Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard, 67870-67928 [2023-21101]

Download as PDF 67870 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules The Federal Emergency Management Agency (FEMA) proposes to amend its regulations to implement the Federal Flood Risk Management Standard (FFRMS) and update the agency’s 8-step decision-making process floodplain reviews. FEMA also proposes a supplementary policy that would further clarify how FEMA would apply the FFRMS. The proposed rule would change how FEMA defines a floodplain with respect to certain actions, and FEMA would use natural systems, ecosystem process, and nature-based approaches, where possible, when developing alternatives to locating the proposed action in the floodplain. DATES: Comments must be received no later than December 1, 2023. ADDRESSES: You may submit comments, identified by Docket ID: FEMA–2023– 0026, via the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Portia Ross, Policy and Integration Division Director, Office of Environmental Planning and Historic Preservation, Resilience, DHS/FEMA, 400 C Street SW, Suite 313, Washington, DC 20472–3020. Phone: (202) 709–0677; Email: fema-regulations@fema.dhs.gov. SUPPLEMENTARY INFORMATION: to Executive Order 11988, and Revisions to the 1978 Guidelines F. Substantive Components of the FFRMS G. FEMA’s Implementation of the FFRMS and the Revised Guidelines IV. Discussion of the Proposed Rule A. Authority Citation B. Section 9.1—Purpose of Part C. Section 9.2—Policy D. Section 9.3—Severability E. Section 9.4—Definitions F. Section 9.5—Scope G. Section 9.6—Decision-Making Process H. Section 9.7—Determination of Proposed Action’s Location I. Section 9.8—Public Notice Requirements J. Section 9.9—Analysis and Reevaluation of Practicable Alternatives K. Section 9.10—Identify Impacts of Proposed Actions L. Section 9.11—Mitigation M. Section 9.12—Final Public Notice N. Section 9.13—Particular Types of Temporary Housing O. Section 9.14—Disposal of Agency Property P. Section 9.16—Guidance for Applicants Q. Section 9.17—Instructions to Applicants R. Section 9.18—Responsibilities V. Comments Received Associated With Part 9 Revisions VI. Regulatory Analyses A. Executive Order 12866, Regulatory Planning and Review & Executive Order 13563, Improving Regulation and Regulatory Review B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act D. National Environmental Policy Act (NEPA) of 1969 E. Paperwork Reduction Act (PRA) of 1995 F. Privacy Act G. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments H. Executive Order 13132, Federalism I. Executive Order 12898, Environmental Justice J. Executive Order 12630, Taking of Private Property K. Executive Order 12988, Civil Justice Reform L. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks M. Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, OMB Circular A– 119 Table of Contents Table of Abbreviations I. Public Participation II. Executive Summary III. Factual and Legal Background A. Executive Order 11988, ‘‘Floodplain Management’’ B. Statutory Authority To Require the FFRMS Under FEMA Grant Programs C. 44 CFR Part 9, ‘‘Floodplain Management and Protection of Wetlands’’ D. Reevaluation of the 1 Percent Chance or 100-Year Flood Standard E. Executive Order 13690, the Federal Flood Risk Management Standard (FFRMS) and Subsequent Amendments 0.2PFA—0.2 Percent Annual Chance Flood Approach ABA—Architectural Barriers Act ADA—Americans with Disabilities Act CEQ—Council on Environmental Quality CFR—Code of Federal Regulations CISA—Climate-Informed Science Approach CRS—Community Rating System EA—Environmental Assessment EIS—Environmental Impact Statement E.O.—Executive Order FBFM—Flood Boundary Floodway Map FEMA—Federal Emergency Management Agency DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 9 [Docket ID: FEMA–2023–0026] RIN 1660–AB12 Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard Federal Emergency Management Agency, DHS. ACTION: Notice of proposed rulemaking. AGENCY: lotter on DSK11XQN23PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 FFRMS—Federal Flood Risk Management Standard FHBM—Flood Hazard Boundary Map FIRM—Flood Insurance Rate Map FIS—Flood Insurance Study FMA—Flood Mitigation Assistance FVA—Freeboard Value Approach GPD—Grant Programs Directorate HMA—Hazard Mitigation Assistance HUD—Department of Housing and Urban Development IA—Individual Assistance IRFA—Initial Regulatory Flexibility Analysis NEPA—National Environmental Policy Act of 1969 NFIA—National Flood Insurance Act, as amended NFIP—National Flood Insurance Program NOAA—National Oceanic and Atmospheric Administration NPRM—Notice of Proposed Rulemaking OMB—Office of Management and Budget PA—Public Assistance PDM—Pre-Disaster Mitigation PHC—Permanent Housing Construction PIA—Privacy Impact Assessment PRA—Paperwork Reduction Act of 1995 PV—Present Value RCP––Representative Concentration Pathway RFA—Regulatory Flexibility Act RIA—Regulatory Impact Analysis SBREFA—Small Business Regulatory Enforcement Fairness Act of 1996 SFHA––Special Flood Hazard Area SLR––Sea Level Rise SORN—System of Records Notice Stafford Act—Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended THU—Temporary Housing Unit USGS—United States Geological Survey WRC—Water Resources Council I. Public Participation Interested persons are invited to participate in this rulemaking by submitting comments and related materials. We will consider all comments and material received during the comment period. If you submit a comment, include the Docket ID FEMA–2023–0026, indicate the specific section of this document to which each comment applies, and give the reason for each comment. All submissions may be posted, without change, to the Federal e-Rulemaking Portal at https://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. For more about privacy and the docket, visit https:// www.regulations.gov/ document?D=DHS-2018-0029-0001. Viewing comments and documents: For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at https:// www.regulations.gov. E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 II. Executive Summary On January 30, 2015, the President issued Executive Order 13690, ‘‘Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.’’ 1 Executive Order 13690 amended Executive Order 11988 and established the FFRMS. The FFRMS is a flood resilience standard that is required for ‘‘Federally funded projects’’ and provides a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands. On August 22, 2016, FEMA published a Notice of Proposed Rulemaking (NPRM) entitled ‘‘Updates to Floodplain Management and Protection of Wetlands Regulations to Implement Executive Order 13690 and the Federal Flood Risk Management Standard’’ in the Federal Register (81 FR 57402). This NPRM would have revised FEMA’s regulations on ‘‘Floodplain Management and Protection of Wetlands’’ to implement Executive Order 13690. FEMA also proposed a supplementary policy entitled ‘‘FEMA Policy: Guidance for Implementing the Federal Flood Risk Management Standard (FFRMS)’’ (FEMA Policy 078–3), which would have further clarified how FEMA would apply the FFRMS. The notice of availability and request for comments for the supplementary policy also published in the August 22, 2016 Federal Register at 81 FR 56558. On September 20, 2016, FEMA published a notice of data availability regarding a draft report, the 2016 Evaluation of the Benefits of Freeboard for Public and Nonresidential Buildings in Coastal Areas, which had been added to the docket for the proposed rule (81 FR 64403). On August 15, 2017, the President issued Executive Order 13807 (‘‘Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects’’) which revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017. Accordingly, in light of the revocation of Executive Order 13690, FEMA withdrew the August 22, 2016 NPRM and supplementary policy (83 FR 9473). On May 20, 2021, the President issued Executive Order 14030 (‘‘ClimateRelated Financial Risk’’) 2 reinstating Executive Order 13690, thereby reestablishing the FFRMS. Accordingly, FEMA is proposing an updated revision 1 80 2 86 FR 6425, Feb. 4, 2015. FR 27967 (May 25, 2021). VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 to its regulations and an updated supplementary policy to implement the FFRMS. FEMA is proposing to amend 44 CFR part 9, ‘‘Floodplain Management and Protection of Wetlands,’’ and issue a supplementary policy to implement the FFRMS and update the agency’s 8-step process. As mentioned above, the FFRMS is a flood resilience standard that is required for ‘‘Federally funded projects’’ and provides a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands. A floodplain is any land area that is subject to flooding and refers to geographic features with undefined boundaries. 44 CFR part 9 describes the 8-step process FEMA uses to determine whether a proposed action would be located within or affect a floodplain, and if so, whether and how to continue with or modify the proposed action. Executive Order 11988, as amended,3 and the FFRMS changed the Executive Branch-wide guidance for defining the ‘‘floodplain’’ with respect to ‘‘Federally funded projects’’ (i.e., actions involving the use of Federal funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). The revised definitions allow for consideration of both current and future flood risks in defining the floodplain to minimize the impact of floods on human health, safety, and welfare and reduce the risk of flood loss. For actions subject to the FFRMS, FEMA proposes to use the updated definition of ‘‘floodplain’’ contained in the Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input (Revised Guidelines).4 As discussed further below, the FFRMS allows the agency to define ‘‘floodplain’’ using any of three approaches or a fourth approach resulting from any other method in an update to the FFRMS. In many cases, each of these approaches would result in a larger floodplain and a requirement to design projects such that they are resilient to a higher vertical elevation. For actions that do not meet the definition of an action subject to the 3 Executive Order 13690 amended Executive Order 11988 in 2015 and was revoked in 2017 by Executive Order 13807. Executive Order 13690 was reinstated in 2021 by Executive Order 14030. See 80 FR 64008 (Oct. 22, 2015), 82 FR 40463 (Aug. 24, 2017), and 86 FR 27967 (May 25, 2021). 4 80 FR 64008 (Oct. 22, 2015); https:// www.regulations.gov/document/FEMA-2015-00060358. (Last accessed July 12, 2023). PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 67871 FFRMS, FEMA would continue to use the historical definition of floodplain with minor clarifying revisions to help stakeholders better understand the terminology. Regardless of whether the action is subject to FFRMS, FEMA will follow the Revised Guidelines 5 to determine whether an action is in the floodplain. Finally, the proposed rule would require the use, where possible, of natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for all actions proposed in a floodplain. FEMA believes that this rule is an important step toward mitigating future flood risk, and that such mitigation will ultimately benefit communities by allowing them to recover from future disasters more efficiently and effectively. The United States is experiencing increased flooding and flood risk from climate change.6 The full extent of future changes in flood risk has not yet been estimated across the full inventory of Federal, State, local, Tribal, and territorial properties. However, in a survey of Federal properties alone, those assessments that have been completed identified over 40,000 individual Federal buildings and structures with a combined replacement cost of $81 billion located in the current 100-year floodplain and approximately 160,000 structures with a total replacement cost of $493 billion located in the current 500 year floodplain.7 Approximately 10,250 individual Federal buildings and structures were identified in coastal areas with a combined replacement cost of $32.3 billion that would be severely impacted by an eight-feet sea-level rise scenario and over 12,195 individual Federal buildings and structures with a combined replacement cost of over $43.7 billion under a ten-foot ‘‘worst case’’ sea level rise scenario.8 This proposed rule would ensure that actions subject to the FFRMS are designed to be resilient to both current and future flood risks to minimize the impact of floods on human health, safety, and welfare 5 Id. 6 As a result of climate change, flood events are on the rise. Climate change is increasing flood risk through (1) more ‘‘extreme’’ rainfall events,’’ caused by a warmer atmosphere holding more water vapor and changes in regional precipitation patterns; and (2) sea-level rise. See Rob Bailey, Claudio Saffioti, and Sumer Drall, Sunk Costs: The Socioeconomic Impacts of Flooding 3 and 8, Marsh McLennan (2021). 7 Federal Budget Exposure to Climate Risk. OMB Assessment found https://www.whitehouse.gov/wpcontent/uploads/2022/04/ap_21_climate_risk_ fy2023.pdf (last accessed July 12, 2023). 8 Id. E:\FR\FM\02OCP2.SGM 02OCP2 67872 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules and to protect Federal investments by reducing the risk of flood loss. FEMA estimated the total impacts of the proposed rule by analyzing the impact of the FVA, 0.2PFA and CISA for FEMA’s Public Assistance (PA), Individual Assistance (IA), and Hazard Mitigation Assistance (HMA) grant programs by examining the number of projects that would be subject to the proposed requirements in the first 10 years after the rule’s publication.9 FEMA’s analysis focused on the costs, benefits, and transfer payments (i.e., impacts on FEMA grants), that would result over a 50-year period from applying the requirements of the proposed rule to those projects, for a total period of analysis spanning 60 years. Tables 1 and 2 show the total impacts of this proposed rule under the three approaches for each of the affected programs. TABLE 1—SUMMARY OF COSTS, TRANSFERS AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED PROJECTS IN YEARS 1–10 [Low estimate, 2021$] 3% Discount rate Costs * 7% Discount rate Undiscounted Present value CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... FEMA Admin .................................................................... Not Quantified .................................................................. $138,393,786 102,794,460 1,421,690 48,908,310 61,994,588 53,397,625 3,741,680 $118,052,707 87,685,759 1,212,730 41,719,781 52,882,642 45,549,257 3,267,150 Annualized Present value $4,265,594 3,168,346 43,820 1,507,459 1,910,806 1,645,829 118,052 $97,202,003 72,198,527 998,537 34,351,150 43,542,402 37,504,256 2,776,613 Annualized $6,923,623 5,142,645 71,125 2,446,806 3,101,492 2,671,399 197,776 Not Estimated: Increased resiliency standard for approximately 20,961 facility projects over 10 years, Additional costs for Adding Requirements to Buildings with Basements, Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for floodproofing, and Project Delays and Forgone Projects. Transfer Payments from FEMA to Grant Recipients * CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... 109,216,359 82,955,130 1,421,690 36,681,233 48,898,424 41,973,888 93,163,768 70,762,410 1,212,730 31,289,834 41,711,348 35,804,576 3,366,283 2,556,855 43,820 1,130,594 1,507,154 1,293,725 76,709,000 58,264,212 998,537 25,763,363 34,344,206 29,480,702 5,463,923 4,150,115 71,125 1,835,104 2,446,311 2,099,888 47,069,660 1,700,766 38,756,122 2,760,569 Benefits * PA (CISA, primary) (+1-ft) ............................................... Not Quantified .................................................................. 55,180,000 Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of Critical Facilities, Reduction of Personal and Community Impacts. * FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. TABLE 2—SUMMARY OF 60-YEAR COSTS, TRANSFERS AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED PROJECTS IN YEARS 1–10 [High estimate, 2021$] 3% Discount rate Costs * lotter on DSK11XQN23PROD with PROPOSALS2 Present value CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... FEMA Admin .................................................................... 9 FEMA used an average of the number of affected projects during the prior 10-year period to estimate VerDate Sep<11>2014 19:18 Sep 29, 2023 7% Discount rate Undiscounted Jkt 262001 $151,319,537 120,722,020 1,421,690 48,908,310 68,035,769 57,766,400 4,942,430 $129,078,635 102,978,331 1,212,730 41,719,781 58,035,891 49,275,911 4,291,414 Annualized Present value $4,663,993 3,720,912 43,820 1,507,459 2,097,008 1,780,484 155,061 the average annual impacts of the future 10-year period. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\02OCP2.SGM 02OCP2 $106,280,511 84,790,095 998,537 34,351,150 47,785,478 40,572,701 3,619,968 Annualized $7,570,278 6,039,533 71,125 2,446,806 3,403,723 2,889,962 257,848 67873 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules TABLE 2—SUMMARY OF 60-YEAR COSTS, TRANSFERS AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED PROJECTS IN YEARS 1–10—Continued [High estimate, 2021$] 3% Discount rate Costs * 7% Discount rate Undiscounted Present value Not Quantified .................................................................. I Annualized Present value I Annualized Not Estimated: Increased resiliency standard for approximately 20,961 facility projects over 10 years, Additional costs for Adding Requirements to Buildings with Basements, Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for floodproofing, and Project Delays and Forgone Projects. Transfer Payments from FEMA to Grant Recipients * CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... 119,647,439 97,422,670 1,421,690 36,681,233 53,773,657 45,499,493 102,061,693 83,103,514 1,212,730 31,289,834 45,870,019 38,811,991 3,687,791 3,002,776 43,820 1,130,594 1,657,420 1,402,392 84,035,355 68,425,607 998,537 25,763,363 37,768,366 31,956,941 5,985,773 4,873,903 71,125 1,835,104 1,657,420 2,276,268 52,875,076 1,910,533 43,536,175 3,101,048 Benefits * PA (CISA, primary) (+1-ft) ............................................... Not Quantified .................................................................. 61,985,720 Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of Critical Facilities, Reduction of Personal and Community Impacts. * FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. Table 3 provides the estimated number of structures and facilities affected by the proposed rule over the first 10 years, assuming that each approach is the only expansion option. Structures, which are walled and roofed buildings, would comply with the proposed FFRMS through elevating or floodproofing to the required height. Facilities, which are any human-made or human-placed items other than a structure such as roads and bridges, would require different mitigation measures in order to comply with the increased resiliency standard of the proposed rule. The monetized impacts of this rule are representative of the floodproofing and elevation mitigation measures that would be required of structures. However, for reasons explained in more detail later, FEMA was unable to monetize the impacts of the rule for facilities. TABLE 3—ESTIMATED NUMBER OF STRUCTURES AND FACILITIES AFFECTED BY THE PROPOSED RULE IN YEARS 1–10 Structures FFRMS approach PA lotter on DSK11XQN23PROD with PROPOSALS2 FVA ................................................ 0.2PFA ........................................... CISA ............................................... 1,090 840 1,173 Quantified estimates of the benefits of this rule are available for only nonresidential PA Category E projects, which are for structures. Due to the highly project-specific nature of facilities projects and numerous options for making them resilient, FEMA could not estimate the costs of improving flood resiliency of facilities.10 Tables 1 and 2 show that the total 60-year benefits for non-residential PA Category 10 Category E projects are public buildings and contents. See Public Assistance Fact Sheet at https://www.fema.gov/sites/default/files/2020-07/ fema_public-assistance-fact-sheet_10-2019.pdf. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 IA 2,650 2,650 2,903 HMA 9,492 9,447 10,351 Total structures 13,232 12,937 14,427 Facilities PA 20,120 20,120 20,120 E projects in the first 10 years is $43.5 million (7 percent, high). This benefit is for adding one foot of freeboard, assuming a 59-inch sea level rise (SLR).11 Although the cost for PA Category E projects is $84.8 million (7 percent, high), this cost represents 5 feet of freeboard (FEMA’s assumption for 11 FEMA used one foot for benefits as the 2022 report only specifies monetary benefits for an additional one foot over current requirements. FEMA included this number in the quantified benefits because it is the only monetary benefit available for any freeboard level. PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 HMA 841 841 841 Total facilities 20,961 20,961 20,961 Total projects 34,193 33,898 35,388 CISA).12 FEMA does not have data to quantify the benefits of additional freeboard and thus the quantified benefits represent only a portion of the increased risk reduction that would be achieved through this rule. Ensuring projects are built to the height necessary to avoid additional loss scenarios would provide additional unquantified benefits of avoided damages to the structure, 12 Costs for the FVA may be a better comparison because they represent 2 or 3 feet of freeboard, depending on criticality. However, the number of projects using FVA and CISA differ, making such a comparison difficult. E:\FR\FM\02OCP2.SGM 02OCP2 67874 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules decreased cleanup time and disruption to the community, and increased public health and safety. Moreover, FEMA’s use of CISA as its preferred approach would use the best available and actionable scientific data to tailor future flooding risk to each project ensuring that projects are built only to the height necessary and thus maximizing net benefits. Accordingly, FEMA believes the benefits of the rule—quantified and unquantified—would justify its costs. lotter on DSK11XQN23PROD with PROPOSALS2 III. Legal and Factual Background Below, FEMA describes in more specific detail the basis for this proposed rule. Section III.A describes Executive Order 11988, the Water Resources Council’s 1978 ‘‘Floodplain Management Guidelines’’ (1978 Guidelines), and the statutory authority underlying the Executive Order. Executive Order 11988 along with the 1978 Guidelines established an 8-step decision-making process by which Federal agencies carry out Executive Order 11988’s direction to avoid the long- and short-term adverse impacts associated with the occupancy and modification of the floodplain and avoid the direct or indirect support of floodplain development whenever there is a practicable alternative. Section III.B describes FEMA’s statutory authority to require its grant recipients to carry out repairs or construction in accordance with specific standards. Section III.C describes FEMA’s implementing regulations at 44 CFR part 9, which closely follow the model decisionmaking process under Executive Order 11988. Section III.D describes how lessons learned from major events, including Hurricane Sandy, prompted reevaluation of the prevailing standard for determining whether a proposed action was located within a floodplain. Section III.E describes the development of Executive Order 13690, the Federal Flood Risk Management Standard, and additional guidance in the Revised Guidelines issued in 2015 as well as subsequent amendments to Executive Order 11988. Section III.F describes the substantive components of the Federal Flood Risk Management Standard and Section III.G describes FEMA’s proposed approach to implement the required changes. A. Executive Order 11988, ‘‘Floodplain Management’’ The President issued Executive Order 11988 (42 FR 26951, May 25, 1977) in furtherance of the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.); the Flood Disaster Protection Act of 1973, as amended (Pub. L. 93–234, 87 Stat. 975); and the VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The National Flood Insurance Act, as amended by the Flood Disaster Protection Act establishes a multipurpose program to provide flood insurance, minimize exposure of property to flood losses, minimize the damage caused by flood losses, and guide the development of proposed construction, where practicable, away from floodplains.13 The National Flood Insurance Act and the Flood Disaster Protection Act highlight coordination of flood insurance with land management programs in flood-prone areas. NEPA requires Federal agencies to analyze the environmental impacts of proposed actions and evaluate alternatives to those actions, which includes the evaluation of the impacts of proposed actions in the floodplains.14 NEPA mandates that agencies ‘‘attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.’’ 15 In furtherance of and consistent with this statutory foundation, Executive Order 11988 requires Federal agencies to avoid, to the extent possible, the longand short-term adverse impacts associated with the occupancy and modification of floodplains, where there is a practicable alternative. The Executive Order requires each Federal agency to provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for: (1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. It states that each agency has a responsibility to evaluate the potential effects of any actions it may take in a floodplain; to ensure that its planning, programs, and budget requests reflect consideration of flood hazards and floodplain management; and to prescribe procedures to implement the policies and requirements of the Executive Order. To meet these requirements, each agency, before taking an action, must determine whether the proposed action 13 See 42 U.S.C. 4001 and 4102. 42 U.S.C. 4332(2)(C). 15 See 42 U.S.C. 4331(b)(3). 14 See PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 will occur in a floodplain.16 Section (6)(c) of Executive Order 11988 defines the word ‘‘floodplain’’ to mean ‘‘the lowland and relatively flat areas adjoining inland and coastal waters including floodprone areas of offshore islands, including at a minimum, the area subject to a one percent or greater chance of flooding in any given year.’’ 17 If the action will occur in a floodplain, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain. If the agency finds that the only practicable alternative requires the action to occur in the floodplain, the agency must, prior to taking the action, design or modify the action in order to minimize potential harm to or within the floodplain. Additionally, the agency must prepare and circulate a notice explaining why the action is proposed to be located in the floodplain. Particularly relevant to FEMA, the Executive Order also requires agencies to provide appropriate guidance to applicants for grant funding to encourage them to evaluate the effects of their proposals in floodplains prior to submitting grant applications. Executive Order 11988 requires agencies to prepare implementing procedures in consultation with the Water Resources Council (WRC),18 FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC issued ‘‘Floodplain Management Guidelines’’ (1978 Guidelines), the authoritative interpretation of Executive Order 11988.19 The 1978 Guidelines provided 16 Any action FEMA takes in a floodplain, including its provision of grants for disaster assistance, undergoes an analysis pursuant to Executive Order 11988 (unless the action is specifically exempted from the requirements of the Order). The grant recipient, therefore, generally provides information to FEMA about the practicability of alternatives outside the floodplain and other information to assist in the analysis. 17 This is also referred to as the ‘‘100-year floodplain’’ or the ‘‘base floodplain.’’ 18 The Water Resources Council, established by statute (42 U.S.C. 1962a–1), is charged with maintaining a continuing study and preparing an assessment biennially, or at such less frequent intervals as the Council may determine, of the adequacy of supplies of water necessary to meet the water requirements in each water resource region in the United States and the national interest therein; and maintaining a continuing study of the relation of regional or river basin plans and programs to the requirements of larger regions of the Nation and of the adequacy of administrative and statutory means for the coordination of the water and related land resources policies and programs of the several Federal agencies. It is responsible for appraising the adequacy of existing and proposed policies and programs to meet such requirements and making recommendations to the President with respect to Federal policies and programs. 19 43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines can be found at this link: https:// portal.hud.gov/hudportal/documents/ E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules a section-by-section analysis, defined key terms, and outlined an 8-step decision-making process for carrying out the directives of Executive Order 11988. B. Statutory Authority To Require FFRMS Under FEMA Grant Programs FEMA’s grant programs that fund new construction, substantial improvement, or repairs to address substantial damage are authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121 et seq.) and the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.). FEMA generally has authority under these discretionary grant programs to set eligibility criteria. Further, section 323 of the Stafford Act authorizes FEMA to require, as a condition of grant funding for all Stafford Act programs, that the repair or construction of private and public facilities be completed in accordance with ‘‘applicable standards of safety, decency, and sanitation in conformity with applicable codes, specifications and standards.’’ 20 Section 323 also grants FEMA discretion to require any other safe land use and construction practices it deems appropriate after adequate consultation with appropriate State and local government officials.21 Section 404 of the National Flood Insurance Act grants FEMA the authority to provide flood mitigation grant funding and requires the activities funded to be consistent with floodplain management criteria developed by the Administrator.22 lotter on DSK11XQN23PROD with PROPOSALS2 C. 44 CFR Part 9, ‘‘Floodplain Management and Protection of Wetlands’’ Consistent with the National Flood Insurance Act, the Flood Disaster Protection Act, and NEPA, FEMA promulgated regulations implementing Executive Order 11988 at 44 CFR part 9, ‘‘Floodplain Management and Protection of Wetlands.’’ 23 Part 9 closely follows the 1978 Guidelines in setting forth FEMA’s policy and procedures for floodplain management relating to disaster planning, response and recovery, and hazard mitigation. Part 9 generally applies to FEMA actions, including FEMA direct actions huddoc?id=DOC_14216.pdf (last accessed July 12, 2023). 20 See 42 U.S.C. 5165a(a)(1) 21 See 42 U.S.C. 5165a(a)(2) 22 See 42 U.S.C. 4104c and 4102. 23 FEMA published an interim final rule on December 27, 1979 (44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520). Note that this part also implements a related Executive Order 11990, ‘‘Protection of Wetlands.’’ See 42 FR 26961, May 25, 1977. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 and FEMA’s disaster and non-disaster assistance programs.24 Pursuant to section 8 of Executive Order 11988, part 9 does not apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to sections 403 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In addition, FEMA applies part 9 programmatically to the National Flood Insurance Program (NFIP) 25. FEMA does not apply part 9 to site-specific actions under the NFIP because the establishment of programmatic criteria, rather than the application of the programmatic criteria to individual situations, is the action with the potential to influence/affect floodplains.26 Below FEMA outlines the existing 8step decision-making process that the agency currently follows in applying Executive Order 11988 to its actions: Step (1) Floodplain and wetland determination (44 CFR 9.7). Under Step 1, FEMA must determine if a proposed agency action is located in or affects the 1 percent annual chance floodplain (or, for critical actions, the 0.2 percent annual chance floodplain) or wetland. The 1 percent annual chance (or base or 100-year) floodplain is the area subject to inundation by the 1 percent annual chance flood, which is that flood which has a 1 percent chance of occurrence in any given year (also known as the base or 100-year flood). A ‘‘critical action’’ is any activity for which even a slight chance of flooding would be too great.27 The minimum floodplain of concern for critical actions is the 0.2 percent annual chance (or 500-year) floodplain, which is the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year. The 0.2 24 44 CFR 9.4 defines the actions subject to the requirements, which include federal lands and facilities, providing federal funds for construction and improvements, and conducting activities or programs that affect land use. 25 A complete list of FEMA programs to which Part 9 does not apply appears at 44 CFR 9.5. The exemption for actions under the NFIP is located at 44 CFR 9.5(f). 26 For example, Part 9 requires FEMA to apply the 8-step process to a programmatic determination of categories of structures to be insured but does not require FEMA to apply an 8-step review to a determination of whether to insure each individual structure. See 45 44 CFR 9.5(f). 27 The concept of critical actions evolved during the drafting of the 1978 Guidelines and reflects a concern that the impacts of floods on human safety, health, and welfare for many activities could not be minimized unless a higher degree of protection than the base flood was provided. See Interagency Task Force on Floodplain Management, Further Advice on Executive Order 11988 Floodplain Management (1986) (last accessed July 12, 2023). PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 67875 percent annual chance floodplain generally covers a larger area than the 1 percent annual chance floodplain. FEMA’s regulations state that in each instance where the 8-step process refers to the 1 percent annual chance floodplain, an agency should substitute the 0.2 percent annual chance floodplain for the 1 percent annual chance floodplain if the proposed action is a critical action. Absent a finding to the contrary, FEMA currently assumes a proposed action involving a facility or structure that has been flooded is in the floodplain. FEMA follows a specific regulatory sequence in order to make its floodplain determination. First, FEMA must consult the Flood Insurance Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood Insurance Study (FIS) for the area.28 A FIRM is an official, detailed map issued by the NFIP, generally showing elevations and boundaries of the 1 percent annual chance floodplain and the 0.2 percent annual chance floodplain.29 The FBFM is a version of a flood map that shows only the floodway 30 and flood boundaries. An FIS report is an examination, evaluation, and determination of flood hazards and, if appropriate, corresponding water surface elevations. If a FIRM is not available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is a less detailed map than a FIRM and shows the approximate areas of the 1 percent annual chance floodplain. If data on flood elevations, floodways, or coastal high hazard areas are needed, or if the map does not delineate the flood hazard boundaries in the vicinity of the proposed site, FEMA must seek detailed information from a list of sources included in the regulations. See 44 CFR 9.7(c)(1)(ii). If the sources listed do not have or know of detailed information and are unable to assist in determining whether the proposed site is in the 1 percent annual chance floodplain, FEMA must seek the services of a licensed consulting engineer experienced in this type of work. If, however, a decision involves an area or 28 FEMA also utilizes best available information in making floodplain determinations, which may include preliminary FIRMs or Advisory Base Flood Elevations (ABFEs). See FEMA Policy: Guidance on the Use of Available Flood Hazard Information (last accessed July 12, 2023). 29 FEMA estimates that only approximately 20 percent of mapped flood zones have detailed floodplain boundaries of the 0.2 percent annual chance floodplain. 30 The floodway is the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. See 44 CFR 59.1. E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67876 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules location within extensive Federal or State holdings or a headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA will seek information from the land administering agency before seeking information and/or assistance from the list of sources included in the regulations. Then, if none of the sources listed has information or can provide assistance, FEMA will seek the services of an experienced Federal or other engineer. If the proposed action is outside the floodplain or wetland and has no identifiable impacts or support, the action can be implemented (Step 8). Step (2) Early public review (44 CFR 9.8). FEMA must make public its intent to locate a proposed action in the floodplain or a wetland.31 FEMA must provide adequate information to enable the public to have an impact on the decision outcome for all proposed actions having potential to affect, adversely, or be affected by floodplains or wetlands. For each action having national significance for which notice is provided, FEMA uses the Federal Register as the minimum means for notice and will provide notice by mail to national organizations reasonably expected to be interested in the action. 44 CFR 9.8(c)(5) describes the contents of the public notice, such as a description of the action, the degree of hazard involved, a map of the area, or other identification of the floodplain, and identification of the responsible agency official. Step (3) Practicable alternatives (44 CFR 9.9). If the action is in the floodplain or a wetland, FEMA will identify and evaluate practicable alternatives to carrying out a proposed action in floodplains or wetlands, including the following: alternative sites outside the floodplain or wetland; alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetland; and ‘‘no action.’’ The floodplain or wetland site itself must be a practicable location in light of the other factors. Under 44 CFR 9.9(c), FEMA will analyze several factors in determining the practicability of the alternatives described in 44 CFR 9.9(b), namely natural environment, social concerns, economic aspects, and legal constraints. 44 CFR 9.9(d) states that FEMA will not locate the proposed action in the floodplain or wetland if a practicable alternative exists outside the floodplain or wetland. For critical actions, FEMA will not locate the proposed action in the 0.2 percent annual chance floodplain if a practicable alternative exists outside the 0.2 percent annual chance floodplain. Even if no practicable alternative exists outside the floodplain, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required under Step 3. Step (4) Impact of chosen alternative (44 CFR 9.10). FEMA must identify if the action has impacts in the floodplain or wetland. 44 CFR 9.10(b) provides that FEMA will identify the potential direct and indirect adverse impacts associated with the occupancy and modification of floodplains or wetlands and the potential direct and indirect support of floodplain or wetland development that could result from the proposed action. Step (5) Minimize impacts (44 CFR 9.11). If the proposed action has identifiable impacts in the floodplain or wetland or directly or indirectly supports development in the floodplain or wetland, FEMA must minimize these effects and restore and preserve the natural and beneficial values served by floodplains and wetlands. 44 CFR 9.11(b) states generally that FEMA will design or modify its actions to minimize harm to or within the floodplain; will minimize destruction, loss, or degradation of wetlands; will restore and preserve natural and beneficial floodplain values; and will preserve and enhance natural and beneficial wetland values. Pursuant to 44 CFR 9.11(c), FEMA will more specifically minimize potential harm to lives and the investment at risk from the 1 percent annual chance flood, or, in the case of critical actions, from the 0.2 percent annual chance flood; potential adverse impacts the action may have on others; and potential adverse impacts the action may have on floodplain values. Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or substantial improvement in a floodway and will not allow new construction in a coastal high hazard area, except for a functionally dependent use 32 or a structure or facility which facilitates an open space use. For a structure which is a functionally dependent use, or which facilitates an open space use, FEMA will not allow construction of a new or substantially improved structure in a coastal high hazard area unless it is elevated on adequately anchored 31 This step is required for any action that is within or affects a floodplain or wetland unless exempted or subject to the abbreviated processes outlined in 44 CFR 9.5. 32 A functionally dependent use means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. See 44 CFR 9.4. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 pilings or columns and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the 1 percent annual chance flood level (the 0.2 percent annual chance flood level for critical actions) (including wave height). Regarding elevation of structures, 44 CFR 9.11(d)(3) states that there will be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the level of the 1 percent annual chance flood, and there will be no new construction or substantial improvement of structures involving a critical action unless the lowest floor of the structure (including the basement) is at or above the level of the 0.2 percent annual chance flood. Step (6) Reevaluate alternatives (44 CFR 9.9). FEMA must reevaluate the proposed action. Pursuant to 44 CFR 9.9(e), upon determination of the impact of the proposed action to or within the floodplain or wetland and of what measures are necessary to comply with the requirement to minimize harm to and within the floodplains and wetlands, FEMA will determine whether: the action is still practicable at a floodplain or wetland site in light of the exposure to flood risk and the ensuing disruption of natural values, the floodplain or wetland site is the only practicable alternative, the scope of the action can be limited to increase the practicability of previously rejected non-floodplain or non-wetland sites and alternative actions, and minimization of harm to or within the floodplain or wetland can be achieved using all practicable means. Pursuant to 44 CFR 9.9(e)(2), FEMA will take no action in a floodplain or wetland unless the importance of the floodplain or wetland site clearly outweighs the requirement of Executive Order 11988 to avoid direct or indirect support of floodplain or wetland development; reduce the risk of flood loss; minimize the impact of floods on human safety, health, and welfare; and restore and preserve floodplain and wetland values. Step (7) Findings and public explanation (44 CFR 9.12). If FEMA finds that the only practicable alternative is to take the action in the floodplain or wetland, it must give public notice of the reasons for this finding. 44 CFR 9.12(e) describes the requirements for the content of such notice, such as a statement of why the proposed action must be located in an area affecting or affected by a floodplain or wetland, a description of all significant facts considered in making E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules this determination, identification of the responsible official, and a map of the relevant area. FEMA may implement the proposed action after it allows a reasonable period for public response. Step (8) Implementation (Multiple sections of 44 CFR and applicable program guidance). Implementation of the requirements of Executive Order 11988 is integrated into the specific regulations and procedures of the grant program under which the action is proposed to take place. After the proposed action is implemented, the FEMA program providing the funding determines under its applicable regulations and procedures whether the grant recipient has completed the prescribed mitigation. D. Reevaluation of the 1 Percent Annual Chance Flood Standard In the aftermath of Hurricane Sandy, the President issued Executive Order 13632,33 which created the Federal Interagency Hurricane Sandy Rebuilding Task Force (Sandy Task Force). Pursuant to direction from Executive Order 13632 to remove obstacles to resilient rebuilding, the Sandy Task Force reevaluated the 1 percent chance/100-year standard. In April 2013, the Sandy Task Force announced a new Federal flood risk reduction standard which required elevation or other flood-proofing to 1 foot above 34 the best available and most recent 1 percent annual chance flood elevation and applied that standard to all Federal disaster recovery investments in Sandy-affected communities.35 The Sandy Task Force called for all major rebuilding projects in Sandy-affected communities using Federal funding to be elevated or otherwise flood-proofed according to this new flood risk reduction standard. In June 2013, the President issued a Climate Action Plan 36 that directed agencies to take appropriate actions to reduce risk to Federal investments, 33 77 FR 74341 (Dec. 14, 2012). is also known as ‘‘freeboard.’’ ‘‘Freeboard’’ is a factor of safety usually expressed in feet above a flood level for purposes of floodplain management. Freeboard tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrologic effect of urbanization of the watershed. See https:// www.fema.gov/glossary/freeboard (last accessed July 12, 2023). 35 HUD release entitled, ‘‘Federal Government Sets Uniform Flood Risk Reduction Standard for Sandy Rebuilding Projects,’’ April 4, 2013. 36 Executive Office of the President, The President’s Climate Action Plan (2013), available at https://www.whitehouse.gov/sites/default/files/ image/president27sclimateactionplan.pdf. (last accessed July 12, 2023). lotter on DSK11XQN23PROD with PROPOSALS2 34 This VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 specifically directing agencies to build on the work done by the Sandy Task Force and to update their flood risk reduction standards for ‘‘federallyfunded . . . projects’’ to ensure that ‘‘projects funded with taxpayer dollars last as long as intended.’’ 37 After a yearlong process of receiving input from State, local, Tribal, and territorial governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders, the Task Force provided a recommendation to the President in November 2014. The Climate Task Force recommended that, in order to ensure resiliency, Federal agencies, when taking actions in and around floodplains, should include considerations of the effects of changing conditions, including sea level rise, more frequent and severe storms, and increasing river flood risks. The Climate Task Force also recommended that the best available climate data should be used in siting and designing projects receiving Federal funding, and that margins of safety, such as freeboard and setbacks, should be included.38 E. Executive Order 13690, the Federal Flood Risk Management Standard and Subsequent Amendments to Executive Order 11988, and Revisions to the 1978 Guidelines On January 30, 2015, the President issued Executive Order 13690, ‘‘Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.’’ 39 Executive Order 13690 amended Executive Order 11988 and established the FFRMS. It required FEMA to publish an updated version of the Implementing Guidelines (revised to incorporate the changes required by Executive Order 13690 and the FFRMS) in the Federal Register for notice and comment. Finally, Executive Order 13690 required the WRC to issue final Guidelines to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the FFRMS. FEMA, acting on behalf of the Mitigation Framework Leadership Group, published a Federal Register notice for a 60-day notice and comment period seeking comments on a draft of the Revised Guidelines on February 5, 37 See id at 15. State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience, Recommendations to the President, (2014), available at https://obamawhitehouse.archives.gov/ sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed July 12, 2023). 39 80 FR 6425, Feb. 4, 2015. 38 President’s PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 67877 2015.40 FEMA received over 556 separate submissions.41 The final Revised Guidelines were issued on October 8, 2015.42 The Revised Guidelines contain an updated version of the FFRMS (located at Appendix G of the Revised Guidelines), reiterate key concepts from the 1978 Guidelines, and explain the new concepts resulting from the FFRMS. In response to public comments, the Mitigation Framework Leadership Group clarified the distinction between actions and Federally funded projects. On August 22, 2016, FEMA published an NPRM entitled ‘‘Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management Standard’’ in the Federal Register (81 FR 57402). The rulemaking would have revised FEMA’s regulations on ‘‘Floodplain Management and Protection of Wetlands’’ to implement Executive Order 13690. FEMA also proposed a supplementary policy entitled ‘‘FEMA Policy: Guidance for Implementing the Federal Flood Risk Management Standard (FFRMS)’’ (FEMA Policy 078–3), which would have further clarified how FEMA would apply the FFRMS. The notice of availability and request for comments for the supplementary policy also published in the August 22, 2016 Federal Register at 81 FR 56558. On September 20, 2016, FEMA published a notice of data availability regarding a draft report, the 2016 Evaluation of the Benefits of Freeboard for Public and Nonresidential Buildings in Coastal Areas, which had been added to the docket for the proposed rule (81 FR 64403). On August 15, 2017, the President issued Executive Order 13807 (‘‘Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects’’) which revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017. Accordingly, on March 6, 2018, in light of the revocation of Executive Order 13690, FEMA 40 80 FR 6530, Feb. 5, 2015. received approximately 556 separate submissions, which raised over 2700 separate issues and positions. Written comments were received at a series of 8 in-person listening sessions across the country (135 submissions); verbal comments were shared during the public comment periods of these same listening sessions (74 commenters); comments were submitted through the FFRMS email address (20 submissions); comments were submitted through regulations.gov (326 submissions); and comments were submitted as part of a petition of support (1 submission). 42 80 FR 64008 (Oct. 22, 2015); https:// www.regulations.gov/document/FEMA-2015-00060358 (last accessed July 12, 2023). 41 FEMA E:\FR\FM\02OCP2.SGM 02OCP2 67878 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules withdrew the August 22, 2016 NPRM and supplementary policy (83 FR 9473). On May 20, 2021, the President issued Executive Order 14030 (‘‘ClimateRelated Financial Risk’’) 43 reinstating Executive Order 13690, thereby reestablishing the FFRMS. Executive Order 14030 also states that the Revised Guidelines issued in 2015 were never revoked and remain in effect. As such, FEMA reviewed its prior NPRM and proposed policy and decided to revise its approach to implementation based on lessons learned during and since the 2016 rulemaking process. Specifically, FEMA first partially implemented the FFRMS by policy with respect to covered projects in existing floodplains in its Public Assistance and Hazard Mitigation Assistance programs.44 FEMA next proposes to fully implement the FFRMS through this updated revision to its regulations and an updated supplementary policy. F. Substantive Components of the FFRMS The FFRMS is a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands.45 Incorporating the FFRMS will expand the floodplain and require projects be built with higher resiliency. Applying the FFRMS will help ensure that Federally funded projects will last as long as intended. In addition, the 43 86 FR 27967 (May 25, 2021). FEMA Policy 104–22–003, ‘‘Partial Implementation of the Federal Flood Risk Management Standard for Public Assistance (Interim),’’ June 3, 2022 found at https:// www.fema.gov/sites/default/files/documents/fema_ fp-104-22-0003-partial-implemetnation-ffrms-painterim.pdf (last accessed July 12, 2023) and FEMA Policy 206–21–003–0001, ‘‘Partial Implementation of the Federal Flood Risk Management Standard for Hazard Mitigation Assistance Program,’’ Dec. 7, 2022 found at https://www.fema.gov/sites/default/ files/documents/fema_policy-fp-206-21-003-0001implementation-ffrms-hma-program_122022.pdf (last accessed July 12, 2023). 45 Although the FFRMS describes various approaches for determining the higher vertical flood elevation and corresponding horizontal floodplain for Federally funded projects, it is not meant to be an ‘‘elevation’’ standard. The FFRMS is a resilience standard. The vertical flood elevation and corresponding horizontal floodplain determined using the approaches in the FFRMS establish the level to which a structure or facility must be resilient. This may include using structural or nonstructural methods to reduce or prevent damage; elevating a structure; or, where appropriate, designing it to adapt to, withstand, and rapidly recover from a flood event. See ‘‘Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input’’ (Oct. 8, 2015), found at https://www.fema.gov/sites/default/files/ documents/fema_implementing-guidelinesEO11988-13690_10082015.pdf (last accessed July 12, 2023). lotter on DSK11XQN23PROD with PROPOSALS2 44 See VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 FFRMS and revised guidelines require the evaluation of natural features and nature-based approaches, where possible, in the analysis of practicable alternatives in Step 3 of the decisionmaking process for all Federal actions. Under the FFRMS, a Federal agency may establish the floodplain for actions subject to the FFRMS using any of the following approaches: • Approach 1: Climate-Informed Science Approach (CISA): Utilizing the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science; • Approach 2: Freeboard Value Approach (FVA): Freeboard (1 percent annual chance flood elevation + X, where X is 3 feet for critical actions and 2 feet for other actions); • Approach 3: 0.2-percent-annualchance Flood Approach (0.2PFA): 0.2 percent annual chance flood (also known as the 500-year flood); or • Approach 4: the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.46 Each of the approaches is described in further detail below. FFRMS Approach 1: CISA. The FFRMS and Revised Guidelines state that the CISA is the preferred approach, and that Federal agencies should use this approach when data to support such an analysis are available. CISA uses existing, sound science and engineering methods (e.g., hydrologic and hydraulic analysis and methods used to establish current flood elevations and floodplain maps), supplemented with best available and actionable climate science and consideration of impacts from projected land cover/land use changes, long-term erosion, and other processes that may alter flood hazards over the lifecycle of the Federal investment.47 For areas vulnerable to coastal flood hazards, the CISA includes consideration of the regional sea-level rise variability and lifecycle of the Federal action. This includes use of the Department of Commerce’s National Oceanic and Atmospheric Administration’s (NOAA’s) or similar global mean sealevel-rise scenarios. These scenarios would be adjusted to the local relative sea-level conditions and would be combined with surge, tide, and wave data using state-of-the-art science in a manner appropriate to policies, practices, criticality, and consequences. For areas vulnerable to riverine flood 46 See Executive Order 13690 Section 2(i), 80 FR 6425, 6426 (Feb. 4, 2015). 47 See Guidelines, pgs. 36–37. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 hazards (i.e., flood hazards stemming from a river source), the CISA would account for changes in riverine conditions due to current and future changes in climate and other factors such as land use by applying state-ofthe-art science in a manner appropriate to policies, practices, criticality, and consequences (risk). The CISA for critical actions would utilize the same methodology as used for non-critical actions that are subject to Executive Order 11988, as amended, but with an emphasis on criticality as one of the factors for agencies to consider when conducting the analysis. FFRMS Approach 2: FVA. The FFRMS and Revised Guidelines define freeboard values as an additional 2 feet added to the 1 percent annual chance flood elevation, or, for critical actions, an additional 3 feet added to the 1 percent annual chance flood elevation. In other words, the floodplain established by the FVA is the equivalent of the 1 percent annual chance floodplain, plus either 2 or 3 feet of vertical elevation, as applicable based on criticality, and a corresponding increase in the horizontal extent of the floodplain. The increased horizontal extent will not be the same in every case. As shown in the next two illustrations, when the same vertical increase is applied in multiple actions subject to the FFRMS in different areas, the amount of the increase in the horizontal extent of the respective floodplains will depend upon the topography of the area surrounding the proposed location of the action. FVA Illustration A reflects an area with relatively flat topography on either side of the flooding source (i.e., river or stream) channel. This is generally representative of coastal plains, portions of the Midwest, and other areas with less variation in topography. FVA Illustration B reflects an area with steep topography on either side of the flooding source channel. This is representative of mountainous areas or areas with changes in elevation near the flooding source. With the same addition of 2 feet to the 1 percent annual chance flood elevation applied to both example locations, the increase to the horizontal extent of the floodplain in FVA Illustration A is comparatively larger than the increase to the horizontal extent of the floodplain in FVA Illustration B. These illustrations visually depict the fact that the horizontal increase to the floodplain will not be uniform when applying the same increase to establish the FVA and E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 67879 will vary depending on local topography. BILLING CODE 9111–66–P FVA Illustration A FVA Illustration B ~----~ _:_~:<~-j--:<' i-_::~---:~: VERTICAL EXTENT • - .... ---- BILLING CODE 9111–66–C VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\02OCP2.SGM 02OCP2 EP02OC23.000</GPH> EP02OC23.001</GPH> lotter on DSK11XQN23PROD with PROPOSALS2 - .... lotter on DSK11XQN23PROD with PROPOSALS2 67880 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules FFRMS Approach 3: 0.2PFA. Agencies may use available 0.2 percent annual chance (or ‘‘500-year’’) flood data as the basis of the FFRMS elevation and corresponding floodplain extent. Under this approach the same floodplain and elevation is used for critical and noncritical actions. The FFRMS and Revised Guidelines note that often the 0.2 percent annual chance flood elevation data provided by FEMA in coastal areas only considers storm-surge hazards; these data do not include local wave action or storm-induced erosion that are considered in the computation of flood elevations. The FFRMS and Revised Guidelines encourage agencies to obtain or develop the necessary data, including wave heights, to ensure that any 0.2 percent annual chance flood data applied will achieve an appropriate level of flood resilience or use the FVA approach instead for the proposed investment. FFRMS Approach 4: Update to FFRMS. The Mitigation Framework Leadership Group in consultation with the Federal Interagency Floodplain Management Task Force must reassess the FFRMS annually after seeking stakeholder input, and provide recommendations to the WRC to update the FFRMS. if warranted. The WRC must issue an update to the FFRMS at least every 5 years. The updates ensure the floodplain determination process for actions subject to the FFRMS reflects current methodologies. Further Guidance on Application of the FFRMS Approaches To Establishing the Floodplain. The FFRMS and Revised Guidelines state that when an agency does not use CISA in a coastal flood hazard area and where the FEMA 0.2 percent annual chance flood elevation does not include wave height, or a wave height has not been determined, the 0.2 percent annual chance elevation should not be used and the FVA should be used instead. The FFRMS and Revised Guidelines note that where the 0.2-percent-annualchance-flood elevation does not consider wave action, the result will likely either be lower than the current base flood elevation or the base flood elevation plus applicable freeboard. Where wave action has been incorporated into the 0.2 percent annual chance elevation, the 0.2 percent annual chance elevation can be used. The Guidelines state that for riverine flood hazard areas agencies may select either the FVA, or 0.2 percent annual chance flood elevation approach (or a combination of approaches, as appropriate) when actionable science is not available and an agency opts not to follow the CISA. It states that the agency VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 is not required to use the higher of the elevations but may opt to do so. The elevation standards of the FFRMS are not intended to supplant applicable State, Tribal, territorial, or local floodplain protection standards. If such standards exceed the FFRMS, an agency should apply those standards if the agency determines the application of the standards is reasonable in light of the goals of Executive Order 11988, as amended.48 G. FEMA’s Implementation of the FFRMS and the Revised Guidelines When Executive Order 13690 was issued, and again when it was reinstated with Executive Order 14030, FEMA evaluated the application of the FFRMS with respect to its existing authorities and programs. The FFRMS establishes a flexible standard to improve resilience against the impact of flooding—to design for the intended life of the Federal investment. FEMA supports this principle. Between 1980 and 2021, the United States experienced 35 flooding disaster events, each with damages totaling over $1 billion or more, and a total of $164.2 billion in damages for those 35 flooding disasters.49 FEMA, as a responsible steward of Federal funds, must ensure it does not needlessly repeat Federal investments in the same structures and/or facilities after flooding events. In addition, the FFRMS will help support the thousands of communities across the country recovering from disasters, seeking to mitigate future impacts of flooding and to strengthen infrastructure and other community assets to be more resilient to flood risk.50 FEMA recognizes that the 48 See Revised Guidelines at 53. The Revised Guidelines suggest that agencies should apply a reasonableness standard to higher State, Tribal, Territorial, or local (STTL) floodplain management standards. FEMA has historically deferred to higher local codes and standards from an STTL government in 44 CFR 9.11(d)(6) and will continue the practice through this rulemaking, rather than applying a case-by-case reasonableness analysis and believes this is appropriate because of programspecific controls that ensure higher standards are reasonable. Specifically, in the PA program, if an STTL government has adopted a code or standard that exceeds minimum standards set by FEMA, regulations at 44 CFR 206.226(d) require the code to be in place and adopted pre-disaster which guards against an STTL government’s adoption of unreasonably high codes and standards. With respect to mitigation projects, they are all required to be cost-effective as a minimum criteria of eligibility. See 42 U.S.C. 5170c(a); 42 U.S.C. 5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-byproject cost-effectiveness analysis should guard against any STTL standards that are unreasonably high. 49 See ‘‘Billion-Dollar Weather and Climate Disasters,’’ https://www.ncdc.noaa.gov/billions, DOI: 10.25921/stkw–7w73 (last accessed July 12, 2023). 50 For example, FEMA data indicates approximately 18,068 eligible applicants for public PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 need to make structures resilient also requires an equitable and flexible approach to adapt to the needs of the Federal agency, local community, and the circumstances surrounding each project or action consistent with evolving science and engineering advancements that demonstrate a better understanding of flood risk and flood risk reduction. The current floodplain policy was designed to accept a specific level of flood risk utilizing the 1 percent or 0.2 percent annual chance floodplains. However, these values do not incorporate changing future conditions caused by increasing severity of flooding and other associated issues such as coastal erosion. The result is that the current level of the 1 percent annual chance and 0.2 percent annual chance flood elevation can underestimate the flooding risk to a particular action and leave communities at higher risk to future flooding events. Where CISA is available and actionable, the risk of flooding can be determined based on climate science to identify the appropriate level of risk protection for an action based on factors such as local flood characteristics, criticality of the action, and planned lifespan of the action. As CISA is based on the available and actionable science for a specific location and action, the result is a determination of the appropriate level of resiliency to design minimization measures. Other methods may lower the flood risk as they are above the current floodplain policy, but in some instances, projects may be built to a higher resiliency than required (overbuilt) or to a lower resiliency than needed (underbuilt).51 FEMA intends to implement the FFRMS and the Revised Guidelines through this proposed rule and supplementary policy, which would (1) add or revise definitions to be consistent with those included in Executive Order 11988, as amended, and the Revised Guidelines to make them more accessible to stakeholders; (2) incorporate the use of the FFRMS approaches for establishing the floodplain into FEMA’s existing 8-step process; and (3) include the requirement to use natural features and nature-based approaches, where possible, when developing alternatives to the proposed action. These revisions also update other sections of the 8-step process to reflect current FEMA policies and assistance have participated in the 8-step process required by 44 CFR part 9 between 2012 and 2021. 51 See https://www.asfpmfoundation.org/aceimages/forum/Meeting_the_Challenge_of_ Change.pdf. E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules processes and provide additional clarity. Making the Initial Floodplain Determination. As stated above, the FFRMS changed the definition of ‘‘floodplain’’ with respect to actions subject to the FFRMS (i.e., actions involving the use of FEMA funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). The FFRMS allows the agency to define ‘‘floodplain’’ using any of three approaches and take actions that are informed by the best available and actionable science. Agencies should use the CISA approach when the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science are available for actions subject to the FFRMS.52 For actions which do not meet the definition of an action subject Process to Establish the Appropriate Floodplain for the 8-Step DecisionMaking Process NO Is action subJect to the FFRMS? 67881 to the FFRMS, an agency should continue to use the historical definition of floodplain with minor clarifying revisions. This means that one of the first steps an agency must take is to determine the appropriate floodplain. Figure 1 illustrates the process by which FEMA would decide which floodplain would apply to an action subject to the FFRMS compared to an action that would not be subject to the FFRMS. YES Is action a cnt1cal action? YES Use the NO 0 2'1o AC floodplain NO. Use the 1%AC floodplain 1 When using CISA, the floodplain must be at least as restrictive as: • For non -critical actions, the 1%ACfloodplain • For critical actions, the 0.2% AC floodplain 2 In coastal areas, if 0.2%AC flood elevations do not account for wave action, the appropriate FVA must be used. Figure 1: Process to Establish the Appropriate Floodplain for the 8-Step Decision- Selection Between the FFRMS Approaches. In selecting between the FFRMS approaches, FEMA sought to retain sufficient flexibility to account for updates to the FFRMS and yet also implement a framework that is sufficiently standardized to be easily understood and consistently applied to ensure an appropriate level of resilience without overbuilding.53 These considerations have led FEMA to propose a policy that considers the type and criticality of the action involved, the availability and actionability of the data, and equity concerns, as further explained in the current proposed supplementary policy. FEMA proposes to implement the FFRMS by adopting the flexible framework detailed in the Revised Guidelines. Under this proposal, FEMA would provide additional guidance that addresses which approach FEMA would use for different types of actions and how FEMA would tailor its application of the various approaches depending on 52 FEMA considers data to be available and actionable based on the Revised Guidelines. Appendix H of the Revised Guidelines states that best available data and science are transparent— clearly outlines assumptions, applications, and limitations; technically credible—transparent subject matter or more formal external peer review, as appropriate, of processes and source data; usable—relevance and accessibility of the information to its intended users. For the climateinformed approach, usability can be achieved by placing climate-related scenarios into appropriate spatial, temporal, and risk-based contexts; legitimate—perceived by stakeholders to conform to recognized principles, rules, or standards. Legitimacy might be achieved through existing government planning processes with the opportunity for public comment and engagement; and flexible—scientific, engineering, and planning practices to address climate change-related information are evolving. To respond, agencies need to adapt and continuously update their approaches consistent with agency guidelines and principles. Also under Appendix H, actionable science consists of theories, data, analyses, models, projections, scenarios, and tools that are: relevant to the decision under consideration; reliable in terms of its scientific or engineering basis and appropriate level of peer review; understandable to those making the decision; supportive of decisions across wide spatial, temporal, and organizational ranges, including those of time-sensitive operational and capital investment decisionmaking; and co-produced by scientists, practitioners, and decision-makers, and meet the needs of and are readily accessible by stakeholders. See Appendix H at pgs. 5–6. 53 For purposes of this rulemaking, overbuilding and underbuilding refers to building or protecting structures and facilities to a higher or lower resilience standard than necessary to reduce flood risks. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\02OCP2.SGM 02OCP2 EP02OC23.002</GPH> lotter on DSK11XQN23PROD with PROPOSALS2 Making Process 67882 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 the best available information to inform current and future flood risk, the type and criticality of the action, and equity. FEMA’s 2016 supplementary policy proposed to use the FVA to establish the elevation and associated floodplain for non-critical actions. For critical actions, FEMA’s 2016 supplementary policy proposed to allow the use of the FVA or the CISA, but only if the elevation established under the CISA was higher than the elevation established under the FVA.54 For the reasons stated below, FEMA’s current proposed supplementary policy proposes a different approach. Specifically, FEMA’s current proposed supplementary policy prefers the CISA floodplain where data is available and actionable. Where CISA data is not available and actionable, the supplementary policy selects Where CISA data is not available and actionable, the supplementary policy selects either the FVA or 0.2PFA to establish the floodplain. Specifically, for critical actions, the supplementary policy requires use of the higher of the FVA+3 or 0.2PFA. For non-critical actions, the supplementary policy requires the use of the lower of the FVA+2 or 0.2PFA. For actions not subject to the FFRMS, the floodplain would continue to be the 0.2 percent annual chance floodplain for critical actions and the 1 percent annual chance floodplain for non-critical actions. Other FEMA requirements to follow consensus codes and standards 55 and to meet NFIP and State, local, Tribal, and territorial standards will continue to apply.56 In doing so, FEMA believes the 8-step process with FFRMS implementation will result in a level of resiliency that is effective for the action and also equitable for the community by utilizing available and actionable scientific data to tailor the future flooding risk to the action. The FVA Considered. FEMA considered using the FVA as the default approach for both critical and noncritical actions subject to the FFRMS. A choice to use the FVA as a default would reflect the practical need for standardization in the earlier stages of implementation. The FVA elevation is computed using the base flood elevation, and FEMA may use the same sequence it has followed to determine 54 81 FR 56558. ‘‘Consensus-Based Codes, Specifications, and Standards for Public Assistance (Version 2)’’ found at https://www.fema.gov/assistance/public/ policy-guidance-fact-sheets/section-1235bconsensus-based-codes-and-standards (last accessed July 12, 2023). 56 See 44 CFR part 60.3 for the NFIP minimum floodplain management standards. 55 See VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 the base flood elevation for the purposes of establishing the FVA elevation. This would still allow for the use of widely available FEMA regulatory products, such as Flood Insurance Rate Maps and Flood Insurance Study Reports.57 By following the same sequence that FEMA has historically used for determining the appropriate elevation and utilizing known mapping products, FEMA staff would need relatively minimal additional training to be able to use these products to determine the horizontal extent of the FVA floodplain. In addition, the familiarity of the process and products to be used in most projects would benefit stakeholders by providing a consistent methodology which stakeholders would similarly be able to use to determine where FEMA will require application of the FFRMS. Additionally requiring the use of the FVA as the minimum elevation for critical actions would be consistent with FEMA’s policy to encourage communities to adopt higher standards, including freeboard standards, than the minimum floodplain management criteria under the NFIP.58 Generally, adoption of a freeboard tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrological effect of urbanization of the watershed.59 Consistent with FEMA’s Community Rating System (CRS) policy, 1,380 of the 1,740 CRSparticipating localities have adopted freeboard requirements that exceed current Federal standards within 50 states.60 FEMA supports that adoption by requiring that all of its projects are consistent with more restrictive Federal, State, or local floodplain management standards.61 The FVA, however, is not without challenges. First, while application of the FVA relies on data that is more available and readily accessible, it is not always the most suitable information to inform flood risk. Although FVA uses a fixed freeboard value across the nation, the FVA results in widely varying impacts to the current and future risk to the project. In some locations, applying the FVA+3 reduces the chance of being impacted by current flooding conditions 57 FEMA Flood Map Products. See https:// www.fema.gov/flood-maps/products-tools/products. (Last accessed July 27, 2023). 58 See 44 CFR 60.1(d). 59 See 44 CFR 59.1. 60 See https://www.fema.gov/floodplainmanagement/community-ratingsystem#participating (last accessed July 12, 2023). 61 See 44 CFR 9.11(d)(6). PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 by 2 times, while in other cases applying the FVA might reduce such chances by 10 times or more.62 This wide variation in risk reduction using the FVA approach may result in underbuilding or overbuilding in some areas. Without data narrowly tailored to the location’s specific risks, the FVA may result in building or protecting structures and facilities to a higher or lower resilience standard than necessary to reduce flood risks. This potential for overbuilding or underbuilding may raise equity concerns for underserved communities seeking to rebound quickly and effectively from a disaster. Those communities may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery.63 Alternatively, communities may be more vulnerable to future flooding and therefore repair expenses where building to a lower resilience standard under the FVA than if FEMA were to apply CISA. The 0.2PFA Considered. FEMA considered using the 0.2PFA, as the horizontal extent of the 0.2PFA floodplain is already mapped in some locations. Further, the 0.2PFA results in a much more consistent reduction in the chances of being impacted by a flood for projects in different areas. This is because the 0.2PFA floodplain and elevation are calculated to have the same probability of occurrence everywhere.64 The 0.2PFA may result in a higher elevation than the FVA in some circumstances and lower elevations in other areas. FEMA is challenged by the limited national availability of information on the 0.2 percent annual chance flood elevation and the additional costs associated with producing this information where it is not yet available. While most areas of the country have 1 percent annual chance floodplain information and the necessary topographical information to determine the horizontal extent under 62 See National Research Council, ‘‘Risk Analysis and Uncertainty in Flood Damage Reduction Studies,’’ Table 7–1 pg. 144, found at https:// nap.nationalacademies.org/catalog/9971/riskanalysis-and-uncertainty-in-flood-damagereduction-studies (last accessed July 12, 2023). Note that when downloaded in portable document format, table 7–1 is cut off. When viewed in the web version, Column 14 provides the return period for a 3 foot freeboard value. 