. Witt,
Director.
[FR Doc. 94-7839 Filed 3-31-94; 8:45 am]
BILLING CODE 6718-03-P