63 See Jeremy Martinich, James Neumann, Lindsay, Ludwig, and Lesley Jantarasami, ‘‘Risks of sea level rise to disadvantaged communities in the United States’’ Mitig Adapt Strateg Glob Change (2013) 18:169–185, found at https:// link.springer.com/article/10.1007/s11027-011-93560 (last accessed July 12, 2023). 64 See Guidelines at pg. 6. E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules the FVA, far fewer are mapped with 0.2 percent annual chance floodplain information. This is because although all FEMA-mapped flood zones have either detailed or approximate 1 percent annual chance floodplain boundaries, FEMA estimates that only 20 percent of effective flood zones have detailed floodplain boundaries of the 0.2 percent annual chance floodplain.65 There is some additional 0.2 percent annual chance floodplain mapping coverage available from FEMA products that are in preliminary or draft stages, and from other Federal, state, and local agencies. Data showing the boundaries and elevations for the 0.2 percent annual chance flood, however, is far less available than information for the 1 percent annual chance flood. Additionally, in coastal areas, the FFRMS requires Federal agencies to use the FVA as the minimum elevation when not using the CISA, if the 0.2 percent annual chance flood information depicted on FEMA’s regulatory products considers stormsurge hazards but not wave action, and wave action data cannot be obtained from other sources.66 This requirement is essential to ensure the effectiveness of this resilience standard. Only some areas have 0.2PFA with wave action information. Finally, there could also be equity concerns related to underbuilding or overbuilding to this standard, as again communities seeking to rebound quickly and effectively from a disaster may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery. Given the challenges with information availability, costs, and certainty for stakeholders, FEMA is not proposing the 0.2PFA for all actions subject to the FFRMS. However, the consistency provided by the 0.2PFA when the data is available provides a check against the variability of the FVA approach, so FEMA plans to use the two approaches together. The CISA Considered. Consistent with the Revised Guidelines, FEMA is proposing the use of CISA as the preferred approach where data is available and actionable for both critical and non-critical actions as CISA uses a more site-specific approach to predict flood risk based on future conditions. FEMA believes CISA has the potential to be the best and most well-informed approach to building resilience in an 65 FEMA riverine flood hazard data inventory information comes from the Coordinated Needs Management Strategy dataset. 66 See Revised Guidelines at 57. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 equitable manner and ensuring a reduction in disaster suffering. While all three approaches consider the effects of changing conditions on current and future flood risk, CISA is the only approach that uses climate science data to determine the appropriate floodplain for actions subject to the FFRMS. The FVA is a standard of protection set within a margin of error and can result in underbuilding or overbuilding because the data is not tailored to consider the flood risk in a specific location. The 0.2PFA provides a consistent reduction in flood risk but the data is often not available. Neither approach uses climate science to determine future flood risk for specific locations. CISA is the only approach that ensures projects are designed to meet current and future flood risks unique to the location and thus ensures the best overall resilience, cost effectiveness, and equity. CISA provides a forward-looking assessment of flood risk based on likely or potential climate change scenarios, regional climate factors, and an advanced scientific understanding of these effects. CISA allows FEMA to make this assessment specific to the communities involved and to tailor the assessment to their specific resilience needs, factoring in cost-effectiveness of resilience efforts and equity. As explained above, the FVA approach presents a uniform solution that is not sufficiently tailored to meet specific community needs and lacks full consideration of future conditions. With a mandate to expand the floodplain and elevate to a specific height without additional considerations, the FVA approach can result in a community’s project being built to a higher or lower standard than necessary for the community’s intended use and result in additional expense to the community. Similarly, the 0.2PFA may result in a community’s project being built to a higher or lower standard than necessary for the community’s intended use and result in additional expense to the community because the 0.2PFA lacks full consideration of future conditions. Where available, CISA presents the best data available on current and future conditions to help FEMA work with communities to implement resilient, cost-effective projects. For critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 0.2PFA. Under this proposal, FEMA could choose to allow use of the CISA, even if the resulting elevation is lower than the application of the FVA. This PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 67883 approach would give FEMA and its recipients more flexibility in implementing the standard, would enable FEMA and its recipients to build to an elevation based on the best available science taking criticality into account, would ensure adequate protection in those areas that are projected to experience future flood elevations beyond those identified using the FVA or 0.2PFA, and would provide a pathway to relief for those areas that experience declining flood risks.67 Similarly, for non-critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 1 percent annual chance flood elevation. Combined, these options would balance the objectives that applicants are building in an equitable manner to the most protective level based on the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science without overbuilding and would eliminate the potential for a scenario where an applicant was allowed to build to a lower elevation than previously required for critical and non-critical actions under FEMA’s current implementation of Executive Order 11988.68 As explained above, FEMA understands that the availability and actionability of data is a key factor in completing this analysis in a consistent, equitable manner. Since the introduction of the CISA in 2015, additional data has become available to better inform CISA.69 FEMA believes data availability and actionability will continue to advance for CISA in the future. However, as actionable climate data are not currently available for all locations, FEMA is proposing the FVA and 0.2PFA alternatives in the absence of actionable CISA data. For coastal floodplains, one of the primary considerations associated with CISA is determining what the projected 67 While FEMA believes that the average flood risk will generally continue to increase nationwide due to changing conditions, there is considerable uncertainty in projecting flood risk at more granular levels. Some areas may experience declines in flood risk due to reduced rainfall or other unpredictable changes to the floodplain. 68 See 44 CFR 9.7(a)(1) detailing the current floodplain for critical and non-critical actions. 69 See Fourth National Climate Assessment, Volume II, found at https://nca2018.globalchange. gov (last accessed July 12, 2023) and the ‘‘Federal Flood Risk Management Standard Climate-Informed Science Approach (CISA) State of the Science Report,’’ found at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-Science-Report.pdf (last accessed Aug. 14, 2023). E:\FR\FM\02OCP2.SGM 02OCP2 67884 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 future sea level rise will be for the area in which the project will be completed. There are currently multiple interagency reports and agency tools that provide scenario-based projections of sea level rise for coastal floodplains.70 Sea level rise projections are just one potential factor in a climate-informed science approach. FEMA expects that more data will be developed supporting broaderbased application of CISA as agencies implement the FFRMS and that this data will be considered and incorporated into future updates of the FFRMS and FEMA’s implementation thereof. FEMA requests comment on the availability of actionable, planning-scale and/or project-scale climate data with respect to coastal and riverine floodplains. In addition to the data challenges, there are a number of factors in deciding how to apply the CISA that might result in a decision-making process that could unnecessarily delay recovery in the wake of a disaster event for non-critical actions. The Revised Guidelines recommend that the CISA methodology account for project-specific factors such as the criticality of the action, the risk to which the action will be exposed, the anticipated level of investment, and the lifecycle of the action.71 For example, an applicant might consider a construction project that is in a coastal floodplain and find that there are multiple projections for what the sea level rise may be in 50 years. The most aggressive projection might indicate that the project should be elevated 10 feet above the base flood elevation for a critical action. However, the applicant may determine that this project is not intended to be functional for 50 years, the action is not critical, and justify a lesser projection based on criticality and expected lifespan. FEMA anticipates these types of decisions may be more standardized and accessible with a suite of Federal tools under development to assist FEMA and stakeholders in establishing the CISA floodplain. Further, FEMA’s proposed approach focuses on leveraging the best available data to inform flood risk, generally 70 See generally ‘‘Interagency Sea Level Rise Scenario Tool’’ found at https://sealevel.nasa.gov/ data_tools/18 (last accessed July 12, 2023), ‘‘2022 Sea Level Rise Technical Report’’ found at https:// oceanservice.noaa.gov/hazards/sealevelrise/ sealevelrise-tech-report.html (last accessed July 12, 2023), ‘‘Global and Regional Sea Level Rise Scenarios for the United States’’ found at https:// aambpublicoceanservice.blob.core.windows.net/ oceanserviceprod/hazards/sealevelrise/noaa-nostechrpt01-global-regional-SLR-scenarios-US.pdf (last accessed July 12, 2023), ‘‘Sea Level Rise Viewer,’’ found at https://coast.noaa.gov/ digitalcoast/tools/slr.html (last accessed July 12, 2023). 71 See Revised Guidelines at 55. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 allowing communities that have actionable data specific to their locations to utilize that information in the 8-step process. FEMA requests comment regarding how FEMA could implement the CISA using a publicly accessible, standardized, predictable, flexible, and cost-effective methodology. FEMA also seeks comment on whether the agency should accept locally available CISA data and methods. Other Options Considered. FEMA also considered whether it should alter its proposal for preferring use of the CISA in relation to the FVA (or 0.2PFA). FEMA specifically welcomes comment on each of the potential alternatives outlined below. FEMA could choose a more protective approach in which it would determine the elevations established under CISA, FVA, and the 0.2PFA for critical actions and only allow the applicant to use the highest of the three elevations. This approach would ensure that applicants were protecting these critical assets to the highest protective level. However, as explained above, this approach may lead to overbuilding and thus not be the most cost-effective or equitable approach. FEMA believes that its proposed approach is sufficiently protective of critical action and would be less expensive and complex to administer and implement than the alternative approach described above as the alternative approach would require a determination of elevation under all three approaches before a project could proceed; nonetheless, FEMA welcomes comment on this alternative approach. Alternatively, FEMA could choose to require use of the highest standard for all actions, regardless of criticality. As explained above, while this approach would ensure that applicants were building all actions to the most protective level, this approach may lead to overbuilding and thus not be the most cost-effective, equitable approach particularly for non-critical actions. FEMA believes that its proposed approach is sufficiently protective of all actions and would be less expensive and complex to administer and implement than the alternative approach described above as this alternative approach would always require a determination of elevation under all three approaches before a project could proceed; nonetheless, FEMA welcomes comment on this alternative approach. FEMA also considered requiring the use of the 0.2PFA when CISA is not available for non-critical actions rather than the lower of the 0.2PFA or FVA. As explained above, FEMA notes the challenges with the limited national PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 availability of information on the 0.2 percent annual chance flood elevation and the additional costs associated with producing this information when not yet available. Additionally, in coastal areas, the FFRMS requires Federal agencies to use the FVA as the minimum elevation when not using the CISA, if the 0.2 percent annual chance flood information depicted on FEMA’s regulatory products considers stormsurge hazards but not wave action, and wave action data cannot be obtained from other sources. This requirement is essential to ensure the effectiveness of this resilience standard. Only some areas have 0.2PFA with wave action information. Finally, there could also be equity concerns related to underbuilding or overbuilding to this standard, as again communities seeking to rebound quickly and effectively from a disaster may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery. Alternatively, communities may be more vulnerable to future flooding and therefore repair expenses where building to a lower resilience standard under the FVA than if FEMA were to apply CISA. Given the challenges with information availability and costs, FEMA is not proposing the 0.2PFA as the exclusive alternative for non-critical actions when CISA is not available and actionable; nonetheless, FEMA welcomes comment on this alternative approach. Based on the foregoing, FEMA proposes to focus on the best available and actionable information to inform current and future flood risk, the type and criticality of the action, and equity when determining the approach to utilize for the floodplain determination. Where available and actionable, FEMA proposes to leverage the CISA to establish the floodplain for both critical and non-critical actions. Where the CISA is not available and actionable, the agency proposes to use the lower of the FVA or 0.2PFA to establish the floodplain for non-critical actions and the higher of the FVA floodplain or the 0.2PFA for critical actions. Where the 0.2PFA is not available, or where wave action is not addressed in the 0.2PFA, the FVA is proposed for critical actions. This proposal balances flexibility with standardization, is consistent with FEMA’s encouragement to communities to adopt more resilient floodplain management standards and reflects the priority that FEMA places on ensuring adequate planning for critical actions E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules while balancing cost and equity considerations. Requiring the use of the higher of the FVA floodplain or the 0.2PFA floodplain for critical actions where CISA is not available and actionable is consistent with the Revised Guidelines’ direction that agencies use higher standards for actions that they determine to be critical actions.72 The continued emphasis on the importance of making critical actions more resilient demonstrates an ongoing concern that the risks of flooding for many critical actions cannot be minimized without higher standards. The criticality of the action makes the risk of flooding too great, and a higher resilience standard is appropriate to best reduce that risk. The Revised Guidelines further recognize the importance of consideration of impacts to vulnerable populations, including those at risk to impacts of flooding due to their location or because they are overburdened, lack resources, or have less access to resources.73 Consistent with these concerns, FEMA’s proposed supplementary policy would require the lower of the FVA floodplain or the 0.2 PFA floodplain for non-critical actions. FEMA believes the lower approach would help reduce the burden on communities by addressing concerns related to overbuilding, particularly in underserved communities seeking to rebound quickly and effectively from a disaster. Selecting the lower approach for non-critical actions will still result in a higher level of resilience than the current requirements under part 9 while also taking equity and cost-effectiveness considerations into account. In addition to seeking comments on FEMA’s proposed approach to implementation generally, FEMA specifically seeks public comments on the impact of the proposed elevation requirement 74 on the accessibility of 72 See Guidelines at pg. 4. Guidelines at pg. 67. 74 Floodproofing of areas below the BFE in residential buildings is generally not permitted under the NFIP unless communities have been granted an exception to permit floodproofed basements. See 44 CFR 60.3. The NFIP restriction against floodproofing of residential structures reflects FEMA’s longstanding policy position that residential structures require a higher standard of resilience due to the increased potential for loss of human life. Floodproofing is also not recommended for residential structures under other FEMA programs. See Hazard Mitigation Assistance Technical Review Job Aid Series ‘‘Dry Floodproofing Technical Review,’’ at pg. 7 found at https://www.fema.gov/sites/default/files/ documents/fema_technical-job-aid-dryfloodproofing.pdf (last accessed July 12, 2023) (referencing ASCE24—Flood Resistant Design and Construction Section 6.2, which limits the use of dry floodproofing to non-residential structures and non-residential areas of mixed-use structures lotter on DSK11XQN23PROD with PROPOSALS2 73 See VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 covered facilities under the Fair Housing Act, the Americans with Disabilities Act (ADA), the Architectural Barriers Act (ABA), and Section 504 of the Rehabilitation Act of 1973. Elevating buildings as a flood damage mitigation strategy could have a negative impact on affected communities’ disabled and elderly populations if appropriate accommodations are not made. Also, even if the homes of people with disabilities are elevated and made accessible, other elevated single- and multi-family housing stock in the community may become inaccessible if appropriate accommodations are not made. It is crucial for community sustainability and integration of people with disabilities that buildings impacted by FFRMS requirements be made to comply with all accessibility requirements. In light of the potential community impact of elevating housing and other buildings, along with the challenges associated with the traditional options for making elevated buildings accessible (i.e., elevators, lifts, and ramps), FEMA invites comments on strategies it could employ to ensure accessibility requirements are met for properties that would be impacted by this rulemaking. Additionally, FEMA invites comments on the cost and benefits of such strategies, including data that supports the costs and benefits. Determining the Corresponding Horizontal Extent of the FFRMS Floodplain. To make the floodplain determination and establish the proper resilience standard under each approach, FEMA intends to leverage its existing processes in each of its grant programs for ensuring compliance with Executive Order 11988, as amended. Although the specifics of the processes may vary somewhat from program to program, FEMA generally uses the following steps. During the initial stages of project development, FEMA informs applicants of all applicable Federal, State, and local requirements which might apply to their projects to include Executive Order 11988 and the 8-step process. Once applicants have identified potential projects, FEMA works with them to assess the proposed project location and determine whether it is in or affects the floodplain and whether it is necessary to apply the 8-step process. FEMA is available to assist applicants with the 8-step process and reviews the located outside of High-Risk Flood Hazard Areas, Coastal High Hazard Areas and Coastal A Zones). Consistent with the NFIP regulations and other FEMA policies, the agency generally does not fund floodproofing of residential structures as a flood minimization measure to meet current 44 CFR 9.11 requirements. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 67885 project application to ensure that the project scope of work is in compliance with Executive Order 11988 requirements. FEMA will continue to perform these steps in its implementation of the FFRMS and Revised Guidelines. Once FEMA has made the determination that an action is subject to the FFRMS that requires a determination on which FFRMS approach to apply, the agency must then decide where the floodplain lies. FEMA, in conjunction with other Federal agencies, will work to maximize the availability of data showing the horizontal extent of the expanded horizontal floodplain that can be used for the CISA, the FVA, and the 0.2PFA for use on FFRMS following the approach detailed in § 9.7 below. Determination of the FFRMS floodplain will generally require data on current conditions and floodplains, future sea level rise or other changes expected to impact future flood conditions, and ground elevations. All of these data are relevant to determining additional areas that may be inundated by increased flooding in the future. FEMA’s approach to determining the floodplain will also utilize available, actionable non-FEMA data from other sources, including other Federal agencies, State, Tribal, territorial, and local governments. Establishing the FFRMS Resilience Standard Under Each Approach. FFRMS is a resilience standard requiring Federal investments to be more resilient against future flood conditions. FFRMS provides methods for determining a flood elevation to use in minimizing current and future flood risk for many actions in or affecting the floodplain, particularly for elevation of structures. However, other types of projects, including non-structure facilities, cannot reasonably be elevated above the FFRMS flood elevation and must achieve resilience through other minimization measures.75 The CISA is established using the best available, actionable climate-informed science. The Revised Guidelines provide guidance to agencies on the application of the CISA approach in coastal and riverine areas.76 In particular, FEMA will use Appendix H of the Revised Guidelines titled 75 For example, see Low-Water Crossings: Geomorphic, Biological, and Engineering Design Considerations at https://www.fs.usda.gov/t-d/ pubs/pdf/LowWaterCrossings/Lo_pdf/1_Intro.pdf (last accessed July 12, 2023) and Best Practice: Construction design saves money, prevents future damage at https://www.fema.gov/blog/best-practiceconstruction-design-saves-money-prevents-futuredamage damage (last accessed July 12, 2023). 76 See the Revised Guidelines at Appendix H ‘‘Climate-Informed Science Approach and Resources.’’ E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67886 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules ‘‘Climate-Informed Science Approach and Resources’’ to guide its decisionmaking. FEMA recognizes that the CISA is a developing process and that there is uncertainty in the considerations and factors that will come up during an CISA analysis. As such, FEMA is not able to develop an exhaustive set of regulatory criteria for determining whether a given methodology is appropriate. However, FEMA recognizes that regulatory transparency reduces uncertainty for its recipients, and it will provide further guidance and information in the future, as appropriate, as the agency’s experience in implementing CISA grows. Appendix H of the Revised Guidelines provides the following criteria to define the CISA, which FEMA will consider when developing further guidance and information: (1) Uses existing sound science and engineering methods (e.g., hydrologic and hydraulic analysis and methodologies) as have historically been used to implement Executive Order 11988, but supplemented with best available climate-related scientific information when appropriate (depending on the agency-specific procedures and type of federal action); (2) is consistent with the climate science and related information found in the latest National Climate Assessment report or other bestavailable, actionable science; (3) combines information from different disciplines (e.g., new perspectives from the atmospheric sciences, oceanographic sciences, coastal sciences, and hydrologic sciences in the context of climate change) in addition to traditional science and engineering approaches; and, (4) includes impacts from projected land cover and land use changes (which may alter hydrology due to increased impervious surface), longterm coastal and/or riverine erosion, and vertical land movement (for determining local changes to sea level) expected over the lifecycle of the action. The FFRMS and Revised Guidelines describe the FVA elevation as the addition of 2 or 3 feet to the 1 percent annual chance flood elevation. FEMA would leverage the process described in proposed § 9.7(c) to search for the best available flood hazard information to establish the 1 percent annual chance flood elevation. This process recognizes that information on flood hazards at proposed sites may range from detailed data obtained from FEMA regulatory products to information which approximates the geographic area of the floodplain, to areas with no information. Where FEMA has issued a regulatory product, FEMA could obtain the flood VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 elevation from the regulatory product. FEMA may also seek detailed information from the list of sources in proposed § 9.7(c)(3)(i)–(x). The 0.2PFA is the elevation of the 0.2 percent annual chance flood. Where FEMA proposes to use this approach, the agency would follow the same process to establish the 0.2 percent annual chance flood elevation as it would to establish the 1 percent annual chance flood elevation, utilizing the best available information. FEMA would first rely on the 0.2 percent annual chance flood elevation from the best available information, including information reported in a FEMA regulatory product, then seek information from additional sources, before finally seeking the assistance of an engineer. IV. Discussion of the Proposed Rule As noted above, this proposed rule would implement Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines as part of FEMA’s floodplain management regulations while also updating FEMA’s 8-step process. Below, we provide a brief summary of a number of the major provisions of the proposed rule, followed by a section-by-section description of these and other changes. Major Provisions Severability FEMA proposes to amend § 9.3 to remove the authorities section as redundant, and to replace it with a severability section. In the event that any portion of the proposed rule is declared invalid, FEMA intends that the remaining provisions of 44 CFR part 9 be severable. A severability clause is a standard legal provision. It indicates FEMA’s intent that if a court finds that a specific provision of a rule is unlawful, the court should allow the remainder of the rule to survive. Those provisions that are unaffected by a legal ruling can be implemented by an agency without requiring a new round of rulemaking simply to promulgate provisions that are not subject to a court ruling. Conforming Changes to Definitions FEMA proposes to amend § 9.4 to reflect the new definitions required by the FFRMS and Revised Guidelines while also updating other definitions to clarify terms and leverage common usage that has evolved since the regulation was issued. As noted above, the most significant definitional change introduced by the FFRMS is the change to the meaning of ‘‘floodplain.’’ As discussed in more detail below, in order PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 to harmonize this change in § 9.4 FEMA proposes to revise a number of existing definitions and remove other definitions. In addition, FEMA proposes to revise the remaining sections of 44 CFR part 9 that refer generally to the floodplain or refer specifically to the base (or 100-year) floodplain or the 500year floodplain, for clarity. Distinction Between ‘‘Actions Subject to the FFRMS’’ and Other FEMA Actions As noted above, the first Step in the 8-step process is to determine whether the proposed action is in the floodplain. Because Executive Order 11988, as amended, and the FFRMS revise the definition of the ‘‘floodplain’’ that must be used for ‘‘Federally funded projects,’’ FEMA proposes to revise the first Step to require FEMA to first determine whether the proposed action falls within the definition of an ‘‘action subject to the FFRMS.’’ Under the proposed rule, if FEMA determines that the action is a Federally Funded Project, i.e., if FEMA determines that the action uses FEMA funds for new construction, substantial improvement, or to address substantial damage to a structure or facility, the FFRMS floodplain applies. If, on the other hand, FEMA determines that the action does not fall under the definition of an action subject to the FFRMS and if the action is considered non-critical, the 1 percent annual chance floodplain applies. If the action is considered critical, the 0.2 percent annual chance floodplain applies. Emphasis on Nature-Based Approaches Executive Order 11988, as amended, requires that agencies use, where possible, natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for Federal actions in the floodplain. FEMA proposes to incorporate this requirement into § 9.9, which addresses the requirement to consider practicable alternatives when determining whether to locate an action in the floodplain. This requirement applies regardless of whether the proposed action is a FEMA Federally Funded Project. To further explain this requirement, FEMA proposes to add a definition of ‘‘naturebased approaches,’’ meaning features designed to mimic natural processes and provide specific services such as reducing flood risk and/or improving water quality. FEMA also proposes to add a definition of ‘‘natural features’’ meaning the characteristics of a particular environment that are created by physical, geological, biological, and chemical processes and exist in dynamic equilibrium. E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules The use of natural features and nature-based approaches in consideration of alternatives within floodplains and wetlands is consistent with the agency’s priorities to promote the use of nonstructural flood protection methods, minimize the impact of its actions on the floodplain, and restore and preserve the natural and beneficial values served by floodplains as well as preserve and enhance the natural values of wetlands. In applying the 8-step process to its actions, FEMA has integrated factors into its impact analysis and minimization measures (Step 4 and Step 5) to identify those opportunities for beneficial floodplain and wetland values, to include natural values related factors that prioritize water resource values, living resource values, and agricultural, aquacultural, and forestry resource values. Applying natural features or nature-based approaches as alternatives furthers the goals in 44 CFR part 9 and allows for FEMA to further encourage those actions that increase the natural and beneficial function of the floodplain. Section-by-Section Analysis A. Authority Citation FEMA proposes to revise the authorities section to reflect appropriate statutory and other authorities underlying the regulation. B. Section 9.1—Purpose of Part FEMA proposes to add references to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Environmental Policy Act of 1969, and other relevant statutory authorities, and to add ‘‘as amended’’ to reflect amendments made to Executive Order 11988. lotter on DSK11XQN23PROD with PROPOSALS2 C. Section 9.2—Policy FEMA proposes to add language to paragraph (b) to reflect the policy that the United States must improve the resilience of communities and Federal assets against the impacts of flooding based on the best-available and actionable science. This statement of policy is complementary to the longstanding goals of Executive Order 11988 to reduce the risk of flood loss but reflects an updated Federal policy of resilience and risk reduction that takes the effects of changing conditions into account. FEMA also proposes to restructure paragraph (b)(2) by adding §§ 9.2(c) and 9.2(d). In § 9.2(c), FEMA proposes edits for clarity, while in § 9.2(d), FEMA proposes to reorder the agency’s actions to prioritize minimizing the impact of floods on VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 human health, safety, and welfare in this part. D. Section 9.3—Severability In Section 9.3, FEMA proposes to remove the authorities as redundant because the authorities are cited at the beginning of Part 9. Instead, FEMA proposes to include a severability section. FEMA believes that its authority to require an 8-step decision making process and incorporate the FFRMS into it is well-supported in law and policy and should be upheld in any legal challenge. However, in the event that any portion of the proposed rule is declared invalid, FEMA intends that the various provisions of 44 CFR part 9 be severable. The provisions are not so interconnected that the rule’s efficacy depends on every one of them remaining in place—implementation of the different provisions is sufficiently distinct that FEMA’s aim of updating the 8-step process and incorporating the FFRMS would still be furthered by maintaining the other provisions. For example, if a court were to find unlawful FEMA’s inclusion of the FFRMS approaches in § 9.7(c), FEMA intends to retain the inclusion of consideration of nature-based approaches in the appropriate steps of the 8-step decision making process and all other amendments to the 44 CFR part 9 not affected by the court decision. Similarly, if a court were to find unlawful FEMA’s chosen approach in the proposed policy, FEMA intends to retain the regulatory changes implementing the FFRMS. E. Section 9.4—Definitions In Section 9.4, FEMA proposes to add terms for ‘‘0.2 Percent Annual Chance Flood Elevation,’’ ‘‘0.2 Percent Annual Chance Floodplain,’’ ‘‘1 Percent Annual Chance Flood Elevation,’’ ‘‘1 Percent Annual Chance Floodplain,’’ ‘‘Action Subject to the FFRMS,’’ ‘‘Base Flood Elevation,’’ ‘‘Federal Flood Risk Management Standard (FFRMS),’’ ‘‘Federal Flood Risk Management Standard Floodplain,’’ ‘‘Federally Funded Project,’’ ‘‘FEMA Resilience,’’ ‘‘National Security,’’ ‘‘Nature-Based Approaches,’’ ‘‘Natural and Beneficial Values of Floodplains and Wetlands,’’ ‘‘Natural Features,’’ and ‘‘Support of Floodplain and Wetland Development.’’ FEMA proposes to remove the definitions of ‘‘Base Flood,’’ ‘‘Base Floodplain,’’ ‘‘Five Hundred Year Floodplain,’’ ‘‘Flood Fringe,’’ ‘‘Flood Hazard Boundary Map,’’ ‘‘Flood Insurance Rate Map,’’ ‘‘Flood Insurance Study,’’ ‘‘Mitigation Directorate,’’ ‘‘Natural Values of Floodplains and PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 67887 Wetlands’’, ‘‘New Construction in Wetlands,’’ and ‘‘Support.’’ Lastly, FEMA proposes to revise the definitions of ‘‘Coastal High Hazard Area,’’ ‘‘Critical Action,’’ ‘‘Emergency Action,’’ ‘‘Flood,’’ ‘‘Floodplain,’’ ‘‘Functionally Dependent Use,’’ ‘‘Mitigation,’’ ‘‘New Construction,’’ ‘‘Orders,’’ ‘‘Practicable,’’ ‘‘Regulatory Floodway,’’ ‘‘Restore,’’ ‘‘Structures,’’ ‘‘Substantial Improvement,’’ and ‘‘Wetlands.’’ 0.2 Percent Annual Chance Flood Elevation. FEMA proposes to define the term ‘‘0.2 percent annual chance flood elevation’’ to mean the elevation to which floodwater is anticipated to rise during the 0.2 percent annual chance flood (also known as the 500-year flood). FEMA generally proposes to use the term ‘‘0.2 percent annual chance flood’’ and discontinue using that term interchangeably with the term ‘‘500-year flood.’’ The term ‘‘500-year flood’’ can cause confusion as it could be interpreted to mean that the area will only flood once every 500 years, instead of reflecting its true meaning, which is the annual probability of flooding in the area. FEMA is proposing to update other definitions that reference the term ‘‘500year flood’’ and related terms where appropriate to ensure an effective longterm transition away from this terminology. 0.2 Percent Annual Chance Floodplain. FEMA proposes to define the term ‘‘0.2 percent annual chance floodplain’’ to mean the area subject to flooding by the 0.2 percent annual chance flood (also known as the 500year floodplain). 1 Percent Annual Chance Flood Elevation. FEMA proposes to refer to the definition of ‘‘Base Flood Elevation’’ to define this term to help transition to this terminology going forward and more accurately reflect the flood probability associated with that elevation. 1 Percent Annual Chance Floodplain. FEMA proposes to define the term ‘‘1 percent annual chance floodplain’’ to mean the area subject to flooding by the 1 percent annual chance flood (also known as the 100-year floodplain or base floodplain). This definition would describe the minimum area that FEMA looks at when it determines whether an action will take place in a floodplain under this part. Action. FEMA proposes to remove the word ‘‘action’’ from the definition of ‘‘Action’’ because including the term being defined in the definition creates confusion and redundancy.77 77 See Office of the Federal Register, Writing Resources for Federal Agencies, Regulatory Drafting Guide, Definitions found at https:// E:\FR\FM\02OCP2.SGM Continued 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67888 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules Actions Affecting or Affected by Floodplains or Wetlands. FEMA proposes edits to these definitions consistent with formatting requirements. Action Subject to the FFRMS. FEMA proposes to define an action subject to the FFRMS as an action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility. This term would define those actions subject to the FFRMS listed in the Revised Guidelines as a ‘‘Federally Funded Project’’ by narrowing the term to apply only to actions that use FEMA funds for these specific activities. Base Flood. FEMA proposes to remove the definition of the ‘‘base flood’’ as FEMA proposes to incorporate it into the definition of ‘‘flood or flooding.’’ Base Floodplain. FEMA also proposes to remove the definition of ‘‘base floodplain’’ as FEMA proses to incorporate it into the definition of ‘‘1 percent annual chance floodplain.’’ Base Flood Elevation. FEMA proposes to define the term ‘‘base flood elevation’’ to mean the elevation to which floodwater is anticipated to rise during the 1 percent annual chance flood (also known as the base or 100year flood). The terms ‘‘base flood elevation,’’ ‘‘1 percent annual chance flood elevation,’’ and ‘‘100-year flood elevation’’ are synonymous and are used interchangeably. FEMA proposes to incorporate the explanation from the current definition of ‘‘base flood’’ about how the term is used in the NFIP to indicate the minimum level of flooding to be used by a community in the community’s floodplain management regulations. The elevation indicates how high to elevate a structure to protect it from the risk of flooding in a 1 percent annual chance flood. Coastal High Hazard Area. FEMA proposes to revise the definition of ‘‘coastal high hazard area’’ to mean an area of flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. FEMA is proposing to change this definition to more closely reflect the term as used in the NFIP and avoid the use of specific mapping zones for ease of use and reference for stakeholders. www.archives.gov/federal-register/write/legal-docs/ definitions.html#;:∼:text=If%20a%20 term%20is%20used%20only%20once%20or, term%20being%20defined%20as %20part%20of%20the%20definition. (last accessed July 12, 2023). VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 Critical Action. FEMA proposes to revise the definition of ‘‘critical action’’ to mean any activity for which even a slight chance of flooding is too great. This revised definition is consistent with the definition of this term in the Orders and Revised Guidelines the agency is implementing with this rule. Additionally, FEMA proposes to remove the requirement that the minimum floodplain of concern for critical actions is the 500-year floodplain. There would no longer be a set requirement that an applicant use a particular approach to establishing the floodplain when the project is a critical action. Instead, FEMA and the applicant would utilize the floodplain established by part 9. FEMA would be required to determine whether the project meets the new definition of ‘‘action subject to the FFRMS’’ in § 9.4. If the project is an action subject to the FFRMS, then FEMA would establish the floodplain by using one of the approaches (which require the applicant to consider whether an action is a critical action) explained in proposed § 9.7(c). If the project is not an action subject to the FFRMS, then FEMA would use, at a minimum, the 1 percent annual chance floodplain for non-critical actions and the 0.2 percent annual chance floodplain for critical actions. FEMA further proposes to revise this definition with updated formatting. Emergency Actions. The current definition of ‘‘emergency actions’’ does not correctly cite to the appropriate sections of statutory authority. FEMA proposes to correct citations to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and remove FEMA regulations citations. Federal Flood Risk Management Standard (FFRMS). FEMA proposes to add a definition of ‘‘FFRMS,’’ which is the Federal flood risk management standard to be incorporated into existing processes used to implement Executive Order 11988, as amended. FEMA proposes to add a definition for FFRMS because this rule proposes to implement it and therefore refers to it throughout the proposed changes to part 9. Federal Flood Risk Management Standard (FFRMS) Floodplain. FEMA proposes to define the ‘‘FFRMS floodplain’’ generally consistent with the definition in the Order and Revised Guidelines being implemented, which is the floodplain that is established using one of the approaches described in proposed § 9.7(c). The four approaches detailed in proposed § 9.7(c) include CISA, FVA, 0.2PFA, and the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 Federally Funded Project. FEMA proposes to add a definition of ‘‘Federally Funded Project’’ to reference the definition of ‘‘action subject to the FFRMS.’’ FEMA is incorporating this definition for consistency with the Revised Guidelines. Federal Insurance Administration. FEMA proposes to remove the definition of the ‘‘Federal Insurance Administration’’ as it is now included in the definition of ‘‘FEMA Resilience.’’ FEMA Resilience. FEMA proposes to delete the definition of Federal Insurance Administration and the definition of Mitigation Directorate and add the definition of FEMA Resilience to reflect the current organizational structure within the agency. Five Hundred Year Floodplain. FEMA proposes to remove the definition of the five-hundred-year floodplain as a standalone term and designated floodplain and to instead substitute the term ‘‘0.2 percent annual chance floodplain.’’ The 0.2 percent annual chance floodplain is the floodplain covering an area where the chance of flood is 0.2 percent in any given year. Flood or Flooding. FEMA proposes to add definitions of the ‘‘0.2 Percent Annual Chance Flood,’’ and the ‘‘1 Percent Annual Chance Flood’’ to the definition of flood to incorporate all flood definitions in one location. FEMA would further clarify the use of the 500year flood as interchangeable with the 0.2 percent annual chance flood, and the base flood or 100-year flood as interchangeable with the 1 percent annual chance flood. Flood Fringe. FEMA proposes to eliminate this definition as the term is no longer used in the regulatory text. Flood Hazard Boundary Map (FHBM). FEMA proposes to eliminate this definition as the term is no longer used in the regulatory text. FEMA offers a range of flood risk products under the NFIP and categorizes these products as ‘‘regulatory’’ or ‘‘non-regulatory.’’ Regulatory flood risk products are created subject to procedural due process requirements, contain basic flood information, and are used for official actions such as identifying properties subject to mandatory flood insurance purchase requirements, or enforcing minimum building standards for construction in a floodplain in NFIP participating communities.78 Nonregulatory flood risk products are not tied to mandatory enforcement or compliance requirements for the NFIP 78 See ‘‘Flood Risk Products: Using Flood Risk Products in Hazard Mitigation Plans,’’ found at https://www.fema.gov/sites/default/files/2020-07/ fema_using-flood-risk-products_guide.pdf (last accessed July 12, 2023). E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 and expand upon basic flood hazard information. References to FEMA’s regulatory products under the NFIP, such as the Flood Hazard Boundary Map, Flood Insurance Rate Map, and Flood Insurance Study are being eliminated in the proposed regulatory text to allow flexibility to encompass the full range of NFIP products (both regulatory and non-regulatory) available for use with the 8-step process. For example, the existing section 9.7(c) prescribes a sequence of steps to obtaining the floodplain, flood elevation, and other information needed. Current section 9.7(c)(i) only includes use of the FIRM, FBFM and FIS if they exist whereas 9.7(c)(ii) includes options to seek data from other sources if the available NFIP maps do not provide the necessary information. There are cases where a FIRM, FBFM, or FIS exist for the location, but do not provide the necessary information to determine the relevant floodplain and/ or elevation. This section is being proposed to be rewritten to allow use of other data sources whenever the information is not available on the NFIP maps or when better information is available. Streamlining the references to FEMA’s regulatory products would also align the regulatory language with the core statutory language that authorizes FEMA to publish determinations of Special Flood Hazard Areas (SFHAs) and flood elevations.79 These determinations are published in several different products. Rather than itemize and attempt to prioritize the different products, the proposed text would focus instead on whether official determinations of the SFHA or flood elevations are available. Flood Insurance Rate Map (FIRM). FEMA proposes to eliminate this definition as the term is no longer used in the regulatory text. As explained above, references to FEMA’s regulatory products are being eliminated in the proposed regulatory text to allow flexibility to encompass the full range of NFIP products available for use with the 79 Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105 and the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq. Specifically, 42 U.S.C. 4101(a) states that the Administrator is authorized to consult with other Federal agencies, State or local government agencies, or contract to obtain information ‘‘so that he may identify and publish information with respect to all flood plain areas, including coastal areas located in the United States, which has special flood hazards. . . .’’ Further, 42 U.S.C. 4104(a) states ‘‘In establishing projected flood elevations for land use purposes with respect to any community pursuant to section 4102 of this title, the Director shall first propose such determinations by publication for comment in the Federal Register . . . .’’ VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 8-step process. There are cases where a FIRM, FBFM, or FIS exist for the location, but do not provide the necessary information to determine the relevant floodplain and/or elevation. This section is being proposed to be rewritten to allow use of other data sources whenever the information is not available on the NFIP maps or when better information is available. Flood Insurance Study (FIS). FEMA proposes to eliminate this definition as the term is no longer used in the regulatory text. As explained above, references to FEMA’s regulatory products are being eliminated in the proposed regulatory text to allow flexibility to encompass the full range of NFIP products available for use with the 8-step process. There are cases where a FIRM, FBFM, or FIS exist for the location, but do not provide the necessary information to determine the relevant floodplain and/or elevation. This section is being proposed to be rewritten to allow use of other data sources whenever the information is not available on the NFIP maps or when better information is available. Floodplain. FEMA currently defines ‘‘floodplain’’ as the lowland and relatively flat areas adjoining inland and coastal waters including, at a minimum, that area subject to a 1 percent or greater chance of flooding in any given year. FEMA proposes to revise the definition to mean any land area that is subject to flooding to more accurately reflect the broad definition of this term. The term ‘‘floodplain’’ refers to geographic features with undefined boundaries and the proposed revised regulation will establish a specific floodplain through the process described in proposed § 9.7(c). The current definition also states that wherever the term ‘‘floodplain’’ appears in part 9, if a critical action is involved, ‘‘floodplain’’ means the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year (500-year floodplain). FEMA proposes to remove this provision from the definition of floodplain because there is no longer a set requirement that an applicant use a particular approach to establishing the floodplain when there is a critical action. Instead, FEMA and the applicant must follow the sequence described in § 9.7(c) when making the floodplain determination. FEMA must determine whether the project meets the new definition of an ‘‘action subject to the FFRMS’’ in § 9.4. If the project is an action subject to the FFRMS, then FEMA must establish the floodplain by using one of the FFRMS approaches (which require the applicant to consider whether an action is a PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 67889 critical action). If the project does not meet the definition of an action subject to the FFRMS (i.e., the project is not ‘‘new construction, substantial improvement, or repairs to address substantial damage to a structure or facility’’), then FEMA must use, at a minimum, the 1 percent annual chance floodplain for non-critical actions and the 0.2 percent annual chance floodplain for critical actions. FEMA proposes to add that the floodplain may be more specifically categorized as the 1 percent annual chance floodplain, the 0.2 percent annual chance floodplain, or the FFRMS floodplain (as defined above). ‘‘Floodplain’’ is a flexible, general term, but in establishing the correct floodplain to use, it will be necessary to determine whether the action is an action subject to the FFRMS and whether it is a critical action. Functionally Dependent Use. FEMA proposes to remove references to examples in this definition to reduce confusion around the definition and avoid any misinterpretation that the term’s usage is limited to the current examples. FEMA plans to provide more specific, relevant examples in guidance to better assist stakeholders with particularly nuanced situations. Mitigation. FEMA proposes to remove the term ‘‘all’’ from the definition of mitigation as mitigation would be defined more broadly consistent with the requirements of the Orders and Revised Guidelines being implemented. By removing ‘‘all,’’ FEMA would clarify that the agency’s goal, consistent with current law and Executive Orders 11988, as amended, and 11990 is to minimize the potentially adverse impacts of the proposed action to the extent possible, including consideration of practicality, rather than to take all mitigation actions. Mitigation Directorate. FEMA proposes to remove the definition of the ‘‘Mitigation Directorate’’ as it is now included in the definition of ‘‘FEMA Resilience.’’ National Security. FEMA proposes to add a definition for ‘‘national security’’ consistent with the definition used in the Revised Guidelines. The proposed definition would define national security as a condition that is provided by either (1) a military or defense advantage over any foreign nation or group of nations; (2) a favorable foreign relations position; or (3) a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert. Incorporating this definition would help stakeholders better understand the 8- E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67890 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules step process and the actions to which each Step applies. Nature-Based Approaches. FEMA proposes to add a definition of ‘‘naturebased approaches.’’ Executive Order 11988, as amended, now contains a provision requiring agencies consider nature-based approaches, where possible, in developing alternatives for consideration to meet the purpose of a proposed action within a floodplain or wetland and this term has not previously been defined. FEMA proposes to define nature-based approaches as the features (sometimes referred to as ‘‘green infrastructure’’) designed to mimic natural processes and provide specific services such as reducing flood risk and/or improving water quality. Nature-based approaches are created by human design (in concert with and to accommodate natural processes) and generally, but not always, must be maintained in order to reliably provide the intended level of service. Nature-based approaches and nature-based solutions may include, for example, green roofs, or downspout disconnection that reroutes drainage pipes to rain barrels, cisterns, or permeable areas instead of the storm sewer. The proposed definition mirrors the language of the Revised Guidelines. Natural and Beneficial Values of Floodplains and Wetlands. FEMA proposes to remove the definition of ‘‘natural values of floodplains and wetlands’’ and add the definition of ‘‘natural and beneficial values of floodplains and wetlands’’ to mean the features or resources that provide environmental and societal benefits. FEMA proposes adding additional clarification that water and biological resources are often referred to as ‘‘natural functions of floodplains and wetlands’’ and also proposes to incorporate additional clarifying examples of water resource values, living resource values, cultural resource values, and cultivated resource values for more consistency with the Revised Guidelines and Executive Order 11988, as amended. Natural Features. FEMA proposes to add a definition of ‘‘natural features’’ to mean characteristics of a particular environment that are created by physical, geological, biological, and chemical processes and exist in dynamic equilibrium. Consistent with the Revised Guidelines, natural features are self-sustaining parts of the landscape that require little or no maintenance to continue providing their ecosystem services (functions). New Construction. FEMA proposes to remove the parenthetical ‘‘including the placement of a mobile home’’ from the VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 definition of new construction and instead add that ‘‘new construction’’ includes permanent installation of temporary housing units. This change narrows the scope of FFRMS applicability to only those temporary housing units that FEMA permanently installs rather than all placements of temporary housing units. The temporary nature of initial housing unit placements generally does not provide an opportunity to improve community resilience or floodplain management long term, which is the intent of the FFRMS. Prohibiting placement of temporary housing in the FFRMS floodplain may result in the temporary housing of individuals and families many miles from their homes, which is not practicable. Finally, it would not always be feasible to elevate these units to the required flood elevation when placed for temporary housing. Given these concerns, FEMA seeks to apply the FFRMS requirements only to those temporary housing units that the agency permanently installs, becoming permanent housing solutions rather than all temporary housing units placed by the agency. FEMA further proposes to delete the current definition of ‘‘new construction in wetlands’’ and incorporate it into the definition of ‘‘new construction’’ to reduce confusion and eliminate references to specific dates that no longer apply to current and future actions subject to part 9. The application of the FFRMS is required for any action which meets the definition of an ‘‘action subject to the FFRMS.’’ ‘‘Action subject to the FFRMS’’ is defined as an action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility. If FEMA continued to define the placement of a mobile home as ‘‘new construction,’’ it would be required to apply the FFRMS to any placement of a temporary housing unit. As described further in the discussion of § 9.13, FEMA does not intend to require the application of the FFRMS in the placement of temporary housing units for the purpose of temporary housing. Orders. FEMA proposes to revise the definition of ‘‘orders’’ to include amendments made to Executive Order 11988. Practicable. FEMA proposes to revise the definition of ‘‘practicable’’ to update the factors considered in the practicability analysis for consistency with the existing regulatory text and the Revised Guidelines, and for clarity. Specifically, FEMA proposes to add ‘‘natural’’ to clarify the environmental factor. FEMA also proposes to incorporate into the definition of PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 ‘‘practicable’’ references to social concerns, economic aspects, and legal constraints. These concepts are currently included in the description of practicability analysis in § 9.11. As discussed below, the ‘‘economic aspects’’ refers to, among other things, cost and technology factors and to add ‘‘legal constraints’’ and ‘‘agency authorities’’ to specifically reflect additional constraints on the agency’s ability to act as a factor in the practicability analysis. By making these changes, FEMA would define practicability in a manner that is generally consistent with the longstanding regulatory text while incorporating updates for additional clarity and consistency with the Revised Guidelines. Regulatory Floodway. FEMA proposes to clarify the definition of ‘‘regulatory floodway.’’ FEMA proposes to eliminate the reference to a specific amount set by the NFIP and instead define the term to mean the area regulated by Federal, State, or local requirements to provide for the discharge of the base flood so that the cumulative rise in water surface is no more than a designated amount above the base flood elevation. These edits more accurately encompass situations where communities have adopted more restrictive floodway definitions than the minimum specified by the NFIP. The changes are intended to help stakeholders better understand what a regulatory floodway is and how it is determined without tying the term to a specific amount that can change under the NFIP. Restore. FEMA proposes to update the definition of ‘‘restore’’ to mean to reestablish a setting or environment in which the natural functions of the floodplain can operate. This change eliminates the redundancy of requiring the floodplain to ‘‘again’’ operate. Structures. FEMA proposes to update the definition of ‘‘structures’’ to require that the buildings be both walled and roofed rather than walled or roofed to be considered a ‘‘structure,’’ consistent with the definition of ‘‘structure’’ in 44 CFR Subchapter B, Insurance and Hazard Mitigation.80 This change is also consistent with current FEMA practice under the NFIP which designates areas that are not both walled and roofed as facilities.81 Additionally, FEMA is proposing a change from the term ‘‘mobile homes’’ to ‘‘temporary housing units’’ to reflect a range of housing units the agency may provide after a disaster while also referencing ‘‘manufactured housing’’ to ensure that the public 80 See 44 CFR 59.1. 81 Id. E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 understand that temporary housing units are regulated as manufactured housing in the NFIP. Substantial Improvement. FEMA proposes to update the reference to the Stafford Act because the citation is outdated in the current definition. FEMA also proposes to add a sentence stating that substantial improvement includes work to address substantial damage to a structure or facility. This change is for clarity and for consistency with part 59. Support. FEMA proposes to eliminate the definition of ‘‘support’’ and replace it with a new definition of ‘‘support of floodplain and wetland development’’ to further clarify the term and ensure consistency of its usage in part 9. Support of Floodplain and Wetland Development. FEMA proposes to define this term to mean to, directly or indirectly, encourage, allow, serve, or otherwise facilitate development in floodplains or wetlands. Development means any man-made change to improved or unimproved real estate, including but not limited to, new construction; mining; dredging; filling; grading; paving; excavation or drilling operations; or storage of equipment or materials. Direct support results from actions within floodplains or wetlands, and indirect support results from actions outside of floodplains or wetlands. By providing this clarifying definition, FEMA would help eliminate confusion regarding the use of the term ‘‘support’’ in the regulatory text and ensure that actions taken under part 9 are done with the intent not to support floodplain and wetland development consistent with Executive Order 11988, as amended, and Executive Order 11990. Wetlands. FEMA proposes minor edits for clarity and to delete references to the U.S. Fish and Wildlife Service publication in the current definition of ‘‘wetlands’’ as the reference is now out of date and rather generally reference the definition utilized by that agency for consistency in the future. F. Section 9.5—Scope FEMA proposes to add an effective date provision to this section, indicating that the revisions proposed to part 9, which implement the changes required by Executive Order 11988, as amended, the FFRMS, and Revised Guidelines, would apply to new actions for which assistance is made available pursuant to declarations under the Stafford Act that are commenced on or after the effective date of the final rule, and new actions for which assistance is made available pursuant to notices of funding opportunity that publish on or after the VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 effective date of the final rule. This is to clarify that current part 9, including use of the 1 percent annual chance floodplain (or 0.2 percent annual chance floodplain for critical actions), would still apply to actions relating to declarations and funding opportunities issued prior to the effective date. Only new actions would be subject to revised part 9 so that the changes would not be applied to projects which have already been reviewed for compliance with Executive Order 11988 and may have incurred design expenses to meet the current floodplain management standards. Any actions associated with declarations under the Stafford Act that begin on or after the effective date of the final rule or any actions for which the notice of funding opportunity publishes on or after the effective date of the final rule would be subject to revised part 9, including the changes required under Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines, such as determining the floodplain for the action and requiring the use of nature-based approaches, where possible, to mitigate harm when development in the floodplain is not avoidable. In paragraph 9.5(b)(1), FEMA proposes to add ‘‘as amended’’ to reflect amendments to Executive Order 11988. FEMA proposes to update the citations to the Stafford Act sections and references to organizations and titles in paragraphs (c)–(g) as they are not current and reorganize the section for clarity and readability. FEMA proposes to eliminate current paragraph (c)(3) as unemployment assistance would not constitute an ‘‘action’’ under this part (see § 9.4). FEMA proposes to revise current paragraph (c)(6) to clarify that actions involving fire management assistance that include hazard mitigation assistance under sections 404 and 420(d) of the Stafford Act are subject to the 8-step process. Similar to the revision to § 9.7(c)(1), FEMA seeks to clarify where some actions may still be required to complete the 8-step process. FEMA also proposes to update current paragraph (c)(8) as it refers to a defunct title for the Individuals and Households Program and includes programs that no longer exist and restructure the paragraph to reflect current categories of assistance under this program that are not subject to the 8-step process. FEMA proposes to further update this section by removing private bridges from the 8-step process consistent with other exceptions to that process in the Individual Assistance program in current paragraph (c)(8)(i). This change aligns with the existing exemptions for all other forms of home PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 67891 repair and replacement under section 408 of the Stafford Act. FEMA will only provide funding for privately-owned access bridges damaged as a result of a Presidentially-declared disaster in cases where a FEMA inspection determines repairs are necessary to provide drivable access to a primary residence.82 In addition to this requirement, FEMA will only provide funding when at least one of the following additional conditions exist: (1) the bridge provides the only access to the property; (2) the home cannot be accessed due to damage caused to other infrastructure; or (3) the safety of the occupants or residence would be adversely affected because emergency services and equipment could not reach the residence.83 As these private bridge projects are small in scale and subject to local review and permitting requirements that otherwise consider local floodplain management concerns, FEMA believes they are unlikely to result in significant impacts to the floodplain and requiring the 8step process for these projects would not necessarily result in improved community resiliency, a key goal of the FFRMS. FEMA, however, seeks comment on whether removing private bridge projects from the 8-step process would adversely impact the floodplain. FEMA also proposes to revise current § 9.5(c)(12) to further provide that debris clearance and removal under section 502 of the Stafford Act is not subject to the 8-step process. FEMA is also proposing to add a citation to section 407 of the Stafford Act to accompany the reference to non-emergency disposal of debris in this same provision. In current paragraph (c)(13), FEMA proposes to make revisions to update the current monetary thresholds from $5,000 to $18,000 for actions under sections 406 and 407 of the Stafford Act.84 This change would reflect the current value of the existing threshold dollar amount, which was set in 1980.85 Additionally, FEMA proposes language to require adjustment of the threshold based on the Consumer Price Index for All Urban Consumers published by the 82 See Individual Assistance Program and Policy Guide Version 1.1 found at https://www.fema.gov/ assistance/individual/policy-guidance-and-factsheets (last accessed July 12, 2023) pg. 89. 83 See Individual Assistance Program and Policy Guide Version 1.1 found at https://www.fema.gov/ assistance/individual/policy-guidance-and-factsheets (last accessed July 12, 2023) pg. 89. 84 Section 406 of the Stafford Act involves the repair, restoration, and replacement of damaged facilities while section 407 relates to debris removal. 85 See 45 FR at 59529. E:\FR\FM\02OCP2.SGM 02OCP2 67892 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules Department of Labor.86 This proposed language provides for future changes to the applicability of the 8-step process based on inflationary increases in the cost of actions and helps ensure equitable, cost-effective outcomes by limiting this process to actions of a higher dollar amount. Note FEMA is also proposing to add the Stafford Act sections 406 and 407 for repairs or replacements to § 9.5(c). FEMA’s current and proposed dollar value thresholds to determine the applicability of the 8-step decision-making process to certain FEMA actions are updated below as follows: TABLE 4—FEMA’S CURRENT AND PROPOSED DOLLAR VALUE THRESHOLD TO DETERMINE THE APPLICABILITY OF THE 8STEP DECISION-MAKING PROCESS lotter on DSK11XQN23PROD with PROPOSALS2 Exempt from the 8-step decision making process .................................. Minimal 8-step decision making process (subject to steps 1, 4, 5, and 8). Abbreviated 8-step decision making process (subject to steps 1, 2, 4, 5, and 8). Full 8-step decision making process ....................................................... Current threshold Proposed threshold Projects under $5,000 ................... Projects between $5,000 and $25,000. Projects above $25,000 and up to $100,000. Projects above $100,000 ............... Projects under $18,000. Projects between $18,000 and $91,000. Projects above $91,000 and up to $364,000. Projects above $364,000. FEMA proposes to relocate current paragraph (g) and redesignate it as paragraph (d), restructuring current paragraphs (d)–(f) to (e)–(g) respectively. FEMA believes this restructuring will make the section more readable and easier for stakeholders to understand. FEMA is also proposing to revise the structure and language in current paragraphs (d) and (g) to better explain the exceptions to the full 8-step process detailed in each paragraph. FEMA proposes to update the current monetary thresholds set in current paragraphs (d) and (g) similar to changes proposed to current paragraph 9.5(c)(13), described above, to reflect the current value of these dollar amounts and also require future changes to these amounts based on the Consumer Price Index for All Urban Consumers as published by the Department of Labor. As explained above, FEMA believes these edits would result in limiting applicability of the 8step process appropriately based on inflationary increases in the cost of actions. FEMA is proposing the increase and future updates as smaller projects offer little, if any, opportunity for mitigation and the agency believes floodplain management resources are best devoted in areas where they will be most effective. By keeping actions under a certain amount either exempt or with a more streamlined/expedited floodplain management process, FEMA would maintain the intent of the Executive Orders to protect floodplains and wetlands while also ensuring appropriately streamlined, costeffective, and equitable assistance to communities with smaller projects. FEMA is proposing to revise current paragraph (g)(2) to address actions subject to the FFRMS by changing the current text, which refers to new or substantially improved structures or facilities, to instead refer to new construction, substantial improvement, or repairs to address substantial damage of structures or facilities. FEMA is also proposing to revise current paragraph (g)(3) to include facilities or structures on which a flood insurance claim has been paid. This addition would provide consistency with language existing in current paragraph (d)(4)(iii) and ensure that facilities or structures which have previously sustained damage from flooding on which a flood insurance claim has been paid will be subject to the full 8-step process. As FEMA has already provided funding to recover from prior flood damage on these facilities and structures, the agency believes the full 8-step process is required to ensure any additional funds provided increase resilience against flooding. FEMA proposes to delete current paragraph (d)(1), consistent with the proposed change above to exempt private bridges from the 8-step process entirely. FEMA also proposes to delete current paragraph (d)(2). The current regulatory language allows for an abbreviated 8-step process for small project grants under the PA program 87 unless those projects fell into certain categories. FEMA proposes to remove this language because it is no longer applicable; FEMA stopped applying the abbreviated 8-step process to the small project threshold under the PA program after it increased beyond the $100,000 threshold set in current paragraph 9.5(d)(4)(i). FEMA also proposes minor revisions to current paragraph (d)(4)(iii) (proposed (e)(2)(iii)) for clarity and readability. In current paragraph (e), FEMA proposes to update the responsible official from Director to Regional Administrator as this authority has been delegated to Regional Administrators and make other clarifying edits to reflect current agency terminology in that paragraph as well as current paragraphs (f)(1) and (f)(2). FEMA also proposes clarifying edits in current § 9.5(f)(1) for readability and to eliminate the prime two example references. As explained above in the definitions, FEMA believes that these types of specific examples are best addressed in guidance that can evolve as issues arise and better assist stakeholders with particularly nuanced situations. Further, these specific examples relate to regulatory provisions (current §§ 9.9(e)(6) and 9.11(e)) that FEMA proposes to remove from this rule. 86 The U.S. Department of Labor publishes the Consumer Price Index for All Urban Consumers at https://www.bls.gov/cpi/. A calculation to determine the impact of CPI–U increases can be made at https://www.bls.gov/data/inflation_ calculator.htm. 87 The current outdated regulatory text refers to section 419 of the Stafford Act in identifying what constituted a small project grant under PA. As a result of updates to the Stafford act, section 419 can now be found in section 422 (42 U.S.C. 5189) which sets forth the authority to create a small project threshold that applies to emergency work (sections 403 or 502), debris removal (section 407) and permanent work (section 406) which is all funded under the PA program. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 G. Section 9.6—Decision-Making Process Section 9.6 sets out the floodplain management and wetlands protection decision-making process to be followed by FEMA in applying Executive Orders 11988, as amended, and 11990 to its actions. FEMA proposes a clarifying edit to § 9.6(a) that would delete redundancy. Paragraph (b) of § 9.6 lays out the eight Steps the agency must follow. Step 1 states that FEMA will determine whether the proposed action is located in the 100-year floodplain or, for critical actions, the 500-year floodplain. FEMA proposes to remove E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 the specific requirement to use the 100year (1 percent annual chance) floodplain or 500-year (0.2 percent annual chance) floodplain for critical actions and instead use the general term ‘‘floodplain’’ and refer the reader to § 9.7, which describes (1) the flexible framework that FEMA would apply to actions subject to the FFRMS, as well as (2) the historical framework that FEMA would continue to apply to actions that do not qualify as actions subject to the FFRMS. Additionally, in Step 3, FEMA proposes to add references to natural features and nature-based approaches consistent with the Revised Guidelines to ensure that natural features and nature-based approaches are fully considered when identifying and evaluating practicable alternatives to locating the action in a floodplain or wetland. As changing conditions elevate the threats posed by natural hazards, FEMA is proposing to incorporate nature-based solutions to help bolster resilience. Nature-based solutions are sustainable planning, design, environmental management, and engineering practices that weave natural features or processes into the built environment to promote adaptation and resilience. These solutions use natural features and processes to combat changing conditions, reduce flood risk, improve water quality, protect coastal property, restore, and protect wetlands, stabilize shorelines, reduce urban heat, and add recreational space. Naturebased solutions offer significant monetary and non-monetary benefits and often come at a lower cost than traditional infrastructure.88 Requiring the use of natural features and nature-based approaches, where possible, in consideration of alternatives within or affecting floodplains and wetlands is consistent with the agency’s priorities to promote the use of nonstructural flood protection methods, minimize the impact of its actions on the floodplain, and restore and preserve 88 See generally Coastal Resilience Assessment (Suriname), December 2017 published by the World Bank at https://naturebasedsolutions.org/ knowledge-hub/63-coastal-resilience-assessmentsuriname (last accessed June 8, 2022); Environmental and Energy Study Institute Fact Sheet ‘‘Nature as Resilient Infrastructure: An Overview of Nature-Based Solutions’’ at https:// www.eesi.org/files/FactSheet_Nature_Based_ Solutions_1016.pdf#:∼:text=These%20nature-based %20solutions%20are%20often%20higherquality%2C%20lower-cost%2C%20more, avenue%20for%20rethinking%20and %20remodeling%20our%20nations%20 infrastructure (last accessed July 12, 2023); and Andrea Bassi, Emma Cutler, Ronja Bechauf, and Liesbeth Casier, ‘‘How Can Investment in Nature Close the Infrastructure Gap?’’ at https:// www.iisd.org/publications/investment-in-natureclose-infrastructure-gap (last accessed July 12, 2023). VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 the natural and beneficial values served by floodplains as well as preserve and enhance the natural values of wetlands (44 CFR 9.2). In applying the 8-step process to its actions, FEMA has integrated factors into its impact analysis and minimization measures (Step 4 and Step 5; 44 CFR 9.10 and 9.11) to identify those opportunities for beneficial floodplain and wetland values, to include natural values related factors (44 CFR 9.10(d)(2)) that prioritize water resource values, living resource values, and agricultural, aquacultural, and forestry resource values. Requiring natural features or nature-based solutions as alternatives, where possible, furthers the goals in 44 CFR part 9 and allows for FEMA to further encourage those actions that increase the natural and beneficial function of the floodplain. FEMA also proposes revisions to Step 5 to clarify that the agency must minimize potential adverse impacts within floodplains and wetlands under Step 4, including minimizing the potential direct and indirect support of floodplain and wetland development identified under Step 4. While not a new requirement, revising this language would help clarify that direct or indirect support of floodplain or wetland development is an adverse impact the agency must consider as part of minimization. FEMA believes these edits would help ensure consistency of use throughout part 9 and reduce stakeholder confusion. Finally, FEMA proposes a minor edit for readability in Step 6 (removing the word ‘‘the’’ in the phrase, ‘‘the hazards to others’’). H. Section 9.7—Determination of Proposed Action’s Location Current § 9.7 establishes FEMA’s procedures for determining whether any action as proposed is located in or affects a floodplain or a wetland. FEMA is proposing to revise this section to add procedures for identifying the FFRMS floodplain and corresponding elevation. FEMA is also proposing to revise this section’s paragraph structure for clarity. In current and proposed paragraph (a), FEMA proposes minor conforming edits. As in § 9.6, FEMA proposes to simply refer to ‘‘floodplain’’ rather than the current regulatory text’s ‘‘base floodplain’’ or ‘‘500-year floodplain’’ references and direct the reader to paragraph (c), because the Revised Guidelines and the FFRMS’s flexible framework for determining which floodplain is appropriate depending on the type and criticality of the action means the floodplain must be established using the process set forth in paragraph 9.7(c). PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 67893 FEMA proposes to reorganize current paragraph (b) for clarity. In proposed paragraph (b)(1), FEMA proposes to replace a reference to ‘‘the Orders’’ with a reference to ‘‘this part,’’ for clarity. In proposed paragraph (b)(1)(i), FEMA proposes to add the words ‘‘Federal action’’ to make clear that the goal is to avoid Federal action, specifically, in a floodplain or wetland location unless they are the only practicable alternatives consistent with the agency’s requirements under part 9. This proposed change would reiterate that the focus of the 8-step process is on Federal actions. FEMA is also proposing to relocate to § 9.7(c) the statement that in the absence of a finding to the contrary, FEMA may assume that a proposed action involving a facility or structure that has been flooded is in the floodplain. FEMA proposes this change for clarity. In addition, Paragraph (b) of § 9.7 currently states that information about the 1 percent annual chance (100-year) and 0.2 percent annual chance (500-year) floods may be needed to comply with the regulations in part 9. In proposed paragraph (b)(2), FEMA proposes to update this statement for simplicity, referencing the floodplain determination process in § 9.7(c) in revised paragraph (b)(2) instead of referencing the 100-year and 500-year floods. Current paragraph (b) includes a list of ‘‘flooding characteristics’’ that the Regional Administer ‘‘shall’’ identify, ‘‘as appropriate.’’ For clarity, FEMA proposes in new paragraph (b)(3) that the Regional Administrator ‘‘may’’ identify ‘‘current and future’’ flooding characteristics, ‘‘as applicable.’’ These proposed changes are consistent with the Revised Guidelines. FEMA prefers to avoid the use of the term ‘‘shall,’’ which suggests a mandatory requirement for the Regional Administrator to identify all of the additional flooding characteristics listed. FEMA’s current practices do not require this level of rigidity and FEMA proposes the identification of these characteristics to be within the discretion of the Regional Administrator. FEMA is also proposing to add language for the agency to consider both current and/or future flooding characteristics by adding ‘‘current and future’’ to the additional flooding characteristics that may be considered. This addition clarifies the Regional Administrator’s discretion to consider both current and future flooding characteristics consistent with the goals of FFRMS to improve the resilience of communities and Federal assets against the impacts of flooding E:\FR\FM\02OCP2.SGM 02OCP2 67894 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 which are anticipated to increase over time. Further, FEMA proposes to add to the list of flooding characteristics a new item for ‘‘[a]ny other applicable flooding characteristics’’ to signal flexibility as flood risks are further studied and developed and allow for local jurisdictions to utilize their own information to support requirements specific to their community’s needs. Paragraph (c) of § 9.7 outlines the process for determining if the proposed action is in the floodplain. As explained above, FEMA proposes to move language regarding previously flooded facilities and structures from the current paragraph (b) to proposed paragraph (c). FEMA also proposes to add the word ‘‘previously’’ to this provision for clarity. By moving this language to paragraph (c), FEMA would group this provision with the other floodplain determination provisions. If a proposed action does not involve a previously flooded facility or structure, FEMA would then begin the process set forth in the rest of paragraph (c) to determine whether the proposed action is in the floodplain. FEMA would determine whether the action is an action subject to the FFRMS as defined in § 9.4. If the action is an action subject to the FFRMS, FEMA would establish the floodplain and corresponding flood elevation 89 using one of the four approaches outlined in proposed paragraph (c)(1). For example, FEMA would likely be required to apply one of those four approaches to establish the FFRMS floodplain to projects involving new construction or substantial improvement or addressing substantial damage to a structure or facility. However, FEMA-funded projects that do not rise to the level of new construction or substantial improvement and do not address substantial damage to a structure or facility would not be required to apply any of the four approaches to establish the FFRMS floodplain.90 89 Although the FFRMS describes various approaches for determining the higher vertical flood elevation and corresponding horizontal floodplain for Federally funded projects, it is not meant to be an ‘‘elevation’’ standard. The FFRMS is a resilience standard. The vertical flood elevation and corresponding horizontal floodplain determined using the approaches in the FFRMS establish the level to which a structure or facility must be resilient. This may include using structural or nonstructural methods to reduce or prevent damage; elevating a structure; or, where appropriate, designing it to adapt to, withstand, and rapidly recover from a flood event. See Revised Guidelines at 4. 90 Under proposed § 9.7(c)(2), FEMA would retain discretion to apply the FFRMS to other actions as appropriate. For instance, under the accompanying proposed policy, FEMA would require that all structure elevation, mitigation reconstruction, and VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 FEMA proposes to implement the FFRMS by adopting the flexible framework identified in Executive Order 11988, as amended by Executive Order 13690, in its entirety, instead of mandating a particular approach in its regulations. Under this proposal, FEMA would provide additional guidance (more readily capable of revisions and updates) that addresses which approach FEMA would generally use for different types of actions and how FEMA would tailor its application of the various approaches depending on the type and criticality of the action, while also considering the availability of actionable data, costs, and equity. Consistent with Executive Order 11988 as amended by Executive Order 13690 and the Revised Guidelines, proposed § 9.7(c)(1)(iii) would allow FEMA to except from the FFRMS an action that is in the interest of national security, an emergency action, or a mission-critical requirement related to a national security interest or an emergency action. For example, if FEMA proposed to construct an underground bunker at one of its locations for national security reasons, to require the bunker to be elevated pursuant to the FFRMS could run contrary to the purpose of the bunker. It is important to note that an exception to using the floodplain for actions subject to the FFRMS under any of the reasons listed in this section does not exempt the action from the requirements of part 9 and Executive Order 11988 altogether. Instead, if one of FEMA’s actions were excepted under this provision, FEMA would still be required to apply the appropriate floodplain established by proposed § 9.7(c)(3). FEMA does have the authority to exempt certain actions from any application of the requirements of Part 9 and Executive Order 11988, as amended, and those actions which are exempted are described in current §§ 9.5(c) and (e). In proposed § 9.7(c)(2), consistent with existing requirements, FEMA proposes that if FEMA determines that the action is not an action subject to FFRMS, the proposed action would be evaluated using, at a minimum, the 1 percent annual chance floodplain for non-critical actions and, at a minimum, the 0.2 percent annual chance floodplain for critical actions. In proposed § 9.7(c)(3), FEMA proposes to focus the analysis to establish the floodplain and corresponding elevation using the best dry floodproofing actions under FEMA’s Hazard Mitigation Assistance programs comply with the proposed FFRMS policy. PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 available data and proposes that the floodplain and corresponding elevation determined using best available data must be at least as restrictive as FEMA’s regulatory determinations under the National Flood Insurance Program. Current § 9.7(c)(1) requires FEMA to first consult the FIRM, FBFM, and FIS which ends the analysis if those ‘‘detailed’’ products are available. There are cases where FIRM, FBFM, and FIS are available for an area but do not provide flood elevations, 0.2 percent annual chance floodplain information, or other floodplain information required. The proposed changes allow FEMA to seek additional information even when a ‘‘detailed’’ product is available at a location. If those ‘‘detailed’’ products are not available, FEMA will then consult the FHBM. If that information is insufficient FEMA will seek other data as part of the floodplain and elevation analysis. FEMA proposes to update this paragraph to reflect the Revised Guidelines’ focus on the use of the best available information. While FEMA still intends to rely on FEMA products such as FIRMs, FBFMs, FISs, and FHBMs, FEMA understands that these products do not always provide all information needed for some locations and do not currently account for future conditions and other factors that better inform the floodplain determination for projects under part 9. In obtaining the best available information, FEMA is proposing to consider other information from FEMA, as well as information in a proposed updated list of sources to reflect those sources suggested in the Revised Guidelines, as well as sources the agency knows may have relevant additional information. Some of the proposed changes to this list are updates to reflect current titles, while other changes reflect newly available resources. Finally, if none of these sources have the information necessary to comply with part 9, the Regional Administrator may seek the services of a professional registered engineer. FEMA proposes clarifying edits in paragraph (d)(3) and (d)(4) of § 9.7. I. Section 9.8—Public Notice Requirements FEMA proposes clarifying edits in § 9.8(a) and § 9.8(c)(1)–(c)(4) for readability. FEMA is adding the use of the internet for notice in this process by inserting § 9.8(c)(4)(i) to allow for notice through the internet or another comparable method. This proposed change would codify FEMA’s current practice to incorporate notices on the agency’s website at www.fema.gov in connection with specific disaster relief E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 efforts. Currently, notices regarding other FEMA programs may be posted on other websites, such as websites belonging to state or local governments, but these notices are not currently posted on www.fema.gov if not tied to a specific disaster. This revision would allow FEMA to further expand the use of www.fema.gov for notices for other programs not tied to a specific disaster. By incorporating the use of the internet through FEMA’s website and other sites as a means to provide notice, FEMA is seeking to modernize this part for consistency with current practice and to increase public visibility and accessibility of those notices that are not current posted on www.fema.gov. FEMA proposes other edits to the notification process in paragraph (c)(4) to eliminate outdated terminology and incorporate newsletters into the ‘‘other local media’’ category as a means of providing notice to potentially interested persons. In addition to incorporating the use of the internet for notice, FEMA proposes to clarify in § 9.8(d)(5)(ii) that FEMA may include in the notice a link to access a map of the area of the proposed action. A link may help the public more easily access information associated with the notice. FEMA also proposes to correct a typographical error. FEMA proposes other clarifying edits in § 9.8(c)(5)(i)–(iv) for readability. J. Section 9.9—Analysis and Reevaluation of Practicable Alternatives FEMA proposes clarifying edits in § 9.9(a) for readability. In § 9.9(b)(2), FEMA proposes to add the requirement to use natural systems, ecosystem processes, and nature-based approaches, where possible, in the development of alternatives to the proposed actions in or affecting the floodplain and/or wetland. Under § 9.9, FEMA must make a preliminary determination (Step 3 of the 8-step process) as to whether the floodplain is the only practicable location for the action. Part of that analysis involves considering whether there are alternative actions that serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by a floodplain. Under this proposed rule, during the course of the aforementioned analysis, FEMA would consider whether an alternative using natural systems, ecosystem processes, and nature-based approaches might have less of an effect on the floodplain. For consistency with the Revised Guidelines and the agency’s use of the term in the current regulations, FEMA is proposing to add the cost of technology to the list of economic factors that FEMA considers under § 9.9(c)(3). By VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 adding technology to this list, FEMA would clarify that the cost of technology is a factor to consider in determining practicability of alternatives and also emphasize the importance of the cost of technology and technological advancements in the analysis. FEMA is proposing to add § 9.9(c)(5) to reflect consideration of agency authorities in the practicability analysis, again for consistency with the Revised Guidelines. Additionally, FEMA is proposing clarifying edits throughout paragraph 9.9(c) for readability. FEMA proposes to remove paragraph (d)(2) of § 9.9, which prohibits FEMA from locating a proposed critical action in the 500-year floodplain, as the language is redundant given the proposed changes to paragraph (d)(1) which explain that FEMA would utilize § 9.7(c) when making the floodplain determination. As noted above, FEMA would determine whether the project meets the new definition of an ‘‘Action subject to the FFRMS’’ in proposed § 9.4. If FEMA determined that the project is an action subject to the FFRMS, then FEMA would establish the floodplain by using one of the approaches detailed in proposed § 9.7(c)(1) (which requires the applicant to consider whether an action is a critical action). If FEMA determined that the project is not an action subject to the FFRMS, then FEMA would use, at a minimum, the 1 percent annual chance floodplain for non-critical actions and the 0.2 percent annual chance floodplain, at a minimum, for critical actions as explained in proposed § 9.7(c)(2). After FEMA completed that process, it would apply the appropriate floodplain to the remainder of the 8-step process. Therefore, FEMA proposes to revise paragraph (d)(1) to specify that the ‘‘floodplain’’ is the floodplain established in § 9.7(c), eliminate current paragraph (d)(2) as it is redundant, and redesignate current paragraph (d)(3) as new paragraph (d)(2). FEMA proposes clarifying edits in paragraphs (e)(1)(i), (e)(1)(iii), and (e)(1)(iv) for readability and to eliminate specific references to the Orders in paragraphs (e)(3) and (e)(4). FEMA proposes to eliminate paragraph (e)(6). Paragraph (e)(6) of § 9.9 prohibits FEMA Resilience from providing a new or renewed contract for flood insurance for a structure if the Regional Director has chosen the ‘‘no action’’ option provided for in § 9.9(e)(5). This provision was temporarily suspended via a November 28, 1980, Federal Register Notice of intent not to enforce certain regulation concerning denial of flood insurance coverage. (45 FR 79069). FEMA ultimately did not implement this PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 67895 provision and does not intend to do so now; therefore, FEMA is proposing to remove it from the regulation. K. Section 9.10—Identify Impacts of Proposed Actions FEMA proposes minor clarifying edits in paragraphs (a), (b), and (d) for readability and seeks to remove the reference to contacting regional offices of U.S. Fish and Wildlife Service from section 9.10(c) as this process will be further detailed in guidance. FEMA also proposes edits to paragraph 9.10(d)(2) for consistency with edits made in section 9.4 defining the natural and beneficial values of floodplains and wetlands. L. Section 9.11—Mitigation FEMA proposes minor clarifying edits in paragraph (a). In paragraph (c)(1), FEMA proposes to clarify that the minimization provisions require the agency to minimize potential harm to lives and the investment at risk from flooding based on flood elevations established by § 9.7(c). This change first helps further explain that the potential harm to be minimized must be from flooding and that the potential harm is based on flood elevations established by § 9.7(c). This proposed revision removes the reference to the base flood and the 500-year flood from paragraph 9.11(c) and instead references the floodplain as established in § 9.7(c) consistent with other changes in the regulation to reflect the revised process described in § 9.7 when making the floodplain determination. In paragraph (d), FEMA proposes to revise the text to reflect that the minimization standards are applicable to all of FEMA’s grant programs. Currently, § 9.11(d) states that the minimization standards are applicable to only FEMA’s implementation of the Disaster Relief Act of 1974. Some of FEMA’s grant programs are authorized under other legislation. In paragraphs (d)(2) and (d)(3)(i), FEMA proposes to specifically require elevation of the lowest floor of a structure to the floodplain established under § 9.7(c) during the construction of new or substantially improved structures. As described above, FEMA must follow the revised process described in § 9.7 when making the floodplain determination. FEMA must determine whether the project meets the new definition of an ‘‘action subject to the FFRMS’’ in § 9.4. The definition of ‘‘action subject to the FFRMS’’ is an action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility. E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67896 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules ‘‘Substantial Improvement’’ as defined in § 9.4 includes all actions taken to address substantial damage to a structure or facility. Because paragraphs (d)(2) and (d)(3)(i) specifically reference new construction or substantial improvement, FEMA must establish the floodplain in these circumstances by using one of the FFRMS approaches (which require the applicant to consider whether an action is a critical action) as detailed in § 9.7(c). FEMA is proposing to remove current § 9.11(d)(3)(ii) as it becomes redundant with changes proposed to § 9.11(d)(3)(i) and redesignate current § 9.11(d)(3)(iii) as new § 9.11(d)(3)(ii). FEMA guidance can be consulted for technical information on elevation methods for new construction and the retrofitting of existing structures with various types of foundations.91 FEMA proposes to revise current paragraph (d)(3)(iii) to eliminate references to the 100-year or 500-year level consistent with other proposed changes in the regulation to avoid confusion around the use of these terms given the revised process for the floodplain analysis set forth in proposed § 9.7(c). FEMA is also proposing clarifying edits in current paragraph (d)(3)(iv) consistent with proposed changes to § 9.4 definitions by changing ‘‘Federal Insurance Administration’’ to reflect organizational changes to ‘‘FEMA Resilience’’ and other technical citation edits as well as replacing ‘‘FIRM’’ with ‘‘FEMA regulatory product’’ consistent with other proposed changes. In paragraph (d)(4), FEMA proposes minor clarifying edits and to add clarifying terminology consistent with changes proposed to § 9.4 definitions of the base flood and base floodplain. FEMA also proposes to provide that encroachments or other development within a floodway that would result in an increase in flood elevation, rather than in flood levels, are prohibited. FEMA also proposes two further changes to help better address the concern of flood elevation increase because of such development. As revised, paragraph (d)(4) would provide that the increase in elevation must not be more than the amount designated by the NFIP or, as indicated later in this paragraph, the community, whichever is most restrictive. The current designated height of the elevation is no more than one foot at any point, which effectively restates the existing minimum standard 91 A catalogue of FEMA Building Science Branch publications, including descriptions of available publications for natural hazards can be accessed at https://www.fema.gov/emergency-managers/riskmanagement/building-science/publications (last accessed July 12, 2023). VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 under the NFIP.92 FEMA’s proposed changes would remove reference to a one-foot standard, because this minimum standard is subject to change under the NFIP.93 Further, FEMA’s proposed changes would provide that the appropriate elevation is set by either the NFIP or the community, whichever results in the more restrictive standard. FEMA proposes to update terminology from ‘‘disaster proofing’’ to ‘‘flood proofing and/or elevation’’ for clarity in paragraph (d)(9). For the same reasons as stated above for §§ 9.11(d)(2) and (d)(3)(i), in paragraph (d)(9), FEMA proposes to remove the reference to the base flood or, in the case of critical actions, the 500-year flood from paragraph (d)(9) and instead reference the floodplain as established in § 9.7(c) when describing the requirements for the replacement of building contents, material and equipment. FEMA proposes to remove § 9.11(e) as the section’s requirements are no longer required. At the time § 9.11(e) was promulgated, FEMA had discrepancies in coastal studies data that resulted in an underrepresentation of flood risk in some areas and this paragraph was meant to address the issues associated with those data discrepancies.94 Since 1981, FEMA has updated the FIRMs for all coastal high hazard areas to address the earlier data issues and the program no longer maintains these special procedures for insurance or floodplain improvements. The V Zone Risk Factor Rating Form was discontinued by the agency on October 16, 2019, based on a lack of use 95 and, given the effectiveness of FEMA’s updated data resolving the initial discrepancies, resulted in little to no impact on an individual’s actual flood insurance premium. Given the updated data available and FEMA’s reliance on the best available information to determine the floodplain in § 9.7(c), this paragraph is no longer relevant. Additionally, the provision found in paragraph (e)(4) was temporarily suspended via a November 28, 1980, Federal Register Notice of intent not to enforce certain regulation concerning denial of flood insurance coverage. (45 FR 79069). FEMA ultimately did not implement this provision and does not intend to do so now. Therefore, FEMA proposes to remove it from the regulation, and redesignate paragraph (f) as paragraph (e). 92 44 CFR 60.3. 42 U.S.C. 4102(c). 94 See 45 FR 59520, 59525 (Sept. 9, 1980). 95 See 85 FR 31202 (May 22, 2020) and https:// nfipservices.floodsmart.gov/sites/default/files/w19014%20.pdf (last accessed July 2023). 93 See PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 M. Section 9.12—Final Public Notice FEMA proposes a minor edit to paragraph (d)(6) to update language to reflect current program terminology. Specifically, FEMA proposes to change the term ‘‘Damage Survey Report’’ to ‘‘project application’’ to reflect the current document utilized by FEMA’s grant programs. N. Section 9.13—Particular Types of Temporary Housing FEMA proposes to revise this section to clarify that this part applies to certain specified types of temporary housing at private, commercial, and group site. Currently, this section only applies to private and commercial sites. FEMA is proposing to incorporate group sites into this section so that all of the temporary housing requirements under this part will fall within the same section, promoting ease of use and consistency in the application of the relevant steps of the 8-step process to each type of temporary housing site. Group sites are generally a more intensive action for the agency, as they involve the development of a new site on which to place housing and these actions are currently subject to the normal 8-step process required for most FEMA actions under current § 9.13(b) and (c)(2). However, FEMA’s experience with group sites has demonstrated the importance of applying the considerations of Steps 3 (practicable alternatives) and 5 (minimization) to group sites as outlined in proposed § 9.13, rather than the full 8-step process. Group sites share the same need for expedited review as private and commercial sites given the urgent need for shelter after a disaster and the same consideration of other factors such as cost effectiveness, potential flood risk to a temporary housing occupant in a temporary housing situation, and a location close enough to the occupant’s former residence to make it possible for the occupant to recover quickly. Given these same considerations, FEMA is proposing to add group sites to coverage under this section. See proposed §§ 9.13(a) and (b). Throughout this section, FEMA proposes to update the terminology from ‘‘mobile home’’ to ‘‘temporary housing unit’’ 96 and to eliminate references to ‘‘other readily fabricated dwellings’’ that are redundant as a result of the change to clarify the types 96 Temporary Housing Unit is defined as ‘‘[a] house, apartment, cooperative, condominium, manufactured home, or other dwelling acquired by FEMA and made available to eligible applicants for a limited period of time.’’ See https:// www.fema.gov/sites/default/files/documents/fema_ iappg-1.1.pdf (last accessed July 28, 2023). E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules of temporary housing units covered under this section. The statutes and regulations associated with the Individual Assistance Program use the term ‘‘temporary housing unit.’’ FEMA believes this proposed change will help eliminate confusion. Examples of temporary housing units include a readily fabricated dwelling such as recreational vehicles, manufactured housing units, travel trailers, yurts, and tiny houses.97 In proposed § 9.13(c)(1), FEMA proposes to specifically designate the use of the 1 percent annual chance (base) floodplain when evaluating whether to take a temporary housing action. In proposed § 9.13(c)(3), consistent with the aforementioned proposed changes to § 9.13(c)(1), FEMA proposes to revise the prohibition against housing an individual or family in the ‘‘floodplain’’ (which applies unless Regional Administrator has complied with the provisions in proposed § 9.9 to determine that the site is the only practicable alternative), by instead referring to the ‘‘1 percent annual chance (base) floodplain.’’ FEMA proposes to designate the 1 percent annual chance (base) floodplain as the floodplain of choice when taking temporary housing actions for several reasons: (1) the temporary nature of the assistance means there is not an opportunity to improve community resilience or floodplain management long term, which is the intent of the FFRMS; (2) expansion of the base floodplain to the FFRMS floodplain and prohibiting placement of temporary housing in the FFRMS floodplain may result in the temporary housing of individuals and families many miles from their homes, which is not practicable; and (3) it is not always feasible to elevate mobile homes when they are being placed as temporary housing. Consistent with the proposed change to incorporate group sites into this section, FEMA proposes to add § 9.13(c)(4) to clarify that Step 4 of the 8-step process continues to apply to group sites. As explained above, group sites are generally a more intensive action for the agency, as they involve the development of a new site on which to place housing. By adding this paragraph, FEMA is proposing to ensure that step 4 of the 8-step process is applied to group sites in accordance with § 9.10 and that the effects of proposed actions are identified. FEMA 97 Tiny homes are typically between 100 and 400 square feet and rarely exceed 500 feet. See https:// www.realtor.com/advice/buy/what-is-a-tiny-house/ (last accessed July 12, 2023). VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 is making this proposal because developing a new group site frequently involves development of infrastructure that could result in future development in the floodplain, to a greater extent than actions taken in existing private or commercial sites. In the 2016 NPRM, FEMA proposed the addition of language to current paragraph (d)(4)(i) to require that actual elevation levels of temporary housing units would be based on manufacturer specifications and applicable Agency guidance. Specifically, the 2016 NPRM stated that it was not always practicable to elevate mobile homes to a given level and that the proposed rule would require that such homes be elevated to the fullest extent practicable. 81 FR at 57419. This NPRM does not seek to add that language because the current regulatory text in paragraph (d)(4)(i) requires these homes to be elevated ‘‘to the fullest extent practicable.’’ FEMA believes that what constitutes the fullest extent practicable will vary by location, temporary housing unit type, and a range of other variables not suited for comprehensive identification in the regulation. While FEMA’s current practice is to consider manufacturer specifications, the agency is no longer seeking to codify that sole variable into the regulation and will instead clarify the variables to consider in agency procedures. FEMA seeks to clarify that the agency will not temporarily place a housing unit unless the placement is consistent with the criteria of the NFIP or any more restrictive Federal, State, or local floodplain management standards. The NFIP requires that these units be elevated to at least the base flood elevation, absent a variance.98 See proposed § 9.13(c)(5)(ii). FEMA also proposes to substitute ‘‘44 CFR parts 59–60’’ for ‘‘44 CFR part 59 et seq.’’ (which currently appears in paragraph 9.13(d)(4)(ii), to clarify the specific sections of the regulations the language references. In addition, although not directly stated in current part 9, it is current FEMA practice to complete Step 8 for temporary housing units. FEMA seeks to add proposed § 9.13(c)(7) to clarify that the agency must complete Step 8, ensuring that the requirements and decision-making process are fully integrated into the provision of temporary housing and current practices are codified in regulation. In proposed § 9.13(d)(2), FEMA also proposes to require the elevation of temporary housing units to at least the level of the FFRMS floodplain if FEMA intends to permanently install a unit 98 44 PO 00000 CFR 60.3. Frm 00029 Fmt 4701 Sfmt 4702 67897 that the agency is selling or otherwise disposing of that is located in the FFRMS floodplain.99 This proposal is consistent with other proposed changes in section 9.4 to the definition of new construction, which now includes permanent installation of a temporary housing unit, and the definition of an action subject to the FFRMS as new construction is subject to the FFRMS. Any sale or disposal of a temporary housing unit that includes permanent installation of a temporary housing unit for residential purposes no longer constitutes temporary housing; FEMA believes that any unit that is permanently installed should be protected to the fullest extent practicable, because the probability that a flood will occur within the floodplain is greater over the anticipated lifespan of a permanent structure than a temporary structure, and so the benefit of hazard mitigation is greater to the permanent structure than the temporary structure. Further, any permanent installation of a temporary housing unit would also be required meet NFIP requirements of residential structures by elevating the lowest floor to or above the base flood elevation, absent a variance.100 See proposed § 9.13(d)(2). The proposed requirement to elevate to the FFRMS floodplain when permanently installing these units as part of a sale may result in fewer temporary housing units being sold by FEMA as it will not always be practicable or feasible to elevate a temporary housing unit to the FFRMS requirement. However, this condition is not the only condition placed on the sale to applicants of temporary housing units that will be permanently installed. FEMA already places eligibility and sale conditions on these units to applicants. The sale of a temporary housing unit to an applicant currently requires the unit to be sold only to an individual or household occupying the unit, and requires that the site of the permanent placement comply with local codes and ordinances, and also complies with 44 CFR part 9.101 FEMA also places a condition of sale on these units to include requirements for those units 99 By contrast, temporary housing units placed in the floodplain for the purposes of temporary housing must meet the criteria of the NFIP or any more restrictive standards unless the community has granted a variance. See proposed § 9.13(c)(5)(ii). 100 44 CFR 206.118(a)(1)(i) and (iii) requires, as a condition of sale, the applicant to agree to purchase flood insurance on the unit (if it is or will be in a special flood hazard area) and have a site that complies with 44 CFR part 9. The NFIP requires communities to elevate manufactured housing units to or above the base flood elevation. See 44 CFR 60.3(c)(6)(iv) and 44 CFR 60.3(c)(12)(i). 101 See 44 CFR 206.118(a)(1)(i). E:\FR\FM\02OCP2.SGM 02OCP2 67898 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules located in a special flood hazard area to purchase flood insurance.102 Given the current conditions that apply to the sale of these units to applicants, FEMA does not believe the additional FFRMS floodplain requirement will overly burden applicants as FEMA currently intends to cover the costs of any additional elevation required for permanent installation when selling to an applicant. Because this permanent installation constitutes a permanent housing solution for applicants as opposed to a temporary one lasting 18–24 months on average,103 the agency believes these mitigation actions are necessary to minimize the long-term risk to human health, safety, and welfare associated with flooding and to meet the agency’s obligation to lessen the impacts of our actions that relate to development in and occupancy of the floodplain. These units are generally sold for permanent installation in communities where individuals lack other permanent housing options through no fault of their own.104 Not requiring the higher resilience standard for these units would make the units more susceptible to future flood risks. Permanent installation of these units by sale to an applicant increases the housing stock in the community and FEMA seeks to ensure that new housing in these communities meets these higher resilience standards. Communities with less resilient housing become more susceptible to future flood risks. A more resilient and equitable nation requires that resilience standards be applied to protect life, health, and safety of all communities. FEMA believes the FFRMS requirement for permanent installation of housing units will improve community resilience and floodplain management long term, consistent with the intent of the FFRMS. By promoting safer permanent housing placement, FEMA can mitigate future flood risks particularly for those individuals and communities that have been historically disadvantaged. Additionally, FEMA is proposing to change the paragraph structure of § 9.13. 102 See 44 CFR 206.118(a)(1)(iii). Robert T. Stafford Disaster Relief and Emergency Assistance Act § 408(c)(1)(B)(iii), 42 U.S.C. 5174(c)(1)(B)(iii), 44 CFR 206.110(e), and Individual Assistance Program Policy and Guide (IAPPG) Version 1.1, pgs. 41, 98, found at https:// www.fema.gov/assistance/individual/policyguidance-and-fact-sheets (last accessed July 12, 2023). 104 See Individual Assistance Program Policy and Guide (IAPPG) Version 1.1, pg. 119, found at https://www.fema.gov/sites/default/files/ documents/fema_iappg-1.1.pdf (last accessed July 12, 2023). lotter on DSK11XQN23PROD with PROPOSALS2 103 The VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 No substantive changes are intended as a result of this restructuring. O. Section 9.14—Disposal of Agency Property FEMA proposes minor clarifying edits consistent with other proposed changes throughout this part. In § 9.14(b)(4), FEMA proposes clarifying edits consistent with other changes in the regulatory text, replacing the term ‘‘support’’ with the term ‘‘support of floodplain and wetland development.’’ These edits would be made for clarity and would be consistent with the proposed definition of ‘‘Support of Floodplain and Wetland Development’’ found in proposed § 9.4. As previously explained, this clarification helps further delineate the agency’s requirement to consider the impacts to floodplains and wetlands and how decisions made in this part could directly or indirectly result in increased development in a floodplain or wetland. These edits would help eliminate confusion regarding the use of the term ‘‘support’’ in the regulatory text and ensure that actions taken under part 9 were done with the intent not to support floodplain and wetland development consistent with Executive Order 11988, as amended, and Executive Order 11990. In paragraph 9.14(b)(5), which currently directs FEMA to focus on minimization through floodproofing and restoration of natural values where improved property is involved, FEMA proposes to also require consideration of elevation. Elevation may be an appropriate focus of the minimization analysis depending on the nature of the improved structure; the current text’s emphasis on floodproofing and restoration of natural values, to the exclusion of elevation, is unwarranted. FEMA proposes to make changes to paragraph (b)(7)(ii) to eliminate reference to the ‘‘flood fringe’’ and instead explain this concept in terminology more consistently used throughout part 9. This change would reduce the overall technical terminology used in the regulation, making it easier for stakeholders to understand the key concepts around flood risk and the application of part 9. P. Section 9.16—Guidance for Applicants FEMA proposes clarifying edits in § 9.16(b) to eliminate examples. The examples provided in current paragraph (b) do not necessarily reflect current agency terminology and, rather than limit the agency to current nomenclatures, FEMA proposes to eliminate references to the examples PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 here. FEMA proposes edits in paragraph (b)(2) to clarify that the decision-making process set out in § 9.6 relates to the determination of whether to take action in floodplains or wetlands. FEMA is proposing this change to clarify that the decision made in § 9.6 is the decision to act (or not take action) in the floodplain or wetland, not a decision generally on eligibility for assistance. FEMA recognizes that the decision to take no action may result in no assistance being provided, but that decision is not the only decision point in § 9.6. FEMA also proposes additional clarifying edits in § 9.16(b)(3)–(5) and § 9.16(c) for readability. Q. Section 9.17—Instructions to Applicants FEMA proposes clarifying edits throughout this section for readability. Additionally, in paragraph (a), FEMA proposes to add ‘‘as amended’’ to reflect amendments to Executive Order 11988 and in paragraph (b), FEMA proposes to update the reference to the 1978 Guidelines to the full title for the Revised Guidelines. FEMA also proposes additional clarifying edits in § 9.17(b)(3)–(5) to stay consistent with § 9.16(b)(3)–(5). R. Section 9.18—Responsibilities FEMA also proposes clarifying edits throughout this section, including updating the references to the Assistant Administrator to refer to FEMA Resilience as the office within FEMA that will review Regional Administrator decisions that are appealed and adding ‘‘as amended’’ to reflect amendments to Executive Order 11988. S. Appendix A to Part 9—DecisionMaking Process for E.O. 11988 FEMA proposes to remove ‘‘Appendix A to Part 9—Decision-Making Process for E.O. 11988’’ in its entirety. The graphic is no longer accurate. Further, given the amendments to Executive Order 11988 and the Revised Guidelines, there is no utility to including the appendix in regulation. Instead, FEMA would include a revised version of the appendix, including the new decision-making process and the definition of the floodplain, in its policy implementing the FFRMS. V. Comments Received Associated With Part 9 Revisions As explained above, FEMA previously sought to revise part 9 to incorporate the FFRMS. On November 17, 2015, FEMA released for public comment FEMA’s Overview of FEMA’s Intent to E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 Implement the FFRMS (Intent).105 Continuing our commitment to an open, collaborative, stakeholder-focused process in implementing the FFRMS, FEMA shared this framework for public comment on FEMA’s website through December 17, 2015. FEMA received 12 comments in response to the Intent. Of the 12 comments received, 10 comments were supportive, 1 comment was opposed, and 1 comment was not germane.106 The 10 comments received in support of the Intent came from a variety of sources, including local governments, associations, environmental action organizations, and commenters that chose to reply in their private capacity. The adverse comment stated that the CISA would be ‘‘a means to extort money from citizens based on a junk science forecasts/models of which so called projections have been outrageously inaccurate.’’ The commenter did not provide any support for the statement. FEMA disagrees with the commenter’s assessment that Climate-Informed Science Approach (CISA) is based on ‘‘junk science forecasts/models.’’ Scientists compare models’ projections of historical climate trends to actual historical climate data to measure the confidence of the models’ abilities to accurately predict future climate conditions.107 Many peer reviewed studies of climate models have found in general that climate model simulations of historical global temperature and other climactic variables are comparable to the historical recorded observations of those variables.108 These studies provide confidence in accuracy of climate models’ projections of future climate conditions. Within the 10 supportive comments, the commenters provided suggestions and asked questions concerning FEMA’s proposed framework. FEMA took these comments and questions into consideration during the drafting process for this proposed rule. 105 Available on the public docket for FEMA– 2015–0006 at FEMA–2015–0006–0359. 106 The comments are available on regulations.gov under docket ID FEMA–2015–0006. 107 Risbey et al. 2014. Well-estimated global surface warming in climate projections selected for ENSO phase. ‘‘Nature Climate Change,’’ 4, 835–840, at https://www.nature.com/articles/nclimate2310 (last accessed July 12, 2023). 108 See Covey et al. 2003. An overview of results from the coupled model intercomparison project (CIMP). ‘‘Global and Planetary Change,’’ 37, 103– 133; and Cubasch et al. 2013. Introduction. In: ‘‘Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change’’ [Stocker et al. (eds)]. Cambridge University Press, Cambridge at 131. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 On August 22, 2016, FEMA issued a Notice of Proposed Rulemaking ‘‘Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management Standard.’’ 81 FR 57401. In response to the NPRM, FEMA received submissions from 78 commenters. Eighty percent of the comments were favorable. Favorable commenters noted the NPRM represented working ‘‘smarter, not harder,’’ and emphasized the importance of protecting taxpayer investments in areas that are vulnerable to recurring damage, considering future flooding from a sustainability point of view, and harmonizing Federal requirements with efforts already underway in States and local communities. FEMA also received comments that were unfavorable and suggestions for changes to the proposed rule. FEMA considered these comments and suggestions in drafting this new proposed rule. Specifically, FEMA is incorporating suggestions received to (1) resolve concerns in the definitions section by adding a definition for ‘‘actions subject to the FFRMS’’ and retaining the definition of ‘‘emergency actions’’ (as opposed to changing the defined term ‘‘emergency work,’’ as FEMA had proposed in 2016); (2) set the effective date of the rule’s changes and clarify that current Part 9, including use of the base floodplain (or 500-year floodplain for critical actions), would still apply to actions that are in the planning or development stage or undergoing implementation as of the effective date of the final rule revising part 9 while only new actions would be subject to revised part 9 ensuring the changes would not be applied to projects which have already been reviewed for compliance with Executive Order 11988 and may have incurred design expenses to meet the current floodplain management standards in § 9.5(a)(3); and (3) update § 9.7(c) to provide additional clarity in the floodplain determination process and incorporate additional relevant sources of available information for the floodplain determination. FEMA is also incorporating suggestions to ensure flexibility in the implementation of FFRMS while also leveraging the best available and actionable data to enhance resilience by utilizing the CISA where data is available and actionable and providing options for the use of the FVA or 0.2PFA depending on the type of action involved and data availability and actionability for each of the remaining approaches, while also addressing equity and cost concerns. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 67899 In April 2021, FEMA issued a Request for Information (RFI) on FEMA’s Programs, Regulations, and Policies. 86 FR 21325 (Apr. 22, 2021). The RFI sought input from the public on specific FEMA programs, regulations, collections of information, and policies for the agency to consider modifying, streamlining, expanding, or repealing in light of recent Executive Orders.109 FEMA issued two additional RFIs associated with the National Flood Insurance Program 110 in 2021. FEMA received comments related to 44 CFR part 9 as a result of each of these requests. FEMA received eight comments that discussed the FFRMS. One comment suggested confusion exists between the FFRMS and the floodplain management standards under the National Flood Insurance Program. The remaining seven comments were supportive of implementing the FFRMS and/or incorporating the FFRMS into the National Flood Insurance Program’s floodplain management standards to increase resilience for communities. While changes to the floodplain management standards are outside this scope of this rulemaking, FEMA is considering a rulemaking to revise the NFIP minimum standards and will assess the expression of support from these comments in that future effort. VI. Regulatory Analyses A. Executive Order 12866, Regulatory Planning and Review & Executive Order 13563, Improving Regulation and Regulatory Review Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and 109 See Executive Order 13985, ‘‘Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,’’ 86 FR 7009 (Jan. 25, 2001); Executive Order 13990 ‘‘Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,’’ 86 FR 7037 (Jan. 25, 2021); and Executive Order 14009, ‘‘Tackling the Climate Crisis at Home and Abroad,’’ 86 FR 7619 (Feb. 1, 2021). 110 ‘‘Request for Information on the National Flood Insurance Program’s Community Rating System,’’ 86 FR 47128 (Aug. 23, 2021) and ‘‘Request for Information on the National Flood Insurance Program’s Floodplain Management Standards for Land Management and Use, and an Assessment of the Program’s Impact on Threatened and Endangered Species and Their Habitats,’’ 86 FR 56713 (Oct. 12, 2021). E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67900 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget (OMB) has designated this rule a ‘‘significant regulatory action’’ as defined under section 3(f) of Executive Order 12866, as amended by Executive Order 14094, but it is not significant under section 3(f)(1) because its annual effects on the economy do not exceed $200 million in any year based on the analysis conducted. Accordingly, OMB has reviewed it. This Regulatory Impact Analysis (RIA) provides an assessment of the potential costs, benefits, and transfer payments from the Updates to Floodplain Management and Protection of Wetlands Regulations to Implement the Federal Flood Risk Management Standard (FFRMS) Notice of Proposed Rulemaking (NPRM). This analysis does not attempt to replicate the regulatory language of the proposed rule or any other supporting documentation. FEMA urges the reader to review the NPRM before reviewing this report. The FFRMS is a flood resilience standard that is required for ‘‘Federally funded projects’’ and provides a flexible framework to increase resilience against flooding and to help preserve the natural values of floodplains and wetlands. A floodplain is any land area that is subject to flooding and refers to geographic features with undefined boundaries. FEMA proposes to incorporate the FFRMS into its existing processes, to ensure that the floodplain for an action subject to the FFRMS is expanded from the current base flood elevation to a higher vertical elevation and corresponding horizontal floodplain and that, where practicable, natural systems, ecosystem processes, and nature-based approaches would be considered when developing alternatives to locating Federal actions in the floodplain. Under current FEMA regulations set out in 44 CFR part 9, the floodplain is defined as the 100-year floodplain (1 percent annual chance) for non-critical actions and as the 500-year floodplain (0.2 percent annual chance) for critical actions. New construction or substantial improvement of structures located in a floodplain must be elevated to or above the 1 percent annual chance flood level or base flood elevation (BFE). For critical actions, the new construction or substantial improvement of structures must be elevated to or above the 0.2 percent annual flood level. Nonresidential structures may be appropriately floodproofed rather than VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 elevated to meet the applicable flood level. This rule proposes to implement the FFRMS policy in the expanded floodplain and codify implementation of the FFRMS policy in the current floodplain. FEMA has already implemented partial interim policies for PA and HMA, discussed in further detail below. Depending on the program, these programs apply the FFRMS policy either to the base floodplain, or to both the 100-year (base floodplain) and 500-year floodplain (for critical actions). Following guidance in OMB Circular A–4, FEMA assessed each impact of this rule against a preguidance baseline. The pre-guidance baseline is an assessment against what the world would be like if the relevant guidance (i.e., the partial interim policies for PA and HMA) had not been implemented. At the time this RIA was conducted, these partial implementation policies had been in place for less than 6 months, which is an insufficient period to provide adequate data for analysis. Therefore, FEMA was unable to complete an in-depth analysis of the impact of these interim policies. Accordingly, FEMA used a pre-guidance baseline for this proposed rule to measure the impacts of the rule against the world without the interim PA and HMA policies. Under the proposed rule, the Climate Informed Science Approach (CISA) would result in a flood elevation and corresponding horizontal expansion floodplain determination utilizing the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. CISA is FEMA’s preferred policy approach as FEMA believes it has the potential to be the best and most well-informed approach to building resilience in an equitable manner and ensuring a reduction in disaster suffering. CISA is the only approach that ensures projects are designed to meet current and future flood risks unique to the location and thus ensures the best overall resilience, cost effectiveness, and equity. The FFRMS considerations require FEMA to consider the type of criticality of the action involved, the availability and actionability of data, and equity concerns, as further explained in the current proposed supplementary policy. As actionable climate data are not currently available for all locations, FEMA is proposing the Freeboard Value Approach (FVA) and 0.2 Percent Annual Chance Flood Approach (0.2PFA) alternatives in the absence of actionable CISA data. Specifically: PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 • For critical actions: 111 FEMA proposes the higher of the +3-foot FVA floodplain or the 0.2PFA floodplain.112 Where the 0.2PFA data are not available, the +3-foot FVA will be utilized. • For non-critical actions: FEMA proposes the lower of the +2-foot FVA or 0.2PFA. The floodplain established by the FVA is the equivalent of the 1 percent annual chance floodplain (also known as the 100-year flood), plus either 2- or 3-ft of vertical elevation, as applicable based on criticality, and a corresponding increase in the horizontal extent of the floodplain. The increased horizontal extent will not be the same in every case. When the same vertical increase is applied in multiple actions subject to the FFRMS in different areas, the amount of the increase in the horizontal extent of the respective floodplains will depend upon the topography of the area surrounding the proposed location of the action. Projects that are located near the SFHA, but not in it, may be in the expanded FFRMS floodplain. Currently, there are no FEMA products depicting the boundary of the FFRMS floodplain. For this reason, FEMA and its interagency partners are developing various tools, like a FFRMS floodplain determination job aid and a web-based decision support tool, that would provide the agency a guide to determining the FFRMS floodplain and flood elevation levels to use for the projects. The web-based decision support tool would take into account the best available and actionable data. However, if this tool is not available to determine the FFRMS floodplain, FEMA would likely utilize the FFRMS floodplain determination job aid. FEMA believes that the benefits of the rule—quantified and unquantified— would justify its costs. Flooding is the most common type of natural disaster in the United States,113 and floods are expected to be more frequent and more severe over the next century due to the projected effects of changing conditions.114 115 The ocean has 111 A critical action is any activity for which even a slight chance of flooding would be too great. A non-critical action is any activity not considered a critical action. 112 For all projects in coastal areas, if the 0.2 percent annual chance flood elevations do not account for the effects of wave action, the appropriate FVA must be used to determine the FFRMS floodplain. 113 Department of Homeland Security. Natural Disasters. https://www.dhs.gov/natural-disasters (last accessed July 12, 2023). 114 Climate change impacts. National Oceanic and Atmospheric Administration. U.S. Department of Commerce. https://www.noaa.gov/education/ E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 warmed, polar ice has melted, and porous landmasses have subsided.116 Global sea level has risen by about 8 inches since reliable record keeping began in 1880. While a conservative scenario projects a sea level rise under a meter (or 3.3-ft) by 2100,117 118 it is projected to rise upwards of 8 feet by 2100 in an extreme scenario.119 Floods are costly natural disasters; between 1980 and 2021, the United States suffered more than $1.7 trillion (in 2021 dollars) in flood-related damages.120 This proposed rule would help protect Federal investments from future floods and would help minimize harm in floodplains by changing the standards used to determine future risk for FEMAfunded new construction and substantial improvement or to address substantial damage (i.e., ‘‘Federally funded projects’’). The requirements of this rule would apply to grants for projects funding the new construction, substantial improvement, or repair of substantial damage under FEMA programs such as Individual Assistance (IA), Public Assistance (PA), Hazard Mitigation Assistance (HMA) programs, and grants processed by FEMA’s Grants Programs resource-collections/climate/climate-changeimpacts (last accessed July 12, 2023). 115 1 Walsh, J., D. Wuebbles, K. Hayhoe, J. Kossin, K. Kunkel, G. Stephens, P. Thorne, R. Vose, M. Wehner, J. Willis, D. Anderson, S. Doney, R. Feely, P. Hennon, V. Kharin, T. Knutson, F. Landerer, T. Lenton, J. Kennedy, and R. Somerville, 2014: Ch. 2: Our Changing Climate. ‘‘Climate Change Impacts in the United States: The Third National Climate Assessment’’, J.M. Melillo, Terese (T.C.) Richmond, and G.W. Yohe, Eds., U.S. Global Change Research Program, 19–67. Doi.10.7930/J0KW5CXT. Page 20. https://nca2014.globalchange.gov/downloads/low/ NCA3_Climate_Change_Impacts_in_the_ United%20States_LowRes.pdf (last accessed July 12, 2023). 116 Id. at pg. 21. 117 Supplementary Material for the Regulatory Impact Analysis for the Supplemental Proposed Rulemaking, ‘‘Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review. Environmental Protection Agency (EPA). https://www.epa.gov/ system/files/documents/2022-11/epa_scghg_report_ draft_0.pdf. Page 36. Last accessed: September 14, 2023. 118 EPA uses the Framework for Assessing Changes To Sea-level (FACTS) and Building Blocks for Relevant Ice and Climate Knowledge (BRICK) sea-level rise models for their projections. 119 Payne, J., Sweet, W., Felming, E., Craghan, M., Haines, J., Hart, J., Stiller, H., Sutton-Frier, A., Kruk, M., 2018. Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, Volume I. Ch 8: Coastal Effects. National Climate Assessment. https://nca2018.globalchange.gov/ downloads/NCA4_Ch08_Coastal-Effects_Full.pdf. Page 329. Last accessed September 14, 2023. 120 U.S. billion-dollar weather and climate disasters. Climate.gov. https://www.ncei.noaa.gov/ access/billions/summary-stats/US/1980-2021 (last accessed July 12, 2023). Flood related damages are from flooding, severe storms, and tropical cyclones. Data are CPI adjusted. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 Directorate (GPD) (involving grants for preparedness activities). The primary focus of this analysis is to estimate the costs and benefits resulting from a higher vertical elevation and associated horizontal expansion of the floodplain for specific projects paid for with Federal funds. The expected impacts of this proposed rule primarily result from the cost for the increased elevation or floodproofing requirements of structures in the FFRMS floodplain. The majority of these costs would be funded by FEMA through several grant programs. For the grant programs that have a costshare requirement, FEMA grant recipients typically would bear about 25 percent of the elevation and floodproofing project costs. Additionally, FEMA expects to incur costs for administration of the proposed requirements, including training FEMA personnel. To estimate how many projects would be subject to the requirements of this rule, FEMA used historical PA, IA, and HMA data. First, FEMA estimated the number of past new construction, substantial improvement, or repairs to substantial damage projects were in the existing floodplain. Next, FEMA relied upon data from samples of floodplain expansion at varying levels of freeboard in inland and coastal areas to estimate an average percentage expansion of the floodplain under each of the three FFRMS approaches. FEMA then multiplied the expansion percentages by the estimated number of projects in the current floodplain to estimate the number of projects that would be in the expanded floodplain under each of the FFRMS approaches. To estimate the cost of the proposed elevation requirements, FEMA used reports from the National Flood Insurance Program (NFIP) to determine the increased cost per square foot associated with elevation and floodproofing. FEMA presents the costs as a range because of uncertainty about whether new construction projects would choose to floodproof or elevate. Finally, to present the total impacts of the proposed rule, FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for each of the programs, PA, IA, and HMA, as if each approach were the only FFRMS expansion option. This is because it is unknown exactly how many projects would be subject to the FVA, 0.2PFA, or CISA requirements under the proposed rule as this will continue to change with the addition of CISA data over time. Accordingly, FEMA estimated the costs of the proposed requirements for each of the approaches separately. This allowed FEMA to create a range for each PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 67901 approach. FEMA opted to use this methodology because it would allow FEMA to estimate the highest and lowest probable costs, transfers, and benefits associated with each of the FFRMS expansion options for each of the programs. FEMA examined the number of projects that would be subject to the proposed requirements in the first 10 years after the rule’s publication.121 FEMA’s analysis focused on the costs, benefits, and transfer payments (i.e., impacts on FEMA grants), that would result over a 50-year period from applying the requirements of the proposed rule to those projects, for a total period of analysis spanning 60 years. For example, if a structure is built in Year 10, the analysis covers 50 years of costs, benefits, and transfers for that structure starting in Year 10. However, if a structure is built in Year 11, that is outside of the first 10 years and so the analysis does not consider the costs, benefits, or transfers of the proposed requirements on that structure.122 The costs and transfers occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof those projects take place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are estimated over the 50-year useful life of the affected structures. The table below provides the estimated number of structures and facilities affected by the proposed rule over the first 10 years, assuming that each approach is the only expansion option. Structures, which are walled and roofed buildings, would comply with the proposed FFRMS through elevating or floodproofing to the required height. Facilities, which are any human-made or human-placed items other than a structure such as roads and bridges, would require different mitigation measures in order to 121 FEMA used an average of the number of affected projects during the prior 10-year period to estimate the average annual impacts of the future 10-year period. 122 If FEMA limited the analysis to only 10 years of impacts, it would consider all of the costs and transfers but only a small portion of the benefits from additional protection from flood events because the life of the structure is more than 10 years. After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. Accordingly, FEMA’s analysis focuses on the 50year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. E:\FR\FM\02OCP2.SGM 02OCP2 67902 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules comply with the increased resiliency standard of the proposed rule. The monetized impacts of this rule are representative of the floodproofing and elevation mitigation measures that would be required of structures. However, for reasons explained in more detail later, FEMA was unable to monetize the impacts of the rule for facilities. TABLE 5—ESTIMATED NUMBER OF STRUCTURES AND FACILITIES AFFECTED BY THE PROPOSED RULE IN YEARS 1–10 Structures FFRMS approach PA lotter on DSK11XQN23PROD with PROPOSALS2 FVA ................................................ 0.2PFA ........................................... CISA ............................................... IA 1,090 840 1,173 2,650 2,650 2,903 HMA 9,492 9,447 10,351 Total structures 13,232 12,937 14,427 Facilities PA HMA 20,120 20,120 20,120 841 841 841 Total facilities 20,961 20,961 20,961 Total projects 34,193 33,898 35,388 The proposed rule would increase construction and resiliency standards for FFRMS-affected structures and facilities. Implementing these standards, through higher vertical elevation or floodproofing, or other mitigation measures, is new economic activity that would result from this rule. Accordingly, these compliance activities are a cost of this rule. Using CISA as the primary approach, FEMA estimates that this proposed rule would affect 14,427 PA, IA, and HMA structures over the first 10 years, which would result in a total cost of between $142.1 million and $156.3 million, undiscounted, over the 60-year period of analysis. Discounted, the low estimate cost would be between $121.3 million and $100 million, using 3 and 7 percent respectively, with a 60-year annualized cost between $4.4 million and $7.1 million, using 3 and 7 percent. Discounted, the high estimate cost would be between $133.4 million and $109.9 million, using 3 and 7 percent respectively, with a 60-year annualized cost between $4.8 million and $7.8 million, using 3 and 7 percent respectively. These costs include additional training for FEMA staff as well as the total cost for additional elevation and floodproofing.123 FEMA was unable to quantify the cost for increased resiliency standards for an estimated 20,961 affected facility projects over the 10-year period of analysis. Additionally, FEMA was unable to quantify the cost for projects that may be diverted out of the floodplain, impacts to projects with existing basements, project delays, or forgone projects that may result from this rule. Because the cost to implement the proposed mitigation measures would be shared between FEMA and grant recipients according to the statutory cost share, there are also important distributional impacts. The majority of these costs would be borne by FEMA through additional grants (a transfer from FEMA to grant recipients). Grant recipients would bear the remaining cost. Using CISA as the primary approach, FEMA estimated that this proposed rule would affect 14,427 structures in the first 10 years, which would result in an increase in transfers from FEMA to grant recipients of between $109.2 million and $119.6 million, undiscounted, over the 60-year period of analysis. FEMA presents the change in transfer payments as a range because of uncertainty regarding whether new construction projects would be floodproofed or elevated. Discounted, the low estimate would be $93.2 million and $76.7 million, using 3 and 7 percent respectively, with a 60year annualized increase in transfers between $3.4 million and $5.5 million, at 3 and 7 percent respectively. Discounted, the high estimate would be $102.1 million and $84.0 million, using 3 and 7 percent respectively, with a 60year annualized increase in transfers between $3.7 million and $6.0 million, at 3 and 7 percent respectively. Grant recipients would be responsible for between $29.2 million and $31.7 million, undiscounted. Discounted, the low estimate would be $24.9 million and $20.5 million, using 3 and 7 percent respectively, with a 60-year annualized amount between $0.9 million and $1.5 million, at 3 and 7 percent respectively. Discounted, the high estimate would be $27.0 million and $22.2 million, using 3 and 7 percent respectively, with a 60year annualized amount of $1.0 million and $1.6 million, at 3 and 7 percent respectively. Not included in these estimates are the additional grants FEMA would provide, and additional costs recipients would incur for their portion of the cost share, for any of the elevation and floodproofing costs that FEMA was unable to monetize. FEMA was able to quantify benefits for a portion of projects affected by the rule. Using CISA as the primary approach, FEMA estimated that 1,173 PA Category E (Public Buildings and Contents) projects would be subject to the FFRMS in the first 10 years. Assuming a 59-inch Sea Level Rise,124 FEMA estimated that the present value benefits of one additional foot of freeboard for the 50-year useful life of projects undertaken during the 10-year period of analysis would be between $55.2 million and $62.0 million, undiscounted. The low estimate would range between $47.1 million and $38.8 million, discounted at 3 and 7 percent respectively, with a 60-year annualized benefit between $1.7 million and $2.8 million. The high estimate would range between $52.9 million and $43.5 million, discounted at 3 and 7 percent respectively, with a 60-year annualized benefit between $1.9 million and $3.1 million. These quantified benefits include estimates of avoided physical damage, avoided displacement, and avoided loss of function for the 1,173 PA Category E projects over their 50year useful life. In addition, unquantified benefits of this proposed rule include the reduction in damage to 13,254 affected IA and HMA structures and their contents from future floods, 20,961 PA and HMA facilities, potential lives saved, public health and safety benefits, reduced recovery time from floods, and increased community resilience to flooding. Tables 6 and 7 show the estimated low and high costs, transfer payments, and benefits by FFRMS approach (assuming each approach is the only expansion option used), as well as by program for FEMA’s primary approach. 123 To obtain total costs using tables 6 and 7, please see rows CISA Total (primary) (+5-ft) and FEMA admin. 124 For FEMA’s primary estimate, FEMA used 59 inches of SLR due to it being the closest SLR option to CISA+5-ft. CISA is the preferred approach for FFRMS if the data are available. Since 5 ft is equivalent to 60 inches (5 × 12 inches per foot), 59inch SLR would be the closest SLR option that FEMA has available to use for this portion of the analysis. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\02OCP2.SGM 02OCP2 67903 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules TABLE 6—SUMMARY OF 60-YEAR COSTS, TRANSFERS, AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED PROJECTS IN YEARS 1–10 [Low estimate, 2021$] 3% Discount rate Costs * 7% Discount rate Undiscounted Present value CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... FEMA Admin .................................................................... Not Quantified .................................................................. $138,393,786 102,794,460 1,421,690 48,908,310 61,994,588 53,397,625 3,741,680 $118,052,707 87,685,759 1,212,730 41,719,781 52,882,642 45,549,257 3,267,150 Annualized Present value $4,265,594 3,168,346 43,820 1,507,459 1,910,806 1,645,829 118,052 $97,202,003 72,198,527 998,537 34,351,150 43,542,402 37,504,256 2,776,613 Annualized $6,923,623 5,142,645 71,125 2,446,806 3,101,492 2,671,399 197,776 Not Estimated: Increased resiliency standard for approximately 20,961 facility projects over 10 years, Additional costs for Adding Requirements to Buildings with Basements, Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for floodproofing, and Project Delays and Forgone Projects. Transfer Payments from FEMA to Grant Recipients CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... 109,216,359 82,955,130 1,421,690 36,681,233 48,898,424 41,973,888 93,163,768 70,762,410 1,212,730 31,289,834 41,711,348 35,804,576 3,366,283 2,556,855 43,820 1,130,594 1,507,154 1,293,725 76,709,000 58,264,212 998,537 25,763,363 34,344,206 29,480,702 5,463,923 4,150,115 71,125 1,835,104 2,446,311 2,099,888 47,069,660 1,700,766 38,756,122 2,760,569 Benefits PA (CISA, primary) (+1-ft) ............................................... Not Quantified .................................................................. 55,180,000 Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of Critical Facilities, Reduction of Personal and Community Impacts. * FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. TABLE 7—SUMMARY OF 60-YEAR COSTS, TRANSFERS, AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED PROJECTS IN YEARS 1–10 [High estimate, 2021$] 3% Discount rate Costs * Present value CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... FEMA Admin .................................................................... Not Quantified .................................................................. lotter on DSK11XQN23PROD with PROPOSALS2 7% Discount rate Undiscounted $151,319,537 120,722,020 1,421,690 48,908,310 68,035,769 57,766,400 4,942,430 $129,078,635 102,978,331 1,212,730 41,719,781 58,035,891 49,275,911 4,291,414 Annualized Present value $4,663,993 3,720,912 43,820 1,507,459 2,097,008 1,780,484 155,061 $106,280,511 84,790,095 998,537 34,351,150 47,785,478 40,572,701 3,619,968 Annualized $7,570,278 6,039,533 71,125 2,446,806 3,403,723 2,889,962 257,848 Not Estimated: Increased resiliency standard for approximately 20,961 facility projects over 10 years, Additional costs for Adding Requirements to Buildings with Basements, Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for floodproofing, and Project Delays and Forgone Projects. Transfer Payments from FEMA to Grant Recipients CISA Total (primary) (+5-ft) ............................................. PA ............................................................................. IA ............................................................................... HMA .......................................................................... FVA Total ......................................................................... 0.2PFA Total .................................................................... VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 119,647,439 97,422,670 1,421,690 36,681,233 53,773,657 45,499,493 Frm 00035 Fmt 4701 102,061,693 83,103,514 1,212,730 31,289,834 45,870,019 38,811,991 Sfmt 4702 3,687,791 3,002,776 43,820 1,130,594 1,657,420 1,402,392 E:\FR\FM\02OCP2.SGM 02OCP2 84,035,355 68,425,607 998,537 25,763,363 37,768,366 31,956,941 5,985,773 4,873,903 71,125 1,835,104 1,657,420 2,276,268 67904 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules TABLE 7—SUMMARY OF 60-YEAR COSTS, TRANSFERS, AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED PROJECTS IN YEARS 1–10—Continued [High estimate, 2021$] 3% Discount rate Costs * 7% Discount rate Undiscounted Present value I Annualized Present value I Annualized Benefits PA (CISA, primary) (+1-ft) ............................................... Not Quantified .................................................................. 61,985,720 52,875,076 1,910,533 43,536,175 3,101,048 Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of Critical Facilities, Reduction of Personal and Community Impacts. * FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. lotter on DSK11XQN23PROD with PROPOSALS2 Quantified estimates of the benefits of this rule are available for only PA Category E projects. Tables 6 and 7 show that the total 60-year benefits for PA Category E projects in the first 10 years is $43.5 million (7 percent, high). This benefit is for adding one foot of freeboard, assuming a 59-inch SLR. Although the cost for PA Category E projects is $84.8 million, this cost represents 5 feet of freeboard (FEMA’s assumption for CISA).125 FEMA does not have data to quantify the benefits of additional freeboard and thus the quantified benefits represent only a portion of the increased risk reduction that would be achieved through this rule. Ensuring projects are built to the height necessary to avoid additional loss scenarios would provide additional unquantified benefits of avoided damages to the structure, decreased cleanup time and disruption to the community, and increased public health and safety. Moreover, FEMA’s use of CISA as its preferred approach would use the best available and actionable scientific data to tailor future flooding risk to each project ensuring that projects are built only to the height necessary and thus maximizing net benefits. Accordingly, FEMA believes the benefits of the rule—quantified and unquantified—would justify its costs. PA Projects FEMA provides PA grants to public and certain non-profit entities for rebuilding, replacement, or repair of public and non-profit structures and facilities damaged by disasters. PA projects that involve new construction, 125 Costs for the FVA may be a better comparison because they represent 2 or 3 feet of freeboard, depending on criticality. However, the number of projects using FVA and CISA differ, making such a comparison difficult. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 substantial improvement, or repairs to address substantial damage would be affected by this rule.126 FEMA divides its PA work into categories A–G. Projects funded under PA Categories C (Roads and Bridges), D (Water Control Facilities), E (Public Buildings), F (Utilities), and G (Parks, Recreational Areas, and Other Facilities) would be affected by the rule, but FEMA is only able to provide estimates of costs associated with Category E (Public Buildings). The reason FEMA was only able to provide estimates of costs for Category E projects is that Category E projects are for structures whereas projects funded under the remaining categories are for facilities. FEMA 44 CFR part 9 classifies projects as either structures or facilities. Under this proposal, a structure is a walled and roofed building, including mobile homes and gas or liquid storage tanks. Structures are subject to freeboard requirements to floodproof or elevate to a certain level above the BFE. Freeboard is the additional height above the BFE 126 FEMA’s PA program requires the use of the American Society of Civil Engineers Standard (ASCE) 24 that establishes minimum requirements for flood-related design and construction of structures that are located in whole or in part in flood hazard areas for PA projects. FEMA was unable to account for these additional baseline requirements since FEMA databases do not identify projects that were built to ASCE standards as these databases were not designed for data analysis. Additionally, these standards are based on the flood zone where the project is located, and FEMA was unable to identify the flood zones where individual projects were located. Instead, FEMA measures the effects of this rule against the current requirements of 44 CFR part 9. Accordingly, the estimated costs of compliance for PA structures may be overstated. See FEMA Recovery Interim Policy FP–104–009–11 Version 2, Consensus-Based Codes, Specifications and Standards for Public Assistance (December 2019) FEMA Recovery Interim Policy FP–104–009– 11 Version 2 (last accessed July 12, 2023) (referencing FEMA’s Public Assistance Program and Policy Guide, FP104–009–2 (April 2018)). PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 to which the structure is floodproofed or elevated for the purpose of reducing the risk of flood damage. In contrast, facilities are any humanmade or human-placed item other than a structure, such as roads and bridges. Facility mitigation measures are more varied and highly project-specific. For example, damage to roads during flood events can be caused by numerous events, such as erosion and scour, inundation by floodwater, or debris blockage. Likewise, the mitigation measures to address the damages can include a variety of approaches, such as installing low water crossings, increasing culvert size, installing a relief culvert, adding riprap to a road embankment, and many others.127 Due to the vast diversity of facilities, the highly project-specific nature of facilities projects, and numerous options for making them resilient, FEMA could not estimate the costs of improving flood resiliency of facilities. Where facilities are new construction, substantial improvement, or substantially damaged, they will incorporate minimization measures that will consider the FFRMS flood elevation. However, floodproofing and elevation to a specific height would likely not be appropriate. FEMA cannot estimate the cost due to the variability of those measures, which may include a variety of approaches, such as installing low water crossings, increasing culvert size, installing a relief culvert, and many others. Facilities that are already located in the Special Flood Hazard Area (SFHAs) or 0.2 percent annual chance floodplain for critical actions must take resilience measures 127 See FEMA, ‘‘FEMA B–797 Hazard Mitigation Field Book: Roadways,’’ (2010), available at https:// www.fema.gov/sites/default/files/2020-07/b797_ hazmit_handbook.pdf (last accessed July 12, 2023). E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules under current regulations. Based on 2012–2021 data, FEMA estimates that about 1,181 Category C projects, 131 Category D projects, 254 Category F projects, and 446 Category G projects might be affected by the FFRMS each year. For PA Category E projects, if FVA were the only expansion option, FEMA estimates the proposed rule would affect 1,090 projects over the first 10 years, which would result in a total cost of between $44.3 million and $53.2 million, undiscounted, over the 60-year period of analysis. The costs are incurred in the first 10 years of the 60year period because that is when the investment in those projects takes place. Accordingly, FEMA estimates average annual costs in years 1–10 would range between $3.9 million and $5.9 million. The average Federal cost share for PA projects from 2012–2021 was 80.7 percent. Accordingly, FEMA estimates that it would cover 80.7 percent of the cost to elevate or floodproof PA projects, for a total of between $3.2 million and $3.7 million in additional grants per year for the first 10 years. Grant recipients would bear the remaining cost of between $0.9 million and $1.0 million per year for the first 10 years. For PA Category E projects, if 0.2PFA were the only expansion option, FEMA estimates the proposed rule would affect 840 projects over the first 10 years, which would result in a total cost of between $39.5 million and $46.0 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years, FEMA estimates the average annual costs in years 1–10 would range between $3.2 million and $3.6 million. Using the historical average 80.7 percent Federal cost share, FEMA estimated that it would cover 80.7 percent of the cost to elevate or floodproof PA projects, for a total of between $3.2 million and $3.7 million in additional grants per year for the first 10 years. Grant recipients would bear the remaining cost 67905 approximately $0.8 million and $0.9 million per year for the first 10 years. For PA Category E projects, if CISA were the only expansion option, FEMA estimates the proposed rule would affect 1,173 projects over the first 10 years, which would result in a total cost of between $88.9 million and $101.8 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years, FEMA estimates the average annual costs in years 1–10 would range between $8.9 million and $10.2 million. Using the historical average 80.7 percent Federal cost share, FEMA estimated that it would cover 80.7 percent of the cost to elevate or floodproof PA projects, for a total of between $7.2 million and $8.2 million in additional grants per year for the first 10 years. Grant recipients would bear the remaining cost of between $1.7 million and $2.0 million per year for the first 10 years. TABLE 8—SUMMARY OF FFRMS PA CATEGORY E PROJECT COSTS AND DISTRIBUTIONAL IMPACTS BY APPROACH FVA Low Estimate: Annual cost (Years 1–10) ............................................................................................................. FEMA’s portion (grants from FEMA to recipients) ....................................................................... Recipients’ portion ........................................................................................................................ High Estimate: Annual cost (Years 1–10) ............................................................................................................. FEMA’s portion (grants from FEMA to recipients) ....................................................................... Recipients’ portion ............................................................................................................................... 0.2PFA CISA $3,990,396 3,220,250 770,150 $3,153,882 2,545,183 608,700 $8,887,014 7,171,820 1,715,190 4,594,514 3,707,773 886,740 3,590,760 2,897,743 693,020 10,179,589 8,214,928 1,964,660 Unquantified: Increased resiliency standard for structures that would affect an estimated 1,181 Category C projects, 131 Category D projects, 254 Category F projects, and 446 Category G projects per year. lotter on DSK11XQN23PROD with PROPOSALS2 IA Projects IA grants are provided to individuals who, as a direct result of a disaster, have necessary expenses and serious needs that they are unable to meet through other means. IA is divided into housing assistance and other needs assistance. Other Needs Assistance under IA provides a financial assistance for medical, dental, childcare, funeral, personal property, transportation, or other necessary expenses or serious needs. Under Housing Assistance, FEMA may provide temporary housing assistance (financial assistance or direct assistance in the form of temporary housing units); a capped amount of financial assistance for the repair or replacement of disaster-damaged private residences; and, in rare circumstances, financial or direct assistance to construct permanent or semi-permanent housing. The financial caps on housing repair or replacement assistance means IA VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 grants generally do not fund new construction or substantial improvements. However, there are two types that would be affected by this proposed rule: IA Permanent Housing Construction (PHC) projects and sales and disposal of temporary housing units (THUs). PHC is Federal assistance that FEMA provides under IA for the purpose of constructing permanent housing where alternative housing resources are unavailable or scarce. IA also includes the sale and disposal of THUs, such as mobile housing units and recreational vehicles, and THUs located in the FFRMS floodplain would be subject to the requirements of this rule. FEMA regulations prohibit the floodproofing of residential structures at or below the BFE: elevation is the only option.128 FEMA calculated the cost of elevating PHC structures, depending on 128 See 44 CFR 60.3. See also Floodproofing, FEMA, available at: https://www.fema.gov/glossary/ floodproofing (last accessed July 12, 2023). PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 FFRMS approach and location and type of project.129 FEMA subtracted certain costs that it determined to be part of the baseline. Specifically, numerous States and Localities have existing freeboard requirements that would result in elevation costs and benefits regardless of this rule, so costs and benefits for these areas were reduced based on existing requirements.130 129 Projects outside of the 1 percent annual chance floodplain, but below the required level would need to be elevated to the required level. These projects require elevations of different levels, depending on the structure’s current elevation. FEMA assumed that half of the projects would need to be elevated 1-ft and the other half or projects would need to be elevated 2-ft. This assumption was made because FEMA is unsure of the actual number of projects that would need to be elevated by 1-ft or 2-ft and so assumed that it would be an even proportion for each height. IA projects are all considered non-critical actions and would not require a 3-ft level. 130 FEMA estimated that about 43.75 percent of the U.S. population lives in areas with no existing freeboard requirements, while 37.63 percent of the E:\FR\FM\02OCP2.SGM Continued 02OCP2 67906 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules For IA, if FVA were the only expansion option, FEMA estimates the proposed rule would affect 2,650 structures over the first 10 years, which would result in a total cost of $511,822, undiscounted, over the 60-year period of analysis. The costs are incurred in the first 10 years of the 60-year period because that is when the investment in those projects takes place. Accordingly, FEMA estimates average annual costs of $51,182 in years 1–10. Since there is no cost share for IA, FEMA would fund the entire cost of elevating IA projects through grants. For IA, if 0.2PFA were the only expansion option, FEMA estimates the proposed rule would affect 2,650 structures over the first 10 years, which would result in a total cost of $511,822, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years of the analysis, FEMA estimates the average annual cost in years 1–10 is $51,182. Since there is no cost share for IA, FEMA would fund the entire cost of elevating IA projects through grants. For IA, if CISA were the only expansion option, FEMA estimates the proposed rule would affect 2,903 projects over the first 10 years, which would result in a total cost of $1,421,690, undiscounted, over the 60year period of analysis.131 Because these costs are incurred in the first 10 years of the analysis, FEMA estimates the average annual cost in years 1–10 is $142,169. Since there is no cost share for IA, FEMA would fund the entire cost of elevating IA projects through grants. TABLE 9—SUMMARY OF FFRMS IA PROJECT COSTS AND DISTRIBUTIONAL IMPACTS BY APPROACH FVA Annual cost (Years 1–10) ............................................................................................................ FEMA’s portion (grants from FEMA to recipients) ............................................................... Recipients’ portion ................................................................................................................ $51,182 51,182 0 $51,182 51,182 0 CISA $142,169 142,169 0 FEMA provides HMA grants to States, territories, Federally-recognized Tribes, and local communities for the implementation of hazard mitigation measures to increase resiliency to disasters. HMA projects relating to flood mitigation mainly include elevation of structures, floodproofing of structures,132 and acquisition of properties that are at a high risk of damage from flooding. HMA also funds various other types of projects, such as minor flood control, property acquisition, and generators, but FEMA was unable to estimate the potential costs associated with these projects because the manner in which each applicant meets the resiliency standards would be fact-specific and dependent upon the nature of the design and purpose of the project. Between 2010 and 2019, FEMA funded a total of 841 minor flood controls and generators projects, for an average of 84 such projects per year. Additional minor mitigation measures would have to be taken for these projects, if located in the expanded FFRMS floodplain. FEMA used data from HMA grant approvals for projects that include the elevation or floodproofing of structures from 2010–2019 and a multi-step process to estimate the range of costs for elevating or floodproofing these structures to the FFRMS.133 For HMA, if FVA were the only expansion option, FEMA estimates the proposed rule would affect 9,492 structures over the first 10 years, which would result in a total cost of $21.6 million, undiscounted, over the 60-year period of analysis. These costs are incurred in the first 10 years of the 60year period because that is when the investment in those projects takes place. Accordingly, FEMA estimates average annual costs in years 1–10 of $2.2 million. Using the 75 percent Federal cost share, FEMA estimated that it would cover 75 percent of the cost to elevate or floodproof HMA projects, for a total of $1.6 million in additional grants per year in years 1–10. Grant recipients would bear the remaining cost of $0.5 million per year. For HMA, if 0.2PFA were the only expansion option, FEMA estimates the proposed rule would affect 9,447 structures in the first 10 years, which would result in a total cost of $21.3 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years of the analysis, FEMA estimates the average annual cost in years 1–10 would be $2.1 million. Using the 75 percent Federal cost share, FEMA estimated that it would cover 75 percent of the cost to elevate or floodproof HMA projects, for a total of $1.6 million in additional grants per year in years 1–10. Grant recipients would bear the remaining cost of $0.5 million per year. For HMA, if CISA were the only expansion option, FEMA estimates the proposed rule would affect 10,351 structures over the first 10 years, which would result in a total cost of $48.1 million, undiscounted, over the 60-year period of analysis. Because these costs are incurred in the first 10 years, FEMA U.S. population lives in area with a 1-ft freeboard requirement and 12.87 percent lives with a 2-ft requirement. A further 5.25 percent of the population is subject to a 3-foot existing freeboard requirement and 0.50 percent to a 4-foot requirement. 131 For analysis purposes, FEMA calculated the expanded floodplain using the mid-point +5-ft CISA by expanding the floodplain by 26 percent. FEMA opted for the mid-point level for CISA because this is the best approach with available data. Please see further explanation in the appropriate CISA sections: 6.4.3, 6.5.3, and 6.6.3. 132 FEMA’s HMA program requires the use of the American Society of Civil Engineers Standard (ASCE) 24 that establishes minimum requirements for flood-related design and construction of structures that are located in whole or in part in flood hazard areas for structure elevation, mitigation reconstruction, and floodproofing projects for HMA. FEMA was unable to account for these additional baseline requirements since the database does not identify projects that were built to ASCE standards as this database was not designed for data analysis. Additionally, these standards are based on the flood zone where the project is located, and FEMA was unable to identify the flood zones where individual projects were located. Instead, FEMA measures the effects of this rule against the current requirements of 44 CFR part 9. Accordingly, the estimated costs of compliance for HMA structures may be overstated. See FEMA Policy–203–074–1; issued April 21, 2014. https:// www.fema.gov/sites/default/files/2020-07/asce2414_highlights_jan2015.pdf (last accessed July 12, 2023). 133 To estimate the HMA costs to this section of the proposed rule, FEMA reviewed their HMA database to identify projects over a 10-year period (2010–2019) that would be subject to the FFRMS. FEMA was unable to obtain a 10-year of historical data from 2012–2021 for HMA due to changes within the program’s database. From 2010 to 2019, HMA used the Pre-Disaster Mitigation (PDM) grant program. Starting in 2020, HMA used the Building Resilient Infrastructure and Communities (BRIC) grant program. BRIC would only be able to provide limited data over the last 2 years of which would not be sufficient for this analysis. Additionally, PDM and BRIC databases are not compatible with each other. Therefore, FEMA analyzed the best available data from PDM for years between 2010– 2019. HMA Projects lotter on DSK11XQN23PROD with PROPOSALS2 0.2PFA VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\02OCP2.SGM 02OCP2 67907 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules estimates the average annual cost in years 1–10 is $4.8 million. Using the 75 percent Federal cost share, FEMA estimates that it would cover 75 percent of the cost to elevate or floodproof HMA projects, for a total of $3.6 million in additional grants per year. Grant recipients would bear the remaining cost of $1.2 million per year. TABLE 10—SUMMARY OF FFRMS HMA STRUCTURE PROJECT COSTS AND DISTRIBUTIONAL IMPACTS BY APPROACH FVA Quantified Estimates: Annual cost (Years 1–10) ..................................................................................................... FEMA’s portion (grants from FEMA to recipients) ........................................................ Recipients’ portion ......................................................................................................... 0.2PFA $2,157,881 1,618,411 539,470 CISA $2,134,698 1,601,024 533,675 $4,810,196 3,607,647 1,202,549 Unquantified: Increased resiliency standard for an estimated 84 minor flood controls and generators projects per year. Total Costs The proposed rule would increase costs for certain IA, PA, and HMA program projects, as well as result in administrative costs for FEMA. FEMA expects minimal effects on grants processed by FEMA’s GPD because these programs involve grants for preparedness activities and generally do not fund new construction or substantial improvement projects. Future FEMA facilities that may be located within the FFRMS floodplain would also be subject to the requirements of the proposed rule. FEMA was unable to quantify the cost for increased resiliency standards for the 20,961 facility projects estimated to be affected in the first 10 years after the rule’s publication. Additionally, FEMA was unable to quantify the cost for projects that may be diverted out of the floodplain, impacts to projects with existing basements, project delays, or forgone projects that may result from this rule. Using CISA as the primary approach, FEMA estimates that the proposed rule would affect 14,427 PA, IA, and HMA structures over the first 10 years, which would result in a total cost of between $142.1 million and $156.3 million, undiscounted, over the 60-year period of analysis. The costs are incurred in the first 10 years of the 60-year period because that is when the investment in those projects takes place.134 Discounted over 60 years, the low estimate cost would be between $121.3 million and $100 million, using 3 and 7 percent respectively, with a 60-year annualized cost of $4.4 million and $7.1 million, using 3 and 7 percent respectively (see Table 11). Discounted over 60 years, the high estimate cost for would be between $133.4 million and $109.9 million, using 3 and 7 percent respectively, with a 60-year annualized cost of $4.8 million and $7.8 million, using 3 and 7 percent (see Table 12). Monetized costs include additional training for FEMA staff as well as the cost for the additional elevation or floodproofing. FEMA was unable to quantify the cost for increased resiliency standards for an estimated 20,961 affected facility projects over the 10-year period of analysis. Additionally, FEMA was unable to quantify the cost for projects that may be diverted out of the floodplain, impacts to projects with existing basements, project delays, or forgone projects that may result from this rule. TABLE 11—PRIMARY APPROACH (CISA) ESTIMATED COSTS OVER THE 60-YEAR PERIOD OF ANALYSIS [Low estimate, 2021$] FEMA admin costs lotter on DSK11XQN23PROD with PROPOSALS2 Year Elevation and floodproofing costs Undiscounted annual costs Annual costs discounted at 3% Annual costs discounted at 7% 1 ............................................................................................... 2 ............................................................................................... 3 ............................................................................................... 4 ............................................................................................... 5 ............................................................................................... 6 ............................................................................................... 7 ............................................................................................... 8 ............................................................................................... 9 ............................................................................................... 10 ............................................................................................. 11–60 * ..................................................................................... $950,132 310,172 310,172 310,172 310,172 310,172 310,172 310,172 310,172 310,172 0 $13,839,379 13,839,379 13,839,379 13,839,379 13,839,379 13,839,379 13,839,379 13,839,379 13,839,379 13,839,379 0 $14,789,511 14,149,551 14,149,551 14,149,551 14,149,551 14,149,551 14,149,551 14,149,551 14,149,551 14,149,551 0 $14,358,748 13,337,309 12,948,843 12,571,692 12,205,527 11,850,026 11,504,879 11,169,786 10,844,452 10,528,594 0 $13,821,973 12,358,765 11,550,248 10,794,624 10,088,434 9,428,443 8,811,629 8,235,167 7,696,418 7,192,914 0 Total .................................................................................. Annualized ........................................................................ 3,741,680 .................... 138,393,786 ........................ 142,135,466 ........................ 121,319,856 4,383,645 99,978,615 7,121,399 * After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. 134 FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 of 60 years. The costs and transfers occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed requirements takes place. This is an upfront cost that occurs when the project is PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. E:\FR\FM\02OCP2.SGM 02OCP2 67908 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules TABLE 12—PRIMARY APPROACH (CISA) ESTIMATED COSTS OVER THE 60-YEAR PERIOD OF ANALYSIS [High estimate, 2021$] FEMA admin costs Year Elevation and floodproofing costs Annual costs discounted at 3% Undiscounted annual costs Annual costs discounted at 7% 1 ............................................................................................... 2 ............................................................................................... 3 ............................................................................................... 4 ............................................................................................... 5 ............................................................................................... 6 ............................................................................................... 7 ............................................................................................... 8 ............................................................................................... 9 ............................................................................................... 10 ............................................................................................. 11–60 * ..................................................................................... $1,070,207 430,247 430,247 430,247 430,247 430,247 430,247 430,247 430,247 430,247 0 $15,131,954 15,131,954 15,131,954 15,131,954 15,131,954 15,131,954 15,131,954 15,131,954 15,131,954 15,131,954 0 $16,202,161 15,562,201 15,562,201 15,562,201 15,562,201 15,562,201 15,562,201 15,562,201 15,562,201 15,562,201 0 $15,730,253 14,668,867 14,241,618 13,826,814 13,424,091 13,033,098 12,653,493 12,284,945 11,927,131 11,579,739 0 $15,142,206 13,592,629 12,703,391 11,872,328 11,095,634 10,369,751 9,691,356 9,057,342 8,464,806 7,911,034 0 Total .................................................................................. Annualized ........................................................................ 4,942,430 .................... 151,319,537 ........................ 156,261,967 ........................ 133,370,049 4,819,054 109,900,477 7,828,126 * After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. Total Transfer Payments Because the cost to implement the proposed mitigation measures would be shared between FEMA and grant recipients according to the statutory cost share, there are also important distributional impacts. The majority of elevation and floodproofing costs would be borne by FEMA through additional grants (a transfer from FEMA to grant recipients). Grant recipients would bear the remaining cost. The below section shows the additional transfers from FEMA to grant recipients. Using CISA as the primary approach, FEMA estimated that this proposed rule would affect 14,427 structures in the first 10 years, which would result in an increase in transfer payments (i.e., grants) from FEMA to grant recipients, of between $109.2 million and $119.6 million, undiscounted, over the 60-year period of analysis. Discounted using 3 and 7 percent respectively, FEMA’s low estimate of the increase in transfer payments is between $93.2 million and $76.7 million, with a 60-year annualized transfer between $3.4 million and $5.5 million, at 3 and 7 percent respectively (see Table 13). Discounted using 3 and 7 percent respectively, FEMA’s high estimate of the increase in transfer payments would be between $102.1 million and $84.0 million, with a 60year annualized transfer between $3.7 million and $6.0 million, at 3 and 7 percent respectively (see Table 14). TABLE 13—PRIMARY APPROACH (CISA) ESTIMATED TRANSFERS OVER THE 60-YEAR PERIOD OF ANALYSIS [Low estimate, 2021$] Transfers from FEMA to recipients lotter on DSK11XQN23PROD with PROPOSALS2 Year Total transfers discounted at 3% Total transfers discounted at 7% 1 ................................................................................................................................. 2 ................................................................................................................................. 3 ................................................................................................................................. 4 ................................................................................................................................. 5 ................................................................................................................................. 6 ................................................................................................................................. 7 ................................................................................................................................. 8 ................................................................................................................................. 9 ................................................................................................................................. 10 ............................................................................................................................... 11–60 * ....................................................................................................................... $10,921,636 10,921,636 10,921,636 10,921,636 10,921,636 10,921,636 10,921,636 10,921,636 10,921,636 10,921,636 0 $10,603,530 10,294,689 9,994,844 9,703,732 9,421,099 9,146,698 8,880,289 8,621,640 8,370,524 8,126,723 0 $10,207,136 9,539,380 8,915,308 8,332,064 7,786,975 7,277,547 6,801,446 6,356,492 5,940,646 5,552,006 0 Total .................................................................................................................... Annualized .......................................................................................................... 109,216,359 .............................. 93,163,768 3,366,283 76,709,000 5,463,923 * After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\02OCP2.SGM 02OCP2 67909 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules TABLE 14—PRIMARY APPROACH (CISA) ESTIMATED TRANSFERS OVER THE 60-YEAR PERIOD OF ANALYSIS [High estimate, 2021$] Transfers from FEMA to recipients Year Total transfers discounted at 3% Total transfers discounted at 7% 1 ................................................................................................................................. 2 ................................................................................................................................. 3 ................................................................................................................................. 4 ................................................................................................................................. 5 ................................................................................................................................. 6 ................................................................................................................................. 7 ................................................................................................................................. 8 ................................................................................................................................. 9 ................................................................................................................................. 10 ............................................................................................................................... 11–60 * ....................................................................................................................... $11,964,744 11,964,744 11,964,744 11,964,744 11,964,744 11,964,744 11,964,744 11,964,744 11,964,744 11,964,744 0 $11,616,256 11,277,919 10,949,436 10,630,520 10,320,893 10,020,285 9,728,432 9,445,079 9,169,980 8,902,893 0 $11,182,004 10,450,471 9,766,795 9,127,846 8,530,697 7,972,614 7,451,041 6,963,590 6,508,028 6,082,269 0 Total .................................................................................................................... Annualized .......................................................................................................... 119,647,439 .............................. 102,061,693 3,687,791 84,035,355 5,985,773 lotter on DSK11XQN23PROD with PROPOSALS2 * After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. Total Benefits FEMA believes that the benefits of the proposed rule would justify the costs. FEMA has identified qualitative benefits, including the reduction in damage to properties and contents from future floods, potential lives saved, public health and safety benefits, reduced recovery time from floods, and increased community resilience to flooding. FEMA has also analyzed quantified benefits of one additional foot of freeboard for PA projects. FEMA believes this proposed rule would result in savings in time and money from a reduced recovery period after a flood and increased safety of individuals. Generally, if properties are protected, there would be less damage, resulting in less recovery time. In addition, higher elevations would help to protect people, leading to increased safety. FEMA is unable to quantify these benefits. In support of these benefits, FEMA uses the 2022 Benefits Analysis of Increased Freeboard for Public and Nonresidential Buildings in Riverine and Coastal Floodplains 135 (2022 report), which analyzed potential benefits, such as reduction in damages, displacement, and loss of function, from increased flood protection requirements for public and nonresidential use buildings located in riverine and coastal SFHAs. This report’s scope included six construction methods in coastal and riverine areas: Elementary School 1Story, Hospital 2–3 Stories, Police Station 2-Stories, Office Building 135 This report is available on regulations.gov under Docket ID FEMA–2023–0026. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 (Business) 1-Story, Office Building (Business) 3-Story, and Office Building (Government office) 1-Story. The riverine analysis considered locations along 14 rivers, while the coastal analysis considered 12 different locations along a hypothetical coastal transect, and both only considered scenarios based on future conditions. Future conditions for the riverine analysis included two climate change scenarios: the Representative Concentration Pathways (RCP) 4.5 scenario and 8.5 scenario, which represent medium and low efforts to curb emissions, respectively. The study used these two climate change scenarios to evaluate the amount of increase or decrease in riverine flood elevations over the next 50 years. For the coastal analysis, the study included the impact of various sea level rise conditions in areas with wave heights less than 1.5-ft (flood zone A) that are subject to coastal storm surge. The sea level rise conditions replicated a 2016 evaluation considering 8-, 20-, 39- and 59-inch sea level rise by 2100. FEMA evaluates benefits associated with the rule using both RCP 4.5 and 8.5 scenarios, and three of the four sea level rise conditions: 8-, 39-, and 59-inches. The 2022 report used FEMA’s BCA Toolkit to calculate benefits for each year between 2023 and 2072 and then used these projections to calculate the present value benefits for each scenario.136 The Toolkit used standard 136 FEMA developed the BCA Toolkit to perform an analysis of cost-effectiveness of mitigation projects. The BCA Toolkit uses Office of Management and Budget cost-effectiveness guidelines and FEMA-approved methodologies and PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 depth-damage functions (curves) to estimate damages from inundation and to calculate the benefits of mitigation, which included avoided physical damage, avoided displacement (costs incurred while staying in a temporary location following an event), and avoided loss of function (the economic impact to a community due to a lack of critical services). The study considered the potential avoided losses (or benefits) associated with either dry floodproofing or elevation of nonresidential and public use buildings.137 It compared existing freeboard requirements against one additional foot of freeboard; that is, the study evaluates the benefits of elevating or floodproofing to the BFE+2 from a current assumed height of BFE+1 for non-critical actions and to BFE+3 from a current assumed height of BFE+2 for critical actions. According to this report, for critical facilities in coastal SFHAs, such as police stations and hospitals, inclusion of one additional foot of freeboard will provide increased protection and continuity of operations and would result in a quantifiable benefit. Elevating buildings would help to maintain community resiliency further into the future. The riverine analysis indicated that despite the large variation in the flood data for the 14 sites, inclusion of tools to complete a benefit-cost analysis. The tool can be found here: https://www.fema.gov/grants/ tools/benefit-cost-analysis#toolkit (last accessed July 12, 2023). 137 2016 Evaluation of the Benefits of Freeboard for Public and Nonresidential Buildings in Coastal Areas. https://www.regulations.gov/document/ FEMA-2015-0006-0379 at page 7 (last accessed July 12, 2023). E:\FR\FM\02OCP2.SGM 02OCP2 67910 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules one additional foot of freeboard would result in quantifiable average benefits. Critical actions and schools had the highest benefits across various riverine locations. FEMA used this study to estimate the benefits of an additional foot of freeboard for non-residential PA projects. FEMA was unable to use the benefits study to estimate the benefits for HMA and IA projects since HMA data could not be broken out by building types and IA data were limited to residential-related projects. For FEMA’s primary estimate, FEMA used 59 inches of SLR due to it being the closest SLR option to CISA+5-ft. CISA is the preferred approach for FFRMS if the data are available. Since 5 ft is equivalent to 60 inches (5 × 12 inches per foot), 59-inch SLR would be the closest SLR option that FEMA has available to use for this portion of the analysis. If FEMA used CISA for all PA Category E projects that were subject to the FFRMS with the assumption that there would be a 59-inch SLR, FEMA estimated that the present value benefits of one additional foot of freeboard for the 50-year useful life of 1,173 PA Category E projects undertaken during the first 10 years after the rule’s publication would be between $55.2 million and $62.0 million, undiscounted. The low estimate would range between $47.1 million and $38.8 million, discounted at 3 and 7 percent respectively, with a 60-year annualized benefit of $1.7 million and $2.8 million, at 3 and 7 percent (See Table 15). The high estimate would range between $52.9 million and $43.5 million, discounted at 3 and 7 percent respectively, with a 60-year annualized benefit of $1.9 million and $3.1 million, at 3 and 7 percent. (See Table 16). In Tables 15 and 16 below, FEMA shows the number of projects constructed each year (column 2), the present value of the benefits as of the year in which they were constructed (column 3), and the present value of the benefits as of the beginning of Year 1 using a 3 percent and 7 percent discount rate (columns 3 and 4, respectively). For example, the benefits shown in Year 1 represent the present value of the benefits for the 117 Category E projects constructed in Year 1 over their 50-year useful life (i.e., in Years 1–50 of the analysis). The analysis does not account for any benefits for Year 1 projects after their 50-year useful life. The benefits shown in Year 10 represent the present value of the benefits for projects constructed in Year 10 over their 50year useful life, (i.e., in Years 11–60 of the analysis). TABLE 15—PRIMARY APPROACH (CISA) ESTIMATED 50-YEAR BENEFITS FOR PA CATEGORY E PROJECTS UNDERTAKEN DURING YEARS 1–10 [Low estimate, 2021$] Number of PA Category E projects Year Total 50-year present value benefit for projects constructed in each year * Discounted 3% Discounted 7% 1 ................................................................................................................. 2 ................................................................................................................. 3 ................................................................................................................. 4 ................................................................................................................. 5 ................................................................................................................. 6 ................................................................................................................. 7 ................................................................................................................. 8 ................................................................................................................. 9 ................................................................................................................. 10 ............................................................................................................... 117 117 117 117 117 117 117 117 117 117 $5,518,000 5,518,000 5,518,000 5,518,000 5,518,000 5,518,000 5,518,000 5,518,000 5,518,000 5,518,000 $5,357,282 5,201,244 5,049,752 4,902,672 4,759,875 4,621,238 4,486,639 4,355,960 4,229,088 4,105,910 $5,157,009 4,819,635 4,504,332 4,209,656 3,934,258 3,676,876 3,436,333 3,211,526 3,001,426 2,805,071 60-Year Total * .................................................................................... Annualized ** ....................................................................................... 1,173 ........................ .............................. .............................. 47,069,660 1,700,766 38,756,122 2,760,569 * The benefits in this column represent the present value of the benefits for structures constructed in that year over their 50-year useful life, as of the year in which they were constructed. ** The total benefits represent the total present value of benefits as of the beginning of Year 1. TABLE 16—PRIMARY APPROACH (CISA) ESTIMATED 50-YEAR BENEFITS FOR PA CATEGORY E PROJECTS UNDERTAKEN DURING YEARS 1–10 [High estimate, 2021$] Number of PA Category E projects lotter on DSK11XQN23PROD with PROPOSALS2 Year 1 2 3 4 5 6 7 8 9 ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. ................................................................................................................. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 PO 00000 Frm 00042 Fmt 4701 117 117 117 117 117 117 117 117 117 Sfmt 4702 Total 50-year present value benefit for projects constructed in each year * $6,198,572 6,198,572 6,198,572 6,198,572 6,198,572 6,198,572 6,198,572 6,198,572 6,198,572 E:\FR\FM\02OCP2.SGM 02OCP2 Discounted 3% $6,018,031 5,842,749 5,672,571 5,507,351 5,346,943 5,191,206 5,040,006 4,893,210 4,750,689 Discounted 7% $5,793,058 5,414,073 5,059,881 4,728,861 4,419,496 4,130,370 3,860,159 3,607,625 3,371,612 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 67911 TABLE 16—PRIMARY APPROACH (CISA) ESTIMATED 50-YEAR BENEFITS FOR PA CATEGORY E PROJECTS UNDERTAKEN DURING YEARS 1–10—Continued [High estimate, 2021$] Total 50-year present value benefit for projects constructed in each year * Number of PA Category E projects Year Discounted 3% Discounted 7% 10 ............................................................................................................... 117 6,198,572 4,612,320 3,151,040 60-Year Total * .................................................................................... Annualized ** ....................................................................................... 1,173 ........................ .............................. .............................. 52,875,076 1,910,533 43,536,175 3,101,048 * The benefits in this column represent the present value of the benefits for structures constructed in that year over their 50-year useful life, as of the year in which they were constructed. ** Annualized over the 60-year period of analysis. For more in-depth review of these costs and benefits, please see the Regulatory Impact Analysis, which can be found in the docket for this rulemaking. B. Regulatory Flexibility Act This section considers the effects that this proposed rule would have on small entities as required by the Regulatory Flexibility Act (RFA, 5 U.S.C. 601 et seq., Pub. L. 96–354) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a ‘‘significant economic impact on a substantial number of small entities.’’ 5 U.S.C. 605(b). Small entities include small businesses, small organizations, and small governmental jurisdictions. FEMA prepared an Initial Regulatory Flexibility Analysis (IRFA) for this proposed rule. This analysis is detailed in this section and represents FEMA’s assessment of the impacts of this proposed rule on small entities. Section 1 outlines FEMA’s initial assessment of small entities that would be affected by the proposed regulations. Section 2 presents FEMA’s analysis and summarizes the steps taken by FEMA to comply with the RFA. lotter on DSK11XQN23PROD with PROPOSALS2 1. Initial Assessment of Small Entities Affected by the Proposed Regulations The proposed rule would affect FEMA grant recipients that receive Federal funds for new construction, substantial improvement to structures, or to address substantial damage to structures and facilities. Many of these grants are available to local governmental jurisdictions and non-profit VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 organizations. FEMA does not provide grants to for-profit businesses. 2. Analysis and Steps Taken To Comply With the Regulatory Flexibility Act The following IRFA addresses the following requirements of the RFA: (1) a description of the reasons why action by the agency is being considered; (2) a succinct statement of the objectives of, and legal basis for, the proposed rule; (3) a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply; (4) a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; (5) an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule; (6) a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes, and which minimize any significant economic impact of the proposed rule on small entities. Consistent with the stated objectives of applicable statutes, the analysis shall discuss significant alternatives such as: the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; the use of performance rather than design standards; and an exemption from coverage of the rule, or any part thereof, for such small entities. PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 2.1 Description of the Reasons Why Action by the Agency Is Being Considered The President issued Executive Order 11988 in 1977 in furtherance of the National Flood Insurance Act of 1968, as amended; the Flood Disaster Protection Act of 1973, as amended; and the National Environmental Policy Act of 1969 (NEPA). Executive Order 11988 requires Federal agencies to avoid, to the extent possible, the long- and shortterm adverse impacts associated with the occupancy and modification of floodplains, where there is a practicable alternative. Executive Order 11988 requires agencies to prepare implementing procedures in consultation with the Water Resources Council (WRC), FEMA, and the Council on Environmental Quality (CEQ). The WRC issued ‘‘Floodplain Management Guidelines’’ (1978 Guidelines or Implementing Guidelines), the authoritative interpretation of Executive Order 11988. The 1978 Guidelines provided a section-by-section analysis, defined key terms, and outlined an 8step decision-making process for carrying out the directives of Executive Order 11988. After Hurricane Sandy it became clear to the Federal Government that there should be a reevaluation of the current flood risk reduction standards. The President issued Executive Order 13632, which created the Federal Interagency Hurricane Sandy Rebuilding Task Force (Sandy Task Force). Pursuant to direction from Executive Order 13632 to remove obstacles to resilient rebuilding, the Sandy Task Force reevaluated the 1 percent annual chance/100-year standard. In April 2013, the Sandy Task Force announced a new Federal flood risk reduction standard that required elevation or other floodproofing to onefoot above the best available and most recent base flood elevation and applied E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67912 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules that standard to all investments in Sandy-affected communities. The Sandy Task Force called for all major Sandy rebuilding projects in Sandy-affected communities using Federal funding to be elevated or otherwise floodproofed according to this new flood risk reduction standard. In June 2013, the President issued a Climate Action Plan that directs agencies to take appropriate actions to reduce risk to Federal investments, specifically directing agencies to build on the work done by the Sandy Task Force and to update their flood risk reduction standards for ‘‘federallyfunded . . . projects’’ to ensure that ‘‘projects funded with taxpayer dollars last as long as intended.’’ In November 2013, the President’s State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience (Climate Task Force) convened, with 26 Governors, Mayors, and Local and Tribal leaders serving as members. After a year-long process of receiving input from States, Local, Tribal, Territorial (SLTT) governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders, the Task Force provided a recommendation to the President in November 2014. In order to ensure resiliency, Federal agencies, when taking actions in and around floodplains, should include considerations of the effects of changing conditions, including sea level rise, more frequent and severe storms, and increasing river flood risks. The Climate Task Force also recommended that the best available climate data should be used in siting and designing projects receiving Federal funding, and that margins of safety, such as freeboard and setbacks, should be included. On January 30, 2015, the President issued Executive Order 13690, which amended Executive Order 11988 and established a new flood risk management standard called the FFRMS. Executive Order 11988, as amended, and the FFRMS changed the Executive Branch-wide guidance for defining the ‘‘floodplain’’ with respect to ‘‘Federally funded projects’’ (i.e., actions involving the use of Federal funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). It required FEMA to publish an updated version of the Implementing Guidelines (revised to incorporate the changes required by Executive Order 13690 and the FFRMS) in the Federal Register for notice and comment. Finally, Executive Order 13690 required the WRC to issue final Guidelines to agencies on the implementation of Executive Order VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 11988, as amended, consistent with the FFRMS. On February 5, 2015, FEMA, on behalf of the Mitigation Framework Leadership Group, published a Federal Register notice for a 60-day notice and comment period seeking comments on a draft of the Revised Guidelines. The final Revised Guidelines were issued on October 8, 2015. The Revised Guidelines contain an updated version of the FFRMS (located at Appendix G of the Revised Guidelines), reiterate key concepts from the 1978 Guidelines, and explain the new concepts resulting from the FFRMS. On August 22, 2016, FEMA issued a Notice of Proposed Rulemaking, ‘‘Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management Standard.’’ On August 15, 2017, Executive Order 13807 revoked Executive Order 13690. On March 6, 2018, FEMA withdrew its Notice of Proposed Rulemaking and proposed supplementary policy in light of the revocation of the Executive Order 13690. FEMA wrote that it would continue to seek more effective ways in its programs to assess and reduce the risk of current and future flooding and increase community resilience. On May 25, 2021, Executive Order 14030 subsequently revoked Executive Order 13807 and reinstated Executive Order 13690, thereby reestablishing the FFRMS. The E.O. also states that the Revised Guidelines issued in 2015 were never revoked and remain in effect. The FFRMS is a flexible framework to increase resilience against flooding and help preserve the natural and beneficial values of floodplains. Incorporating the FFRMS into FEMA regulations would ensure that FEMA expands flood risk management from the current base flood elevation to a higher vertical elevation and corresponding horizontal floodplain to address current and future flood risk and ensure that projects funded with taxpayer dollars last as long as intended. Several programs exist in order to assist with flood mitigation or recovery efforts after a flood.138 IA and PA are disaster relief programs and primarily provide assistance after a disaster. HMA Grants are provided in order to increase resilience to hazards, and these have been shown to be very effective. By requiring recipients of FEMA funding to consider an expanded floodplain and 138 In addition to the FEMA-administered grant programs discussed in this analysis (IA, PA, HMA, and programs administered by GPD), FEMA also provides flood insurance through the NFIP. FEMA does not apply 44 CFR part 9 to non-grant site specific actions under the NFIP. PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 build a higher level of flood resilience into their projects, the rule would reduce the likelihood of further damage and help prevent the loss of life in future flooding events. This would compel public recipients of Federal funds to build to higher flood resiliency standards and avoid repetitive loss situations. 2.2 Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule FEMA is responsible for publishing information on floodplain areas and identifying special hazards. FEMA is also responsible for several grant programs that use Federal funds to assist in construction or reconstruction following a disaster, as well as grants for hazard mitigation and recovery. These grants can potentially be used for locations within a floodplain. To meet the requirements of section 2(d) of Executive Order 11988, requiring agencies to issue or amend existing regulations and procedures to implement the Executive Order, FEMA promulgated regulations which are located at 44 CFR part 9. FEMA is revising 44 CFR part 9 to reflect the changes to Executive Order 11988 made via Executive Order 13690. The objective of the proposed rule is to revise the regulations for locating actions subject to the FFRMS in an expanded floodplain to reduce the risk of flooding to those projects. In addition, for actions that are determined to be ‘‘critical actions’’ as defined by the proposed rule, the proposed rule would impose more stringent elevation and resiliency requirements. This is necessary to protect actions where even a slight chance of flooding is too great. The rule would also require the use, where possible, of natural features and nature-based approaches when developing alternatives for consideration that would accomplish the same purpose as a considered action, but which have less potential to affect or be affected by the floodplain. Common examples of a nature-based approach would be replacing concrete drainage systems with natural drainage or covering an area with plants to absorb water and reduce runoff. 2.3 Description of, and Where Feasible, an Estimate of the Number of Small Entities to Which the Proposed Rule Will Apply This rule would affect certain recipients of FEMA grants. These would primarily be PA and HMA grant recipients, which include States, Tribal governments, local governments, and certain non-profit organizations. The PA E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules grant recipients would include Categories C, D, E, F, and G projects; however, FEMA is only able to provide reasonable estimates of the number of entities and costs associated with Categories E (public buildings) because Category E projects are for structures whereas projects funded under the remaining categories are for facilities. Facilities would not be required to floodproof or elevate but would instead need to be made resilient to the appropriate flood levels, which is highly project-specific nature and lack of data for such projects makes it exceedingly difficult to estimate costs. IA and GPD are not discussed in this analysis. IA provides grants directly to individuals, who are not small entities as defined in 5 U.S.C. 601(6). FEMA finds that this rule would likely have no effect on GPD grants because GPD projects are not typically substantial improvement or new construction. FEMA has estimated that the FFRMS requirements would expand the floodplain between 5 percent and 43 percent based on a study 139 conducted in 800 square miles of mapped flood zone areas. FEMA developed floodplain expansion estimates for two distinct areas of the country: coastal and riverine. The first estimate is for coastal areas where FEMA anticipates implementing the CISA approach using currently actionable sea level rise data. The second estimate is for the area that represents the rest of the country where the 0.2PFA or FVA approaches will likely be applied. A total of 400 square miles of mapped flood zones was used as the baseline estimate for each of the two areas of the country. FEMA selected 40 random samples of the coastal and riverine areas since these are the areas where the FFRMS would apply, with various topography, with at least 10 square miles in each sampled area. FEMA calculated the floodplain expansion in each sample at various levels of freeboard so that there was a total of 400 square miles of expansion information for each area. FEMA selected CISA as its primary approach to evaluate the impacts of this proposed rule. FEMA’s accompanying policy proposes use of CISA as the preferred approach because it is the only approach that would ensure projects are designed to meet current and future flood risks unique to the location and thus would ensure the best 139 FEMA conducted a study in 2022 in regard to the FFRMS Horizontal Floodplain Expansion Data (also referred to as the ‘‘FFRMS Expansion Study’’). Further information can be found in Appendix A to the FFRMS Regulatory Impact Analysis, available on regulations.gov under Docket ID FEMA–2023– 0026. VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 overall resilience, cost effectiveness, and equity. FEMA does not have data detailed enough to estimate the average CISA level within the United States for this analysis. For CISA, FEMA evaluated a range from 1 to 10 feet of freeboard based on anticipated interagency tools that are currently in development and are projected to apply CISA in those rounded amounts as ‘‘climate-informed freeboard.’’ The 10foot ceiling would account for the highest levels of anticipated sea level rise along the Gulf and Atlantic coasts. Depending on location, under CISA, some places may be required to elevate or floodproof to +1-ft above the 1 percent annual chance plain while other places may be required to use +10-ft above the 1 percent annual chance plain. However, there is no data or research to know what the required levels are or how many structures would be subject to the requirements. For this analysis, FEMA calculated the expanded floodplain using the midpoint +5-ft freeboard level, which FEMA estimates expands the floodplain by 26 percent, on average, in coastal areas. FEMA considered using the minimum and maximum levels as alternatives to the mid-point level, but the minimum and maximum would not reflect the impacts of the rule accurately. FEMA did not use the minimum level because it would reflect a large number of structures not elevated or floodproofed to a high enough standard, when in reality, the rule would require them to be subject to a higher standard. If FEMA modeled all structures at the minimum standard, the costs would be underestimated compared to the true impact of the rule. The benefits of protecting the structures from flood would also be underestimated because at the minimum level. many structures would be left vulnerable to devastating flood damage. Likewise, FEMA did not use the maximum level because it would reflect a large number of structures elevated or floodproofed to a standard too high compared to what the rule would require. If FEMA modeled all structures at the maximum standard, the costs would be overestimated compared to the true impact. The benefits of protecting the structures from flood could potentially be overestimated, as well, and not reflect the true impact of the rule. PA provides grants to States, Tribal governments, local governments and certain non-profit organizations for rebuilding, replacement, or repair of public and non-profit facilities damaged by disasters. Where such rebuilding, replacement or repair involves new construction, substantial improvement, PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 67913 and repair of substantial damage of structures in the expanded FFRMS floodplain, PA recipients would incur additional costs to comply with proposed elevation and floodproofing requirements. From 2012–2021, 930 individual PA Category E grant recipients received FEMA funding for substantial improvement floodproofing 140 or new construction. Under the CISA approach, with the 26 percent expansion of the floodplain, an additional 242 PA Category E projects (930 × 26 percent), for a total of 1,172 (930 + 242) projects, would be located in the 1 percent annual chance floodplain or expanded FFRMS floodplain over the 10-year period. FEMA randomly sampled 92 projects.141 Of the 92 projects, 40 projects, or 43 percent (40 ÷ 92), would meet the definition of small entities under the Regulatory Flexibility Act. HMA provides mitigation grants to States, Tribal governments, local governments, and certain non-profit organizations to, among other things, relocate property outside of the floodplain, or to elevate or floodproof structures to the flood level. FEMA proposes to apply the FFRMS to all actions subject to the FFRMS, and all structure elevation, mitigation reconstruction, and dry floodproofing projects. As noted in the Regulatory Evaluation, FEMA funded an average of about 84 HMA elevation, mitigation reconstruction, and floodproofing structure projects per year from 2010– 2019.142 Unlike PA grants, the majority of HMA grants are for projects located in the floodplain, so for this analysis FEMA assumes that all HMA elevation, mitigation reconstruction and dry floodproofing projects are in the floodplain. FEMA cannot estimate what projects might be considered actions subject to the FFRMS in addition to structure elevation, mitigation reconstruction, and dry floodproofing projects because HMA data does not distinguish whether projects are 140 The cost of elevating an existing structure is significantly higher than the cost of retrofitting the structure to be floodproofed, so FEMA assumed that substantial improvement projects would elect to floodproof rather than elevate. 141 The population of PA Category E projects includes all ‘‘Public Buildings’’ grants from 2012– 2021 that received substantial improvement floodproofing or new construction funding. Because of the large population, FEMA used Slovin’s formula and a 90 percent confidence interval to determine the sample size. Slovin’s formula: n = N/ (1+N*e∧2). Therefore, 1,172/(1 + 1,172 × 0.1∧2) = 92 (rounded). 142 FEMA was unable to obtain 10-years of historical data from 2012–2021 for HMA due to changes within the program’s database and used the best available data for years 2010 through 2019 instead. E:\FR\FM\02OCP2.SGM 02OCP2 67914 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 considered new construction, substantial improvement, or repairs to address substantial damage. However, structure elevation, mitigation reconstruction, and dry floodproofing are the primary HMA projects relating to flood mitigation.143 With the 26 percent expansion of the floodplain, an additional 22 HMA projects per year (84 × 26 percent), for a total of 106 (84 + 22) projects, would be located in the 1 percent annual chance floodplain or expanded FFRMS floodplain. Assuming 43 percent 144 of HMA grant recipients are small entities, approximately 46 small entities receiving HMA grants would be affected per year (106 projects × 43 percent). Facilities would not be required to floodproof or elevate but would instead need to be made resilient to the appropriate flood levels, which is highly project-specific nature and lack of data for such projects makes it exceedingly difficult to estimate costs. FEMA could not estimate the cost of this rule on small entities for facilities. However, FEMA conducted an analysis to estimate the number of small entities for affected facility projects based on historical data. In an average year, FFRMS would impact about 1,181 PA Category C facilities. Based on a random sample of 92 projects,145 FEMA found that grant recipients for 71 of the projects, or 77.2 percent (71 ÷ 92), were small entities that would meet the definition of small entities under the Regulatory Flexibility Act. In an average year, FFRMS would impact about 131 PA Category D facilities. Based on a random sample of 57 projects,146 FEMA found that grant 143 The other project type related to flood mitigation is acquisition. Generally, acquisition projects are for open space purposes and restore the natural and beneficial functions of the floodplain. Property acquisitions that result in relocated structures would be subject to FFRMS elevation and floodproofing requirements if the structure is relocated within the FFRMS floodplain. HMA data does not break out relocation costs from acquisition costs, so FEMA is unable to estimate additional relocation expenses for acquisition projects. 144 In FEMA’s dataset, HMA recipients only included project titles and not the name of the grantee. This prevented FEMA from determining if a grant recipient was a small entity. Since PA and HMA provide funding to similar entities (States, Tribal governments, local governments, and certain non-profit organizations) for disaster related activity, FEMA used the percentages of small entity grant recipients found in PA Category E as a proxy for HMA small entities. 145 Because of the large population, FEMA used Slovin’s formula and a 90 percent confidence interval to determine the sample size. Slovin’s formula: n = N/(1+N*e∧2). Therefore, 1,181/(1 + 1,181 × 0.1∧2) = 92 (rounded). 146 Because of the large population, FEMA used Slovin’s formula and a 90 percent confidence interval to determine the sample size. Slovin’s VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 recipients for 38 of the projects, or 66.7 percent (38 ÷ 57), were small entities that would meet the definition of small entities under the Regulatory Flexibility Act. In an average year, FFRMS would impact about 254 PA Category F facilities. Based on a random sample of 72 projects,147 FEMA found that grant recipients for 52 of the projects, or 72.2 percent (52 ÷ 72), were small entities that would meet the definition of small entities under the Regulatory Flexibility Act. In an average year, FFRMS would impact about 446 PA Category G facilities. Based on a random sample of 82 projects,148 FEMA found that grant recipients for 38 of the projects, or 46.3 percent (38 ÷ 82), were small entities that would meet the definition of small entities under the Regulatory Flexibility Act. In an average year, FFRMS would impact about 84 HMA grant recipients received FEMA funding per year for minor flood controls and generator projects. Based on a random sample of 46 projects,149 FEMA found that grant recipients for 24 of the projects, or 52.1 percent (24 ÷ 46), were small entities that would meet the definition of small entities under the Regulatory Flexibility Act. 2.4 Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for Preparation of the Report or Record FEMA will not be changing the application process for its grant programs. The majority of the costs for the increased elevation or floodproofing requirements of structures in the FFRMS floodplain would be funded by FEMA through several grant programs. Small entities, like all entities, would be subject to additional costs not covered by these grants for the floodproofing, elevation of structures, and flood formula: n = N/(1+N*e∧2). Therefore, 131/(1 + 131 × 0.1∧2) = 57 (rounded). 147 Because of the large population, FEMA used Slovin’s formula and a 90 percent confidence interval to determine the sample size. Slovin’s formula: n = N/(1+N*e∧2). Therefore, 254/(1 + 254 × 0.1∧2) = 72 (rounded). 148 Because of the large population, FEMA used Slovin’s formula and a 90 percent confidence interval to determine the sample size. Slovin’s formula: n = N/(1+N*e∧2). Therefore, 446/(1 + 446 × 0.1∧2) = 82 (rounded). 149 Because of the large population, FEMA used Slovin’s formula and a 90 percent confidence interval to determine the sample size. Slovin’s formula: n = N/(1+N*e∧2). Therefore, 84/(1 + 84 × 0.1∧2) = 46 (rounded). PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 resiliency measures required by the proposed rule. For the purposes of this analysis, and based on historical data, FEMA presents the costs such that all projects would choose to elevate because of the additional level of safety elevation provides over floodproofing and a historically higher number of HMA projects that involved elevation as opposed to floodproofing.150 FEMA uses an NFIP report to estimate the cost of the proposed elevation requirements.151 The report provides estimates for the cost of elevating structures as a percentage of total construction cost. The cost of elevating an existing structure is considerably higher than the cost of retrofitting the structure to be floodproofed. Floodproofing involves sealing off areas below the flood level so that water cannot enter or altering the use of these areas so that flood waters may pass through without causing serious damage. Non-residential structures, where elevation is not feasible, may be floodproofed rather than elevated. Additionally, floodproofing existing properties may be less costly than elevating an existing property. So, where a project may floodproof rather than elevate, costs may be lower for some projects than the costs presented here. However, for existing properties that choose to elevate rather than floodproof, costs may be higher for some projects than the costs presented here because the NFIP report cost estimates are for when freeboard is included in the design of a structure. New buildings would be evaluated for both dry floodproofing (preventing the intrusion of floodwaters into the building by using a system of waterproofing and shields) and elevation (constructing higher), while existing buildings would only be evaluated for dry floodproofing. FEMA requests comments on these assumptions. As established above, FEMA estimates this rule would impact 40 small entity PA Category E projects annually. Using CISA as the primary approach, FEMA estimates that the total cost for the elevation and floodproofing requirements of this proposed rule for all PA Category E projects would be between $8,887,014 ($88,870,138 ÷ 10 years) and $10,179,589 ($101,795,889 ÷ 10 years) annually for 117 (1,173 PA Total FFRMS action Category E projects ÷ 10 years) projects annually. Therefore, 150 According to historical HMA data, there have been an average of 63 elevation projects and only 4 floodproofing projects per year. 151 FEMA, ‘‘2008 Supplement to the 2006 Evaluation of the National Flood Insurance Program’s Building Standards’’ Table 3. (last accessed July 12, 2023). E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS2 each project would cost between $75,957 ($8,887,014 ÷ 117 projects) and $87,005 ($10,179,589 ÷ 117 projects). There is an average of 40 small entity PA projects per year. Small entity projects would have a total average expected cost between $3,038,280 ($75,957 × 40 small entities PA projects) and $3,480,200 ($87,005 × 40 small entities PA projects) per year. The historical average cost share for PA Category E projects is 80.7 percent covered by FEMA and 19.3 percent covered by the recipients, with the majority of recipients receiving a 75 percent or a 90 percent cost share, depending on the type of disaster declaration. FEMA estimates that, for PA Category E projects, each small entity would have an average expected cost (i.e., their portion of the cost share), of between $13,141 ($75,957 × 17.3 percent) and $15,052 ($87,005 × 17.3 percent) per project. As established above, FEMA estimates that this rule would affect approximately 43 small HMA grant recipients per year. Using CISA as the primary approach, FEMA estimates that the total 10-year cost for the elevation and floodproofing requirements of this proposed rule for HMA projects would be $4,810,196 ($48,101,958 ÷ 10 years) annually for 1,035 (10,351 HMA Total FFRMS action projects ÷ 10 years) projects annually. There is an average of 43 small entities HMA projects per year. The average HMA project cost is $4,648 ($4,810,196 ÷ 1,035 HMA projects) per project. The cost-sharing arrangement for HMA is 75 percent Federal and 25 percent recipient, so HMA recipients would be required to fund 25 percent of the costs to comply with the requirements of the proposed rule. Each small entity cost share would have an average expected cost is $1,162 ($4,648 × 25 percent). Reporting and recordkeeping are not expected to change with the exception of minor changes to FEMA’s Mitigation Grant Program/e-Grants system. FEMA would still make the determination if a project would take place in an FFRMS floodplain. 2.5 Identification, to the Extent Practicable, of Relevant Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule Situations may arise where multiple Federal agencies are conducting, supporting (including funding), or permitting actions in the same geographic area as FEMA actions subject to the FFRMS. In order to address this possibility, Sec. H of FEMA’s policy will leverage the Unified Federal Review process. Because FEMA has a VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 coordination process in place for these occasions, the rule does not conflict with or duplicate the rules of other Federal agencies. This rule proposes to modify existing FEMA regulations relating to compliance with Executive Order 11988, Floodplain Management are being modified to comply with Executive Order 11988, as amended. 2.6 Description of Any Significant Alternatives to the Proposed Rule Which Accomplish the Stated Objectives of Applicable Statutes, and Which Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities The standards proposed in this rule represent FEMA’s efforts to implement Executive Order 11988, as amended, which establishes executive branchwide policy in this area. Executive Order 13690 establishes the FFRMS. The policies established in these EOs do not consider exempting small entities from all or part of the standard; the purpose of the FFRMS is to ensure that agencies expand management from the current base flood level to a higher vertical elevation and corresponding horizontal floodplain to address current and future flood risk and ensure that projects funded with taxpayer dollars last as long as intended. Accordingly, FEMA proposes that the rule apply to all affected FEMA projects, including small entities. As discussed previously, most of the cost of the mitigation standards required by this rule would be paid by FEMA in the form of additional PA, IA, or HMA grants. Cost sharing is required for most FEMA grant programs. For PA and HMA, affected small entities would be required to pay the recipient portion of the cost share, which is 25 percent in most cases. There are, however, some exceptions and cost shares can be waived or set at a different level by Congress. FEMA does not have the authority to adjust the cost share specifically for small entities. Executive Order 11988, as amended, allows several approaches to determine the FFRMS floodplain. Section F of this NPRM, FEMA’s Implementation of Executive Order 11988, as amended, and FFRMS, describes the FFRMS approaches allowed by Executive Order 11988, as amended, and FEMA’s considerations when selecting between the FFRMS approaches. FEMA is proposing, in its accompanying policy, to use CISA as the preferred approach. FEMA has chosen CISA as its preferred approach because it is the only one that uses the best available climate science to ensure projects are designed to meet PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 67915 current and future flood risks unique to the location and thus ensures the best overall resilience, cost effectiveness, and equity. Accordingly, FEMA believes its preferred approach will minimize the risk that affected small entities incur more costs than necessary because of overprotection or incur preventable costs from future damage because of under protection. Small entities affected by the proposed rule, as with any entity affected by the rule, would have the option to relocate outside of the floodplain. This may be preferable in cases where property can be obtained and new facilities built for less cost than elevating or floodproofing to the FFRMS level in the floodplain, and the recipient has the ability to relocate. FEMA requests public comment on alternatives to the proposed rule that it may not have considered, which accomplish the stated objectives of applicable statutes, and which minimize any significant economic impact of the rule on small entities. FEMA also invites all interested parties to submit data and information regarding the potential economic impact on small entities from adoption of this proposed rule. FEMA will consider all comments received in the public comment process. C. Unfunded Mandates Reform Act Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 2 U.S.C. 1531), each Federal agency shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law). Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and Tribal governments and the private sector. The proposed rule would not result in such an expenditure, and thus preparation of such a statement is not required. E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67916 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules D. National Environmental Policy Act (NEPA) of 1969 Section 102 of the National Environmental Policy Act of 1969 (NEPA), Public Law 91–190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq.) requires Federal agencies to evaluate the impact of a proposed major Federal action significantly affecting the human environment, consider alternatives to the proposed action, provide public notice and opportunity for comment, and properly document its analysis. 40 CFR parts 1501, 1502, 1506.6. DHS and its component agencies analyze proposed actions to determine whether NEPA applies and, if so, what level of analysis and documentation is required. 40 CFR 1501.3. DHS Directive 023–01, Rev. 01 and DHS Instruction Manual 023–01– 001–01, Rev. 01 (Instruction Manual) establish the policies and procedures DHS and its component agencies use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing the procedural requirements of NEPA codified in 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal agencies to establish—in their NEPA implementing procedures with CEQ review and concurrence— categories of actions (‘‘categorical exclusions’’) that normally do not have a significant effect on the human environment. Therefore, these categorically excluded actions do not require preparation of an environmental assessment or environmental impact statement. 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). The Instruction Manual, Appendix A, lists the DHS categorical exclusions. Under DHS NEPA implementing procedures, for an action to be categorically excluded it must satisfy each of the following conditions: (1) the entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. The proposed rule would update the Floodplain Management and Protection of Wetland requirements to adopt the approaches outlined in E.O. 11988, as amended. This involves establishing the floodplain, using the vertical elevation and corresponding horizontal extent, in the 8-step decision making process FEMA follows in applying E.O. 11988 to its actions. FEMA proposes to amend regulations codified at 44 CFR part 9 to revise the definition of the floodplain based on the approaches in E.O. 11988, as amended, consisting of the Climate- VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 Informed Science Approach, the freeboard value approach, the 0.2 percent annual chance flood approach, and any other method identified in updates. The proposed rule allows FEMA to select and prioritize among these approaches. The rule revises the 8step decision making process to incorporate consideration of the approaches in determining if the project is in the floodplain. The rule would also add a requirement, where possible, to use natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for Federal actions in a floodplain. The result of redefining the floodplain and applying the approaches outlined in Executive Order 11988, as amended, may be that structures determined to be in the floodplain (‘‘the FFRMS floodplain’’) would be elevated or floodproofed to a higher level, and more structures—due to the corresponding horizontal expansion of the floodplain— might be subject to an elevation requirement and/or other mitigation measures. Further, with the expanded horizontal floodplain, and application of the 8-step decision making process which allows for Federal actions in the floodplain only if there is no practicable alternative, it is possible some structures that otherwise would be constructed in a high-risk flood area, would be constructed elsewhere. This would result in better protection of people and their property, the floodplain and environment. When placing the action in the floodplain cannot be avoided, implementing mitigation measures to structures in the FFRMS floodplain will not only promote public safety and lessen flood risk, but may also reduce the impact of the action on the floodplain, and thereby contribute to preserving the natural and beneficial values of the floodplain per the mandate in E.O. 11988. Similarly, the requirement to use natural systems, ecosystem processes, and nature-based approaches, where possible, in alternatives to the proposed action would contribute to restoring and preserving the natural and beneficial values of the floodplain. FEMA has determined that NEPA applies to the proposed rule because it fits the definition of a ‘‘major federal action.’’ CEQ’s NEPA regulations define ‘‘major federal action’’ to include ‘‘new or revised agency rules,’’ regulations and policies. 40 CFR 1508.1(q)(2). The proposed rule, involving revision of the regulations at 44 CFR part 9, and accompanying new policy, constitute a ‘‘major federal action.’’ FEMA analyzed the proposed rule and finds that it meets the three DHS PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 criteria for a categorical exclusion. FEMA has determined that consistent with the first criterion, the rule clearly fits within the categorical exclusion found at A3 in the DHS Instruction Manual, Appendix A. Categorical exclusion A3 states that ‘‘promulgation of rules, issuance of rulings or interpretations, and the development and publications of policies’’ may be categorically excluded if such actions ‘‘interpret or amend an existing regulation without changing its environmental effect.’’ Instruction Manual, Appendix A, A3(d). The proposed rule may result in requiring a structure to have either higher elevation or floodproofing, or more resilient design. The rule, however, does not change the environmental impacts because the modifications do not expand the footprint of the structure. It is possible the expanded horizontal floodplain may discourage placing a ‘‘federal action’’ in the floodplain as under the 8-step decision making process, a structure may be located in the floodplain only if there is no practicable alternative. In the event there is a practicable alternative, and new construction is consequently located outside the floodplain, the effect of the proposed rule would be to benefit the environment by contributing to restoring and preserving the values of the floodplain as well as enhancing public safety. If the Federal action must be located in the FFRMS floodplain, that is, there no practicable alternative, it will be subject to one of the three approaches or a combination of them. FEMA’s preferred approach is CISA. If the CISA approach is used, it could result in an estimated average of 5 feet of additional elevation for a structure (or floodproofing to that level). FEMA prefers the CISA approach because it perceives that using the best actionable and available climate informed science to determine the floodplain is the most effective way to make the structure resilient. If CISA is not available, the proposed rule provides alternatives for determining the floodplain for critical actions and non-critical actions: for noncritical actions, the lesser of the freeboard value approach (2 or 3 feet above base flood elevation) or the .2 percent annual flood; and for critical actions, the higher of the freeboard value approach or .2 percent annual flood. Given CISA or the combination of approaches may be used, the potential for the change in elevation (or floodproofing) levels varies. Further, if communities have stricter standards, which they are required to apply, the E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules communities will still apply that standard and thus application of the FFRMS would not require a change in elevation. If the ‘‘federal action’’ is substantial improvement or addresses substantial damage to a structure or facility, it would involve action in a prebuilt environment, with the only change being that the structure or facility might be elevated or floodproofed to the appropriate higher level. If design rather than elevation or in addition to elevation is used to comply with the FFRMS resilience standard, it is not anticipated to change the footprint of the structure or to significantly impact the environment. As part of implementing the FFRMS resilience standard, nature-based solutions are required in alternatives to the proposed action, where possible. When applied, they will benefit the environment by contributing to restoring and preserving the natural and beneficial values of the floodplain. None of the changes required by any of the combined FFRMS approaches are anticipated to change the environmental effects of application of the 8-step process. In addition to and apart from application of the decision process in this proposed rule, all Federal actions, new construction, substantial improvement, and actions addressing substantial damage, are subject to NEPA review and must comply with NEPA requirements. Each Federal action (or project) subject to the FFRMS will be evaluated on an individual basis under NEPA and related environmental laws, regulations, and executive orders. The Federal action will not be approved unless it meets all applicable environmental and historic preservation requirements. Further, the Federal actions subject to the proposed rule must comply with all applicable floodplain requirements. See 44 CFR 9.11(d)(6) (referring to requirement to be consistent with the criteria of the National Flood Insurance Program at 44 CFR part 59 et seq. or any more restrictive Federal, State, or local floodplain management standard). FEMA therefore concludes the proposed rule clearly fits within categorical exclusion A3. FEMA also finds the proposed rule meets the second and third DHS criteria for applying a categorical exclusion. The proposed rule is not a piece of a larger action as it will be implemented independently of other FEMA actions and is a separate action unto itself. Furthermore, FEMA finds that adopting the floodplain management and protection approaches outlined in E.O. 11988 presents no extraordinary circumstances that increase the VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 potential for significant environmental effects to the environment. Accordingly, the proposed rule is categorically excluded, and no further NEPA analysis or documentation is required. E. Paperwork Reduction Act (PRA) of 1995 As required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.), FEMA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. See 44 U.S.C. 3506, 3507. This proposed rulemaking would call for no new collections of information under the PRA. This proposed rule includes information currently collected by FEMA and approved in OMB information collections 1660–0072 (FEMA Mitigation Grant Programs) and 1660–0076 (Hazard Mitigation Grant Program (HMGP) Application and Reporting). With respect to these collections, this proposed rulemaking would not impose any additional burden and would not require a change to the forms, the substance of the forms, or the number of recipients who would submit the forms to FEMA. F. Privacy Act Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must determine whether implementation of a proposed regulation would result in a system of records. A ‘‘record’’ is any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his/her education, financial transactions, medical history, and criminal or employment history and that contains his/her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ‘‘system of records’’ is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. See 5 U.S.C. 552a(a)(5). An agency cannot disclose any record, which is contained in a system of records, except by following specific procedures. In accordance with DHS policy, FEMA has completed a Privacy Threshold Analysis for this proposed rule. This rule is covered by the following PIAs: DHS/FEMA/PIA–006 FEMA National Emergency Management PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 67917 Electronic Grants System, DHS/FEMA/ PIA–025-Hazard Mitigation Grant Program (HMGP) System, DHS/FEMA/ PIA–026 Operational Data Store and Enterprise Data Warehouse PIA, and DHS/FEMA/PIA–031 Authentication and Provisioning Services (APS). No updates to these PIAs are necessary. Further, this rule is covered under the following System of Records Notices (SORNs): DHS/FEMA–009 Hazard Mitigation, Disaster Public Assistance, and Disaster Loan Programs, 79 FR 16015, Mar. 24, 2014; DHS/ALL–004 General Information Technology Access Account Records System (GITAARS), 77 FR 70792, Nov. 27, 2012; and DHS/ FEMA–008 Disaster Recovery Assistance Files. This proposed rule would not create a new system of records and no update to these SORNs are necessary. G. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments Executive Order 13175, ‘‘Consultation and Coordination With Indian Tribal Governments,’’ 65 FR 67249, Nov. 9, 2000, applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive Order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulations are provided by the Federal Government, or the agency consults with Tribal officials. FEMA has reviewed this proposed rule under Executive Order 13175 and has determined that this rule would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Part 9 applies to FEMA disaster and non-disaster assistance programs, including PA, Individual Assistance, HMA, and grants processed by GPD. Pursuant to section 8 of Executive Order 11988, part 9 does not apply to E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67918 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to sections 403 and 502 of the Stafford Act, as amended (42 U.S.C. 5170b and 5192). Indian Tribes have the same opportunity to participate in FEMA’s grant programs as other eligible participants, and participation is voluntary. The requirements of this rule do not affect Tribes differently than other grant recipients. Therefore, FEMA does not expect this proposed rule would have a substantial direct effect on one or more Indian Tribes or impose substantial direct compliance costs on Indian Tribal governments but will consider any information provided in comments to inform its analysis of this issue as part of a final rule. Notwithstanding FEMA’s conclusion that this proposed rule would not have tribal implications, FEMA recognizes the importance of engaging with Tribes with respect to the FFRMS. FEMA therefore summarizes below the extensive engagement process that precedes this rule, including significant engagement with Tribal leaders. As noted above, in the aftermath of Hurricane Sandy, the President issued Executive Order 13632,152 which created the Federal Interagency Hurricane Sandy Rebuilding Task Force (Sandy Task Force). This Task Force was chaired by the Secretary of HUD, who led the effort in coordination with multiple Federal partners, as well as an advisory group composed of State, local, and Tribal elected leaders. In June 2013, the President issued a Climate Action Plan that directed agencies to take the appropriate actions to reduce risk to Federal investments, specifically directing agencies to build on the work done by the Sandy Task Force and update their flood risk reduction standards for ‘‘federallyfunded projects’’ to ensure that ‘‘projects funded with taxpayer dollars last as long as intended.’’ In November 2013, the Climate Task Force convened, with 26 Governors, mayors, and local and Tribal leaders serving as members. After a year-long process of receiving input from across State, local, Tribal and territorial governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders, the Task Force provided a recommendation to the President in November 2014 that, in order to ensure resiliency, Federal agencies, when taking actions in and around floodplains, should include considerations of the effects of changing 152 77 153 The 1978 Guidelines were the original interpretation of Executive Order 11988. FR 74341, Dec. 14, 2012. VerDate Sep<11>2014 19:18 Sep 29, 2023 conditions, including sea level rise, more frequent and severe storms, and increasing river flood risks. Executive Order 11988, as amended, established the FFRMS. It also set forth a process by which additional input from stakeholders could be solicited and considered before agencies took any action to implement the FFRMS. It required FEMA to publish an updated draft version of the 1978 Guidelines 153 revised to incorporate the changes required by Executive Order 13690 and the FFRMS in the Federal Register for notice and comment. Finally, Executive Order 13690 required the WRC to issue final Guidelines to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the FFRMS. FEMA, acting on behalf of the Mitigation Framework Leadership Group, published a Federal Register notice for a 60-day notice and comment period seeking comments on a draft of the Revised Guidelines, 80 FR 6530, Feb. 5, 2015. Additionally, on February 27, 2015, FEMA, again acting on behalf of the Mitigation Framework Leadership Group, wrote to Tribal Leaders specifically asking for their comments regarding the Executive Order establishing the FFRMS. In response to multiple requests, the comment period was extended for an additional 30 days to end on May 6, 2015. The Administration also attended or hosted over 25 meetings across the country with State, local, and Tribal officials (including 26 mayors) and interested stakeholders to discuss the Guidelines. There were 9 public listening sessions across the country that were attended by over 700 participants from State, local, and Tribal governments, and other stakeholder organizations to discuss the Guidelines. There were Tribal representatives at both the Ames, Iowa and Sacramento, California listening sessions; however, the specific Tribes that they were representing were not identified. Notice of these public listening sessions was posted in the Federal Register. The public comment period closed on May 6, 2015. Two Tribes submitted formal comments on the Guidelines during the Federal Register comment period. The WRC issued the Revised Guidelines on October 8, 2015, and the corresponding Notice published in the October 22, 2015 Federal Register at 80 FR 64008. FEMA welcomes Tribal comments on all aspects of this proposed rule. Jkt 262001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 H. Executive Order 13132, Federalism Executive Order 13132, ‘‘Federalism,’’ 64 FR 43255, Aug. 10, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action. FEMA has reviewed this proposed rule under Executive Order 13132 and has determined that this rule would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications as defined by the Executive Order. Part 9 applies to FEMA disaster and non-disaster assistance programs, including Public Assistance, Individual Assistance, HMA, and grants processed from GPD. Pursuant to section 8 of Executive Order 11988, part 9 does not apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to section 403 and 502 of the Stafford Act, as amended (42 U.S.C. 5170b and 5192). The proposed rule does not significantly affect the rights, roles, and responsibilities of States, and involves no preemption of State law nor does it limit State policymaking discretion. I. Executive Order 12898, Environmental Justice; Executive Order 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All Under Executive Order 12898, ‘‘Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,’’ (59 FR 7629, Feb. 16, 1994); and Executive Order 14096, ‘‘Revitalizing Our Nation’s Commitment to Environmental Justice for All (88 FR 25251, Apr. 26, 2023), FEMA incorporates environmental justice into its policies and programs. Executive Order 14096 charges agencies to make achieving environmental justice part of their missions consistent with statutory E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules authority by identifying, analyzing, and addressing disproportionate and adverse human health and environmental effects and hazards of Federal activities, including those related to climate change and cumulative impacts of environmental and other burdens on communities with environmental justice concerns. FEMA does not expect this rule to have a disproportionate and adverse human health or environmental effect on communities with environmental justice concerns but will consider any information provided in comments to inform its analysis of this issue as part of a final rule. J. Executive Order 12630, Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, ‘‘Governmental Actions and Interference With Constitutionally Protected Property Rights’’ (53 FR 8859, Mar. 18, 1988). K. Executive Order 12988, Civil Justice Reform This NPRM meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, ‘‘Civil Justice Reform’’ (61 FR 4729, Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce burden. lotter on DSK11XQN23PROD with PROPOSALS2 L. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks This NPRM will not create environmental health risks or safety risks for children under Executive Order 13045, ‘‘Protection of Children From Environmental Health Risks and Safety Risks’’ (62 FR 19885, Apr. 23, 1997). M. Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, OMB Circular A– 119 ‘‘Voluntary consensus standards’’ are standards developed or adopted by voluntary consensus standards bodies, both domestic and international. These standards include provisions requiring that owners of relevant intellectual property have agreed to make that intellectual property available on a nondiscriminatory, royalty-free, or reasonable royalty basis to all interested parties. OMB Circular A–119 directs agencies to use voluntary consensus standards in their regulatory actions in lieu of government-unique standards except where inconsistent with law or otherwise impractical. The policies in the Circular are intended to reduce to a VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 minimum the reliance by agencies on government-unique standards. Consistent with then-President Obama’s Climate Action Plan,154 the National Security Council staff coordinated an interagency effort to create a new flood risk reduction standard for Federally funded projects. The views of Governors, mayors, and other stakeholders were solicited and considered as efforts were made to establish a new flood risk reduction standard for Federally funded projects. The FFRMS is the result of these efforts. List of Subjects in 44 CFR Part 9 Flood plains, Reporting and recordkeeping requirements. For the reasons discussed in the preamble, FEMA proposes to amend 44 CFR part 9, as follows: PART 9—FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS 1. The authority citation for part 9 is revised to read as follows: ■ Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42 U.S.C. 4321 et seq.; E.O. 11988 of May 24, 1977, 42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990 of May 24, 1977, 42 FR 26961, 3 CFR, 1977 Comp. p. 121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 FR 27967. ■ 2. Revise § 9.1 to read as follows: § 9.1 Purpose. This part sets forth the policy, procedure, and responsibilities to implement and enforce relevant sections of the National Flood Insurance Act of 1968, as amended, and the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4001 et seq., the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., as amended, and other relevant statutory authorities in conjunction with Executive Order 11988, Floodplain Management, as amended, and Executive Order 11990, Protection of Wetlands. ■ 3. Amend § 9.2 by revising paragraph (b) and adding paragraphs (c) and (d) to read as follows: § 9.2 Policy. * * * * * (b) The Agency will provide leadership in floodplain management and the protection of wetlands, informed by the best available and 154 The White House, ‘‘President Obama’s Climate Action Plan, 2nd Anniversary Progress Report— Continuing to cut carbon, pollution, protect American communities, and lead internationally.’’ June 2015 found at https:// obamawhitehouse.archives.gov/sites/default/files/ docs/cap_progress_report_final_w_cover.pdf (last accessed July 12, 2023). PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 67919 actionable science, to bolster the resilience of communities and Federal assets against the impacts of flooding, which are anticipated to increase over time due to the effects of changing conditions which adversely affect the environment, economic prosperity, public health and safety, and national security. (c) The Agency shall integrate the goals of the Orders to the greatest possible degree into its procedures for implementing the National Environmental Policy Act (42 U.S.C. 4321 et seq.). (d) The Agency shall: (1) Minimize the impact of floods on human health, safety, and welfare; (2) Avoid long- and short-term adverse impacts associated with the occupancy and modification of floodplains and the destruction and modification of wetlands; (3) Avoid direct and indirect support of floodplain development and new construction in wetlands wherever there is a practicable alternative; (4) Reduce the risk of flood loss; (5) Promote the use of nonstructural flood protection methods to reduce the risk of flood loss; (6) Minimize the destruction, loss, or degradation of wetlands; (7) Restore and preserve the natural and beneficial values served by floodplains; (8) Preserve and enhance the natural values of wetlands; (9) Involve the public throughout the floodplain management and wetlands protection decision-making process; (10) Adhere to the objectives of the Unified National Program for Floodplain Management; and (11) Improve and coordinate the Agency’s plans, programs, functions, and resources so that the Nation may attain the widest range of beneficial uses of the environment without degradation or risk to health and safety. ■ 4. Amend § 9.3 by revising to read as follows: § 9.3 Severability. Any provision of this part held to be invalid or unenforceable as applied to any action should be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding is that the provision of this part is invalid and unenforceable in all circumstances, in which event the provision should be severable from the remainder of this subpart and shall not affect the remainder thereof. ■ 5. Amend § 9.4 by: ■ a. Adding in alphanumeric order definitions for ‘‘0.2 Percent Annual Chance Flood Elevation,’’ ‘‘0.2 Percent E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67920 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules Annual Chance Floodplain,’’ ‘‘1 Percent Annual Chance Flood Elevation,’’ and ‘‘1 Percent Annual Chance Floodplain;’’ ■ b. Revising the definitions of ‘‘Action’’ and ‘‘Actions Affecting or Affected by Floodplains or Wetlands;’’ ■ c. Adding the definition of ‘‘Action Subject to the Federal Flood Risk Management Standard;’’ ■ d. Removing the definitions of ‘‘Base Flood’’ and ‘‘Base Floodplain;’’ ■ e. Adding the definition of ‘‘Base Flood Elevation;’’ ■ f. Revising the definitions of ‘‘Coastal High Hazard Area,’’ ‘‘Critical Action’’ and ‘‘Emergency Actions;’’ ■ g. Adding in alphabetical order definitions for ‘‘Federal Flood Risk Management Standard (FFRMS),’’ ‘‘Federal Flood Risk Management Standard Floodplain,’’ ‘‘Federally Funded Project,’’ and ‘‘FEMA Resilience;’’ ■ h. Removing the definitions of ‘‘Five Hundred Year Floodplain’’ and ‘‘FIA;’’ ■ i. Revising the definition of ‘‘Flood or Flooding;’’ ■ j. Removing the definitions of ‘‘Flood Fringe,’’ ‘‘Flood Hazard Boundary Map (FHBM),’’ ‘‘Flood Insurance Rate Map (FIRM),’’ and ‘‘Flood Insurance Study;’’ ■ k. Revising the definitions of ‘‘Floodplain’’, ‘‘Functionally Dependent Use’’, and ‘‘Mitigation;’’ ■ l. Removing the definition of ‘‘Mitigation Directorate;’’ ■ m. Adding in alphabetical order a definition for ‘‘National Security’’ and ‘‘Nature-Based Approaches,’’ ‘‘Natural and Beneficial Values of Floodplains and Wetlands,’’ and ‘‘Natural Features;’’ ■ n. Removing the definition of ‘‘Natural Values of Floodplains and Wetlands;’’ ■ o. Revising the definition of ‘‘New Construction;’’ ■ p. Removing the definition of ‘‘New Construction in Wetlands;’’ ■ q. Revising the definitions of ‘‘Orders’’, ‘‘Practicable’’, and ‘‘Regulatory Floodway’’, ‘‘Restore’’, ‘‘Structures’’, and ‘‘Substantial Improvement;’’ ■ r. Adding the definition of ‘‘Support of Floodplain and Wetland Development;’’ ■ s. Removing the definition of ‘‘Support;’’ and ■ t. Revising the definition of ‘‘Wetlands.’’ The additions and revisions read as follows: § 9.4 Definitions. 0.2 Percent Annual Chance Flood Elevation means the elevation to which floodwater is anticipated to rise during the 0.2 percent annual chance flood (also known as the 500-year flood). VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 0.2 Percent Annual Chance Floodplain means the area subject to flooding by the 0.2 percent annual chance flood (also known as the 500year floodplain). 1 Percent Annual Chance Flood Elevation—see Base Flood Elevation. 1 Percent Annual Chance Floodplain means the area subject to flooding by the 1 percent annual chance flood (also known as the 100-year floodplain or base floodplain). Action means (1) Acquiring, managing, and disposing of Federal lands and facilities; (2) Providing federally undertaken, financed, or assisted construction and improvements; and (3) Conducting Federal activities and programs affecting land use, including, but not limited to, water and related land resources, planning, regulating, and licensing activities. Actions Affecting or Affected by Floodplains or Wetlands means actions which have the potential to result in the long- or short-term impacts associated with: (1) The occupancy or modification of floodplains, and the direct or indirect support of floodplain development, or (2) The destruction and modification of wetlands and the direct or indirect support of new construction in wetlands. Action Subject to the Federal Flood Risk Management Standard (FFRMS) means any action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility. * * * * * Base Flood Elevation means the elevation to which floodwater is anticipated to rise during the 1 percent annual chance flood (also known as the base flood or 100-year flood). The terms ‘‘base flood elevation,’’ ‘‘1 percent annual change flood elevation,’’ and ‘‘100-year flood elevation’’ are synonymous and are used interchangeably. Coastal High Hazard Area means an area of flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. Critical Action means any action for which even a slight chance of flooding is too great. Critical actions include, but are not limited to, those which create or extend the useful life of structures or facilities: (1) Such as those which produce, use or store highly volatile, flammable, PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 explosive, toxic or water-reactive materials; (2) Such as hospitals and nursing homes, and housing for the elderly, which are likely to contain occupants who may not be sufficiently mobile to avoid the loss of life or injury during flood and storm events; (3) Such as emergency operation centers, or data storage centers which contain records or services that may become lost or inoperative during flood and storm events; and (4) Such as generating plants, and other principal points of utility lines. * * * * * Emergency Actions means emergency work essential to save lives and protect property and public health and safety performed under sections 403 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (42 U.S.C. 5170b and 5192). * * * * * Federal Flood Risk Management Standard (FFRMS) means the Federal flood risk management standard to be incorporated into existing processes used to implement Executive Order 11988, as amended. Federal Flood Risk Management Standard (FFRMS) Floodplain means the floodplain established using one of the approaches described in § 9.7(c) of this part. Federally Funded Project—see Action Subject to the Federal Flood Risk Management Standard. FEMA Resilience means the organization within FEMA that includes the Federal Insurance and Mitigation Administration, the Grants Program Directorate, and the National Preparedness Directorate. * * * * * Flood or flooding means the general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland and/or tidal waters, and/or the unusual and rapid accumulation of runoff of surface waters from any source. 0.2 Percent Annual Chance Flood means the flood which has a 0.2 percent chance of being equaled or exceeded in any given year (also known as the 500year flood). 1 Percent Annual Chance Flood means the flood which has a 1 percent chance of being equaled or exceeded in any given year (also known as the 100-year flood or base flood). The terms ‘‘base flood,’’ ‘‘1 percent annual chance flood,’’ and ‘‘100-year flood’’ are synonymous and are used interchangeably. * * * * * Floodplain means any land area that is subject to flooding. The term E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules ‘‘floodplain,’’ by itself, refers to geographic features with undefined boundaries. For the purposes of this part, the FFRMS floodplain shall be established using one of the approaches described in § 9.7(c) of this part. See 0.2 Percent Annual Chance Floodplain, 1 Percent Annual Chance Floodplain, and Federal Flood Risk Management Standard Floodplain. * * * * * Functionally Dependent Use means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. * * * * * Mitigation means steps necessary to minimize the potentially adverse effects of the proposed action, and to restore and preserve the natural and beneficial floodplain values and to preserve and enhance natural values of wetlands. * * * * * National Security means a condition that is provided by either (1) a military or defense advantage over any foreign nation or group of nations; (2) a favorable foreign relations position; or (3) a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert. National security encompasses both national defense and foreign relations of the United States. Nature-Based Approaches means the features (sometimes referred to as ‘‘green infrastructure’’) designed to mimic natural processes and provide specific services such as reducing flood risk and/or improving water quality. Nature-based approaches are created by human design (in concert with and to accommodate natural processes) and generally, but not always, must be maintained in order to reliably provide the intended level of service. Natural and Beneficial Values of Floodplains and Wetlands means features or resources that provide environmental and societal benefits. Water and biological resources are often referred to as ‘‘natural functions of floodplains and wetlands.’’ These values include, but are not limited to: (1) Water Resource Values (storing and conveying floodwaters, maintaining water quality, and groundwater recharge); (2) Living Resource Values (providing habitats and enhancing biodiversity for fish, wildlife, and plant resources); (3) Cultural Resource Values (providing open space, natural beauty, recreation, scientific study, historic and archaeological resources, and education; and VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 (4) Cultivated Resource Values (creating rich soils for agriculture, aquaculture, and forestry). Natural Features means characteristics of a particular environment (e.g., barrier islands, sand dunes, wetlands) that are created by physical, geological, biological, and chemical processes and exist in dynamic equilibrium. Natural features are self-sustaining parts of the landscape that require little or no maintenance to continue providing their ecosystem services (functions). New Construction means the construction of a new structure or facility or the replacement of a structure or facility which has been totally destroyed. New construction includes permanent installation of temporary housing units. New construction in wetlands includes draining, dredging, channelizing, filling, diking, impounding, and related activities. * * * * * Orders means Executive Order 11988, Floodplain Management, as amended, and Executive Order 11990, Protection of Wetlands. Practicable means capable of being done within existing constraints. The test of what is practicable depends on the situation and includes consideration of all pertinent factors, such as natural environment, social concerns, economic aspects, legal constraints, and agency authorities. * * * * * Regulatory Floodway means the area regulated by Federal, State, or local requirements to provide for the discharge of the base flood so the cumulative rise in the water surface is no more than a designated amount above the base flood elevation. Restore means to reestablish a setting or environment in which the natural functions of the floodplain can operate. Structure means a walled and roofed building, including a temporary housing unit (manufactured housing) or a gas or liquid storage tank. Substantial Improvement means any repair, reconstruction or other improvement of a structure or facility, which has been damaged in excess of, or the cost of which equals or exceeds, 50% of the pre-disaster market value of the structure or replacement cost of the facility (including all ‘‘public facilities’’ as defined in the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988) (1) before the repair or improvement is started, or (2) if the structure or facility has been damaged and is proposed to be restored. Substantial improvement includes work to address substantial damage to a PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 67921 structure or facility. If a facility is an essential link in a larger system, the percentage of damage will be based on the cost of repairing the damaged facility relative to the replacement cost of the portion of the system which is operationally dependent on the facility. The term ‘‘substantial improvement’’ does not include any alteration of a structure or facility listed on the National Register of Historic Places or a State Inventory of Historic Places. * * * * * Support of Floodplain and Wetland Development means to, directly or indirectly, encourage, allow, serve, or otherwise facilitate development in floodplains or wetlands. Development means any man-made change to improved or unimproved real estate, including but not limited to new construction, mining, dredging, filling, grading, paving, excavation or drilling operations, or storage of equipment or materials. Direct support results from actions within floodplains or wetlands, and indirect support results from actions outside of floodplains or wetlands. Wetlands means those areas which are inundated or saturated by surface or ground water with a frequency sufficient to support, or that under normal hydrologic conditions does or would support, a prevalence of vegetation or aquatic life typically adapted for life in saturated or seasonally saturated soil conditions, including wetlands areas separated from their natural supply of water as a result of construction activities such as structural flood protection methods or solid-fill road beds, and activities such as mineral extraction and navigation improvements. Examples of wetlands include, but are not limited to, swamps, fresh and salt water marshes, estuaries, bogs, beaches, wet meadows, sloughs, potholes, mud flats, river overflows, and other similar areas. This definition is intended to be consistent with the definition utilized by the U.S. Fish and Wildlife Service. ■ 6. Amend § 9.5 by revising paragraph (a)(3), the first sentence of paragraph (b)(1), and paragraphs (c) through (g) to read as follows: § 9.5 Scope. (a) * * * (3) The amendments to this part made on [EFFECTIVE DATE OF FINAL RULE] apply to new actions for which assistance is made available pursuant to declarations under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 on or after [EFFECTIVE DATE OF FINAL RULE] and new actions for which assistance is E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67922 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules made available pursuant to notices of funding opportunities published on or after [EFFECTIVE DATE OF FINAL RULE]. For ongoing actions for which assistance was made available prior to that date, legacy program regulations set forth in guidance and available at https:// www.fema.gov shall apply. (b) * * * (1) Executive Order 11990, Protection of Wetlands, contains a limited exemption not found in Executive Order 11988, Floodplain Management, as amended. * * * * * * * * (c) Decision-making involving certain categories of actions. The provisions set forth in this part are not applicable to the actions enumerated in paragraphs (c)(1) through (10) of this section except that the Regional Administrators shall comply with the spirit of Executive Order 11988, as amended, and Executive Order 11990 to the extent practicable. For any action which is excluded from the actions enumerated below, the full 8-step process applies (see § 9.6) (except as indicated at paragraphs (d), (e), and (g) of this section regarding other categories of partial or total exclusion). The provisions of this part do not apply to the following (all references are to the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. 93–288, as amended, except as noted): (1) Assistance provided for emergency work essential to save lives and protect property and public health and safety performed pursuant to sections 403 and 502; (2) Emergency Support Teams (section 303); (3) Emergency Communications (section 418); (4) Emergency Public Transportation (section 419); (5) Fire Management Assistance (section 420), except for hazard mitigation assistance under sections 404 and 420(d); (6) Community Disaster Loans (section 417), except to the extent that the proceeds of the loan will be used for repair of facilities or structures or for construction of additional facilities or structures; (7) The following Federal Assistance to Individuals and Households Program (section 408) categories of assistance: (i) Financial assistance for temporary housing (section 408(c)(1)(A)); (ii) Lease and repair of rental units for temporary housing (section 408(c)(1)(B)(ii)), except that Step 1 (§ 9.7) shall be carried out; (iii) Repairs (section 408(c)(2)); VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 (iv) Replacement (section 408(c)(3)); and (v) Financial assistance to address other needs (section 408(e)). (8) Debris clearance and removal (sections 403 and 502), except those grants involving non-emergency disposal of debris within a floodplain or wetland (section 407); (9) Actions under sections 406 and 407 of less than $18,000. Such $18,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor; (10) Placement of families in existing resources and Temporary Relocation Assistance provided to those families so placed under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Public Law 96–510. (d) Abbreviated decision-making process applying steps 1, 4, 5, and 8. The Regional Administrator shall apply steps 1, 4, 5, and 8 of the decisionmaking process (§§ 9.7, 9.10, and 9.11) to repairs under section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Public Law 93–288, as amended, between $18,000 and $91,000. Such $18,000 and $91,000 amounts will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor. For any action which is excepted from the actions listed below (except as otherwise provided in § 9.5 regarding other categories of partial or total exclusion), the full 8-step process applies (See § 9.6). The Regional Administrator may also require certain other portions of the decision-making process to be carried out for individual actions as is deemed necessary. Steps 1, 4, 5, and 8 of the decision-making process apply to actions under section 406 of the Stafford Act referenced above except for: (1) Actions in a floodway or coastal high hazard area; or (2) New construction, substantial improvement, or repairs to address substantial damage of structures or facilities; or (3) Facilities or structures which have previously sustained damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid; or (4) Critical actions. (e) Abbreviated decision-making process applying steps 1, 2, 4, 5, and 8. The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of the decisionmaking process (§§ 9.7, 9.8, 9.10, and 9.11, see § 9.6) to certain actions under Section 406 of the Robert T. Stafford PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 Disaster Relief and Emergency Assistance Act of 1988, Public Law 93– 288, as amended, provided in paragraphs (1) and (2) below. Steps 3 and 6 (§ 9.9) shall be carried out except that alternative sites outside the floodplain or wetland need not be considered. After assessing impacts of the proposed action on the floodplain or wetlands and of the site on the proposed action, alternative actions to the proposed action, if any, and the ‘‘no action’’ alternative shall be considered. The Regional Administrator may also require certain other portions of the decision-making process to be carried out for individual actions as is deemed necessary. For any action which is excluded from the actions listed below (except as otherwise provided in § 9.5 regarding other categories of partial or total exclusion), the full 8-step process applies (see § 9.6). The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of the decision-making process (§§ 9.7, 9.8, 9.10, and 9.11, see § 9.6) to: (1) Replacement of building contents, materials, and equipment (section 406). (2) Repairs under section 406 to damaged facilities or structures, except any such action for which one or more of the following is applicable: (i) FEMA estimated cost of repairs is more than 50 percent of the estimated reconstruction cost of the entire facility or structure or is more than $364,000. Such $364,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor; or (ii) The action is located in a floodway or coastal high hazard area; or (iii) Facilities or structures which have previously sustained structural damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid; or (iv) The action is a critical action. (f) Other categories of actions. Based upon the completion of the 8-step decision-making process (§ 9.6), the Regional Administrator may find that a specific category of actions either offers no potential for carrying out the purposes of the Orders and shall be treated as those actions listed in § 9.5(c), or has no practicable alternative sites and shall be treated as those actions listed in § 9.5(e), or has no practicable alternative actions or sites and shall be treated as those actions listed in § 9.5(d). This finding will be made in consultation with FEMA Resilience and the Council on Environmental Quality as provided in section 2(d) of Executive Order 11988, as amended. Public notice of each of these determinations shall E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules include publication in the Federal Register and a 30-day comment period. (g) The National Flood Insurance Program (NFIP). (1) FEMA Resilience shall apply the 8-step decision-making process to program-wide actions under the NFIP, including all regulations, procedures, and other issuances making or amending program policy, and the establishment of programmatic standards or criteria. FEMA Resilience shall not apply the 8-step decisionmaking process to the application of programmatic standards or criteria to specific situations. Thus, for example, FEMA Resilience would apply the 8step process to a programmatic determination of categories of structures to be insured, but not to whether to insure each individual structure. (2) The provisions set forth in this part are not applicable to the actions enumerated below except that FEMA Resilience shall comply with the spirit of the Orders to the extent practicable: (i) The issuance of individual flood insurance policies and policy interpretations; (ii) The adjustment of claims made under the Standard Flood Insurance Policy; (iii) The hiring of independent contractors to assist in the implementation of the NFIP; (iv) The issuance of individual flood insurance maps, Map Information Facility map determinations, and map amendments; and (v) The conferring of eligibility for emergency or regular program (NFIP) benefits upon communities. ■ 7. Revise § 9.6 to read as follows: lotter on DSK11XQN23PROD with PROPOSALS2 § 9.6 Decision-making process. (a) Purpose. This section sets out the floodplain management and wetlands protection decision-making process to be followed by the Agency in applying the Orders to its actions. The numbering of Steps 1 through 8 does not require that the steps be followed sequentially. As information is gathered through the decision-making process, and as additional information is needed, reevaluation of lower numbered steps may be necessary. (b) Decision-making process. Except as otherwise provided in § 9.5 regarding categories of partial or total exclusion when proposing an action, the Agency shall apply the 8-step decision-making process. FEMA shall: (1) Step 1. Determine whether the proposed action is located in a floodplain and/or a wetland as established by § 9.7; and whether it has the potential to affect or be affected by a floodplain or wetland (see § 9.7); VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 (2) Step 2. Notify the public at the earliest possible time of the intent to carry out an action in a floodplain or wetland, and involve the affected and interested public in the decision-making process (see § 9.8); (3) Step 3. Identify and evaluate practicable alternatives to locating the proposed action in a floodplain or wetland (including alternative sites, actions, natural features, nature-based approaches, and the ‘‘no action’’ option) (see § 9.9). If a practicable alternative exists outside the floodplain or wetland FEMA must locate the action at the alternative site. (4) Step 4. Identify the potential direct and indirect impacts associated with the occupancy or modification of floodplains and wetlands and the potential direct and indirect support of floodplain and wetland development that could result from the proposed action (see § 9.10); (5) Step 5. Minimize the potential adverse impacts to or within floodplains and wetlands and minimize support of floodplain and wetland development identified under Step 4. Restore and preserve the natural and beneficial values served by floodplains, and preserve and enhance the natural and beneficial values served by wetlands. Integrate nature-based approaches where appropriate (see § 9.11); (6) Step 6. Reevaluate the proposed action to determine first, if it is still practicable in light of its exposure to flood hazards, the extent to which it will aggravate hazards to others, and its potential to disrupt floodplain and wetland values; and second, if alternatives preliminarily rejected at Step 3 are practicable in light of the information gained in Steps 4 and 5. FEMA shall not act in a floodplain or wetland unless it is the only practicable location (see § 9.9); (7) Step 7. Prepare and provide the public with a finding and public explanation of any final decision that the floodplain or wetland is the only practicable alternative (see § 9.12); and (8) Step 8. Review the implementation and post-implementation phases of the proposed action to ensure that the requirements stated in § 9.11 are fully implemented. Oversight responsibility shall be integrated into existing processes. ■ 8. Amend § 9.7 by revising paragraphs (a), (b), (c), (d)(3) and (4) to read as follows: § 9.7 Determination of proposed action’s location. (a) Purpose. This section establishes Agency procedures for determining whether any action as proposed is PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 67923 located in or affects a floodplain established in paragraph (c) of this section or a wetland. (b) Information needed. (1) The Agency shall obtain enough information so that it can fulfill the requirements in this part to: (i) Avoid Federal action in floodplain and wetland locations unless they are the only practicable alternatives; and (ii) Minimize harm to and within floodplains and wetlands. (2) In all cases, FEMA shall determine whether the proposed action is located in a floodplain or wetland. Information about the floodplain as established by § 9.7(c) and the location of floodways and coastal high hazard areas may also be needed to comply with this part, especially § 9.11. (3) The following additional current and future flooding characteristics may be identified by the Regional Administrator as applicable: (i) Velocity of floodwater; (ii) Rate of rise of floodwater; (iii) Duration of flooding; (iv) Available warning and evacuation time and routes; (v) Special problems: (A) Levees; (B) Erosion; (C) Subsidence; (D) Sink holes; (E) Ice jams; (F) Debris load; (G) Pollutants; (H) Wave heights; (I) Groundwater flooding; (J) Mudflow. (vi) Any other applicable flooding characteristics. (c) Floodplain determination. In the absence of a finding to the contrary, FEMA will determine that a proposed action involving a facility or structure that has been flooded previously is in the floodplain. In determining if a proposed action is in the floodplain: (1) FEMA shall determine whether the action is an action subject to the FFRMS as defined in § 9.4. (i) If the action is an action subject to the FFRMS, FEMA shall establish the FFRMS floodplain area and associated flood elevation by using the process specified in (c)(3) of this section and one of the following approaches: (A) Climate-Informed Science Approach (CISA): Using a climateinformed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis; E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67924 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules (B) Freeboard Value Approach (FVA): Using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions; (C) 0.2 Percent Annual Chance Flood Approach (0.2PFA): The 0.2 percent annual chance flood; or (D) Any other method identified in an update to the FFRMS. (ii) FEMA may select among and prioritize the approaches in paragraph (c)(1) by policy. (iii) FEMA may provide an exception to using the FFRMS floodplain and corresponding flood elevation for an action subject to the FFRMS and instead use the 1 percent annual chance (base) floodplain for non-critical actions or the 0.2 percent annual chance floodplain for critical actions where the action is in the interest of national security, where the action is an emergency action, or where the action is a mission-critical requirement related to a national security interest or an emergency action. (2) If the action is not an action subject to the FFRMS as defined in § 9.4, FEMA shall use, at a minimum: (i) The 1 percent annual chance (base) floodplain and flood elevation for noncritical actions; and (ii) The 0.2 percent annual chance floodplain and flood elevation for critical actions. (3) FEMA shall establish the floodplain and corresponding elevation using the best available information. The floodplain and corresponding elevation determined using the best available information must be at least as restrictive as FEMA’s regulatory determinations under the NFIP where such determinations are available. In obtaining the best available information, FEMA may consider other FEMA information as well as other available information, such as: (i) Department of Agriculture: Natural Resources Conservation Service, U.S. Forest Service; (ii) Department of Defense: U.S. Army Corps of Engineers; (iii) Department of Commerce: National Oceanic and Atmospheric Administration; (iv) Department of the Interior: Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service, United States Geological Survey; (v) Tennessee Valley Authority; (vi) Department of Transportation; (vii) Environmental Protection Agency; (viii) General Services Administration; (ix) States and Regional Agencies; or VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 (x) Local sources such as Floodplain Administrators, Regional Flood Control Districts, or Transportation Departments. (4) If the sources listed in paragraph (c)(3) of this section do not have or know of the information necessary to comply with the requirements in this part, the Regional Administrator may seek the services of a professional registered engineer. (5) If a decision involves an area or location within extensive Federal or state holdings or a headwater area and FEMA’s regulatory determinations under the National Flood Insurance Program are not available, the Regional Administrator shall seek information from the land administering agency before information and/or assistance is sought from the sources listed in paragraph (c)(3). (d) * * * (3) If the identified sources do not have adequate information upon which to base the determination, the Agency shall carry out an on-site analysis performed by a representative of the FWS or other qualified individual for wetlands characteristics based on the definition of a wetland in § 9.4. (4) If an action constitutes new construction and is in a wetland but not in a floodplain, the provisions of this part shall apply. If the action is not in a wetland, the Regional Administrator shall determine if the action has the potential to result in indirect impacts on wetlands. If so, all potential adverse impacts shall be minimized. For actions which are in a wetland and the floodplain, completion of the decisionmaking process is required. (See § 9.6). In such a case, the wetland will be considered as one of the natural and beneficial values of the floodplain. ■ 9. Amend § 9.8 by revising paragraphs (a), (c)(1), the first sentence of paragraph (c)(2), the introductory text of paragraph (c)(3), paragraph (c)(3)(v), paragraphs (c)(4) and (5) to read as follows: § 9.8 Public notice requirements. (a) Purpose. This section establishes the initial notice procedures to be followed when the Agency proposes any action in or affecting floodplains or wetlands. * * * * * (c) * * * (1) For an action for which an environmental impact statement is being prepared, the Notice of Intent to File an EIS constitutes the early public notice if it includes the information required under paragraph (c)(5) of this section. (2) For each action having national significance for which notice is being PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 provided, the Agency at a minimum shall provide notice by publication in the Federal Register and shall provide notice by mail to national organizations reasonably expected to be interested in the action. * * * (3) The Agency shall determine whether it has provided appropriate notices, adequate comment periods, and whether to issue cumulative notices (paragraphs (c)(4), (6), and (7) of this section) based on factors which include, but are not limited to: * * * * * (v) Anticipated potential impact of the action. (4) For each action having primarily local importance for which notice is being provided, notice shall be made in accordance with the criteria under paragraph (c)(3) of this section, and shall include, as appropriate: (i) Notice through the internet or another comparable method. (ii) Notice to Indian tribes when effects may occur on reservations. (iii) Information required in the affected State’s public notice procedures for comparable actions. (iv) Publication in local newspapers. (v) Notice through other local media including newsletters. (vi) Notice to potential interested community organizations. (vii) Direct mailing to owners and occupants of nearby or affected property. (viii) Posting of notice on and off site in the area where the action is to be located. (ix) Public hearing. (5) The notice shall: (i) Describe the action, its purposes, and a statement of the intent to carry out an action affecting or affected by a floodplain or wetland; (ii) Based on the factors in paragraph (c)(3) of this section, include a map of the area and other identification of the floodplain and/or wetland areas which is of adequate scale and detail; alternatively, FEMA may state that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information or may provide a link to access the map online; (iii) Based on the factors in paragraph (c)(3) of this section, describe the type, extent, and degree of hazard involved and the floodplain or wetland values present; and (iv) Identify the responsible official or organization for implementing the proposed action, and from whom further information can be obtained. * * * * * ■ 10. Amend § 9.9 by: E:\FR\FM\02OCP2.SGM 02OCP2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules a. Revising paragraphs (a)(1), (b)(2), and (c)(1) through (4); ■ b. Adding paragraph (c)(5); ■ c. Revising paragraphs (d), (e)(1)(i), (e)(1)(iii), (e)(1)(iv); (e)(2) introductory text, (e)(3) introductory text, and (e)(4); ■ d. Lifting the suspension of paragraph (e)(6) and removing the paragraph. The addition and revisions read as follows: ■ lotter on DSK11XQN23PROD with PROPOSALS2 § 9.9 Analysis and reevaluation of practicable alternatives. (a) * * * (1) This section expands upon the directives set out in § 9.6 of this part in order to clarify and emphasize the requirements to avoid floodplains and wetlands unless there is no practicable alternative. * * * * * (b) * * * (2) Alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetlands. In developing the alternative actions, the Agency shall use, where possible, natural systems, ecosystem processes, and nature-based approaches; and * * * * * (c) * * * (1) Natural environment (including, but not limited to topography, habitat, hazards, when applicable); (2) Social concerns (including, but not limited to aesthetics, historical and cultural values, land patterns, when applicable); (3) Economic aspects (including, but not limited to costs of space, technology, construction, services, relocation, when applicable); (4) Legal constraints (including, but not limited to deeds and leases, when applicable); and (5) Agency authorities. (d) * * * (1) The Agency shall not locate the proposed action in the floodplain as established by § 9.7(c) or in a wetland if a practicable alternative exists outside the floodplain or wetland. (2) If no practicable alternative exists outside the floodplain or wetland, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required in this section. (e) * * * (1) * * * (i) The action is still practicable at a floodplain or wetland site, considering the flood risk and the ensuing disruption of natural values; * * * * * (iii) The scope of the action can be limited to increase the practicability of VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 previously rejected non-floodplain or wetland sites and alternative actions; and (iv) Harm to or within the floodplain can be minimized using all practicable means. (2) Take no action in a floodplain unless the importance of the floodplain site clearly outweighs the requirements to: * * * * * (3) Take no action in a wetland unless the importance of the wetland site clearly outweighs the requirements to: * * * * * (4) In carrying out this balancing process, give the factors in paragraphs (e)(2) and (3) of this section great weight. * * * * * ■ 11. Amend § 9.10 by revising paragraph (a), the second sentence of paragraph (b), (c) and (d) to read as follows: § 9.10 Identify impacts of proposed actions. (a) This section ensures that the effects of proposed Agency actions are identified. (b) * * * Such identification of impacts shall be to the extent necessary to comply with the requirements of this part to avoid floodplain and wetland locations unless they are the only practicable alternatives to minimize harm to and within floodplains and wetlands. (c) This identification shall consider whether the proposed action will result in an increase in the useful life of any structure or facility in question, maintain the investment at risk and exposure of lives to the flood hazard or forego an opportunity to restore the natural and beneficial values served by floodplains or wetlands. (d) In the review of a proposed or alternative action, the Regional Administrator shall consider and evaluate: impacts associated with modification of wetlands and floodplains regardless of its location; additional impacts which may occur when certain types of actions may support subsequent action which have additional impacts of their own; adverse impacts of the proposed actions on lives and property and on natural and beneficial floodplain and wetland values; and the three categories of factors listed below: (1) Flood hazard-related factors. These include, but are not limited to, the factors listed in § 9.7(b)(3); (2) Natural values-related factors. These include, but are not limited to: water resource values, as in storing and PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 67925 conveying floodwaters, maintaining water quality, and groundwater recharge; living resource values, as in providing habitats and enhancing biodiversity for fish and wildlife and plant resources; cultural resource values, as in providing open space, natural beauty, recreation, scientific study, historical and archaeological resources, and education; and cultivated resource values, as in creating rich soils for agriculture, aquaculture, and forestry. (3) Factors relevant to a proposed action’s effects on the survival and quality of wetlands. These include, but are not limited to: Public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; and sediment and erosion; maintenance of natural systems, including conservation and long term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources; and other uses of wetlands in the public interest, including recreational, scientific, and cultural uses. ■ 12. Amend § 9.11 by: ■ a. Revising paragraphs (a) and (c)(1); ■ b. Revising the first sentence of paragraph (d) introductory text, the introductory text of paragraph (d)(1), paragraphs (d)(2), (3) and (4), the introductory text of paragraph (d)(5), and paragraph (d)(9); ■ c. Lifting the suspension of paragraph (e)(4) and removing paragraph (e); and ■ d. Redesignating paragraph (f) as paragraph (e) and revising newly redesignated paragraph (e). The revisions read as follows: § 9.11 Mitigation. (a) Purpose. This section expands upon the directives set out in § 9.6 of this part and sets out the mitigative actions required if the preliminary determination is made to carry out an action that affects or is in a floodplain or wetland. * * * * * (c) * * * (1) Potential harm to lives and the investment from flooding based on flood elevations as established by § 9.7(c); * * * * * (d) Minimization Standards. The Agency shall apply, at a minimum, the following standards to its actions to comply with the requirements of paragraphs (b) and (c) of this section (except as provided in § 9.5(c), (d), and (g) regarding categories of partial or total exclusion). * * * (1) There shall be no new construction or substantial E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 67926 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules improvement in a floodway and no new construction in a coastal high hazard area, except for: * * * (2) For a structure which is a functionally dependent use or which facilitates an open space use, the following applies: Any construction of a new or substantially improved structure in a coastal high hazard area must be elevated on adequately anchored pilings or columns, and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the floodplain as established by § 9.7(c). The structure shall be anchored so as to withstand velocity waters and hurricane wave wash. (3) Elevation of structures. The following applies to elevation of structures: (i) There shall be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the elevation of the floodplain as established by § 9.7(c). (ii) If the subject structure is nonresidential, instead of elevating the structure, FEMA may approve the design of the structure and its attendant utility and sanitary facilities so that the structure is water tight below the flood elevation with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. (iii) The provisions of paragraphs (d)(3)(i) and (ii) of this section do not apply to the extent that FEMA Resilience has granted an exception under § 60.6(b) of this chapter, or the community has granted a variance which the Regional Administrator determines is consistent with § 60.6(a) of this chapter. In a community which does not have a FEMA regulatory product in effect, FEMA may approve a variance from the standards of paragraphs (d)(3)(i) and (ii) of this section, after compliance with the standards of § 60.6(a) of this chapter. (4) There shall be no encroachments, including but not limited to fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood elevation within the community during the occurrence of the 1 percent annual chance (base) flood discharge. Until a regulatory floodway is designated, no fill, new construction, substantial improvements, or other development shall be permitted within the 1 percent annual chance (base) VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 floodplain unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the 1 percent annual chance (base) flood more than the amount designated by the NFIP or the community, whichever is most restrictive. (5) Even if an action is a functionally dependent use or facilitates open space uses (under paragraph (d)(1) or (2) of this section) and does not increase flood heights (under paragraph (d)(4) of this section), such action may only be taken in a floodway or coastal high hazard area if: * * * * * * * * (9) In the replacement of building contents, materials and equipment, the Regional Administrator shall require as appropriate, flood proofing and/or elevation of the building and/or elimination of such future losses by relocation of those building contents, materials, and equipment outside or above the floodplain as established by § 9.7(c). (e) Restore and preserve. (1) For any action taken by the Agency which affects the floodplain or wetland and which has resulted in, or will result in, harm to the floodplain or wetland, the Agency shall act to restore and preserve the natural and beneficial values served by floodplains and wetlands. (2) Where floodplain or wetland values have been degraded by the proposed action, the Agency shall identify, evaluate, and implement measures to restore the values. (3) If an action will result in harm to or within the floodplain or wetland, the Agency shall design or modify the action to preserve as much of the natural and beneficial floodplain and wetland values as is possible. ■ 13. In § 9.12 amend paragraph (d) by: ■ a. Designating the introductory text as paragraph (d)(1); ■ b. Designating paragraphs (d)(1) through (6) as paragraphs (d)(1)(i) through (d)(1)(vi); ■ c. Designate the undesignated text after newly designated paragraph (d)(1)(vi) as paragraph (d)(2) and revise newly designated paragraph (d)(2) to read as follows: § 9.12 Final public notice. * * * * * (d) * * * (2) When a damaged structure or facility is already being repaired by the State or local government at the time of the project application, the requirements of Steps 2 and 7 (§§ 9.8 and this 9.12) may be met by a single PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 notice. Such notice shall contain all the information required by both sections. ■ 14. Revise § 9.13 to read as follows: § 9.13 Particular types of temporary housing. (a) This section sets forth the procedures whereby the Agency will provide certain specified types of temporary housing at a private, commercial, or group site. (b) Prior to providing the temporary housing described in paragraph (a) of this section, the Agency shall comply with the provisions of this section. For temporary housing not enumerated above, the full 8-step process (see § 9.6) applies. (c) The actions described in paragraph (a) of this section are subject to the following decision-making process: (1) The temporary housing action shall be evaluated in accordance with the provisions of § 9.7 to determine if it is in or affects the 1 percent annual chance (base) floodplain or wetland. (2) No temporary housing unit may be placed on a site in a floodway or coastal high hazard area. (3) An individual or family shall not be housed in the 1 percent annual chance (base) floodplain or wetland unless the Regional Administrator has complied with the provisions of § 9.9 to determine that such site is the only practicable alternative. The following factors shall be substituted for the factors in § 9.9(c) and (e)(2) through (4): (i) Speedy provision of temporary housing; (ii) Potential flood risk to the temporary housing occupant; (iii) Cost effectiveness; (iv) Social and neighborhood patterns; (v) Timely availability of other housing resources; and (vi) Potential harm to the floodplain or wetland. (4) For temporary housing units at group sites, Step 4 of the 8-step process shall be applied in accordance with § 9.10. (5) An individual or family shall not be housed in a floodplain or wetland (except in existing resources) unless the Regional Administrator has complied with the provisions of § 9.11 to minimize harm to and within floodplains and wetlands. The following provisions shall be substituted for the provisions of § 9.11(d) for temporary housing units: (i) No temporary housing unit may be placed unless it is elevated to the fullest extent practicable up to the base flood elevation and adequately anchored. (ii) No temporary housing unit may be placed if such placement is inconsistent with the criteria of the NFIP (44 CFR E:\FR\FM\02OCP2.SGM 02OCP2 lotter on DSK11XQN23PROD with PROPOSALS2 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules parts 59 and 60) or any more restrictive Federal, State, or local floodplain management standard. Such standards may require elevation to the base flood elevation in the absence of a variance. (iii) Temporary housing units shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill where practicable. (iv) To minimize the effect of floods on human health, safety and welfare, the Agency shall: (A) Where appropriate, integrate all of its proposed actions in placing temporary housing units for temporary housing in floodplains into existing flood warning or preparedness plans and ensure that available flood warning time is reflected; (B) Provide adequate access and egress to and from the proposed site of the temporary housing unit; and (C) Give special consideration to the unique hazard potential in flash flood and rapid-rise areas. (6) FEMA shall comply with Step 2 Early Public Notice (§ 9.8(c)) and Step 7 Final Public Notice (§ 9.12). In providing these notices, the emergency nature of temporary housing shall be taken into account. (7) FEMA shall carry out the actions in accordance with Step 8, ensuring the requirements of this section and the decision-making process are fully integrated into the provision of temporary housing. (d) Sale or disposal of temporary housing. The following applies to the permanent installation of a temporary housing unit as part of a sale or disposal of temporary housing: (1) FEMA shall not permanently install temporary housing units in floodways or coastal high hazard areas. FEMA shall not permanently install a temporary housing unit in floodplains as established by 9.7(c) or wetlands unless there is full compliance with the 8-step process. Given the vulnerability of temporary housing units to flooding, a rejection of a non-floodplain location alternative and of the no-action alternative shall be based on: (i) A compelling need of the family or individual to buy a temporary housing unit for permanent housing; and (ii) A compelling requirement to permanently install the unit in a floodplain. (2) FEMA shall not permanently install temporary housing units in the floodplain as established by § 9.7(c) unless they are or will be elevated at least to the elevation of the floodplain as established by § 9.7(c). (3) The Regional Administrator shall notify FEMA Resilience of each instance where a floodplain location has been VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 found to be the only practicable alternative for permanent installation of a temporary housing unit. ■ 15. In § 9.14, revise paragraphs (a), (b)(4), (5), (6), (b)(7)(ii) and (iii), and (b)(9) to read as follows: § 9.14 Disposal of Agency Property (a) This section sets forth the procedures whereby the Agency shall dispose of property. (b) * * * (4) Identify the potential impacts and support of floodplain and wetland development associated with the disposal of the property in accordance with § 9.10; (5) Identify the steps necessary to minimize, restore, preserve and enhance in accordance with § 9.11. For disposals, this analysis shall address all four of these components of mitigation where unimproved property is involved, but shall focus on minimization through elevation or floodproofing and restoration of natural values where improved property is involved; (6) Reevaluate the proposal to dispose of the property in light of its exposure to the flood hazard and its natural values-related impacts, in accordance with § 9.9. This analysis shall focus on whether it is practicable in light of the findings from §§ 9.10 and 9.11 to dispose of the property, or whether it must be retained. If it is determined that it is practicable to dispose of the property, this analysis shall identify the practicable alternative that best achieves the Agency’s mitigation responsibility. (7) * * * (ii) Properties located inside the floodplain but outside of the floodway and the coastal high hazard area; and (iii) Properties located in a floodway, regulatory floodway, or coastal high hazard area. * * * * * ■ 16. In § 9.16, revise paragraph (b) introductory text, paragraphs (b)(2) through (b)(5), and paragraph (c) to read as follows: § 9.16 Guidance for applicants. * * * * * (b) This shall be accomplished primarily through amendment of all Agency instructions to applicants, and also through contact made by agency staff during the normal course of their activities, to fully inform prospective applicants of: * * * * * (2) The decision-making process to be used by the Agency in making the determination of whether to take an action in or affecting floodplains or wetlands as set out in § 9.6; PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 67927 (3) The practicability analysis as set out in § 9.9; (4) The mitigation responsibilities as set out in § 9.11; (5) The public notice and involvement process as set out in §§ 9.8 and 9.12; and * * * * * (c) Guidance to applicants shall be provided, where possible, prior to the time of application in order to minimize potential delays in the Agency’s processing of the application due to failure of applicants to follow the provisions in this part. ■ 17. In § 9.17, revise paragraph (a), paragraph (b) introductory text, paragraphs (b)(3) through (b)(5), and paragraphs (c) and (d) to read as follows: § 9.17 Instructions to applicants. (a) Purpose. In accordance with Executive Orders 11988, as amended, and 11990, the Federal executive agencies must respond to a number of floodplain management and wetland protection responsibilities before carrying out any of their activities, including the provision of Federal financial and technical assistance. This section provides notice to applicants for Agency assistance of both the criteria that FEMA is required to follow, and the applicants’ responsibilities under this part. (b) Responsibilities of Applicants. Based upon the guidance provided by the Agency under § 9.16, the guidance included in the U.S. Water Resources Council’s Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Oder 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input, and based upon the provisions of the Orders and this part, applicants for Agency assistance shall recognize and reflect in their application: * * * * * (3) The practicability analysis as set out in § 9.9; (4) The mitigation responsibilities as set out in § 9.11; (5) The public notice and involvement process as set out in §§ 9.8 and 9.12; and * * * * * (c) Provision of supporting information. Applicants for Agency assistance may be required to provide supporting information relative to the various responsibilities set out in paragraph (b) of this section as a prerequisite to the approval of their applications. (d) Approval of applicants. Applications for Agency assistance shall be reviewed for compliance with the E:\FR\FM\02OCP2.SGM 02OCP2 67928 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules provisions in this part in addition to the Agency’s other approval criteria. ■ 18. In § 9.18, revise paragraph (a)(1), the second sentence of paragraph (b)(1), and the first sentence of (b)(2) to read as follows: § 9.18 Responsibilities. lotter on DSK11XQN23PROD with PROPOSALS2 (a) * * * (1) Implement the requirements of the Orders and this part. Under §§ 9.2, 9.6 through 9.13, and 9.15 where a direction is given to the Agency, it is the VerDate Sep<11>2014 19:18 Sep 29, 2023 Jkt 262001 responsibility of the Regional Administrator. * * * * * (b) * * * (1) * * * When a decision of a Regional Administrator relating to disaster assistance is appealed, FEMA Resilience may make determinations under this part on behalf of the Agency. (2) Prepare and submit to the Office of Chief Counsel reports to the Office of Management and Budget in accordance PO 00000 Frm 00060 Fmt 4701 Sfmt 9990 with section 2(b) of Executive Order 11988, as amended, and section 3 of Executive Order 11990.* * * Appendix A to Part 9 [Removed] ■ 19. Remove appendix A to part 9. Deanne B. Criswell, Administrator, Federal Emergency Management Agency. [FR Doc. 2023–21101 Filed 9–29–23; 8:45 am] BILLING CODE 9111–66–P E:\FR\FM\02OCP2.SGM 02OCP2

Agencies

[Federal Register Volume 88, Number 189 (Monday, October 2, 2023)]
[Proposed Rules]
[Pages 67870-67928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21101]



[[Page 67869]]

Vol. 88

Monday,

No. 189

October 2, 2023

Part II





 Department of Homeland Security





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Federal Emergency Management Agency





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44 CFR Part 9





Updates to Floodplain Management and Protection of Wetlands Regulations 
To Implement the Federal Flood Risk Management Standard; Proposed Rule

Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / 
Proposed Rules

[[Page 67870]]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 9

[Docket ID: FEMA-2023-0026]
RIN 1660-AB12


Updates to Floodplain Management and Protection of Wetlands 
Regulations To Implement the Federal Flood Risk Management Standard

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Emergency Management Agency (FEMA) proposes to 
amend its regulations to implement the Federal Flood Risk Management 
Standard (FFRMS) and update the agency's 8-step decision-making process 
floodplain reviews. FEMA also proposes a supplementary policy that 
would further clarify how FEMA would apply the FFRMS. The proposed rule 
would change how FEMA defines a floodplain with respect to certain 
actions, and FEMA would use natural systems, ecosystem process, and 
nature-based approaches, where possible, when developing alternatives 
to locating the proposed action in the floodplain.

DATES: Comments must be received no later than December 1, 2023.

ADDRESSES: You may submit comments, identified by Docket ID: FEMA-2023-
0026, via the Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Portia Ross, Policy and Integration 
Division Director, Office of Environmental Planning and Historic 
Preservation, Resilience, DHS/FEMA, 400 C Street SW, Suite 313, 
Washington, DC 20472-3020. Phone: (202) 709-0677; Email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
III. Factual and Legal Background
    A. Executive Order 11988, ``Floodplain Management''
    B. Statutory Authority To Require the FFRMS Under FEMA Grant 
Programs
    C. 44 CFR Part 9, ``Floodplain Management and Protection of 
Wetlands''
    D. Reevaluation of the 1 Percent Chance or 100-Year Flood 
Standard
    E. Executive Order 13690, the Federal Flood Risk Management 
Standard (FFRMS) and Subsequent Amendments to Executive Order 11988, 
and Revisions to the 1978 Guidelines
    F. Substantive Components of the FFRMS
    G. FEMA's Implementation of the FFRMS and the Revised Guidelines
IV. Discussion of the Proposed Rule
    A. Authority Citation
    B. Section 9.1--Purpose of Part
    C. Section 9.2--Policy
    D. Section 9.3--Severability
    E. Section 9.4--Definitions
    F. Section 9.5--Scope
    G. Section 9.6--Decision-Making Process
    H. Section 9.7--Determination of Proposed Action's Location
    I. Section 9.8--Public Notice Requirements
    J. Section 9.9--Analysis and Reevaluation of Practicable 
Alternatives
    K. Section 9.10--Identify Impacts of Proposed Actions
    L. Section 9.11--Mitigation
    M. Section 9.12--Final Public Notice
    N. Section 9.13--Particular Types of Temporary Housing
    O. Section 9.14--Disposal of Agency Property
    P. Section 9.16--Guidance for Applicants
    Q. Section 9.17--Instructions to Applicants
    R. Section 9.18--Responsibilities
V. Comments Received Associated With Part 9 Revisions
VI. Regulatory Analyses
    A. Executive Order 12866, Regulatory Planning and Review & 
Executive Order 13563, Improving Regulation and Regulatory Review
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. National Environmental Policy Act (NEPA) of 1969
    E. Paperwork Reduction Act (PRA) of 1995
    F. Privacy Act
    G. Executive Order 13175, Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13132, Federalism
    I. Executive Order 12898, Environmental Justice
    J. Executive Order 12630, Taking of Private Property
    K. Executive Order 12988, Civil Justice Reform
    L. Executive Order 13045, Protection of Children From 
Environmental Health Risks and Safety Risks
    M. Federal Participation in the Development and Use of Voluntary 
Consensus Standards and in Conformity Assessment Activities, OMB 
Circular A-119

Table of Abbreviations

0.2PFA--0.2 Percent Annual Chance Flood Approach
ABA--Architectural Barriers Act
ADA--Americans with Disabilities Act
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CISA--Climate-Informed Science Approach
CRS--Community Rating System
EA--Environmental Assessment
EIS--Environmental Impact Statement
E.O.--Executive Order
FBFM--Flood Boundary Floodway Map
FEMA--Federal Emergency Management Agency
FFRMS--Federal Flood Risk Management Standard
FHBM--Flood Hazard Boundary Map
FIRM--Flood Insurance Rate Map
FIS--Flood Insurance Study
FMA--Flood Mitigation Assistance
FVA--Freeboard Value Approach
GPD--Grant Programs Directorate
HMA--Hazard Mitigation Assistance
HUD--Department of Housing and Urban Development
IA--Individual Assistance
IRFA--Initial Regulatory Flexibility Analysis
NEPA--National Environmental Policy Act of 1969
NFIA--National Flood Insurance Act, as amended
NFIP--National Flood Insurance Program
NOAA--National Oceanic and Atmospheric Administration
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PA--Public Assistance
PDM--Pre-Disaster Mitigation
PHC--Permanent Housing Construction
PIA--Privacy Impact Assessment
PRA--Paperwork Reduction Act of 1995
PV--Present Value
RCP--Representative Concentration Pathway
RFA--Regulatory Flexibility Act
RIA--Regulatory Impact Analysis
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
SFHA--Special Flood Hazard Area
SLR--Sea Level Rise
SORN--System of Records Notice
Stafford Act--Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, as amended
THU--Temporary Housing Unit
USGS--United States Geological Survey
WRC--Water Resources Council

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting comments and related materials. We will consider all 
comments and material received during the comment period.
    If you submit a comment, include the Docket ID FEMA-2023-0026, 
indicate the specific section of this document to which each comment 
applies, and give the reason for each comment. All submissions may be 
posted, without change, to the Federal e-Rulemaking Portal at https://www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. For 
more about privacy and the docket, visit https://www.regulations.gov/document?D=DHS-2018-0029-0001.
    Viewing comments and documents: For access to the docket to read 
background documents or comments received, go to the Federal e-
Rulemaking Portal at https://www.regulations.gov.

[[Page 67871]]

II. Executive Summary

    On January 30, 2015, the President issued Executive Order 13690, 
``Establishing a Federal Flood Risk Management Standard (FFRMS) and a 
Process for Further Soliciting and Considering Stakeholder Input.'' \1\ 
Executive Order 13690 amended Executive Order 11988 and established the 
FFRMS. The FFRMS is a flood resilience standard that is required for 
``Federally funded projects'' and provides a flexible framework to 
increase resilience against flooding and help preserve the natural 
values of floodplains and wetlands.
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    \1\ 80 FR 6425, Feb. 4, 2015.
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    On August 22, 2016, FEMA published a Notice of Proposed Rulemaking 
(NPRM) entitled ``Updates to Floodplain Management and Protection of 
Wetlands Regulations to Implement Executive Order 13690 and the Federal 
Flood Risk Management Standard'' in the Federal Register (81 FR 57402). 
This NPRM would have revised FEMA's regulations on ``Floodplain 
Management and Protection of Wetlands'' to implement Executive Order 
13690. FEMA also proposed a supplementary policy entitled ``FEMA 
Policy: Guidance for Implementing the Federal Flood Risk Management 
Standard (FFRMS)'' (FEMA Policy 078-3), which would have further 
clarified how FEMA would apply the FFRMS. The notice of availability 
and request for comments for the supplementary policy also published in 
the August 22, 2016 Federal Register at 81 FR 56558. On September 20, 
2016, FEMA published a notice of data availability regarding a draft 
report, the 2016 Evaluation of the Benefits of Freeboard for Public and 
Nonresidential Buildings in Coastal Areas, which had been added to the 
docket for the proposed rule (81 FR 64403).
    On August 15, 2017, the President issued Executive Order 13807 
(``Establishing Discipline and Accountability in the Environmental 
Review and Permitting Process for Infrastructure Projects'') which 
revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017. 
Accordingly, in light of the revocation of Executive Order 13690, FEMA 
withdrew the August 22, 2016 NPRM and supplementary policy (83 FR 
9473). On May 20, 2021, the President issued Executive Order 14030 
(``Climate-Related Financial Risk'') \2\ reinstating Executive Order 
13690, thereby reestablishing the FFRMS. Accordingly, FEMA is proposing 
an updated revision to its regulations and an updated supplementary 
policy to implement the FFRMS.
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    \2\ 86 FR 27967 (May 25, 2021).
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    FEMA is proposing to amend 44 CFR part 9, ``Floodplain Management 
and Protection of Wetlands,'' and issue a supplementary policy to 
implement the FFRMS and update the agency's 8-step process. As 
mentioned above, the FFRMS is a flood resilience standard that is 
required for ``Federally funded projects'' and provides a flexible 
framework to increase resilience against flooding and help preserve the 
natural values of floodplains and wetlands. A floodplain is any land 
area that is subject to flooding and refers to geographic features with 
undefined boundaries. 44 CFR part 9 describes the 8-step process FEMA 
uses to determine whether a proposed action would be located within or 
affect a floodplain, and if so, whether and how to continue with or 
modify the proposed action. Executive Order 11988, as amended,\3\ and 
the FFRMS changed the Executive Branch-wide guidance for defining the 
``floodplain'' with respect to ``Federally funded projects'' (i.e., 
actions involving the use of Federal funds for new construction, 
substantial improvement, or to address substantial damage to a 
structure or facility). The revised definitions allow for consideration 
of both current and future flood risks in defining the floodplain to 
minimize the impact of floods on human health, safety, and welfare and 
reduce the risk of flood loss. For actions subject to the FFRMS, FEMA 
proposes to use the updated definition of ``floodplain'' contained in 
the Guidelines for Implementing Executive Order 11988, Floodplain 
Management, and Executive Order 13690, Establishing a Federal Flood 
Risk Management Standard and a Process for Further Soliciting and 
Considering Stakeholder Input (Revised Guidelines).\4\ As discussed 
further below, the FFRMS allows the agency to define ``floodplain'' 
using any of three approaches or a fourth approach resulting from any 
other method in an update to the FFRMS. In many cases, each of these 
approaches would result in a larger floodplain and a requirement to 
design projects such that they are resilient to a higher vertical 
elevation. For actions that do not meet the definition of an action 
subject to the FFRMS, FEMA would continue to use the historical 
definition of floodplain with minor clarifying revisions to help 
stakeholders better understand the terminology. Regardless of whether 
the action is subject to FFRMS, FEMA will follow the Revised Guidelines 
\5\ to determine whether an action is in the floodplain. Finally, the 
proposed rule would require the use, where possible, of natural 
systems, ecosystem processes, and nature-based approaches in the 
development of alternatives for all actions proposed in a floodplain.
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    \3\ Executive Order 13690 amended Executive Order 11988 in 2015 
and was revoked in 2017 by Executive Order 13807. Executive Order 
13690 was reinstated in 2021 by Executive Order 14030. See 80 FR 
64008 (Oct. 22, 2015), 82 FR 40463 (Aug. 24, 2017), and 86 FR 27967 
(May 25, 2021).
    \4\ 80 FR 64008 (Oct. 22, 2015); https://www.regulations.gov/document/FEMA-2015-0006-0358. (Last accessed July 12, 2023).
    \5\ Id.
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    FEMA believes that this rule is an important step toward mitigating 
future flood risk, and that such mitigation will ultimately benefit 
communities by allowing them to recover from future disasters more 
efficiently and effectively. The United States is experiencing 
increased flooding and flood risk from climate change.\6\ The full 
extent of future changes in flood risk has not yet been estimated 
across the full inventory of Federal, State, local, Tribal, and 
territorial properties. However, in a survey of Federal properties 
alone, those assessments that have been completed identified over 
40,000 individual Federal buildings and structures with a combined 
replacement cost of $81 billion located in the current 100-year 
floodplain and approximately 160,000 structures with a total 
replacement cost of $493 billion located in the current 500 year 
floodplain.\7\ Approximately 10,250 individual Federal buildings and 
structures were identified in coastal areas with a combined replacement 
cost of $32.3 billion that would be severely impacted by an eight-feet 
sea-level rise scenario and over 12,195 individual Federal buildings 
and structures with a combined replacement cost of over $43.7 billion 
under a ten-foot ``worst case'' sea level rise scenario.\8\ This 
proposed rule would ensure that actions subject to the FFRMS are 
designed to be resilient to both current and future flood risks to 
minimize the impact of floods on human health, safety, and welfare

[[Page 67872]]

and to protect Federal investments by reducing the risk of flood loss.
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    \6\ As a result of climate change, flood events are on the rise. 
Climate change is increasing flood risk through (1) more ``extreme'' 
rainfall events,'' caused by a warmer atmosphere holding more water 
vapor and changes in regional precipitation patterns; and (2) sea-
level rise. See Rob Bailey, Claudio Saffioti, and Sumer Drall, Sunk 
Costs: The Socioeconomic Impacts of Flooding 3 and 8, Marsh McLennan 
(2021).
    \7\ Federal Budget Exposure to Climate Risk. OMB Assessment 
found https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf (last accessed July 12, 2023).
    \8\ Id.
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    FEMA estimated the total impacts of the proposed rule by analyzing 
the impact of the FVA, 0.2PFA and CISA for FEMA's Public Assistance 
(PA), Individual Assistance (IA), and Hazard Mitigation Assistance 
(HMA) grant programs by examining the number of projects that would be 
subject to the proposed requirements in the first 10 years after the 
rule's publication.\9\ FEMA's analysis focused on the costs, benefits, 
and transfer payments (i.e., impacts on FEMA grants), that would result 
over a 50-year period from applying the requirements of the proposed 
rule to those projects, for a total period of analysis spanning 60 
years. Tables 1 and 2 show the total impacts of this proposed rule 
under the three approaches for each of the affected programs.
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    \9\ FEMA used an average of the number of affected projects 
during the prior 10-year period to estimate the average annual 
impacts of the future 10-year period.

  Table 1--Summary of Costs, Transfers and Benefits by Approach and Program for Affected Projects in Years 1-10
                                              [Low estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                        3% Discount rate                 7% Discount rate
            Costs *              Undiscounted  -----------------------------------------------------------------
                                                 Present value     Annualized     Present value     Annualized
----------------------------------------------------------------------------------------------------------------
CISA Total (primary) (+5-ft)..    $138,393,786     $118,052,707      $4,265,594      $97,202,003      $6,923,623
    PA........................     102,794,460       87,685,759       3,168,346       72,198,527       5,142,645
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      48,908,310       41,719,781       1,507,459       34,351,150       2,446,806
FVA Total.....................      61,994,588       52,882,642       1,910,806       43,542,402       3,101,492
0.2PFA Total..................      53,397,625       45,549,257       1,645,829       37,504,256       2,671,399
FEMA Admin....................       3,741,680        3,267,150         118,052        2,776,613         197,776
----------------------------------------------------------------------------------------------------------------
Not Quantified................  Not Estimated: Increased resiliency standard for approximately 20,961 facility
                                projects over 10 years, Additional costs for Adding Requirements to Buildings
                                with Basements, Diversion of Projects Out of the Floodplain, Lifecycle
                                maintenance costs for floodproofing, and Project Delays and Forgone Projects.
----------------------------------------------------------------------------------------------------------------
                                Transfer Payments from FEMA to Grant Recipients *
----------------------------------------------------------------------------------------------------------------
CISA Total (primary) (+5-ft)..     109,216,359       93,163,768       3,366,283       76,709,000       5,463,923
    PA........................      82,955,130       70,762,410       2,556,855       58,264,212       4,150,115
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      36,681,233       31,289,834       1,130,594       25,763,363       1,835,104
FVA Total.....................      48,898,424       41,711,348       1,507,154       34,344,206       2,446,311
0.2PFA Total..................      41,973,888       35,804,576       1,293,725       29,480,702       2,099,888
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                                                   Benefits *
----------------------------------------------------------------------------------------------------------------
PA (CISA, primary) (+1-ft)....      55,180,000       47,069,660       1,700,766       38,756,122       2,760,569
----------------------------------------------------------------------------------------------------------------
Not Quantified................  Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure
                                projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives
                                Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of
                                Critical Facilities, Reduction of Personal and Community Impacts.
----------------------------------------------------------------------------------------------------------------
* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication. FEMA
  considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a
  50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year
  period because that is when the initial investment to elevate or floodproof them to meet the proposed
  requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
  benefits of the proposed rule are realized over the 50-year useful life of the affected structures.


Table 2--Summary of 60-Year Costs, Transfers and Benefits by Approach and Program for Affected Projects in Years
                                                      1-10
                                             [High estimate, 2021$]
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                                                        3% Discount rate                 7% Discount rate
            Costs *              Undiscounted  -----------------------------------------------------------------
                                                 Present value     Annualized     Present value     Annualized
----------------------------------------------------------------------------------------------------------------
CISA Total (primary) (+5-ft)..    $151,319,537     $129,078,635      $4,663,993     $106,280,511      $7,570,278
    PA........................     120,722,020      102,978,331       3,720,912       84,790,095       6,039,533
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      48,908,310       41,719,781       1,507,459       34,351,150       2,446,806
FVA Total.....................      68,035,769       58,035,891       2,097,008       47,785,478       3,403,723
0.2PFA Total..................      57,766,400       49,275,911       1,780,484       40,572,701       2,889,962
FEMA Admin....................       4,942,430        4,291,414         155,061        3,619,968         257,848
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[[Page 67873]]

 
Not Quantified................  Not Estimated: Increased resiliency standard for approximately 20,961 facility
                                projects over 10 years, Additional costs for Adding Requirements to Buildings
                                with Basements, Diversion of Projects Out of the Floodplain, Lifecycle
                                maintenance costs for floodproofing, and Project Delays and Forgone Projects.
----------------------------------------------------------------------------------------------------------------
                                Transfer Payments from FEMA to Grant Recipients *
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CISA Total (primary) (+5-ft)..     119,647,439      102,061,693       3,687,791       84,035,355       5,985,773
    PA........................      97,422,670       83,103,514       3,002,776       68,425,607       4,873,903
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      36,681,233       31,289,834       1,130,594       25,763,363       1,835,104
FVA Total.....................      53,773,657       45,870,019       1,657,420       37,768,366       1,657,420
0.2PFA Total..................      45,499,493       38,811,991       1,402,392       31,956,941       2,276,268
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                                                   Benefits *
----------------------------------------------------------------------------------------------------------------
PA (CISA, primary) (+1-ft)....      61,985,720       52,875,076       1,910,533       43,536,175       3,101,048
----------------------------------------------------------------------------------------------------------------
Not Quantified................  Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure
                                projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives
                                Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of
                                Critical Facilities, Reduction of Personal and Community Impacts.
----------------------------------------------------------------------------------------------------------------
* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication. FEMA
  considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a
  50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year
  period because that is when the initial investment to elevate or floodproof them to meet the proposed
  requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
  benefits of the proposed rule are realized over the 50-year useful life of the affected structures.

    Table 3 provides the estimated number of structures and facilities 
affected by the proposed rule over the first 10 years, assuming that 
each approach is the only expansion option. Structures, which are 
walled and roofed buildings, would comply with the proposed FFRMS 
through elevating or floodproofing to the required height. Facilities, 
which are any human-made or human-placed items other than a structure 
such as roads and bridges, would require different mitigation measures 
in order to comply with the increased resiliency standard of the 
proposed rule. The monetized impacts of this rule are representative of 
the floodproofing and elevation mitigation measures that would be 
required of structures. However, for reasons explained in more detail 
later, FEMA was unable to monetize the impacts of the rule for 
facilities.

                           Table 3--Estimated Number of Structures and Facilities Affected by the Proposed Rule in Years 1-10
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Structures                               Facilities
                     FFRMS approach                     ---------------------------------     Total    ----------------------     Total         Total
                                                             PA         IA        HMA      structures       PA        HMA      facilities     projects
--------------------------------------------------------------------------------------------------------------------------------------------------------
FVA....................................................      1,090      2,650      9,492        13,232     20,120        841        20,961        34,193
0.2PFA.................................................        840      2,650      9,447        12,937     20,120        841        20,961        33,898
CISA...................................................      1,173      2,903     10,351        14,427     20,120        841        20,961        35,388
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Quantified estimates of the benefits of this rule are available for 
only non-residential PA Category E projects, which are for structures. 
Due to the highly project-specific nature of facilities projects and 
numerous options for making them resilient, FEMA could not estimate the 
costs of improving flood resiliency of facilities.\10\ Tables 1 and 2 
show that the total 60-year benefits for non-residential PA Category E 
projects in the first 10 years is $43.5 million (7 percent, high). This 
benefit is for adding one foot of freeboard, assuming a 59-inch sea 
level rise (SLR).\11\ Although the cost for PA Category E projects is 
$84.8 million (7 percent, high), this cost represents 5 feet of 
freeboard (FEMA's assumption for CISA).\12\ FEMA does not have data to 
quantify the benefits of additional freeboard and thus the quantified 
benefits represent only a portion of the increased risk reduction that 
would be achieved through this rule. Ensuring projects are built to the 
height necessary to avoid additional loss scenarios would provide 
additional unquantified benefits of avoided damages to the structure,

[[Page 67874]]

decreased cleanup time and disruption to the community, and increased 
public health and safety. Moreover, FEMA's use of CISA as its preferred 
approach would use the best available and actionable scientific data to 
tailor future flooding risk to each project ensuring that projects are 
built only to the height necessary and thus maximizing net benefits. 
Accordingly, FEMA believes the benefits of the rule--quantified and 
unquantified--would justify its costs.
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    \10\ Category E projects are public buildings and contents. See 
Public Assistance Fact Sheet at https://www.fema.gov/sites/default/files/2020-07/fema_public-assistance-fact-sheet_10-2019.pdf.
    \11\ FEMA used one foot for benefits as the 2022 report only 
specifies monetary benefits for an additional one foot over current 
requirements. FEMA included this number in the quantified benefits 
because it is the only monetary benefit available for any freeboard 
level.
    \12\ Costs for the FVA may be a better comparison because they 
represent 2 or 3 feet of freeboard, depending on criticality. 
However, the number of projects using FVA and CISA differ, making 
such a comparison difficult.
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III. Legal and Factual Background

    Below, FEMA describes in more specific detail the basis for this 
proposed rule. Section III.A describes Executive Order 11988, the Water 
Resources Council's 1978 ``Floodplain Management Guidelines'' (1978 
Guidelines), and the statutory authority underlying the Executive 
Order. Executive Order 11988 along with the 1978 Guidelines established 
an 8-step decision-making process by which Federal agencies carry out 
Executive Order 11988's direction to avoid the long- and short-term 
adverse impacts associated with the occupancy and modification of the 
floodplain and avoid the direct or indirect support of floodplain 
development whenever there is a practicable alternative. Section III.B 
describes FEMA's statutory authority to require its grant recipients to 
carry out repairs or construction in accordance with specific 
standards. Section III.C describes FEMA's implementing regulations at 
44 CFR part 9, which closely follow the model decision-making process 
under Executive Order 11988. Section III.D describes how lessons 
learned from major events, including Hurricane Sandy, prompted 
reevaluation of the prevailing standard for determining whether a 
proposed action was located within a floodplain. Section III.E 
describes the development of Executive Order 13690, the Federal Flood 
Risk Management Standard, and additional guidance in the Revised 
Guidelines issued in 2015 as well as subsequent amendments to Executive 
Order 11988. Section III.F describes the substantive components of the 
Federal Flood Risk Management Standard and Section III.G describes 
FEMA's proposed approach to implement the required changes.

A. Executive Order 11988, ``Floodplain Management''

    The President issued Executive Order 11988 (42 FR 26951, May 25, 
1977) in furtherance of the National Flood Insurance Act of 1968, as 
amended (42 U.S.C. 4001 et seq.); the Flood Disaster Protection Act of 
1973, as amended (Pub. L. 93-234, 87 Stat. 975); and the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The 
National Flood Insurance Act, as amended by the Flood Disaster 
Protection Act establishes a multi-purpose program to provide flood 
insurance, minimize exposure of property to flood losses, minimize the 
damage caused by flood losses, and guide the development of proposed 
construction, where practicable, away from floodplains.\13\ The 
National Flood Insurance Act and the Flood Disaster Protection Act 
highlight coordination of flood insurance with land management programs 
in flood-prone areas. NEPA requires Federal agencies to analyze the 
environmental impacts of proposed actions and evaluate alternatives to 
those actions, which includes the evaluation of the impacts of proposed 
actions in the floodplains.\14\ NEPA mandates that agencies ``attain 
the widest range of beneficial uses of the environment without 
degradation, risk to health or safety, or other undesirable and 
unintended consequences.'' \15\ In furtherance of and consistent with 
this statutory foundation, Executive Order 11988 requires Federal 
agencies to avoid, to the extent possible, the long- and short-term 
adverse impacts associated with the occupancy and modification of 
floodplains, where there is a practicable alternative. The Executive 
Order requires each Federal agency to provide leadership and take 
action to reduce the risk of flood loss, to minimize the impact of 
floods on human safety, health, and welfare, and to restore and 
preserve the natural and beneficial values served by floodplains in 
carrying out its responsibilities for: (1) acquiring, managing, and 
disposing of Federal lands and facilities; (2) providing federally 
undertaken, financed, or assisted construction and improvements; and 
(3) conducting Federal activities and programs affecting land use, 
including but not limited to water and related land resources planning, 
regulating, and licensing activities. It states that each agency has a 
responsibility to evaluate the potential effects of any actions it may 
take in a floodplain; to ensure that its planning, programs, and budget 
requests reflect consideration of flood hazards and floodplain 
management; and to prescribe procedures to implement the policies and 
requirements of the Executive Order.
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    \13\ See 42 U.S.C. 4001 and 4102.
    \14\ See 42 U.S.C. 4332(2)(C).
    \15\ See 42 U.S.C. 4331(b)(3).
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    To meet these requirements, each agency, before taking an action, 
must determine whether the proposed action will occur in a 
floodplain.\16\ Section (6)(c) of Executive Order 11988 defines the 
word ``floodplain'' to mean ``the lowland and relatively flat areas 
adjoining inland and coastal waters including floodprone areas of 
offshore islands, including at a minimum, the area subject to a one 
percent or greater chance of flooding in any given year.'' \17\
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    \16\ Any action FEMA takes in a floodplain, including its 
provision of grants for disaster assistance, undergoes an analysis 
pursuant to Executive Order 11988 (unless the action is specifically 
exempted from the requirements of the Order). The grant recipient, 
therefore, generally provides information to FEMA about the 
practicability of alternatives outside the floodplain and other 
information to assist in the analysis.
    \17\ This is also referred to as the ``100-year floodplain'' or 
the ``base floodplain.''
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    If the action will occur in a floodplain, the agency must consider 
alternatives to avoid adverse effects and incompatible development in 
the floodplain. If the agency finds that the only practicable 
alternative requires the action to occur in the floodplain, the agency 
must, prior to taking the action, design or modify the action in order 
to minimize potential harm to or within the floodplain. Additionally, 
the agency must prepare and circulate a notice explaining why the 
action is proposed to be located in the floodplain. Particularly 
relevant to FEMA, the Executive Order also requires agencies to provide 
appropriate guidance to applicants for grant funding to encourage them 
to evaluate the effects of their proposals in floodplains prior to 
submitting grant applications.
    Executive Order 11988 requires agencies to prepare implementing 
procedures in consultation with the Water Resources Council (WRC),\18\ 
FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC 
issued ``Floodplain Management Guidelines'' (1978 Guidelines), the 
authoritative interpretation of Executive Order 11988.\19\ The 1978 
Guidelines provided

[[Page 67875]]

a section-by-section analysis, defined key terms, and outlined an 8-
step decision-making process for carrying out the directives of 
Executive Order 11988.
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    \18\ The Water Resources Council, established by statute (42 
U.S.C. 1962a-1), is charged with maintaining a continuing study and 
preparing an assessment biennially, or at such less frequent 
intervals as the Council may determine, of the adequacy of supplies 
of water necessary to meet the water requirements in each water 
resource region in the United States and the national interest 
therein; and maintaining a continuing study of the relation of 
regional or river basin plans and programs to the requirements of 
larger regions of the Nation and of the adequacy of administrative 
and statutory means for the coordination of the water and related 
land resources policies and programs of the several Federal 
agencies. It is responsible for appraising the adequacy of existing 
and proposed policies and programs to meet such requirements and 
making recommendations to the President with respect to Federal 
policies and programs.
    \19\ 43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 
Guidelines can be found at this link: https://portal.hud.gov/hudportal/documents/huddoc?id=DOC_14216.pdf (last accessed July 12, 
2023).
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B. Statutory Authority To Require FFRMS Under FEMA Grant Programs

    FEMA's grant programs that fund new construction, substantial 
improvement, or repairs to address substantial damage are authorized 
under the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act, as amended (42 U.S.C. 5121 et seq.) and the National Flood 
Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.). FEMA 
generally has authority under these discretionary grant programs to set 
eligibility criteria. Further, section 323 of the Stafford Act 
authorizes FEMA to require, as a condition of grant funding for all 
Stafford Act programs, that the repair or construction of private and 
public facilities be completed in accordance with ``applicable 
standards of safety, decency, and sanitation in conformity with 
applicable codes, specifications and standards.'' \20\ Section 323 also 
grants FEMA discretion to require any other safe land use and 
construction practices it deems appropriate after adequate consultation 
with appropriate State and local government officials.\21\ Section 404 
of the National Flood Insurance Act grants FEMA the authority to 
provide flood mitigation grant funding and requires the activities 
funded to be consistent with floodplain management criteria developed 
by the Administrator.\22\
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    \20\ See 42 U.S.C. 5165a(a)(1)
    \21\ See 42 U.S.C. 5165a(a)(2)
    \22\ See 42 U.S.C. 4104c and 4102.
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C. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''

    Consistent with the National Flood Insurance Act, the Flood 
Disaster Protection Act, and NEPA, FEMA promulgated regulations 
implementing Executive Order 11988 at 44 CFR part 9, ``Floodplain 
Management and Protection of Wetlands.'' \23\ Part 9 closely follows 
the 1978 Guidelines in setting forth FEMA's policy and procedures for 
floodplain management relating to disaster planning, response and 
recovery, and hazard mitigation. Part 9 generally applies to FEMA 
actions, including FEMA direct actions and FEMA's disaster and non-
disaster assistance programs.\24\
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    \23\ FEMA published an interim final rule on December 27, 1979 
(44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520). 
Note that this part also implements a related Executive Order 11990, 
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
    \24\ 44 CFR 9.4 defines the actions subject to the requirements, 
which include federal lands and facilities, providing federal funds 
for construction and improvements, and conducting activities or 
programs that affect land use.
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    Pursuant to section 8 of Executive Order 11988, part 9 does not 
apply to assistance provided for emergency work essential to save lives 
and protect property and public health and safety, performed pursuant 
to sections 403 and 502 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In 
addition, FEMA applies part 9 programmatically to the National Flood 
Insurance Program (NFIP) \25\. FEMA does not apply part 9 to site-
specific actions under the NFIP because the establishment of 
programmatic criteria, rather than the application of the programmatic 
criteria to individual situations, is the action with the potential to 
influence/affect floodplains.\26\
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    \25\ A complete list of FEMA programs to which Part 9 does not 
apply appears at 44 CFR 9.5. The exemption for actions under the 
NFIP is located at 44 CFR 9.5(f).
    \26\ For example, Part 9 requires FEMA to apply the 8-step 
process to a programmatic determination of categories of structures 
to be insured but does not require FEMA to apply an 8-step review to 
a determination of whether to insure each individual structure. See 
45 44 CFR 9.5(f).
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    Below FEMA outlines the existing 8-step decision-making process 
that the agency currently follows in applying Executive Order 11988 to 
its actions:
    Step (1) Floodplain and wetland determination (44 CFR 9.7). Under 
Step 1, FEMA must determine if a proposed agency action is located in 
or affects the 1 percent annual chance floodplain (or, for critical 
actions, the 0.2 percent annual chance floodplain) or wetland. The 1 
percent annual chance (or base or 100-year) floodplain is the area 
subject to inundation by the 1 percent annual chance flood, which is 
that flood which has a 1 percent chance of occurrence in any given year 
(also known as the base or 100-year flood). A ``critical action'' is 
any activity for which even a slight chance of flooding would be too 
great.\27\ The minimum floodplain of concern for critical actions is 
the 0.2 percent annual chance (or 500-year) floodplain, which is the 
area subject to inundation from a flood having a 0.2 percent chance of 
occurring in any given year. The 0.2 percent annual chance floodplain 
generally covers a larger area than the 1 percent annual chance 
floodplain. FEMA's regulations state that in each instance where the 8-
step process refers to the 1 percent annual chance floodplain, an 
agency should substitute the 0.2 percent annual chance floodplain for 
the 1 percent annual chance floodplain if the proposed action is a 
critical action. Absent a finding to the contrary, FEMA currently 
assumes a proposed action involving a facility or structure that has 
been flooded is in the floodplain.
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    \27\ The concept of critical actions evolved during the drafting 
of the 1978 Guidelines and reflects a concern that the impacts of 
floods on human safety, health, and welfare for many activities 
could not be minimized unless a higher degree of protection than the 
base flood was provided. See Interagency Task Force on Floodplain 
Management, Further Advice on Executive Order 11988 Floodplain 
Management (1986) (last accessed July 12, 2023).
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    FEMA follows a specific regulatory sequence in order to make its 
floodplain determination. First, FEMA must consult the Flood Insurance 
Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood 
Insurance Study (FIS) for the area.\28\ A FIRM is an official, detailed 
map issued by the NFIP, generally showing elevations and boundaries of 
the 1 percent annual chance floodplain and the 0.2 percent annual 
chance floodplain.\29\ The FBFM is a version of a flood map that shows 
only the floodway \30\ and flood boundaries. An FIS report is an 
examination, evaluation, and determination of flood hazards and, if 
appropriate, corresponding water surface elevations. If a FIRM is not 
available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is 
a less detailed map than a FIRM and shows the approximate areas of the 
1 percent annual chance floodplain. If data on flood elevations, 
floodways, or coastal high hazard areas are needed, or if the map does 
not delineate the flood hazard boundaries in the vicinity of the 
proposed site, FEMA must seek detailed information from a list of 
sources included in the regulations. See 44 CFR 9.7(c)(1)(ii). If the 
sources listed do not have or know of detailed information and are 
unable to assist in determining whether the proposed site is in the 1 
percent annual chance floodplain, FEMA must seek the services of a 
licensed consulting engineer experienced in this type of work. If, 
however, a decision involves an area or

[[Page 67876]]

location within extensive Federal or State holdings or a headwater 
area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA will seek 
information from the land administering agency before seeking 
information and/or assistance from the list of sources included in the 
regulations. Then, if none of the sources listed has information or can 
provide assistance, FEMA will seek the services of an experienced 
Federal or other engineer. If the proposed action is outside the 
floodplain or wetland and has no identifiable impacts or support, the 
action can be implemented (Step 8).
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    \28\ FEMA also utilizes best available information in making 
floodplain determinations, which may include preliminary FIRMs or 
Advisory Base Flood Elevations (ABFEs). See FEMA Policy: Guidance on 
the Use of Available Flood Hazard Information (last accessed July 
12, 2023).
    \29\ FEMA estimates that only approximately 20 percent of mapped 
flood zones have detailed floodplain boundaries of the 0.2 percent 
annual chance floodplain.
    \30\ The floodway is the channel of a river or other watercourse 
and the adjacent land areas that must be reserved in order to 
discharge the base flood without cumulatively increasing the water 
surface elevation more than a designated height. See 44 CFR 59.1.
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    Step (2) Early public review (44 CFR 9.8). FEMA must make public 
its intent to locate a proposed action in the floodplain or a 
wetland.\31\ FEMA must provide adequate information to enable the 
public to have an impact on the decision outcome for all proposed 
actions having potential to affect, adversely, or be affected by 
floodplains or wetlands. For each action having national significance 
for which notice is provided, FEMA uses the Federal Register as the 
minimum means for notice and will provide notice by mail to national 
organizations reasonably expected to be interested in the action. 44 
CFR 9.8(c)(5) describes the contents of the public notice, such as a 
description of the action, the degree of hazard involved, a map of the 
area, or other identification of the floodplain, and identification of 
the responsible agency official.
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    \31\ This step is required for any action that is within or 
affects a floodplain or wetland unless exempted or subject to the 
abbreviated processes outlined in 44 CFR 9.5.
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    Step (3) Practicable alternatives (44 CFR 9.9). If the action is in 
the floodplain or a wetland, FEMA will identify and evaluate 
practicable alternatives to carrying out a proposed action in 
floodplains or wetlands, including the following: alternative sites 
outside the floodplain or wetland; alternative actions which serve 
essentially the same purpose as the proposed action, but which have 
less potential to affect or be affected by the floodplain or wetland; 
and ``no action.'' The floodplain or wetland site itself must be a 
practicable location in light of the other factors. Under 44 CFR 
9.9(c), FEMA will analyze several factors in determining the 
practicability of the alternatives described in 44 CFR 9.9(b), namely 
natural environment, social concerns, economic aspects, and legal 
constraints. 44 CFR 9.9(d) states that FEMA will not locate the 
proposed action in the floodplain or wetland if a practicable 
alternative exists outside the floodplain or wetland. For critical 
actions, FEMA will not locate the proposed action in the 0.2 percent 
annual chance floodplain if a practicable alternative exists outside 
the 0.2 percent annual chance floodplain. Even if no practicable 
alternative exists outside the floodplain, in order to carry out the 
action the floodplain or wetland must itself be a practicable location 
in light of the review required under Step 3.
    Step (4) Impact of chosen alternative (44 CFR 9.10). FEMA must 
identify if the action has impacts in the floodplain or wetland. 44 CFR 
9.10(b) provides that FEMA will identify the potential direct and 
indirect adverse impacts associated with the occupancy and modification 
of floodplains or wetlands and the potential direct and indirect 
support of floodplain or wetland development that could result from the 
proposed action.
    Step (5) Minimize impacts (44 CFR 9.11). If the proposed action has 
identifiable impacts in the floodplain or wetland or directly or 
indirectly supports development in the floodplain or wetland, FEMA must 
minimize these effects and restore and preserve the natural and 
beneficial values served by floodplains and wetlands. 44 CFR 9.11(b) 
states generally that FEMA will design or modify its actions to 
minimize harm to or within the floodplain; will minimize destruction, 
loss, or degradation of wetlands; will restore and preserve natural and 
beneficial floodplain values; and will preserve and enhance natural and 
beneficial wetland values. Pursuant to 44 CFR 9.11(c), FEMA will more 
specifically minimize potential harm to lives and the investment at 
risk from the 1 percent annual chance flood, or, in the case of 
critical actions, from the 0.2 percent annual chance flood; potential 
adverse impacts the action may have on others; and potential adverse 
impacts the action may have on floodplain values.
    Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or 
substantial improvement in a floodway and will not allow new 
construction in a coastal high hazard area, except for a functionally 
dependent use \32\ or a structure or facility which facilitates an open 
space use. For a structure which is a functionally dependent use, or 
which facilitates an open space use, FEMA will not allow construction 
of a new or substantially improved structure in a coastal high hazard 
area unless it is elevated on adequately anchored pilings or columns 
and securely anchored to such piles or columns so that the lowest 
portion of the structural members of the lowest floor (excluding the 
pilings or columns) is elevated to or above the 1 percent annual chance 
flood level (the 0.2 percent annual chance flood level for critical 
actions) (including wave height). Regarding elevation of structures, 44 
CFR 9.11(d)(3) states that there will be no new construction or 
substantial improvement of structures unless the lowest floor of the 
structures (including basement) is at or above the level of the 1 
percent annual chance flood, and there will be no new construction or 
substantial improvement of structures involving a critical action 
unless the lowest floor of the structure (including the basement) is at 
or above the level of the 0.2 percent annual chance flood.
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    \32\ A functionally dependent use means a use which cannot 
perform its intended purpose unless it is located or carried out in 
close proximity to water. See 44 CFR 9.4.
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    Step (6) Reevaluate alternatives (44 CFR 9.9). FEMA must reevaluate 
the proposed action. Pursuant to 44 CFR 9.9(e), upon determination of 
the impact of the proposed action to or within the floodplain or 
wetland and of what measures are necessary to comply with the 
requirement to minimize harm to and within the floodplains and 
wetlands, FEMA will determine whether: the action is still practicable 
at a floodplain or wetland site in light of the exposure to flood risk 
and the ensuing disruption of natural values, the floodplain or wetland 
site is the only practicable alternative, the scope of the action can 
be limited to increase the practicability of previously rejected non-
floodplain or non-wetland sites and alternative actions, and 
minimization of harm to or within the floodplain or wetland can be 
achieved using all practicable means. Pursuant to 44 CFR 9.9(e)(2), 
FEMA will take no action in a floodplain or wetland unless the 
importance of the floodplain or wetland site clearly outweighs the 
requirement of Executive Order 11988 to avoid direct or indirect 
support of floodplain or wetland development; reduce the risk of flood 
loss; minimize the impact of floods on human safety, health, and 
welfare; and restore and preserve floodplain and wetland values.
    Step (7) Findings and public explanation (44 CFR 9.12). If FEMA 
finds that the only practicable alternative is to take the action in 
the floodplain or wetland, it must give public notice of the reasons 
for this finding. 44 CFR 9.12(e) describes the requirements for the 
content of such notice, such as a statement of why the proposed action 
must be located in an area affecting or affected by a floodplain or 
wetland, a description of all significant facts considered in making

[[Page 67877]]

this determination, identification of the responsible official, and a 
map of the relevant area. FEMA may implement the proposed action after 
it allows a reasonable period for public response.
    Step (8) Implementation (Multiple sections of 44 CFR and applicable 
program guidance). Implementation of the requirements of Executive 
Order 11988 is integrated into the specific regulations and procedures 
of the grant program under which the action is proposed to take place. 
After the proposed action is implemented, the FEMA program providing 
the funding determines under its applicable regulations and procedures 
whether the grant recipient has completed the prescribed mitigation.

D. Reevaluation of the 1 Percent Annual Chance Flood Standard

    In the aftermath of Hurricane Sandy, the President issued Executive 
Order 13632,\33\ which created the Federal Interagency Hurricane Sandy 
Rebuilding Task Force (Sandy Task Force). Pursuant to direction from 
Executive Order 13632 to remove obstacles to resilient rebuilding, the 
Sandy Task Force reevaluated the 1 percent chance/100-year standard. In 
April 2013, the Sandy Task Force announced a new Federal flood risk 
reduction standard which required elevation or other flood-proofing to 
1 foot above \34\ the best available and most recent 1 percent annual 
chance flood elevation and applied that standard to all Federal 
disaster recovery investments in Sandy-affected communities.\35\ The 
Sandy Task Force called for all major rebuilding projects in Sandy-
affected communities using Federal funding to be elevated or otherwise 
flood-proofed according to this new flood risk reduction standard.
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    \33\ 77 FR 74341 (Dec. 14, 2012).
    \34\ This is also known as ``freeboard.'' ``Freeboard'' is a 
factor of safety usually expressed in feet above a flood level for 
purposes of floodplain management. Freeboard tends to compensate for 
the many unknown factors that could contribute to flood heights 
greater than the height calculated for a selected size flood and 
floodway conditions, such as wave action, bridge openings, and the 
hydrologic effect of urbanization of the watershed. See https://www.fema.gov/glossary/freeboard (last accessed July 12, 2023).
    \35\ HUD release entitled, ``Federal Government Sets Uniform 
Flood Risk Reduction Standard for Sandy Rebuilding Projects,'' April 
4, 2013.
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    In June 2013, the President issued a Climate Action Plan \36\ that 
directed agencies to take appropriate actions to reduce risk to Federal 
investments, specifically directing agencies to build on the work done 
by the Sandy Task Force and to update their flood risk reduction 
standards for ``federally-funded . . . projects'' to ensure that 
``projects funded with taxpayer dollars last as long as intended.'' 
\37\ After a year-long process of receiving input from State, local, 
Tribal, and territorial governments; private businesses; trade 
associations; academic organizations; civil society; and other 
stakeholders, the Task Force provided a recommendation to the President 
in November 2014. The Climate Task Force recommended that, in order to 
ensure resiliency, Federal agencies, when taking actions in and around 
floodplains, should include considerations of the effects of changing 
conditions, including sea level rise, more frequent and severe storms, 
and increasing river flood risks. The Climate Task Force also 
recommended that the best available climate data should be used in 
siting and designing projects receiving Federal funding, and that 
margins of safety, such as freeboard and setbacks, should be 
included.\38\
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    \36\ Executive Office of the President, The President's Climate 
Action Plan (2013), available at https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf. (last 
accessed July 12, 2023).
    \37\ See id at 15.
    \38\ President's State, Local, and Tribal Leaders Task Force on 
Climate Preparedness and Resilience, Recommendations to the 
President, (2014), available at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed July 12, 2023).
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E. Executive Order 13690, the Federal Flood Risk Management Standard 
and Subsequent Amendments to Executive Order 11988, and Revisions to 
the 1978 Guidelines

    On January 30, 2015, the President issued Executive Order 13690, 
``Establishing a Federal Flood Risk Management Standard (FFRMS) and a 
Process for Further Soliciting and Considering Stakeholder Input.'' 
\39\ Executive Order 13690 amended Executive Order 11988 and 
established the FFRMS. It required FEMA to publish an updated version 
of the Implementing Guidelines (revised to incorporate the changes 
required by Executive Order 13690 and the FFRMS) in the Federal 
Register for notice and comment. Finally, Executive Order 13690 
required the WRC to issue final Guidelines to provide guidance to 
agencies on the implementation of Executive Order 11988, as amended, 
consistent with the FFRMS.
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    \39\ 80 FR 6425, Feb. 4, 2015.
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    FEMA, acting on behalf of the Mitigation Framework Leadership 
Group, published a Federal Register notice for a 60-day notice and 
comment period seeking comments on a draft of the Revised Guidelines on 
February 5, 2015.\40\ FEMA received over 556 separate submissions.\41\ 
The final Revised Guidelines were issued on October 8, 2015.\42\ The 
Revised Guidelines contain an updated version of the FFRMS (located at 
Appendix G of the Revised Guidelines), reiterate key concepts from the 
1978 Guidelines, and explain the new concepts resulting from the FFRMS. 
In response to public comments, the Mitigation Framework Leadership 
Group clarified the distinction between actions and Federally funded 
projects.
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    \40\ 80 FR 6530, Feb. 5, 2015.
    \41\ FEMA received approximately 556 separate submissions, which 
raised over 2700 separate issues and positions. Written comments 
were received at a series of 8 in-person listening sessions across 
the country (135 submissions); verbal comments were shared during 
the public comment periods of these same listening sessions (74 
commenters); comments were submitted through the FFRMS email address 
(20 submissions); comments were submitted through regulations.gov 
(326 submissions); and comments were submitted as part of a petition 
of support (1 submission).
    \42\ 80 FR 64008 (Oct. 22, 2015); https://www.regulations.gov/document/FEMA-2015-0006-0358 (last accessed July 12, 2023).
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    On August 22, 2016, FEMA published an NPRM entitled ``Updates to 
Floodplain Management and Protection of Wetlands Regulations To 
Implement Executive Order 13690 and the Federal Flood Risk Management 
Standard'' in the Federal Register (81 FR 57402). The rulemaking would 
have revised FEMA's regulations on ``Floodplain Management and 
Protection of Wetlands'' to implement Executive Order 13690. FEMA also 
proposed a supplementary policy entitled ``FEMA Policy: Guidance for 
Implementing the Federal Flood Risk Management Standard (FFRMS)'' (FEMA 
Policy 078-3), which would have further clarified how FEMA would apply 
the FFRMS. The notice of availability and request for comments for the 
supplementary policy also published in the August 22, 2016 Federal 
Register at 81 FR 56558. On September 20, 2016, FEMA published a notice 
of data availability regarding a draft report, the 2016 Evaluation of 
the Benefits of Freeboard for Public and Nonresidential Buildings in 
Coastal Areas, which had been added to the docket for the proposed rule 
(81 FR 64403).
    On August 15, 2017, the President issued Executive Order 13807 
(``Establishing Discipline and Accountability in the Environmental 
Review and Permitting Process for Infrastructure Projects'') which 
revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017. 
Accordingly, on March 6, 2018, in light of the revocation of Executive 
Order 13690, FEMA

[[Page 67878]]

withdrew the August 22, 2016 NPRM and supplementary policy (83 FR 
9473).
    On May 20, 2021, the President issued Executive Order 14030 
(``Climate-Related Financial Risk'') \43\ reinstating Executive Order 
13690, thereby reestablishing the FFRMS. Executive Order 14030 also 
states that the Revised Guidelines issued in 2015 were never revoked 
and remain in effect. As such, FEMA reviewed its prior NPRM and 
proposed policy and decided to revise its approach to implementation 
based on lessons learned during and since the 2016 rulemaking process. 
Specifically, FEMA first partially implemented the FFRMS by policy with 
respect to covered projects in existing floodplains in its Public 
Assistance and Hazard Mitigation Assistance programs.\44\ FEMA next 
proposes to fully implement the FFRMS through this updated revision to 
its regulations and an updated supplementary policy.
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    \43\ 86 FR 27967 (May 25, 2021).
    \44\ See FEMA Policy 104-22-003, ``Partial Implementation of the 
Federal Flood Risk Management Standard for Public Assistance 
(Interim),'' June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed July 12, 2023) and FEMA Policy 
206-21-003-0001, ``Partial Implementation of the Federal Flood Risk 
Management Standard for Hazard Mitigation Assistance Program,'' Dec. 
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed July 12, 2023).
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F. Substantive Components of the FFRMS

    The FFRMS is a flexible framework to increase resilience against 
flooding and help preserve the natural values of floodplains and 
wetlands.\45\ Incorporating the FFRMS will expand the floodplain and 
require projects be built with higher resiliency. Applying the FFRMS 
will help ensure that Federally funded projects will last as long as 
intended. In addition, the FFRMS and revised guidelines require the 
evaluation of natural features and nature-based approaches, where 
possible, in the analysis of practicable alternatives in Step 3 of the 
decision-making process for all Federal actions.
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    \45\ Although the FFRMS describes various approaches for 
determining the higher vertical flood elevation and corresponding 
horizontal floodplain for Federally funded projects, it is not meant 
to be an ``elevation'' standard. The FFRMS is a resilience standard. 
The vertical flood elevation and corresponding horizontal floodplain 
determined using the approaches in the FFRMS establish the level to 
which a structure or facility must be resilient. This may include 
using structural or non-structural methods to reduce or prevent 
damage; elevating a structure; or, where appropriate, designing it 
to adapt to, withstand, and rapidly recover from a flood event. See 
``Guidelines for Implementing Executive Order 11988, Floodplain 
Management, and Executive Order 13690, Establishing a Federal Flood 
Risk Management Standard and a Process for Further Soliciting and 
Considering Stakeholder Input'' (Oct. 8, 2015), found at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed July 12, 2023).
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    Under the FFRMS, a Federal agency may establish the floodplain for 
actions subject to the FFRMS using any of the following approaches:
     Approach 1: Climate-Informed Science Approach (CISA): 
Utilizing the best-available, actionable hydrologic and hydraulic data 
and methods that integrate current and future changes in flooding based 
on climate science;
     Approach 2: Freeboard Value Approach (FVA): Freeboard (1 
percent annual chance flood elevation + X, where X is 3 feet for 
critical actions and 2 feet for other actions);
     Approach 3: 0.2-percent-annual-chance Flood Approach 
(0.2PFA): 0.2 percent annual chance flood (also known as the 500-year 
flood); or
     Approach 4: the elevation and flood hazard area that 
result from using any other method identified in an update to the 
FFRMS.\46\
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    \46\ See Executive Order 13690 Section 2(i), 80 FR 6425, 6426 
(Feb. 4, 2015).
---------------------------------------------------------------------------

    Each of the approaches is described in further detail below.
    FFRMS Approach 1: CISA. The FFRMS and Revised Guidelines state that 
the CISA is the preferred approach, and that Federal agencies should 
use this approach when data to support such an analysis are available. 
CISA uses existing, sound science and engineering methods (e.g., 
hydrologic and hydraulic analysis and methods used to establish current 
flood elevations and floodplain maps), supplemented with best available 
and actionable climate science and consideration of impacts from 
projected land cover/land use changes, long-term erosion, and other 
processes that may alter flood hazards over the lifecycle of the 
Federal investment.\47\ For areas vulnerable to coastal flood hazards, 
the CISA includes consideration of the regional sea-level rise 
variability and lifecycle of the Federal action. This includes use of 
the Department of Commerce's National Oceanic and Atmospheric 
Administration's (NOAA's) or similar global mean sea-level-rise 
scenarios. These scenarios would be adjusted to the local relative sea-
level conditions and would be combined with surge, tide, and wave data 
using state-of-the-art science in a manner appropriate to policies, 
practices, criticality, and consequences. For areas vulnerable to 
riverine flood hazards (i.e., flood hazards stemming from a river 
source), the CISA would account for changes in riverine conditions due 
to current and future changes in climate and other factors such as land 
use by applying state-of-the-art science in a manner appropriate to 
policies, practices, criticality, and consequences (risk). The CISA for 
critical actions would utilize the same methodology as used for non-
critical actions that are subject to Executive Order 11988, as amended, 
but with an emphasis on criticality as one of the factors for agencies 
to consider when conducting the analysis.
---------------------------------------------------------------------------

    \47\ See Guidelines, pgs. 36-37.
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    FFRMS Approach 2: FVA. The FFRMS and Revised Guidelines define 
freeboard values as an additional 2 feet added to the 1 percent annual 
chance flood elevation, or, for critical actions, an additional 3 feet 
added to the 1 percent annual chance flood elevation. In other words, 
the floodplain established by the FVA is the equivalent of the 1 
percent annual chance floodplain, plus either 2 or 3 feet of vertical 
elevation, as applicable based on criticality, and a corresponding 
increase in the horizontal extent of the floodplain. The increased 
horizontal extent will not be the same in every case. As shown in the 
next two illustrations, when the same vertical increase is applied in 
multiple actions subject to the FFRMS in different areas, the amount of 
the increase in the horizontal extent of the respective floodplains 
will depend upon the topography of the area surrounding the proposed 
location of the action. FVA Illustration A reflects an area with 
relatively flat topography on either side of the flooding source (i.e., 
river or stream) channel. This is generally representative of coastal 
plains, portions of the Midwest, and other areas with less variation in 
topography. FVA Illustration B reflects an area with steep topography 
on either side of the flooding source channel. This is representative 
of mountainous areas or areas with changes in elevation near the 
flooding source. With the same addition of 2 feet to the 1 percent 
annual chance flood elevation applied to both example locations, the 
increase to the horizontal extent of the floodplain in FVA Illustration 
A is comparatively larger than the increase to the horizontal extent of 
the floodplain in FVA Illustration B. These illustrations visually 
depict the fact that the horizontal increase to the floodplain will not 
be uniform when applying the same increase to establish the FVA and

[[Page 67879]]

will vary depending on local topography.
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[[Page 67880]]

    FFRMS Approach 3: 0.2PFA. Agencies may use available 0.2 percent 
annual chance (or ``500-year'') flood data as the basis of the FFRMS 
elevation and corresponding floodplain extent. Under this approach the 
same floodplain and elevation is used for critical and non-critical 
actions. The FFRMS and Revised Guidelines note that often the 0.2 
percent annual chance flood elevation data provided by FEMA in coastal 
areas only considers storm-surge hazards; these data do not include 
local wave action or storm-induced erosion that are considered in the 
computation of flood elevations. The FFRMS and Revised Guidelines 
encourage agencies to obtain or develop the necessary data, including 
wave heights, to ensure that any 0.2 percent annual chance flood data 
applied will achieve an appropriate level of flood resilience or use 
the FVA approach instead for the proposed investment.
    FFRMS Approach 4: Update to FFRMS. The Mitigation Framework 
Leadership Group in consultation with the Federal Interagency 
Floodplain Management Task Force must reassess the FFRMS annually after 
seeking stakeholder input, and provide recommendations to the WRC to 
update the FFRMS. if warranted. The WRC must issue an update to the 
FFRMS at least every 5 years. The updates ensure the floodplain 
determination process for actions subject to the FFRMS reflects current 
methodologies.
    Further Guidance on Application of the FFRMS Approaches To 
Establishing the Floodplain. The FFRMS and Revised Guidelines state 
that when an agency does not use CISA in a coastal flood hazard area 
and where the FEMA 0.2 percent annual chance flood elevation does not 
include wave height, or a wave height has not been determined, the 0.2 
percent annual chance elevation should not be used and the FVA should 
be used instead. The FFRMS and Revised Guidelines note that where the 
0.2-percent-annual-chance-flood elevation does not consider wave 
action, the result will likely either be lower than the current base 
flood elevation or the base flood elevation plus applicable freeboard. 
Where wave action has been incorporated into the 0.2 percent annual 
chance elevation, the 0.2 percent annual chance elevation can be used.
    The Guidelines state that for riverine flood hazard areas agencies 
may select either the FVA, or 0.2 percent annual chance flood elevation 
approach (or a combination of approaches, as appropriate) when 
actionable science is not available and an agency opts not to follow 
the CISA. It states that the agency is not required to use the higher 
of the elevations but may opt to do so. The elevation standards of the 
FFRMS are not intended to supplant applicable State, Tribal, 
territorial, or local floodplain protection standards. If such 
standards exceed the FFRMS, an agency should apply those standards if 
the agency determines the application of the standards is reasonable in 
light of the goals of Executive Order 11988, as amended.\48\
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    \48\ See Revised Guidelines at 53. The Revised Guidelines 
suggest that agencies should apply a reasonableness standard to 
higher State, Tribal, Territorial, or local (STTL) floodplain 
management standards. FEMA has historically deferred to higher local 
codes and standards from an STTL government in 44 CFR 9.11(d)(6) and 
will continue the practice through this rulemaking, rather than 
applying a case-by-case reasonableness analysis and believes this is 
appropriate because of program-specific controls that ensure higher 
standards are reasonable. Specifically, in the PA program, if an 
STTL government has adopted a code or standard that exceeds minimum 
standards set by FEMA, regulations at 44 CFR 206.226(d) require the 
code to be in place and adopted pre-disaster which guards against an 
STTL government's adoption of unreasonably high codes and standards. 
With respect to mitigation projects, they are all required to be 
cost-effective as a minimum criteria of eligibility. See 42 U.S.C. 
5170c(a); 42 U.S.C. 5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-
by-project cost-effectiveness analysis should guard against any STTL 
standards that are unreasonably high.
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G. FEMA's Implementation of the FFRMS and the Revised Guidelines

    When Executive Order 13690 was issued, and again when it was 
reinstated with Executive Order 14030, FEMA evaluated the application 
of the FFRMS with respect to its existing authorities and programs. The 
FFRMS establishes a flexible standard to improve resilience against the 
impact of flooding--to design for the intended life of the Federal 
investment. FEMA supports this principle. Between 1980 and 2021, the 
United States experienced 35 flooding disaster events, each with 
damages totaling over $1 billion or more, and a total of $164.2 billion 
in damages for those 35 flooding disasters.\49\ FEMA, as a responsible 
steward of Federal funds, must ensure it does not needlessly repeat 
Federal investments in the same structures and/or facilities after 
flooding events. In addition, the FFRMS will help support the thousands 
of communities across the country recovering from disasters, seeking to 
mitigate future impacts of flooding and to strengthen infrastructure 
and other community assets to be more resilient to flood risk.\50\ FEMA 
recognizes that the need to make structures resilient also requires an 
equitable and flexible approach to adapt to the needs of the Federal 
agency, local community, and the circumstances surrounding each project 
or action consistent with evolving science and engineering advancements 
that demonstrate a better understanding of flood risk and flood risk 
reduction.
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    \49\ See ``Billion-Dollar Weather and Climate Disasters,'' 
https://www.ncdc.noaa.gov/billions, DOI: 10.25921/stkw-7w73 (last 
accessed July 12, 2023).
    \50\ For example, FEMA data indicates approximately 18,068 
eligible applicants for public assistance have participated in the 
8-step process required by 44 CFR part 9 between 2012 and 2021.
---------------------------------------------------------------------------

    The current floodplain policy was designed to accept a specific 
level of flood risk utilizing the 1 percent or 0.2 percent annual 
chance floodplains. However, these values do not incorporate changing 
future conditions caused by increasing severity of flooding and other 
associated issues such as coastal erosion. The result is that the 
current level of the 1 percent annual chance and 0.2 percent annual 
chance flood elevation can underestimate the flooding risk to a 
particular action and leave communities at higher risk to future 
flooding events.
    Where CISA is available and actionable, the risk of flooding can be 
determined based on climate science to identify the appropriate level 
of risk protection for an action based on factors such as local flood 
characteristics, criticality of the action, and planned lifespan of the 
action. As CISA is based on the available and actionable science for a 
specific location and action, the result is a determination of the 
appropriate level of resiliency to design minimization measures. Other 
methods may lower the flood risk as they are above the current 
floodplain policy, but in some instances, projects may be built to a 
higher resiliency than required (overbuilt) or to a lower resiliency 
than needed (underbuilt).\51\
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    \51\ See https://www.asfpmfoundation.org/ace-images/forum/Meeting_the_Challenge_of_Change.pdf.
---------------------------------------------------------------------------

    FEMA intends to implement the FFRMS and the Revised Guidelines 
through this proposed rule and supplementary policy, which would (1) 
add or revise definitions to be consistent with those included in 
Executive Order 11988, as amended, and the Revised Guidelines to make 
them more accessible to stakeholders; (2) incorporate the use of the 
FFRMS approaches for establishing the floodplain into FEMA's existing 
8-step process; and (3) include the requirement to use natural features 
and nature-based approaches, where possible, when developing 
alternatives to the proposed action. These revisions also update other 
sections of the 8-step process to reflect current FEMA policies and

[[Page 67881]]

processes and provide additional clarity.
    Making the Initial Floodplain Determination. As stated above, the 
FFRMS changed the definition of ``floodplain'' with respect to actions 
subject to the FFRMS (i.e., actions involving the use of FEMA funds for 
new construction, substantial improvement, or to address substantial 
damage to a structure or facility). The FFRMS allows the agency to 
define ``floodplain'' using any of three approaches and take actions 
that are informed by the best available and actionable science. 
Agencies should use the CISA approach when the best available, 
actionable hydrologic and hydraulic data and methods that integrate 
current and future changes in flooding based on climate science are 
available for actions subject to the FFRMS.\52\ For actions which do 
not meet the definition of an action subject to the FFRMS, an agency 
should continue to use the historical definition of floodplain with 
minor clarifying revisions. This means that one of the first steps an 
agency must take is to determine the appropriate floodplain. Figure 1 
illustrates the process by which FEMA would decide which floodplain 
would apply to an action subject to the FFRMS compared to an action 
that would not be subject to the FFRMS.
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    \52\ FEMA considers data to be available and actionable based on 
the Revised Guidelines. Appendix H of the Revised Guidelines states 
that best available data and science are transparent--clearly 
outlines assumptions, applications, and limitations; technically 
credible--transparent subject matter or more formal external peer 
review, as appropriate, of processes and source data; usable--
relevance and accessibility of the information to its intended 
users. For the climate-informed approach, usability can be achieved 
by placing climate-related scenarios into appropriate spatial, 
temporal, and risk-based contexts; legitimate--perceived by 
stakeholders to conform to recognized principles, rules, or 
standards. Legitimacy might be achieved through existing government 
planning processes with the opportunity for public comment and 
engagement; and flexible--scientific, engineering, and planning 
practices to address climate change-related information are 
evolving. To respond, agencies need to adapt and continuously update 
their approaches consistent with agency guidelines and principles. 
Also under Appendix H, actionable science consists of theories, 
data, analyses, models, projections, scenarios, and tools that are: 
relevant to the decision under consideration; reliable in terms of 
its scientific or engineering basis and appropriate level of peer 
review; understandable to those making the decision; supportive of 
decisions across wide spatial, temporal, and organizational ranges, 
including those of time-sensitive operational and capital investment 
decision-making; and co-produced by scientists, practitioners, and 
decision-makers, and meet the needs of and are readily accessible by 
stakeholders. See Appendix H at pgs. 5-6.
[GRAPHIC] [TIFF OMITTED] TP02OC23.002

    Selection Between the FFRMS Approaches. In selecting between the 
FFRMS approaches, FEMA sought to retain sufficient flexibility to 
account for updates to the FFRMS and yet also implement a framework 
that is sufficiently standardized to be easily understood and 
consistently applied to ensure an appropriate level of resilience 
without overbuilding.\53\ These considerations have led FEMA to propose 
a policy that considers the type and criticality of the action 
involved, the availability and actionability of the data, and equity 
concerns, as further explained in the current proposed supplementary 
policy.
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    \53\ For purposes of this rulemaking, overbuilding and 
underbuilding refers to building or protecting structures and 
facilities to a higher or lower resilience standard than necessary 
to reduce flood risks.
---------------------------------------------------------------------------

    FEMA proposes to implement the FFRMS by adopting the flexible 
framework detailed in the Revised Guidelines. Under this proposal, FEMA 
would provide additional guidance that addresses which approach FEMA 
would use for different types of actions and how FEMA would tailor its 
application of the various approaches depending on

[[Page 67882]]

the best available information to inform current and future flood risk, 
the type and criticality of the action, and equity. FEMA's 2016 
supplementary policy proposed to use the FVA to establish the elevation 
and associated floodplain for non-critical actions. For critical 
actions, FEMA's 2016 supplementary policy proposed to allow the use of 
the FVA or the CISA, but only if the elevation established under the 
CISA was higher than the elevation established under the FVA.\54\
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    \54\ 81 FR 56558.
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    For the reasons stated below, FEMA's current proposed supplementary 
policy proposes a different approach. Specifically, FEMA's current 
proposed supplementary policy prefers the CISA floodplain where data is 
available and actionable. Where CISA data is not available and 
actionable, the supplementary policy selects Where CISA data is not 
available and actionable, the supplementary policy selects either the 
FVA or 0.2PFA to establish the floodplain. Specifically, for critical 
actions, the supplementary policy requires use of the higher of the 
FVA+3 or 0.2PFA. For non-critical actions, the supplementary policy 
requires the use of the lower of the FVA+2 or 0.2PFA. For actions not 
subject to the FFRMS, the floodplain would continue to be the 0.2 
percent annual chance floodplain for critical actions and the 1 percent 
annual chance floodplain for non-critical actions. Other FEMA 
requirements to follow consensus codes and standards \55\ and to meet 
NFIP and State, local, Tribal, and territorial standards will continue 
to apply.\56\ In doing so, FEMA believes the 8-step process with FFRMS 
implementation will result in a level of resiliency that is effective 
for the action and also equitable for the community by utilizing 
available and actionable scientific data to tailor the future flooding 
risk to the action.
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    \55\ See ``Consensus-Based Codes, Specifications, and Standards 
for Public Assistance (Version 2)'' found at https://www.fema.gov/assistance/public/policy-guidance-fact-sheets/section-1235b-consensus-based-codes-and-standards (last accessed July 12, 2023).
    \56\ See 44 CFR part 60.3 for the NFIP minimum floodplain 
management standards.
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    The FVA Considered. FEMA considered using the FVA as the default 
approach for both critical and non-critical actions subject to the 
FFRMS. A choice to use the FVA as a default would reflect the practical 
need for standardization in the earlier stages of implementation. The 
FVA elevation is computed using the base flood elevation, and FEMA may 
use the same sequence it has followed to determine the base flood 
elevation for the purposes of establishing the FVA elevation. This 
would still allow for the use of widely available FEMA regulatory 
products, such as Flood Insurance Rate Maps and Flood Insurance Study 
Reports.\57\ By following the same sequence that FEMA has historically 
used for determining the appropriate elevation and utilizing known 
mapping products, FEMA staff would need relatively minimal additional 
training to be able to use these products to determine the horizontal 
extent of the FVA floodplain. In addition, the familiarity of the 
process and products to be used in most projects would benefit 
stakeholders by providing a consistent methodology which stakeholders 
would similarly be able to use to determine where FEMA will require 
application of the FFRMS. Additionally requiring the use of the FVA as 
the minimum elevation for critical actions would be consistent with 
FEMA's policy to encourage communities to adopt higher standards, 
including freeboard standards, than the minimum floodplain management 
criteria under the NFIP.\58\ Generally, adoption of a freeboard tends 
to compensate for the many unknown factors that could contribute to 
flood heights greater than the height calculated for a selected size 
flood and floodway conditions, such as wave action, bridge openings, 
and the hydrological effect of urbanization of the watershed.\59\ 
Consistent with FEMA's Community Rating System (CRS) policy, 1,380 of 
the 1,740 CRS-participating localities have adopted freeboard 
requirements that exceed current Federal standards within 50 
states.\60\ FEMA supports that adoption by requiring that all of its 
projects are consistent with more restrictive Federal, State, or local 
floodplain management standards.\61\
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    \57\ FEMA Flood Map Products. See https://www.fema.gov/flood-maps/products-tools/products. (Last accessed July 27, 2023).
    \58\ See 44 CFR 60.1(d).
    \59\ See 44 CFR 59.1.
    \60\ See https://www.fema.gov/floodplain-management/community-rating-system#participating (last accessed July 12, 2023).
    \61\ See 44 CFR 9.11(d)(6).
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    The FVA, however, is not without challenges. First, while 
application of the FVA relies on data that is more available and 
readily accessible, it is not always the most suitable information to 
inform flood risk. Although FVA uses a fixed freeboard value across the 
nation, the FVA results in widely varying impacts to the current and 
future risk to the project. In some locations, applying the FVA+3 
reduces the chance of being impacted by current flooding conditions by 
2 times, while in other cases applying the FVA might reduce such 
chances by 10 times or more.\62\ This wide variation in risk reduction 
using the FVA approach may result in underbuilding or overbuilding in 
some areas. Without data narrowly tailored to the location's specific 
risks, the FVA may result in building or protecting structures and 
facilities to a higher or lower resilience standard than necessary to 
reduce flood risks. This potential for overbuilding or underbuilding 
may raise equity concerns for underserved communities seeking to 
rebound quickly and effectively from a disaster. Those communities may 
struggle to pay the additional costs required to build to a higher 
resilience standard than might be necessary if FEMA were to instead 
apply the CISA, thus unnecessarily delaying disaster recovery.\63\ 
Alternatively, communities may be more vulnerable to future flooding 
and therefore repair expenses where building to a lower resilience 
standard under the FVA than if FEMA were to apply CISA.
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    \62\ See National Research Council, ``Risk Analysis and 
Uncertainty in Flood Damage Reduction Studies,'' Table 7-1 pg. 144, 
found at https://nap.nationalacademies.org/catalog/9971/risk-analysis-and-uncertainty-in-flood-damage-reduction-studies (last 
accessed July 12, 2023). Note that when downloaded in portable 
document format, table 7-1 is cut off. When viewed in the web 
version, Column 14 provides the return period for a 3 foot freeboard 
value.
    \63\ See Jeremy Martinich, James Neumann, Lindsay, Ludwig, and 
Lesley Jantarasami, ``Risks of sea level rise to disadvantaged 
communities in the United States'' Mitig Adapt Strateg Glob Change 
(2013) 18:169-185, found at https://link.springer.com/article/10.1007/s11027-011-9356-0 (last accessed July 12, 2023).
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    The 0.2PFA Considered. FEMA considered using the 0.2PFA, as the 
horizontal extent of the 0.2PFA floodplain is already mapped in some 
locations. Further, the 0.2PFA results in a much more consistent 
reduction in the chances of being impacted by a flood for projects in 
different areas. This is because the 0.2PFA floodplain and elevation 
are calculated to have the same probability of occurrence 
everywhere.\64\ The 0.2PFA may result in a higher elevation than the 
FVA in some circumstances and lower elevations in other areas. FEMA is 
challenged by the limited national availability of information on the 
0.2 percent annual chance flood elevation and the additional costs 
associated with producing this information where it is not yet 
available. While most areas of the country have 1 percent annual chance 
floodplain information and the necessary topographical information to 
determine the horizontal extent under

[[Page 67883]]

the FVA, far fewer are mapped with 0.2 percent annual chance floodplain 
information. This is because although all FEMA-mapped flood zones have 
either detailed or approximate 1 percent annual chance floodplain 
boundaries, FEMA estimates that only 20 percent of effective flood 
zones have detailed floodplain boundaries of the 0.2 percent annual 
chance floodplain.\65\ There is some additional 0.2 percent annual 
chance floodplain mapping coverage available from FEMA products that 
are in preliminary or draft stages, and from other Federal, state, and 
local agencies. Data showing the boundaries and elevations for the 0.2 
percent annual chance flood, however, is far less available than 
information for the 1 percent annual chance flood. Additionally, in 
coastal areas, the FFRMS requires Federal agencies to use the FVA as 
the minimum elevation when not using the CISA, if the 0.2 percent 
annual chance flood information depicted on FEMA's regulatory products 
considers storm-surge hazards but not wave action, and wave action data 
cannot be obtained from other sources.\66\ This requirement is 
essential to ensure the effectiveness of this resilience standard. Only 
some areas have 0.2PFA with wave action information. Finally, there 
could also be equity concerns related to underbuilding or overbuilding 
to this standard, as again communities seeking to rebound quickly and 
effectively from a disaster may struggle to pay the additional costs 
required to build to a higher resilience standard than might be 
necessary if FEMA were to instead apply the CISA, thus unnecessarily 
delaying disaster recovery. Given the challenges with information 
availability, costs, and certainty for stakeholders, FEMA is not 
proposing the 0.2PFA for all actions subject to the FFRMS. However, the 
consistency provided by the 0.2PFA when the data is available provides 
a check against the variability of the FVA approach, so FEMA plans to 
use the two approaches together.
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    \64\ See Guidelines at pg. 6.
    \65\ FEMA riverine flood hazard data inventory information comes 
from the Coordinated Needs Management Strategy dataset.
    \66\ See Revised Guidelines at 57.
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    The CISA Considered. Consistent with the Revised Guidelines, FEMA 
is proposing the use of CISA as the preferred approach where data is 
available and actionable for both critical and non-critical actions as 
CISA uses a more site-specific approach to predict flood risk based on 
future conditions. FEMA believes CISA has the potential to be the best 
and most well-informed approach to building resilience in an equitable 
manner and ensuring a reduction in disaster suffering. While all three 
approaches consider the effects of changing conditions on current and 
future flood risk, CISA is the only approach that uses climate science 
data to determine the appropriate floodplain for actions subject to the 
FFRMS. The FVA is a standard of protection set within a margin of error 
and can result in underbuilding or overbuilding because the data is not 
tailored to consider the flood risk in a specific location. The 0.2PFA 
provides a consistent reduction in flood risk but the data is often not 
available. Neither approach uses climate science to determine future 
flood risk for specific locations. CISA is the only approach that 
ensures projects are designed to meet current and future flood risks 
unique to the location and thus ensures the best overall resilience, 
cost effectiveness, and equity. CISA provides a forward-looking 
assessment of flood risk based on likely or potential climate change 
scenarios, regional climate factors, and an advanced scientific 
understanding of these effects. CISA allows FEMA to make this 
assessment specific to the communities involved and to tailor the 
assessment to their specific resilience needs, factoring in cost-
effectiveness of resilience efforts and equity. As explained above, the 
FVA approach presents a uniform solution that is not sufficiently 
tailored to meet specific community needs and lacks full consideration 
of future conditions. With a mandate to expand the floodplain and 
elevate to a specific height without additional considerations, the FVA 
approach can result in a community's project being built to a higher or 
lower standard than necessary for the community's intended use and 
result in additional expense to the community. Similarly, the 0.2PFA 
may result in a community's project being built to a higher or lower 
standard than necessary for the community's intended use and result in 
additional expense to the community because the 0.2PFA lacks full 
consideration of future conditions. Where available, CISA presents the 
best data available on current and future conditions to help FEMA work 
with communities to implement resilient, cost-effective projects.
    For critical actions, FEMA is proposing to utilize elevations 
determined by applying CISA so long as that elevation is at least the 
elevation of the 0.2PFA. Under this proposal, FEMA could choose to 
allow use of the CISA, even if the resulting elevation is lower than 
the application of the FVA. This approach would give FEMA and its 
recipients more flexibility in implementing the standard, would enable 
FEMA and its recipients to build to an elevation based on the best 
available science taking criticality into account, would ensure 
adequate protection in those areas that are projected to experience 
future flood elevations beyond those identified using the FVA or 
0.2PFA, and would provide a pathway to relief for those areas that 
experience declining flood risks.\67\
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    \67\ While FEMA believes that the average flood risk will 
generally continue to increase nationwide due to changing 
conditions, there is considerable uncertainty in projecting flood 
risk at more granular levels. Some areas may experience declines in 
flood risk due to reduced rainfall or other unpredictable changes to 
the floodplain.
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    Similarly, for non-critical actions, FEMA is proposing to utilize 
elevations determined by applying CISA so long as that elevation is at 
least the elevation of the 1 percent annual chance flood elevation. 
Combined, these options would balance the objectives that applicants 
are building in an equitable manner to the most protective level based 
on the best available, actionable hydrologic and hydraulic data and 
methods that integrate current and future changes in flooding based on 
climate science without overbuilding and would eliminate the potential 
for a scenario where an applicant was allowed to build to a lower 
elevation than previously required for critical and non-critical 
actions under FEMA's current implementation of Executive Order 
11988.\68\
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    \68\ See 44 CFR 9.7(a)(1) detailing the current floodplain for 
critical and non-critical actions.
---------------------------------------------------------------------------

    As explained above, FEMA understands that the availability and 
actionability of data is a key factor in completing this analysis in a 
consistent, equitable manner. Since the introduction of the CISA in 
2015, additional data has become available to better inform CISA.\69\ 
FEMA believes data availability and actionability will continue to 
advance for CISA in the future. However, as actionable climate data are 
not currently available for all locations, FEMA is proposing the FVA 
and 0.2PFA alternatives in the absence of actionable CISA data.
---------------------------------------------------------------------------

    \69\ See Fourth National Climate Assessment, Volume II, found at 
https://nca2018.globalchange.gov (last accessed July 12, 2023) and 
the ``Federal Flood Risk Management Standard Climate-Informed 
Science Approach (CISA) State of the Science Report,'' found at 
https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf (last accessed Aug. 14, 2023).
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    For coastal floodplains, one of the primary considerations 
associated with CISA is determining what the projected

[[Page 67884]]

future sea level rise will be for the area in which the project will be 
completed. There are currently multiple interagency reports and agency 
tools that provide scenario-based projections of sea level rise for 
coastal floodplains.\70\ Sea level rise projections are just one 
potential factor in a climate-informed science approach. FEMA expects 
that more data will be developed supporting broader-based application 
of CISA as agencies implement the FFRMS and that this data will be 
considered and incorporated into future updates of the FFRMS and FEMA's 
implementation thereof. FEMA requests comment on the availability of 
actionable, planning-scale and/or project-scale climate data with 
respect to coastal and riverine floodplains.
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    \70\ See generally ``Interagency Sea Level Rise Scenario Tool'' 
found at https://sealevel.nasa.gov/data_tools/18 (last accessed July 
12, 2023), ``2022 Sea Level Rise Technical Report'' found at https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech-report.html (last accessed July 12, 2023), ``Global and Regional Sea 
Level Rise Scenarios for the United States'' found at https://aambpublicoceanservice.blob.core.windows.net/oceanserviceprod/hazards/sealevelrise/noaa-nos-techrpt01-global-regional-SLR-scenarios-US.pdf (last accessed July 12, 2023), ``Sea Level Rise 
Viewer,'' found at https://coast.noaa.gov/digitalcoast/tools/slr.html (last accessed July 12, 2023).
---------------------------------------------------------------------------

    In addition to the data challenges, there are a number of factors 
in deciding how to apply the CISA that might result in a decision-
making process that could unnecessarily delay recovery in the wake of a 
disaster event for non-critical actions. The Revised Guidelines 
recommend that the CISA methodology account for project-specific 
factors such as the criticality of the action, the risk to which the 
action will be exposed, the anticipated level of investment, and the 
lifecycle of the action.\71\ For example, an applicant might consider a 
construction project that is in a coastal floodplain and find that 
there are multiple projections for what the sea level rise may be in 50 
years. The most aggressive projection might indicate that the project 
should be elevated 10 feet above the base flood elevation for a 
critical action. However, the applicant may determine that this project 
is not intended to be functional for 50 years, the action is not 
critical, and justify a lesser projection based on criticality and 
expected lifespan. FEMA anticipates these types of decisions may be 
more standardized and accessible with a suite of Federal tools under 
development to assist FEMA and stakeholders in establishing the CISA 
floodplain. Further, FEMA's proposed approach focuses on leveraging the 
best available data to inform flood risk, generally allowing 
communities that have actionable data specific to their locations to 
utilize that information in the 8-step process. FEMA requests comment 
regarding how FEMA could implement the CISA using a publicly 
accessible, standardized, predictable, flexible, and cost-effective 
methodology. FEMA also seeks comment on whether the agency should 
accept locally available CISA data and methods.
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    \71\ See Revised Guidelines at 55.
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    Other Options Considered. FEMA also considered whether it should 
alter its proposal for preferring use of the CISA in relation to the 
FVA (or 0.2PFA). FEMA specifically welcomes comment on each of the 
potential alternatives outlined below. FEMA could choose a more 
protective approach in which it would determine the elevations 
established under CISA, FVA, and the 0.2PFA for critical actions and 
only allow the applicant to use the highest of the three elevations. 
This approach would ensure that applicants were protecting these 
critical assets to the highest protective level. However, as explained 
above, this approach may lead to overbuilding and thus not be the most 
cost-effective or equitable approach. FEMA believes that its proposed 
approach is sufficiently protective of critical action and would be 
less expensive and complex to administer and implement than the 
alternative approach described above as the alternative approach would 
require a determination of elevation under all three approaches before 
a project could proceed; nonetheless, FEMA welcomes comment on this 
alternative approach.
    Alternatively, FEMA could choose to require use of the highest 
standard for all actions, regardless of criticality. As explained 
above, while this approach would ensure that applicants were building 
all actions to the most protective level, this approach may lead to 
overbuilding and thus not be the most cost-effective, equitable 
approach particularly for non-critical actions. FEMA believes that its 
proposed approach is sufficiently protective of all actions and would 
be less expensive and complex to administer and implement than the 
alternative approach described above as this alternative approach would 
always require a determination of elevation under all three approaches 
before a project could proceed; nonetheless, FEMA welcomes comment on 
this alternative approach.
    FEMA also considered requiring the use of the 0.2PFA when CISA is 
not available for non-critical actions rather than the lower of the 
0.2PFA or FVA. As explained above, FEMA notes the challenges with the 
limited national availability of information on the 0.2 percent annual 
chance flood elevation and the additional costs associated with 
producing this information when not yet available. Additionally, in 
coastal areas, the FFRMS requires Federal agencies to use the FVA as 
the minimum elevation when not using the CISA, if the 0.2 percent 
annual chance flood information depicted on FEMA's regulatory products 
considers storm-surge hazards but not wave action, and wave action data 
cannot be obtained from other sources. This requirement is essential to 
ensure the effectiveness of this resilience standard. Only some areas 
have 0.2PFA with wave action information. Finally, there could also be 
equity concerns related to underbuilding or overbuilding to this 
standard, as again communities seeking to rebound quickly and 
effectively from a disaster may struggle to pay the additional costs 
required to build to a higher resilience standard than might be 
necessary if FEMA were to instead apply the CISA, thus unnecessarily 
delaying disaster recovery. Alternatively, communities may be more 
vulnerable to future flooding and therefore repair expenses where 
building to a lower resilience standard under the FVA than if FEMA were 
to apply CISA. Given the challenges with information availability and 
costs, FEMA is not proposing the 0.2PFA as the exclusive alternative 
for non-critical actions when CISA is not available and actionable; 
nonetheless, FEMA welcomes comment on this alternative approach.
    Based on the foregoing, FEMA proposes to focus on the best 
available and actionable information to inform current and future flood 
risk, the type and criticality of the action, and equity when 
determining the approach to utilize for the floodplain determination. 
Where available and actionable, FEMA proposes to leverage the CISA to 
establish the floodplain for both critical and non-critical actions. 
Where the CISA is not available and actionable, the agency proposes to 
use the lower of the FVA or 0.2PFA to establish the floodplain for non-
critical actions and the higher of the FVA floodplain or the 0.2PFA for 
critical actions. Where the 0.2PFA is not available, or where wave 
action is not addressed in the 0.2PFA, the FVA is proposed for critical 
actions. This proposal balances flexibility with standardization, is 
consistent with FEMA's encouragement to communities to adopt more 
resilient floodplain management standards and reflects the priority 
that FEMA places on ensuring adequate planning for critical actions

[[Page 67885]]

while balancing cost and equity considerations.
    Requiring the use of the higher of the FVA floodplain or the 0.2PFA 
floodplain for critical actions where CISA is not available and 
actionable is consistent with the Revised Guidelines' direction that 
agencies use higher standards for actions that they determine to be 
critical actions.\72\ The continued emphasis on the importance of 
making critical actions more resilient demonstrates an ongoing concern 
that the risks of flooding for many critical actions cannot be 
minimized without higher standards. The criticality of the action makes 
the risk of flooding too great, and a higher resilience standard is 
appropriate to best reduce that risk.
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    \72\ See Guidelines at pg. 4.
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    The Revised Guidelines further recognize the importance of 
consideration of impacts to vulnerable populations, including those at 
risk to impacts of flooding due to their location or because they are 
overburdened, lack resources, or have less access to resources.\73\ 
Consistent with these concerns, FEMA's proposed supplementary policy 
would require the lower of the FVA floodplain or the 0.2 PFA floodplain 
for non-critical actions. FEMA believes the lower approach would help 
reduce the burden on communities by addressing concerns related to 
overbuilding, particularly in underserved communities seeking to 
rebound quickly and effectively from a disaster. Selecting the lower 
approach for non-critical actions will still result in a higher level 
of resilience than the current requirements under part 9 while also 
taking equity and cost-effectiveness considerations into account.
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    \73\ See Guidelines at pg. 67.
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    In addition to seeking comments on FEMA's proposed approach to 
implementation generally, FEMA specifically seeks public comments on 
the impact of the proposed elevation requirement \74\ on the 
accessibility of covered facilities under the Fair Housing Act, the 
Americans with Disabilities Act (ADA), the Architectural Barriers Act 
(ABA), and Section 504 of the Rehabilitation Act of 1973. Elevating 
buildings as a flood damage mitigation strategy could have a negative 
impact on affected communities' disabled and elderly populations if 
appropriate accommodations are not made. Also, even if the homes of 
people with disabilities are elevated and made accessible, other 
elevated single- and multi-family housing stock in the community may 
become inaccessible if appropriate accommodations are not made. It is 
crucial for community sustainability and integration of people with 
disabilities that buildings impacted by FFRMS requirements be made to 
comply with all accessibility requirements.
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    \74\ Floodproofing of areas below the BFE in residential 
buildings is generally not permitted under the NFIP unless 
communities have been granted an exception to permit floodproofed 
basements. See 44 CFR 60.3. The NFIP restriction against 
floodproofing of residential structures reflects FEMA's longstanding 
policy position that residential structures require a higher 
standard of resilience due to the increased potential for loss of 
human life. Floodproofing is also not recommended for residential 
structures under other FEMA programs. See Hazard Mitigation 
Assistance Technical Review Job Aid Series ``Dry Floodproofing 
Technical Review,'' at pg. 7 found at https://www.fema.gov/sites/default/files/documents/fema_technical-job-aid-dry-floodproofing.pdf 
(last accessed July 12, 2023) (referencing ASCE24--Flood Resistant 
Design and Construction Section 6.2, which limits the use of dry 
floodproofing to non-residential structures and non-residential 
areas of mixed-use structures located outside of High-Risk Flood 
Hazard Areas, Coastal High Hazard Areas and Coastal A Zones). 
Consistent with the NFIP regulations and other FEMA policies, the 
agency generally does not fund floodproofing of residential 
structures as a flood minimization measure to meet current 44 CFR 
9.11 requirements.
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    In light of the potential community impact of elevating housing and 
other buildings, along with the challenges associated with the 
traditional options for making elevated buildings accessible (i.e., 
elevators, lifts, and ramps), FEMA invites comments on strategies it 
could employ to ensure accessibility requirements are met for 
properties that would be impacted by this rulemaking. Additionally, 
FEMA invites comments on the cost and benefits of such strategies, 
including data that supports the costs and benefits.
    Determining the Corresponding Horizontal Extent of the FFRMS 
Floodplain. To make the floodplain determination and establish the 
proper resilience standard under each approach, FEMA intends to 
leverage its existing processes in each of its grant programs for 
ensuring compliance with Executive Order 11988, as amended. Although 
the specifics of the processes may vary somewhat from program to 
program, FEMA generally uses the following steps. During the initial 
stages of project development, FEMA informs applicants of all 
applicable Federal, State, and local requirements which might apply to 
their projects to include Executive Order 11988 and the 8-step process. 
Once applicants have identified potential projects, FEMA works with 
them to assess the proposed project location and determine whether it 
is in or affects the floodplain and whether it is necessary to apply 
the 8-step process. FEMA is available to assist applicants with the 8-
step process and reviews the project application to ensure that the 
project scope of work is in compliance with Executive Order 11988 
requirements. FEMA will continue to perform these steps in its 
implementation of the FFRMS and Revised Guidelines. Once FEMA has made 
the determination that an action is subject to the FFRMS that requires 
a determination on which FFRMS approach to apply, the agency must then 
decide where the floodplain lies. FEMA, in conjunction with other 
Federal agencies, will work to maximize the availability of data 
showing the horizontal extent of the expanded horizontal floodplain 
that can be used for the CISA, the FVA, and the 0.2PFA for use on FFRMS 
following the approach detailed in Sec.  9.7 below. Determination of 
the FFRMS floodplain will generally require data on current conditions 
and floodplains, future sea level rise or other changes expected to 
impact future flood conditions, and ground elevations. All of these 
data are relevant to determining additional areas that may be inundated 
by increased flooding in the future. FEMA's approach to determining the 
floodplain will also utilize available, actionable non-FEMA data from 
other sources, including other Federal agencies, State, Tribal, 
territorial, and local governments.
    Establishing the FFRMS Resilience Standard Under Each Approach. 
FFRMS is a resilience standard requiring Federal investments to be more 
resilient against future flood conditions. FFRMS provides methods for 
determining a flood elevation to use in minimizing current and future 
flood risk for many actions in or affecting the floodplain, 
particularly for elevation of structures. However, other types of 
projects, including non-structure facilities, cannot reasonably be 
elevated above the FFRMS flood elevation and must achieve resilience 
through other minimization measures.\75\
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    \75\ For example, see Low-Water Crossings: Geomorphic, 
Biological, and Engineering Design Considerations at https://www.fs.usda.gov/t-d/pubs/pdf/LowWaterCrossings/Lo_pdf/1_Intro.pdf 
(last accessed July 12, 2023) and Best Practice: Construction design 
saves money, prevents future damage at https://www.fema.gov/blog/best-practice-construction-design-saves-money-prevents-future-damage 
damage (last accessed July 12, 2023).
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    The CISA is established using the best available, actionable 
climate-informed science. The Revised Guidelines provide guidance to 
agencies on the application of the CISA approach in coastal and 
riverine areas.\76\ In particular, FEMA will use Appendix H of the 
Revised Guidelines titled

[[Page 67886]]

``Climate-Informed Science Approach and Resources'' to guide its 
decision-making.
---------------------------------------------------------------------------

    \76\ See the Revised Guidelines at Appendix H ``Climate-Informed 
Science Approach and Resources.''
---------------------------------------------------------------------------

    FEMA recognizes that the CISA is a developing process and that 
there is uncertainty in the considerations and factors that will come 
up during an CISA analysis. As such, FEMA is not able to develop an 
exhaustive set of regulatory criteria for determining whether a given 
methodology is appropriate. However, FEMA recognizes that regulatory 
transparency reduces uncertainty for its recipients, and it will 
provide further guidance and information in the future, as appropriate, 
as the agency's experience in implementing CISA grows.
    Appendix H of the Revised Guidelines provides the following 
criteria to define the CISA, which FEMA will consider when developing 
further guidance and information: (1) Uses existing sound science and 
engineering methods (e.g., hydrologic and hydraulic analysis and 
methodologies) as have historically been used to implement Executive 
Order 11988, but supplemented with best available climate-related 
scientific information when appropriate (depending on the agency-
specific procedures and type of federal action); (2) is consistent with 
the climate science and related information found in the latest 
National Climate Assessment report or other best-available, actionable 
science; (3) combines information from different disciplines (e.g., new 
perspectives from the atmospheric sciences, oceanographic sciences, 
coastal sciences, and hydrologic sciences in the context of climate 
change) in addition to traditional science and engineering approaches; 
and, (4) includes impacts from projected land cover and land use 
changes (which may alter hydrology due to increased impervious 
surface), long-term coastal and/or riverine erosion, and vertical land 
movement (for determining local changes to sea level) expected over the 
lifecycle of the action.
    The FFRMS and Revised Guidelines describe the FVA elevation as the 
addition of 2 or 3 feet to the 1 percent annual chance flood elevation. 
FEMA would leverage the process described in proposed Sec.  9.7(c) to 
search for the best available flood hazard information to establish the 
1 percent annual chance flood elevation. This process recognizes that 
information on flood hazards at proposed sites may range from detailed 
data obtained from FEMA regulatory products to information which 
approximates the geographic area of the floodplain, to areas with no 
information. Where FEMA has issued a regulatory product, FEMA could 
obtain the flood elevation from the regulatory product. FEMA may also 
seek detailed information from the list of sources in proposed Sec.  
9.7(c)(3)(i)-(x).
    The 0.2PFA is the elevation of the 0.2 percent annual chance flood. 
Where FEMA proposes to use this approach, the agency would follow the 
same process to establish the 0.2 percent annual chance flood elevation 
as it would to establish the 1 percent annual chance flood elevation, 
utilizing the best available information. FEMA would first rely on the 
0.2 percent annual chance flood elevation from the best available 
information, including information reported in a FEMA regulatory 
product, then seek information from additional sources, before finally 
seeking the assistance of an engineer.

IV. Discussion of the Proposed Rule

    As noted above, this proposed rule would implement Executive Order 
11988, as amended, the FFRMS, and the Revised Guidelines as part of 
FEMA's floodplain management regulations while also updating FEMA's 8-
step process. Below, we provide a brief summary of a number of the 
major provisions of the proposed rule, followed by a section-by-section 
description of these and other changes.

Major Provisions

Severability
    FEMA proposes to amend Sec.  9.3 to remove the authorities section 
as redundant, and to replace it with a severability section. In the 
event that any portion of the proposed rule is declared invalid, FEMA 
intends that the remaining provisions of 44 CFR part 9 be severable. A 
severability clause is a standard legal provision. It indicates FEMA's 
intent that if a court finds that a specific provision of a rule is 
unlawful, the court should allow the remainder of the rule to survive. 
Those provisions that are unaffected by a legal ruling can be 
implemented by an agency without requiring a new round of rulemaking 
simply to promulgate provisions that are not subject to a court ruling.
Conforming Changes to Definitions
    FEMA proposes to amend Sec.  9.4 to reflect the new definitions 
required by the FFRMS and Revised Guidelines while also updating other 
definitions to clarify terms and leverage common usage that has evolved 
since the regulation was issued. As noted above, the most significant 
definitional change introduced by the FFRMS is the change to the 
meaning of ``floodplain.'' As discussed in more detail below, in order 
to harmonize this change in Sec.  9.4 FEMA proposes to revise a number 
of existing definitions and remove other definitions. In addition, FEMA 
proposes to revise the remaining sections of 44 CFR part 9 that refer 
generally to the floodplain or refer specifically to the base (or 100-
year) floodplain or the 500-year floodplain, for clarity.
Distinction Between ``Actions Subject to the FFRMS'' and Other FEMA 
Actions
    As noted above, the first Step in the 8-step process is to 
determine whether the proposed action is in the floodplain. Because 
Executive Order 11988, as amended, and the FFRMS revise the definition 
of the ``floodplain'' that must be used for ``Federally funded 
projects,'' FEMA proposes to revise the first Step to require FEMA to 
first determine whether the proposed action falls within the definition 
of an ``action subject to the FFRMS.'' Under the proposed rule, if FEMA 
determines that the action is a Federally Funded Project, i.e., if FEMA 
determines that the action uses FEMA funds for new construction, 
substantial improvement, or to address substantial damage to a 
structure or facility, the FFRMS floodplain applies. If, on the other 
hand, FEMA determines that the action does not fall under the 
definition of an action subject to the FFRMS and if the action is 
considered non-critical, the 1 percent annual chance floodplain 
applies. If the action is considered critical, the 0.2 percent annual 
chance floodplain applies.
Emphasis on Nature-Based Approaches
    Executive Order 11988, as amended, requires that agencies use, 
where possible, natural systems, ecosystem processes, and nature-based 
approaches in the development of alternatives for Federal actions in 
the floodplain. FEMA proposes to incorporate this requirement into 
Sec.  9.9, which addresses the requirement to consider practicable 
alternatives when determining whether to locate an action in the 
floodplain. This requirement applies regardless of whether the proposed 
action is a FEMA Federally Funded Project. To further explain this 
requirement, FEMA proposes to add a definition of ``nature-based 
approaches,'' meaning features designed to mimic natural processes and 
provide specific services such as reducing flood risk and/or improving 
water quality. FEMA also proposes to add a definition of ``natural 
features'' meaning the characteristics of a particular environment that 
are created by physical, geological, biological, and chemical processes 
and exist in dynamic equilibrium.

[[Page 67887]]

    The use of natural features and nature-based approaches in 
consideration of alternatives within floodplains and wetlands is 
consistent with the agency's priorities to promote the use of 
nonstructural flood protection methods, minimize the impact of its 
actions on the floodplain, and restore and preserve the natural and 
beneficial values served by floodplains as well as preserve and enhance 
the natural values of wetlands. In applying the 8-step process to its 
actions, FEMA has integrated factors into its impact analysis and 
minimization measures (Step 4 and Step 5) to identify those 
opportunities for beneficial floodplain and wetland values, to include 
natural values related factors that prioritize water resource values, 
living resource values, and agricultural, aquacultural, and forestry 
resource values. Applying natural features or nature-based approaches 
as alternatives furthers the goals in 44 CFR part 9 and allows for FEMA 
to further encourage those actions that increase the natural and 
beneficial function of the floodplain.

Section-by-Section Analysis

A. Authority Citation

    FEMA proposes to revise the authorities section to reflect 
appropriate statutory and other authorities underlying the regulation.

B. Section 9.1--Purpose of Part

    FEMA proposes to add references to the National Flood Insurance Act 
of 1968, the Flood Disaster Protection Act of 1973, the National 
Environmental Policy Act of 1969, and other relevant statutory 
authorities, and to add ``as amended'' to reflect amendments made to 
Executive Order 11988.

C. Section 9.2--Policy

    FEMA proposes to add language to paragraph (b) to reflect the 
policy that the United States must improve the resilience of 
communities and Federal assets against the impacts of flooding based on 
the best-available and actionable science. This statement of policy is 
complementary to the longstanding goals of Executive Order 11988 to 
reduce the risk of flood loss but reflects an updated Federal policy of 
resilience and risk reduction that takes the effects of changing 
conditions into account. FEMA also proposes to restructure paragraph 
(b)(2) by adding Sec. Sec.  9.2(c) and 9.2(d). In Sec.  9.2(c), FEMA 
proposes edits for clarity, while in Sec.  9.2(d), FEMA proposes to 
reorder the agency's actions to prioritize minimizing the impact of 
floods on human health, safety, and welfare in this part.

D. Section 9.3--Severability

    In Section 9.3, FEMA proposes to remove the authorities as 
redundant because the authorities are cited at the beginning of Part 9. 
Instead, FEMA proposes to include a severability section.
    FEMA believes that its authority to require an 8-step decision 
making process and incorporate the FFRMS into it is well-supported in 
law and policy and should be upheld in any legal challenge. However, in 
the event that any portion of the proposed rule is declared invalid, 
FEMA intends that the various provisions of 44 CFR part 9 be severable. 
The provisions are not so interconnected that the rule's efficacy 
depends on every one of them remaining in place--implementation of the 
different provisions is sufficiently distinct that FEMA's aim of 
updating the 8-step process and incorporating the FFRMS would still be 
furthered by maintaining the other provisions. For example, if a court 
were to find unlawful FEMA's inclusion of the FFRMS approaches in Sec.  
9.7(c), FEMA intends to retain the inclusion of consideration of 
nature-based approaches in the appropriate steps of the 8-step decision 
making process and all other amendments to the 44 CFR part 9 not 
affected by the court decision. Similarly, if a court were to find 
unlawful FEMA's chosen approach in the proposed policy, FEMA intends to 
retain the regulatory changes implementing the FFRMS.

E. Section 9.4--Definitions

    In Section 9.4, FEMA proposes to add terms for ``0.2 Percent Annual 
Chance Flood Elevation,'' ``0.2 Percent Annual Chance Floodplain,'' ``1 
Percent Annual Chance Flood Elevation,'' ``1 Percent Annual Chance 
Floodplain,'' ``Action Subject to the FFRMS,'' ``Base Flood 
Elevation,'' ``Federal Flood Risk Management Standard (FFRMS),'' 
``Federal Flood Risk Management Standard Floodplain,'' ``Federally 
Funded Project,'' ``FEMA Resilience,'' ``National Security,'' ``Nature-
Based Approaches,'' ``Natural and Beneficial Values of Floodplains and 
Wetlands,'' ``Natural Features,'' and ``Support of Floodplain and 
Wetland Development.'' FEMA proposes to remove the definitions of 
``Base Flood,'' ``Base Floodplain,'' ``Five Hundred Year Floodplain,'' 
``Flood Fringe,'' ``Flood Hazard Boundary Map,'' ``Flood Insurance Rate 
Map,'' ``Flood Insurance Study,'' ``Mitigation Directorate,'' ``Natural 
Values of Floodplains and Wetlands'', ``New Construction in Wetlands,'' 
and ``Support.'' Lastly, FEMA proposes to revise the definitions of 
``Coastal High Hazard Area,'' ``Critical Action,'' ``Emergency 
Action,'' ``Flood,'' ``Floodplain,'' ``Functionally Dependent Use,'' 
``Mitigation,'' ``New Construction,'' ``Orders,'' ``Practicable,'' 
``Regulatory Floodway,'' ``Restore,'' ``Structures,'' ``Substantial 
Improvement,'' and ``Wetlands.''
    0.2 Percent Annual Chance Flood Elevation. FEMA proposes to define 
the term ``0.2 percent annual chance flood elevation'' to mean the 
elevation to which floodwater is anticipated to rise during the 0.2 
percent annual chance flood (also known as the 500-year flood). FEMA 
generally proposes to use the term ``0.2 percent annual chance flood'' 
and discontinue using that term interchangeably with the term ``500-
year flood.'' The term ``500-year flood'' can cause confusion as it 
could be interpreted to mean that the area will only flood once every 
500 years, instead of reflecting its true meaning, which is the annual 
probability of flooding in the area. FEMA is proposing to update other 
definitions that reference the term ``500-year flood'' and related 
terms where appropriate to ensure an effective long-term transition 
away from this terminology.
    0.2 Percent Annual Chance Floodplain. FEMA proposes to define the 
term ``0.2 percent annual chance floodplain'' to mean the area subject 
to flooding by the 0.2 percent annual chance flood (also known as the 
500-year floodplain).
    1 Percent Annual Chance Flood Elevation. FEMA proposes to refer to 
the definition of ``Base Flood Elevation'' to define this term to help 
transition to this terminology going forward and more accurately 
reflect the flood probability associated with that elevation.
    1 Percent Annual Chance Floodplain. FEMA proposes to define the 
term ``1 percent annual chance floodplain'' to mean the area subject to 
flooding by the 1 percent annual chance flood (also known as the 100-
year floodplain or base floodplain). This definition would describe the 
minimum area that FEMA looks at when it determines whether an action 
will take place in a floodplain under this part.
    Action. FEMA proposes to remove the word ``action'' from the 
definition of ``Action'' because including the term being defined in 
the definition creates confusion and redundancy.\77\
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    \77\ See Office of the Federal Register, Writing Resources for 
Federal Agencies, Regulatory Drafting Guide, Definitions found at 
https://www.archives.gov/federal-register/write/legal-docs/definitions.html#;:~:text=If%20a%20term%20is%20used%20only%20once%20o
r,term%20being%20defined%20as%20part%20of%20the%20definition. (last 
accessed July 12, 2023).

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[[Page 67888]]

    Actions Affecting or Affected by Floodplains or Wetlands. FEMA 
proposes edits to these definitions consistent with formatting 
requirements.
    Action Subject to the FFRMS. FEMA proposes to define an action 
subject to the FFRMS as an action where FEMA funds are used for new 
construction, substantial improvement, or to address substantial damage 
to a structure or facility. This term would define those actions 
subject to the FFRMS listed in the Revised Guidelines as a ``Federally 
Funded Project'' by narrowing the term to apply only to actions that 
use FEMA funds for these specific activities.
    Base Flood. FEMA proposes to remove the definition of the ``base 
flood'' as FEMA proposes to incorporate it into the definition of 
``flood or flooding.''
    Base Floodplain. FEMA also proposes to remove the definition of 
``base floodplain'' as FEMA proses to incorporate it into the 
definition of ``1 percent annual chance floodplain.''
    Base Flood Elevation. FEMA proposes to define the term ``base flood 
elevation'' to mean the elevation to which floodwater is anticipated to 
rise during the 1 percent annual chance flood (also known as the base 
or 100-year flood). The terms ``base flood elevation,'' ``1 percent 
annual chance flood elevation,'' and ``100-year flood elevation'' are 
synonymous and are used interchangeably. FEMA proposes to incorporate 
the explanation from the current definition of ``base flood'' about how 
the term is used in the NFIP to indicate the minimum level of flooding 
to be used by a community in the community's floodplain management 
regulations. The elevation indicates how high to elevate a structure to 
protect it from the risk of flooding in a 1 percent annual chance 
flood.
    Coastal High Hazard Area. FEMA proposes to revise the definition of 
``coastal high hazard area'' to mean an area of flood hazard extending 
from offshore to the inland limit of a primary frontal dune along an 
open coast and any other area subject to high velocity wave action from 
storms or seismic sources. FEMA is proposing to change this definition 
to more closely reflect the term as used in the NFIP and avoid the use 
of specific mapping zones for ease of use and reference for 
stakeholders.
    Critical Action. FEMA proposes to revise the definition of 
``critical action'' to mean any activity for which even a slight chance 
of flooding is too great. This revised definition is consistent with 
the definition of this term in the Orders and Revised Guidelines the 
agency is implementing with this rule. Additionally, FEMA proposes to 
remove the requirement that the minimum floodplain of concern for 
critical actions is the 500-year floodplain. There would no longer be a 
set requirement that an applicant use a particular approach to 
establishing the floodplain when the project is a critical action. 
Instead, FEMA and the applicant would utilize the floodplain 
established by part 9. FEMA would be required to determine whether the 
project meets the new definition of ``action subject to the FFRMS'' in 
Sec.  9.4. If the project is an action subject to the FFRMS, then FEMA 
would establish the floodplain by using one of the approaches (which 
require the applicant to consider whether an action is a critical 
action) explained in proposed Sec.  9.7(c). If the project is not an 
action subject to the FFRMS, then FEMA would use, at a minimum, the 1 
percent annual chance floodplain for non-critical actions and the 0.2 
percent annual chance floodplain for critical actions. FEMA further 
proposes to revise this definition with updated formatting.
    Emergency Actions. The current definition of ``emergency actions'' 
does not correctly cite to the appropriate sections of statutory 
authority. FEMA proposes to correct citations to the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (Stafford Act) and remove 
FEMA regulations citations.
    Federal Flood Risk Management Standard (FFRMS). FEMA proposes to 
add a definition of ``FFRMS,'' which is the Federal flood risk 
management standard to be incorporated into existing processes used to 
implement Executive Order 11988, as amended. FEMA proposes to add a 
definition for FFRMS because this rule proposes to implement it and 
therefore refers to it throughout the proposed changes to part 9.
    Federal Flood Risk Management Standard (FFRMS) Floodplain. FEMA 
proposes to define the ``FFRMS floodplain'' generally consistent with 
the definition in the Order and Revised Guidelines being implemented, 
which is the floodplain that is established using one of the approaches 
described in proposed Sec.  9.7(c). The four approaches detailed in 
proposed Sec.  9.7(c) include CISA, FVA, 0.2PFA, and the elevation and 
flood hazard area that result from using any other method identified in 
an update to the FFRMS.
    Federally Funded Project. FEMA proposes to add a definition of 
``Federally Funded Project'' to reference the definition of ``action 
subject to the FFRMS.'' FEMA is incorporating this definition for 
consistency with the Revised Guidelines.
    Federal Insurance Administration. FEMA proposes to remove the 
definition of the ``Federal Insurance Administration'' as it is now 
included in the definition of ``FEMA Resilience.''
    FEMA Resilience. FEMA proposes to delete the definition of Federal 
Insurance Administration and the definition of Mitigation Directorate 
and add the definition of FEMA Resilience to reflect the current 
organizational structure within the agency.
    Five Hundred Year Floodplain. FEMA proposes to remove the 
definition of the five-hundred-year floodplain as a standalone term and 
designated floodplain and to instead substitute the term ``0.2 percent 
annual chance floodplain.'' The 0.2 percent annual chance floodplain is 
the floodplain covering an area where the chance of flood is 0.2 
percent in any given year.
    Flood or Flooding. FEMA proposes to add definitions of the ``0.2 
Percent Annual Chance Flood,'' and the ``1 Percent Annual Chance 
Flood'' to the definition of flood to incorporate all flood definitions 
in one location. FEMA would further clarify the use of the 500-year 
flood as interchangeable with the 0.2 percent annual chance flood, and 
the base flood or 100-year flood as interchangeable with the 1 percent 
annual chance flood.
    Flood Fringe. FEMA proposes to eliminate this definition as the 
term is no longer used in the regulatory text.
    Flood Hazard Boundary Map (FHBM). FEMA proposes to eliminate this 
definition as the term is no longer used in the regulatory text. FEMA 
offers a range of flood risk products under the NFIP and categorizes 
these products as ``regulatory'' or ``non-regulatory.'' Regulatory 
flood risk products are created subject to procedural due process 
requirements, contain basic flood information, and are used for 
official actions such as identifying properties subject to mandatory 
flood insurance purchase requirements, or enforcing minimum building 
standards for construction in a floodplain in NFIP participating 
communities.\78\ Non-regulatory flood risk products are not tied to 
mandatory enforcement or compliance requirements for the NFIP

[[Page 67889]]

and expand upon basic flood hazard information. References to FEMA's 
regulatory products under the NFIP, such as the Flood Hazard Boundary 
Map, Flood Insurance Rate Map, and Flood Insurance Study are being 
eliminated in the proposed regulatory text to allow flexibility to 
encompass the full range of NFIP products (both regulatory and non-
regulatory) available for use with the 8-step process. For example, the 
existing section 9.7(c) prescribes a sequence of steps to obtaining the 
floodplain, flood elevation, and other information needed. Current 
section 9.7(c)(i) only includes use of the FIRM, FBFM and FIS if they 
exist whereas 9.7(c)(ii) includes options to seek data from other 
sources if the available NFIP maps do not provide the necessary 
information. There are cases where a FIRM, FBFM, or FIS exist for the 
location, but do not provide the necessary information to determine the 
relevant floodplain and/or elevation. This section is being proposed to 
be rewritten to allow use of other data sources whenever the 
information is not available on the NFIP maps or when better 
information is available.
---------------------------------------------------------------------------

    \78\ See ``Flood Risk Products: Using Flood Risk Products in 
Hazard Mitigation Plans,'' found at https://www.fema.gov/sites/default/files/2020-07/fema_using-flood-risk-products_guide.pdf (last 
accessed July 12, 2023).
---------------------------------------------------------------------------

    Streamlining the references to FEMA's regulatory products would 
also align the regulatory language with the core statutory language 
that authorizes FEMA to publish determinations of Special Flood Hazard 
Areas (SFHAs) and flood elevations.\79\ These determinations are 
published in several different products. Rather than itemize and 
attempt to prioritize the different products, the proposed text would 
focus instead on whether official determinations of the SFHA or flood 
elevations are available.
---------------------------------------------------------------------------

    \79\ Section 201 of the Flood Disaster Protection Act of 1973, 
42 U.S.C. 4105 and the National Flood Insurance Act of 1968, as 
amended, 42 U.S.C. 4001 et seq. Specifically, 42 U.S.C. 4101(a) 
states that the Administrator is authorized to consult with other 
Federal agencies, State or local government agencies, or contract to 
obtain information ``so that he may identify and publish information 
with respect to all flood plain areas, including coastal areas 
located in the United States, which has special flood hazards. . . 
.'' Further, 42 U.S.C. 4104(a) states ``In establishing projected 
flood elevations for land use purposes with respect to any community 
pursuant to section 4102 of this title, the Director shall first 
propose such determinations by publication for comment in the 
Federal Register . . . .''
---------------------------------------------------------------------------

    Flood Insurance Rate Map (FIRM). FEMA proposes to eliminate this 
definition as the term is no longer used in the regulatory text. As 
explained above, references to FEMA's regulatory products are being 
eliminated in the proposed regulatory text to allow flexibility to 
encompass the full range of NFIP products available for use with the 8-
step process. There are cases where a FIRM, FBFM, or FIS exist for the 
location, but do not provide the necessary information to determine the 
relevant floodplain and/or elevation. This section is being proposed to 
be rewritten to allow use of other data sources whenever the 
information is not available on the NFIP maps or when better 
information is available.
    Flood Insurance Study (FIS). FEMA proposes to eliminate this 
definition as the term is no longer used in the regulatory text. As 
explained above, references to FEMA's regulatory products are being 
eliminated in the proposed regulatory text to allow flexibility to 
encompass the full range of NFIP products available for use with the 8-
step process. There are cases where a FIRM, FBFM, or FIS exist for the 
location, but do not provide the necessary information to determine the 
relevant floodplain and/or elevation. This section is being proposed to 
be rewritten to allow use of other data sources whenever the 
information is not available on the NFIP maps or when better 
information is available.
    Floodplain. FEMA currently defines ``floodplain'' as the lowland 
and relatively flat areas adjoining inland and coastal waters 
including, at a minimum, that area subject to a 1 percent or greater 
chance of flooding in any given year. FEMA proposes to revise the 
definition to mean any land area that is subject to flooding to more 
accurately reflect the broad definition of this term. The term 
``floodplain'' refers to geographic features with undefined boundaries 
and the proposed revised regulation will establish a specific 
floodplain through the process described in proposed Sec.  9.7(c).
    The current definition also states that wherever the term 
``floodplain'' appears in part 9, if a critical action is involved, 
``floodplain'' means the area subject to inundation from a flood having 
a 0.2 percent chance of occurring in any given year (500-year 
floodplain). FEMA proposes to remove this provision from the definition 
of floodplain because there is no longer a set requirement that an 
applicant use a particular approach to establishing the floodplain when 
there is a critical action. Instead, FEMA and the applicant must follow 
the sequence described in Sec.  9.7(c) when making the floodplain 
determination. FEMA must determine whether the project meets the new 
definition of an ``action subject to the FFRMS'' in Sec.  9.4. If the 
project is an action subject to the FFRMS, then FEMA must establish the 
floodplain by using one of the FFRMS approaches (which require the 
applicant to consider whether an action is a critical action). If the 
project does not meet the definition of an action subject to the FFRMS 
(i.e., the project is not ``new construction, substantial improvement, 
or repairs to address substantial damage to a structure or facility''), 
then FEMA must use, at a minimum, the 1 percent annual chance 
floodplain for non-critical actions and the 0.2 percent annual chance 
floodplain for critical actions.
    FEMA proposes to add that the floodplain may be more specifically 
categorized as the 1 percent annual chance floodplain, the 0.2 percent 
annual chance floodplain, or the FFRMS floodplain (as defined above). 
``Floodplain'' is a flexible, general term, but in establishing the 
correct floodplain to use, it will be necessary to determine whether 
the action is an action subject to the FFRMS and whether it is a 
critical action.
    Functionally Dependent Use. FEMA proposes to remove references to 
examples in this definition to reduce confusion around the definition 
and avoid any misinterpretation that the term's usage is limited to the 
current examples. FEMA plans to provide more specific, relevant 
examples in guidance to better assist stakeholders with particularly 
nuanced situations.
    Mitigation. FEMA proposes to remove the term ``all'' from the 
definition of mitigation as mitigation would be defined more broadly 
consistent with the requirements of the Orders and Revised Guidelines 
being implemented. By removing ``all,'' FEMA would clarify that the 
agency's goal, consistent with current law and Executive Orders 11988, 
as amended, and 11990 is to minimize the potentially adverse impacts of 
the proposed action to the extent possible, including consideration of 
practicality, rather than to take all mitigation actions.
    Mitigation Directorate. FEMA proposes to remove the definition of 
the ``Mitigation Directorate'' as it is now included in the definition 
of ``FEMA Resilience.''
    National Security. FEMA proposes to add a definition for ``national 
security'' consistent with the definition used in the Revised 
Guidelines. The proposed definition would define national security as a 
condition that is provided by either (1) a military or defense 
advantage over any foreign nation or group of nations; (2) a favorable 
foreign relations position; or (3) a defense posture capable of 
successfully resisting hostile or destructive action from within or 
without, overt or covert. Incorporating this definition would help 
stakeholders better understand the 8-

[[Page 67890]]

step process and the actions to which each Step applies.
    Nature-Based Approaches. FEMA proposes to add a definition of 
``nature-based approaches.'' Executive Order 11988, as amended, now 
contains a provision requiring agencies consider nature-based 
approaches, where possible, in developing alternatives for 
consideration to meet the purpose of a proposed action within a 
floodplain or wetland and this term has not previously been defined. 
FEMA proposes to define nature-based approaches as the features 
(sometimes referred to as ``green infrastructure'') designed to mimic 
natural processes and provide specific services such as reducing flood 
risk and/or improving water quality. Nature-based approaches are 
created by human design (in concert with and to accommodate natural 
processes) and generally, but not always, must be maintained in order 
to reliably provide the intended level of service. Nature-based 
approaches and nature-based solutions may include, for example, green 
roofs, or downspout disconnection that reroutes drainage pipes to rain 
barrels, cisterns, or permeable areas instead of the storm sewer. The 
proposed definition mirrors the language of the Revised Guidelines.
    Natural and Beneficial Values of Floodplains and Wetlands. FEMA 
proposes to remove the definition of ``natural values of floodplains 
and wetlands'' and add the definition of ``natural and beneficial 
values of floodplains and wetlands'' to mean the features or resources 
that provide environmental and societal benefits. FEMA proposes adding 
additional clarification that water and biological resources are often 
referred to as ``natural functions of floodplains and wetlands'' and 
also proposes to incorporate additional clarifying examples of water 
resource values, living resource values, cultural resource values, and 
cultivated resource values for more consistency with the Revised 
Guidelines and Executive Order 11988, as amended.
    Natural Features. FEMA proposes to add a definition of ``natural 
features'' to mean characteristics of a particular environment that are 
created by physical, geological, biological, and chemical processes and 
exist in dynamic equilibrium. Consistent with the Revised Guidelines, 
natural features are self-sustaining parts of the landscape that 
require little or no maintenance to continue providing their ecosystem 
services (functions).
    New Construction. FEMA proposes to remove the parenthetical 
``including the placement of a mobile home'' from the definition of new 
construction and instead add that ``new construction'' includes 
permanent installation of temporary housing units. This change narrows 
the scope of FFRMS applicability to only those temporary housing units 
that FEMA permanently installs rather than all placements of temporary 
housing units. The temporary nature of initial housing unit placements 
generally does not provide an opportunity to improve community 
resilience or floodplain management long term, which is the intent of 
the FFRMS. Prohibiting placement of temporary housing in the FFRMS 
floodplain may result in the temporary housing of individuals and 
families many miles from their homes, which is not practicable. 
Finally, it would not always be feasible to elevate these units to the 
required flood elevation when placed for temporary housing. Given these 
concerns, FEMA seeks to apply the FFRMS requirements only to those 
temporary housing units that the agency permanently installs, becoming 
permanent housing solutions rather than all temporary housing units 
placed by the agency. FEMA further proposes to delete the current 
definition of ``new construction in wetlands'' and incorporate it into 
the definition of ``new construction'' to reduce confusion and 
eliminate references to specific dates that no longer apply to current 
and future actions subject to part 9. The application of the FFRMS is 
required for any action which meets the definition of an ``action 
subject to the FFRMS.'' ``Action subject to the FFRMS'' is defined as 
an action where FEMA funds are used for new construction, substantial 
improvement, or to address substantial damage to a structure or 
facility. If FEMA continued to define the placement of a mobile home as 
``new construction,'' it would be required to apply the FFRMS to any 
placement of a temporary housing unit. As described further in the 
discussion of Sec.  9.13, FEMA does not intend to require the 
application of the FFRMS in the placement of temporary housing units 
for the purpose of temporary housing.
    Orders. FEMA proposes to revise the definition of ``orders'' to 
include amendments made to Executive Order 11988.
    Practicable. FEMA proposes to revise the definition of 
``practicable'' to update the factors considered in the practicability 
analysis for consistency with the existing regulatory text and the 
Revised Guidelines, and for clarity. Specifically, FEMA proposes to add 
``natural'' to clarify the environmental factor. FEMA also proposes to 
incorporate into the definition of ``practicable'' references to social 
concerns, economic aspects, and legal constraints. These concepts are 
currently included in the description of practicability analysis in 
Sec.  9.11. As discussed below, the ``economic aspects'' refers to, 
among other things, cost and technology factors and to add ``legal 
constraints'' and ``agency authorities'' to specifically reflect 
additional constraints on the agency's ability to act as a factor in 
the practicability analysis. By making these changes, FEMA would define 
practicability in a manner that is generally consistent with the long-
standing regulatory text while incorporating updates for additional 
clarity and consistency with the Revised Guidelines.
    Regulatory Floodway. FEMA proposes to clarify the definition of 
``regulatory floodway.'' FEMA proposes to eliminate the reference to a 
specific amount set by the NFIP and instead define the term to mean the 
area regulated by Federal, State, or local requirements to provide for 
the discharge of the base flood so that the cumulative rise in water 
surface is no more than a designated amount above the base flood 
elevation. These edits more accurately encompass situations where 
communities have adopted more restrictive floodway definitions than the 
minimum specified by the NFIP. The changes are intended to help 
stakeholders better understand what a regulatory floodway is and how it 
is determined without tying the term to a specific amount that can 
change under the NFIP.
    Restore. FEMA proposes to update the definition of ``restore'' to 
mean to reestablish a setting or environment in which the natural 
functions of the floodplain can operate. This change eliminates the 
redundancy of requiring the floodplain to ``again'' operate.
    Structures. FEMA proposes to update the definition of 
``structures'' to require that the buildings be both walled and roofed 
rather than walled or roofed to be considered a ``structure,'' 
consistent with the definition of ``structure'' in 44 CFR Subchapter B, 
Insurance and Hazard Mitigation.\80\ This change is also consistent 
with current FEMA practice under the NFIP which designates areas that 
are not both walled and roofed as facilities.\81\ Additionally, FEMA is 
proposing a change from the term ``mobile homes'' to ``temporary 
housing units'' to reflect a range of housing units the agency may 
provide after a disaster while also referencing ``manufactured 
housing'' to ensure that the public

[[Page 67891]]

understand that temporary housing units are regulated as manufactured 
housing in the NFIP.
---------------------------------------------------------------------------

    \80\ See 44 CFR 59.1.
    \81\ Id.
---------------------------------------------------------------------------

    Substantial Improvement. FEMA proposes to update the reference to 
the Stafford Act because the citation is outdated in the current 
definition. FEMA also proposes to add a sentence stating that 
substantial improvement includes work to address substantial damage to 
a structure or facility. This change is for clarity and for consistency 
with part 59.
    Support. FEMA proposes to eliminate the definition of ``support'' 
and replace it with a new definition of ``support of floodplain and 
wetland development'' to further clarify the term and ensure 
consistency of its usage in part 9.
    Support of Floodplain and Wetland Development. FEMA proposes to 
define this term to mean to, directly or indirectly, encourage, allow, 
serve, or otherwise facilitate development in floodplains or wetlands. 
Development means any man-made change to improved or unimproved real 
estate, including but not limited to, new construction; mining; 
dredging; filling; grading; paving; excavation or drilling operations; 
or storage of equipment or materials. Direct support results from 
actions within floodplains or wetlands, and indirect support results 
from actions outside of floodplains or wetlands. By providing this 
clarifying definition, FEMA would help eliminate confusion regarding 
the use of the term ``support'' in the regulatory text and ensure that 
actions taken under part 9 are done with the intent not to support 
floodplain and wetland development consistent with Executive Order 
11988, as amended, and Executive Order 11990.
    Wetlands. FEMA proposes minor edits for clarity and to delete 
references to the U.S. Fish and Wildlife Service publication in the 
current definition of ``wetlands'' as the reference is now out of date 
and rather generally reference the definition utilized by that agency 
for consistency in the future.

F. Section 9.5--Scope

    FEMA proposes to add an effective date provision to this section, 
indicating that the revisions proposed to part 9, which implement the 
changes required by Executive Order 11988, as amended, the FFRMS, and 
Revised Guidelines, would apply to new actions for which assistance is 
made available pursuant to declarations under the Stafford Act that are 
commenced on or after the effective date of the final rule, and new 
actions for which assistance is made available pursuant to notices of 
funding opportunity that publish on or after the effective date of the 
final rule. This is to clarify that current part 9, including use of 
the 1 percent annual chance floodplain (or 0.2 percent annual chance 
floodplain for critical actions), would still apply to actions relating 
to declarations and funding opportunities issued prior to the effective 
date. Only new actions would be subject to revised part 9 so that the 
changes would not be applied to projects which have already been 
reviewed for compliance with Executive Order 11988 and may have 
incurred design expenses to meet the current floodplain management 
standards. Any actions associated with declarations under the Stafford 
Act that begin on or after the effective date of the final rule or any 
actions for which the notice of funding opportunity publishes on or 
after the effective date of the final rule would be subject to revised 
part 9, including the changes required under Executive Order 11988, as 
amended, the FFRMS, and the Revised Guidelines, such as determining the 
floodplain for the action and requiring the use of nature-based 
approaches, where possible, to mitigate harm when development in the 
floodplain is not avoidable. In paragraph 9.5(b)(1), FEMA proposes to 
add ``as amended'' to reflect amendments to Executive Order 11988.
    FEMA proposes to update the citations to the Stafford Act sections 
and references to organizations and titles in paragraphs (c)-(g) as 
they are not current and reorganize the section for clarity and 
readability. FEMA proposes to eliminate current paragraph (c)(3) as 
unemployment assistance would not constitute an ``action'' under this 
part (see Sec.  9.4). FEMA proposes to revise current paragraph (c)(6) 
to clarify that actions involving fire management assistance that 
include hazard mitigation assistance under sections 404 and 420(d) of 
the Stafford Act are subject to the 8-step process. Similar to the 
revision to Sec.  9.7(c)(1), FEMA seeks to clarify where some actions 
may still be required to complete the 8-step process. FEMA also 
proposes to update current paragraph (c)(8) as it refers to a defunct 
title for the Individuals and Households Program and includes programs 
that no longer exist and restructure the paragraph to reflect current 
categories of assistance under this program that are not subject to the 
8-step process. FEMA proposes to further update this section by 
removing private bridges from the 8-step process consistent with other 
exceptions to that process in the Individual Assistance program in 
current paragraph (c)(8)(i). This change aligns with the existing 
exemptions for all other forms of home repair and replacement under 
section 408 of the Stafford Act. FEMA will only provide funding for 
privately-owned access bridges damaged as a result of a Presidentially-
declared disaster in cases where a FEMA inspection determines repairs 
are necessary to provide drivable access to a primary residence.\82\ In 
addition to this requirement, FEMA will only provide funding when at 
least one of the following additional conditions exist: (1) the bridge 
provides the only access to the property; (2) the home cannot be 
accessed due to damage caused to other infrastructure; or (3) the 
safety of the occupants or residence would be adversely affected 
because emergency services and equipment could not reach the 
residence.\83\ As these private bridge projects are small in scale and 
subject to local review and permitting requirements that otherwise 
consider local floodplain management concerns, FEMA believes they are 
unlikely to result in significant impacts to the floodplain and 
requiring the 8-step process for these projects would not necessarily 
result in improved community resiliency, a key goal of the FFRMS. FEMA, 
however, seeks comment on whether removing private bridge projects from 
the 8-step process would adversely impact the floodplain.
---------------------------------------------------------------------------

    \82\ See Individual Assistance Program and Policy Guide Version 
1.1 found at https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets (last accessed July 12, 2023) pg. 89.
    \83\ See Individual Assistance Program and Policy Guide Version 
1.1 found at https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets (last accessed July 12, 2023) pg. 89.
---------------------------------------------------------------------------

    FEMA also proposes to revise current Sec.  9.5(c)(12) to further 
provide that debris clearance and removal under section 502 of the 
Stafford Act is not subject to the 8-step process. FEMA is also 
proposing to add a citation to section 407 of the Stafford Act to 
accompany the reference to non-emergency disposal of debris in this 
same provision. In current paragraph (c)(13), FEMA proposes to make 
revisions to update the current monetary thresholds from $5,000 to 
$18,000 for actions under sections 406 and 407 of the Stafford Act.\84\ 
This change would reflect the current value of the existing threshold 
dollar amount, which was set in 1980.\85\ Additionally, FEMA proposes 
language to require adjustment of the threshold based on the Consumer 
Price Index for All Urban Consumers published by the

[[Page 67892]]

Department of Labor.\86\ This proposed language provides for future 
changes to the applicability of the 8-step process based on 
inflationary increases in the cost of actions and helps ensure 
equitable, cost-effective outcomes by limiting this process to actions 
of a higher dollar amount. Note FEMA is also proposing to add the 
Stafford Act sections 406 and 407 for repairs or replacements to Sec.  
9.5(c). FEMA's current and proposed dollar value thresholds to 
determine the applicability of the 8-step decision-making process to 
certain FEMA actions are updated below as follows:
---------------------------------------------------------------------------

    \84\ Section 406 of the Stafford Act involves the repair, 
restoration, and replacement of damaged facilities while section 407 
relates to debris removal.
    \85\ See 45 FR at 59529.
    \86\ The U.S. Department of Labor publishes the Consumer Price 
Index for All Urban Consumers at https://www.bls.gov/cpi/. A 
calculation to determine the impact of CPI-U increases can be made 
at https://www.bls.gov/data/inflation_calculator.htm.

Table 4--FEMA's Current and Proposed Dollar Value Threshold To Determine
         the Applicability of the 8-Step Decision-Making Process
------------------------------------------------------------------------
                                   Current threshold  Proposed threshold
------------------------------------------------------------------------
Exempt from the 8-step decision   Projects under      Projects under
 making process.                   $5,000.             $18,000.
Minimal 8-step decision making    Projects between    Projects between
 process (subject to steps 1, 4,   $5,000 and          $18,000 and
 5, and 8).                        $25,000.            $91,000.
Abbreviated 8-step decision       Projects above      Projects above
 making process (subject to        $25,000 and up to   $91,000 and up to
 steps 1, 2, 4, 5, and 8).         $100,000.           $364,000.
Full 8-step decision making       Projects above      Projects above
 process.                          $100,000.           $364,000.
------------------------------------------------------------------------

    FEMA proposes to relocate current paragraph (g) and redesignate it 
as paragraph (d), restructuring current paragraphs (d)-(f) to (e)-(g) 
respectively. FEMA believes this restructuring will make the section 
more readable and easier for stakeholders to understand. FEMA is also 
proposing to revise the structure and language in current paragraphs 
(d) and (g) to better explain the exceptions to the full 8-step process 
detailed in each paragraph. FEMA proposes to update the current 
monetary thresholds set in current paragraphs (d) and (g) similar to 
changes proposed to current paragraph 9.5(c)(13), described above, to 
reflect the current value of these dollar amounts and also require 
future changes to these amounts based on the Consumer Price Index for 
All Urban Consumers as published by the Department of Labor. As 
explained above, FEMA believes these edits would result in limiting 
applicability of the 8-step process appropriately based on inflationary 
increases in the cost of actions. FEMA is proposing the increase and 
future updates as smaller projects offer little, if any, opportunity 
for mitigation and the agency believes floodplain management resources 
are best devoted in areas where they will be most effective. By keeping 
actions under a certain amount either exempt or with a more 
streamlined/expedited floodplain management process, FEMA would 
maintain the intent of the Executive Orders to protect floodplains and 
wetlands while also ensuring appropriately streamlined, cost-effective, 
and equitable assistance to communities with smaller projects. FEMA is 
proposing to revise current paragraph (g)(2) to address actions subject 
to the FFRMS by changing the current text, which refers to new or 
substantially improved structures or facilities, to instead refer to 
new construction, substantial improvement, or repairs to address 
substantial damage of structures or facilities. FEMA is also proposing 
to revise current paragraph (g)(3) to include facilities or structures 
on which a flood insurance claim has been paid. This addition would 
provide consistency with language existing in current paragraph 
(d)(4)(iii) and ensure that facilities or structures which have 
previously sustained damage from flooding on which a flood insurance 
claim has been paid will be subject to the full 8-step process. As FEMA 
has already provided funding to recover from prior flood damage on 
these facilities and structures, the agency believes the full 8-step 
process is required to ensure any additional funds provided increase 
resilience against flooding.
    FEMA proposes to delete current paragraph (d)(1), consistent with 
the proposed change above to exempt private bridges from the 8-step 
process entirely. FEMA also proposes to delete current paragraph 
(d)(2). The current regulatory language allows for an abbreviated 8-
step process for small project grants under the PA program \87\ unless 
those projects fell into certain categories. FEMA proposes to remove 
this language because it is no longer applicable; FEMA stopped applying 
the abbreviated 8-step process to the small project threshold under the 
PA program after it increased beyond the $100,000 threshold set in 
current paragraph 9.5(d)(4)(i). FEMA also proposes minor revisions to 
current paragraph (d)(4)(iii) (proposed (e)(2)(iii)) for clarity and 
readability.
---------------------------------------------------------------------------

    \87\ The current outdated regulatory text refers to section 419 
of the Stafford Act in identifying what constituted a small project 
grant under PA. As a result of updates to the Stafford act, section 
419 can now be found in section 422 (42 U.S.C. 5189) which sets 
forth the authority to create a small project threshold that applies 
to emergency work (sections 403 or 502), debris removal (section 
407) and permanent work (section 406) which is all funded under the 
PA program.
---------------------------------------------------------------------------

    In current paragraph (e), FEMA proposes to update the responsible 
official from Director to Regional Administrator as this authority has 
been delegated to Regional Administrators and make other clarifying 
edits to reflect current agency terminology in that paragraph as well 
as current paragraphs (f)(1) and (f)(2). FEMA also proposes clarifying 
edits in current Sec.  9.5(f)(1) for readability and to eliminate the 
prime two example references. As explained above in the definitions, 
FEMA believes that these types of specific examples are best addressed 
in guidance that can evolve as issues arise and better assist 
stakeholders with particularly nuanced situations. Further, these 
specific examples relate to regulatory provisions (current Sec. Sec.  
9.9(e)(6) and 9.11(e)) that FEMA proposes to remove from this rule.

G. Section 9.6--Decision-Making Process

    Section 9.6 sets out the floodplain management and wetlands 
protection decision-making process to be followed by FEMA in applying 
Executive Orders 11988, as amended, and 11990 to its actions. FEMA 
proposes a clarifying edit to Sec.  9.6(a) that would delete 
redundancy. Paragraph (b) of Sec.  9.6 lays out the eight Steps the 
agency must follow. Step 1 states that FEMA will determine whether the 
proposed action is located in the 100-year floodplain or, for critical 
actions, the 500-year floodplain. FEMA proposes to remove

[[Page 67893]]

the specific requirement to use the 100-year (1 percent annual chance) 
floodplain or 500-year (0.2 percent annual chance) floodplain for 
critical actions and instead use the general term ``floodplain'' and 
refer the reader to Sec.  9.7, which describes (1) the flexible 
framework that FEMA would apply to actions subject to the FFRMS, as 
well as (2) the historical framework that FEMA would continue to apply 
to actions that do not qualify as actions subject to the FFRMS. 
Additionally, in Step 3, FEMA proposes to add references to natural 
features and nature-based approaches consistent with the Revised 
Guidelines to ensure that natural features and nature-based approaches 
are fully considered when identifying and evaluating practicable 
alternatives to locating the action in a floodplain or wetland. As 
changing conditions elevate the threats posed by natural hazards, FEMA 
is proposing to incorporate nature-based solutions to help bolster 
resilience. Nature-based solutions are sustainable planning, design, 
environmental management, and engineering practices that weave natural 
features or processes into the built environment to promote adaptation 
and resilience. These solutions use natural features and processes to 
combat changing conditions, reduce flood risk, improve water quality, 
protect coastal property, restore, and protect wetlands, stabilize 
shorelines, reduce urban heat, and add recreational space. Nature-based 
solutions offer significant monetary and non-monetary benefits and 
often come at a lower cost than traditional infrastructure.\88\
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    \88\ See generally Coastal Resilience Assessment (Suriname), 
December 2017 published by the World Bank at https://naturebasedsolutions.org/knowledge-hub/63-coastal-resilience-assessment-suriname (last accessed June 8, 2022); Environmental and 
Energy Study Institute Fact Sheet ``Nature as Resilient 
Infrastructure: An Overview of Nature-Based Solutions'' at https://
www.eesi.org/files/
FactSheet_Nature_Based_Solutions_1016.pdf#:~:text=These%20nature-
based%20solutions%20are%20often%20higher-quality%2C%20lower-
cost%2C%20more,avenue%20for%20rethinking%20and%20remodeling%20our%20n
ations%20infrastructure (last accessed July 12, 2023); and Andrea 
Bassi, Emma Cutler, Ronja Bechauf, and Liesbeth Casier, ``How Can 
Investment in Nature Close the Infrastructure Gap?'' at https://www.iisd.org/publications/investment-in-nature-close-infrastructure-gap (last accessed July 12, 2023).
---------------------------------------------------------------------------

    Requiring the use of natural features and nature-based approaches, 
where possible, in consideration of alternatives within or affecting 
floodplains and wetlands is consistent with the agency's priorities to 
promote the use of nonstructural flood protection methods, minimize the 
impact of its actions on the floodplain, and restore and preserve the 
natural and beneficial values served by floodplains as well as preserve 
and enhance the natural values of wetlands (44 CFR 9.2). In applying 
the 8-step process to its actions, FEMA has integrated factors into its 
impact analysis and minimization measures (Step 4 and Step 5; 44 CFR 
9.10 and 9.11) to identify those opportunities for beneficial 
floodplain and wetland values, to include natural values related 
factors (44 CFR 9.10(d)(2)) that prioritize water resource values, 
living resource values, and agricultural, aquacultural, and forestry 
resource values. Requiring natural features or nature-based solutions 
as alternatives, where possible, furthers the goals in 44 CFR part 9 
and allows for FEMA to further encourage those actions that increase 
the natural and beneficial function of the floodplain.
    FEMA also proposes revisions to Step 5 to clarify that the agency 
must minimize potential adverse impacts within floodplains and wetlands 
under Step 4, including minimizing the potential direct and indirect 
support of floodplain and wetland development identified under Step 4. 
While not a new requirement, revising this language would help clarify 
that direct or indirect support of floodplain or wetland development is 
an adverse impact the agency must consider as part of minimization. 
FEMA believes these edits would help ensure consistency of use 
throughout part 9 and reduce stakeholder confusion. Finally, FEMA 
proposes a minor edit for readability in Step 6 (removing the word 
``the'' in the phrase, ``the hazards to others'').

H. Section 9.7--Determination of Proposed Action's Location

    Current Sec.  9.7 establishes FEMA's procedures for determining 
whether any action as proposed is located in or affects a floodplain or 
a wetland. FEMA is proposing to revise this section to add procedures 
for identifying the FFRMS floodplain and corresponding elevation. FEMA 
is also proposing to revise this section's paragraph structure for 
clarity.
    In current and proposed paragraph (a), FEMA proposes minor 
conforming edits. As in Sec.  9.6, FEMA proposes to simply refer to 
``floodplain'' rather than the current regulatory text's ``base 
floodplain'' or ``500-year floodplain'' references and direct the 
reader to paragraph (c), because the Revised Guidelines and the FFRMS's 
flexible framework for determining which floodplain is appropriate 
depending on the type and criticality of the action means the 
floodplain must be established using the process set forth in paragraph 
9.7(c).
    FEMA proposes to reorganize current paragraph (b) for clarity. In 
proposed paragraph (b)(1), FEMA proposes to replace a reference to 
``the Orders'' with a reference to ``this part,'' for clarity. In 
proposed paragraph (b)(1)(i), FEMA proposes to add the words ``Federal 
action'' to make clear that the goal is to avoid Federal action, 
specifically, in a floodplain or wetland location unless they are the 
only practicable alternatives consistent with the agency's requirements 
under part 9. This proposed change would reiterate that the focus of 
the 8-step process is on Federal actions.
    FEMA is also proposing to relocate to Sec.  9.7(c) the statement 
that in the absence of a finding to the contrary, FEMA may assume that 
a proposed action involving a facility or structure that has been 
flooded is in the floodplain. FEMA proposes this change for clarity. In 
addition, Paragraph (b) of Sec.  9.7 currently states that information 
about the 1 percent annual chance (100-year) and 0.2 percent annual 
chance (500-year) floods may be needed to comply with the regulations 
in part 9. In proposed paragraph (b)(2), FEMA proposes to update this 
statement for simplicity, referencing the floodplain determination 
process in Sec.  9.7(c) in revised paragraph (b)(2) instead of 
referencing the 100-year and 500-year floods.
    Current paragraph (b) includes a list of ``flooding 
characteristics'' that the Regional Administer ``shall'' identify, ``as 
appropriate.'' For clarity, FEMA proposes in new paragraph (b)(3) that 
the Regional Administrator ``may'' identify ``current and future'' 
flooding characteristics, ``as applicable.'' These proposed changes are 
consistent with the Revised Guidelines. FEMA prefers to avoid the use 
of the term ``shall,'' which suggests a mandatory requirement for the 
Regional Administrator to identify all of the additional flooding 
characteristics listed. FEMA's current practices do not require this 
level of rigidity and FEMA proposes the identification of these 
characteristics to be within the discretion of the Regional 
Administrator. FEMA is also proposing to add language for the agency to 
consider both current and/or future flooding characteristics by adding 
``current and future'' to the additional flooding characteristics that 
may be considered. This addition clarifies the Regional Administrator's 
discretion to consider both current and future flooding characteristics 
consistent with the goals of FFRMS to improve the resilience of 
communities and Federal assets against the impacts of flooding

[[Page 67894]]

which are anticipated to increase over time. Further, FEMA proposes to 
add to the list of flooding characteristics a new item for ``[a]ny 
other applicable flooding characteristics'' to signal flexibility as 
flood risks are further studied and developed and allow for local 
jurisdictions to utilize their own information to support requirements 
specific to their community's needs.
    Paragraph (c) of Sec.  9.7 outlines the process for determining if 
the proposed action is in the floodplain. As explained above, FEMA 
proposes to move language regarding previously flooded facilities and 
structures from the current paragraph (b) to proposed paragraph (c). 
FEMA also proposes to add the word ``previously'' to this provision for 
clarity. By moving this language to paragraph (c), FEMA would group 
this provision with the other floodplain determination provisions. If a 
proposed action does not involve a previously flooded facility or 
structure, FEMA would then begin the process set forth in the rest of 
paragraph (c) to determine whether the proposed action is in the 
floodplain. FEMA would determine whether the action is an action 
subject to the FFRMS as defined in Sec.  9.4. If the action is an 
action subject to the FFRMS, FEMA would establish the floodplain and 
corresponding flood elevation \89\ using one of the four approaches 
outlined in proposed paragraph (c)(1). For example, FEMA would likely 
be required to apply one of those four approaches to establish the 
FFRMS floodplain to projects involving new construction or substantial 
improvement or addressing substantial damage to a structure or 
facility. However, FEMA-funded projects that do not rise to the level 
of new construction or substantial improvement and do not address 
substantial damage to a structure or facility would not be required to 
apply any of the four approaches to establish the FFRMS floodplain.\90\
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    \89\ Although the FFRMS describes various approaches for 
determining the higher vertical flood elevation and corresponding 
horizontal floodplain for Federally funded projects, it is not meant 
to be an ``elevation'' standard. The FFRMS is a resilience standard. 
The vertical flood elevation and corresponding horizontal floodplain 
determined using the approaches in the FFRMS establish the level to 
which a structure or facility must be resilient. This may include 
using structural or non-structural methods to reduce or prevent 
damage; elevating a structure; or, where appropriate, designing it 
to adapt to, withstand, and rapidly recover from a flood event. See 
Revised Guidelines at 4.
    \90\ Under proposed Sec.  9.7(c)(2), FEMA would retain 
discretion to apply the FFRMS to other actions as appropriate. For 
instance, under the accompanying proposed policy, FEMA would require 
that all structure elevation, mitigation reconstruction, and dry 
floodproofing actions under FEMA's Hazard Mitigation Assistance 
programs comply with the proposed FFRMS policy.
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    FEMA proposes to implement the FFRMS by adopting the flexible 
framework identified in Executive Order 11988, as amended by Executive 
Order 13690, in its entirety, instead of mandating a particular 
approach in its regulations. Under this proposal, FEMA would provide 
additional guidance (more readily capable of revisions and updates) 
that addresses which approach FEMA would generally use for different 
types of actions and how FEMA would tailor its application of the 
various approaches depending on the type and criticality of the action, 
while also considering the availability of actionable data, costs, and 
equity.
    Consistent with Executive Order 11988 as amended by Executive Order 
13690 and the Revised Guidelines, proposed Sec.  9.7(c)(1)(iii) would 
allow FEMA to except from the FFRMS an action that is in the interest 
of national security, an emergency action, or a mission-critical 
requirement related to a national security interest or an emergency 
action. For example, if FEMA proposed to construct an underground 
bunker at one of its locations for national security reasons, to 
require the bunker to be elevated pursuant to the FFRMS could run 
contrary to the purpose of the bunker. It is important to note that an 
exception to using the floodplain for actions subject to the FFRMS 
under any of the reasons listed in this section does not exempt the 
action from the requirements of part 9 and Executive Order 11988 
altogether. Instead, if one of FEMA's actions were excepted under this 
provision, FEMA would still be required to apply the appropriate 
floodplain established by proposed Sec.  9.7(c)(3). FEMA does have the 
authority to exempt certain actions from any application of the 
requirements of Part 9 and Executive Order 11988, as amended, and those 
actions which are exempted are described in current Sec. Sec.  9.5(c) 
and (e).
    In proposed Sec.  9.7(c)(2), consistent with existing requirements, 
FEMA proposes that if FEMA determines that the action is not an action 
subject to FFRMS, the proposed action would be evaluated using, at a 
minimum, the 1 percent annual chance floodplain for non-critical 
actions and, at a minimum, the 0.2 percent annual chance floodplain for 
critical actions.
    In proposed Sec.  9.7(c)(3), FEMA proposes to focus the analysis to 
establish the floodplain and corresponding elevation using the best 
available data and proposes that the floodplain and corresponding 
elevation determined using best available data must be at least as 
restrictive as FEMA's regulatory determinations under the National 
Flood Insurance Program. Current Sec.  9.7(c)(1) requires FEMA to first 
consult the FIRM, FBFM, and FIS which ends the analysis if those 
``detailed'' products are available. There are cases where FIRM, FBFM, 
and FIS are available for an area but do not provide flood elevations, 
0.2 percent annual chance floodplain information, or other floodplain 
information required. The proposed changes allow FEMA to seek 
additional information even when a ``detailed'' product is available at 
a location. If those ``detailed'' products are not available, FEMA will 
then consult the FHBM. If that information is insufficient FEMA will 
seek other data as part of the floodplain and elevation analysis.
    FEMA proposes to update this paragraph to reflect the Revised 
Guidelines' focus on the use of the best available information. While 
FEMA still intends to rely on FEMA products such as FIRMs, FBFMs, FISs, 
and FHBMs, FEMA understands that these products do not always provide 
all information needed for some locations and do not currently account 
for future conditions and other factors that better inform the 
floodplain determination for projects under part 9. In obtaining the 
best available information, FEMA is proposing to consider other 
information from FEMA, as well as information in a proposed updated 
list of sources to reflect those sources suggested in the Revised 
Guidelines, as well as sources the agency knows may have relevant 
additional information. Some of the proposed changes to this list are 
updates to reflect current titles, while other changes reflect newly 
available resources. Finally, if none of these sources have the 
information necessary to comply with part 9, the Regional Administrator 
may seek the services of a professional registered engineer. FEMA 
proposes clarifying edits in paragraph (d)(3) and (d)(4) of Sec.  9.7.

I. Section 9.8--Public Notice Requirements

    FEMA proposes clarifying edits in Sec.  9.8(a) and Sec.  9.8(c)(1)-
(c)(4) for readability. FEMA is adding the use of the internet for 
notice in this process by inserting Sec.  9.8(c)(4)(i) to allow for 
notice through the internet or another comparable method. This proposed 
change would codify FEMA's current practice to incorporate notices on 
the agency's website at www.fema.gov in connection with specific 
disaster relief

[[Page 67895]]

efforts. Currently, notices regarding other FEMA programs may be posted 
on other websites, such as websites belonging to state or local 
governments, but these notices are not currently posted on www.fema.gov 
if not tied to a specific disaster. This revision would allow FEMA to 
further expand the use of www.fema.gov for notices for other programs 
not tied to a specific disaster. By incorporating the use of the 
internet through FEMA's website and other sites as a means to provide 
notice, FEMA is seeking to modernize this part for consistency with 
current practice and to increase public visibility and accessibility of 
those notices that are not current posted on www.fema.gov. FEMA 
proposes other edits to the notification process in paragraph (c)(4) to 
eliminate outdated terminology and incorporate newsletters into the 
``other local media'' category as a means of providing notice to 
potentially interested persons. In addition to incorporating the use of 
the internet for notice, FEMA proposes to clarify in Sec.  
9.8(d)(5)(ii) that FEMA may include in the notice a link to access a 
map of the area of the proposed action. A link may help the public more 
easily access information associated with the notice. FEMA also 
proposes to correct a typographical error. FEMA proposes other 
clarifying edits in Sec.  9.8(c)(5)(i)-(iv) for readability.

J. Section 9.9--Analysis and Reevaluation of Practicable Alternatives

    FEMA proposes clarifying edits in Sec.  9.9(a) for readability. In 
Sec.  9.9(b)(2), FEMA proposes to add the requirement to use natural 
systems, ecosystem processes, and nature-based approaches, where 
possible, in the development of alternatives to the proposed actions in 
or affecting the floodplain and/or wetland. Under Sec.  9.9, FEMA must 
make a preliminary determination (Step 3 of the 8-step process) as to 
whether the floodplain is the only practicable location for the action. 
Part of that analysis involves considering whether there are 
alternative actions that serve essentially the same purpose as the 
proposed action, but which have less potential to affect or be affected 
by a floodplain. Under this proposed rule, during the course of the 
aforementioned analysis, FEMA would consider whether an alternative 
using natural systems, ecosystem processes, and nature-based approaches 
might have less of an effect on the floodplain.
    For consistency with the Revised Guidelines and the agency's use of 
the term in the current regulations, FEMA is proposing to add the cost 
of technology to the list of economic factors that FEMA considers under 
Sec.  9.9(c)(3). By adding technology to this list, FEMA would clarify 
that the cost of technology is a factor to consider in determining 
practicability of alternatives and also emphasize the importance of the 
cost of technology and technological advancements in the analysis. FEMA 
is proposing to add Sec.  9.9(c)(5) to reflect consideration of agency 
authorities in the practicability analysis, again for consistency with 
the Revised Guidelines. Additionally, FEMA is proposing clarifying 
edits throughout paragraph 9.9(c) for readability.
    FEMA proposes to remove paragraph (d)(2) of Sec.  9.9, which 
prohibits FEMA from locating a proposed critical action in the 500-year 
floodplain, as the language is redundant given the proposed changes to 
paragraph (d)(1) which explain that FEMA would utilize Sec.  9.7(c) 
when making the floodplain determination. As noted above, FEMA would 
determine whether the project meets the new definition of an ``Action 
subject to the FFRMS'' in proposed Sec.  9.4. If FEMA determined that 
the project is an action subject to the FFRMS, then FEMA would 
establish the floodplain by using one of the approaches detailed in 
proposed Sec.  9.7(c)(1) (which requires the applicant to consider 
whether an action is a critical action). If FEMA determined that the 
project is not an action subject to the FFRMS, then FEMA would use, at 
a minimum, the 1 percent annual chance floodplain for non-critical 
actions and the 0.2 percent annual chance floodplain, at a minimum, for 
critical actions as explained in proposed Sec.  9.7(c)(2). After FEMA 
completed that process, it would apply the appropriate floodplain to 
the remainder of the 8-step process. Therefore, FEMA proposes to revise 
paragraph (d)(1) to specify that the ``floodplain'' is the floodplain 
established in Sec.  9.7(c), eliminate current paragraph (d)(2) as it 
is redundant, and redesignate current paragraph (d)(3) as new paragraph 
(d)(2).
    FEMA proposes clarifying edits in paragraphs (e)(1)(i), 
(e)(1)(iii), and (e)(1)(iv) for readability and to eliminate specific 
references to the Orders in paragraphs (e)(3) and (e)(4). FEMA proposes 
to eliminate paragraph (e)(6). Paragraph (e)(6) of Sec.  9.9 prohibits 
FEMA Resilience from providing a new or renewed contract for flood 
insurance for a structure if the Regional Director has chosen the ``no 
action'' option provided for in Sec.  9.9(e)(5). This provision was 
temporarily suspended via a November 28, 1980, Federal Register Notice 
of intent not to enforce certain regulation concerning denial of flood 
insurance coverage. (45 FR 79069). FEMA ultimately did not implement 
this provision and does not intend to do so now; therefore, FEMA is 
proposing to remove it from the regulation.

K. Section 9.10--Identify Impacts of Proposed Actions

    FEMA proposes minor clarifying edits in paragraphs (a), (b), and 
(d) for readability and seeks to remove the reference to contacting 
regional offices of U.S. Fish and Wildlife Service from section 9.10(c) 
as this process will be further detailed in guidance. FEMA also 
proposes edits to paragraph 9.10(d)(2) for consistency with edits made 
in section 9.4 defining the natural and beneficial values of 
floodplains and wetlands.

L. Section 9.11--Mitigation

    FEMA proposes minor clarifying edits in paragraph (a). In paragraph 
(c)(1), FEMA proposes to clarify that the minimization provisions 
require the agency to minimize potential harm to lives and the 
investment at risk from flooding based on flood elevations established 
by Sec.  9.7(c). This change first helps further explain that the 
potential harm to be minimized must be from flooding and that the 
potential harm is based on flood elevations established by Sec.  
9.7(c). This proposed revision removes the reference to the base flood 
and the 500-year flood from paragraph 9.11(c) and instead references 
the floodplain as established in Sec.  9.7(c) consistent with other 
changes in the regulation to reflect the revised process described in 
Sec.  9.7 when making the floodplain determination.
    In paragraph (d), FEMA proposes to revise the text to reflect that 
the minimization standards are applicable to all of FEMA's grant 
programs. Currently, Sec.  9.11(d) states that the minimization 
standards are applicable to only FEMA's implementation of the Disaster 
Relief Act of 1974. Some of FEMA's grant programs are authorized under 
other legislation.
    In paragraphs (d)(2) and (d)(3)(i), FEMA proposes to specifically 
require elevation of the lowest floor of a structure to the floodplain 
established under Sec.  9.7(c) during the construction of new or 
substantially improved structures. As described above, FEMA must follow 
the revised process described in Sec.  9.7 when making the floodplain 
determination. FEMA must determine whether the project meets the new 
definition of an ``action subject to the FFRMS'' in Sec.  9.4. The 
definition of ``action subject to the FFRMS'' is an action where FEMA 
funds are used for new construction, substantial improvement, or to 
address substantial damage to a structure or facility.

[[Page 67896]]

``Substantial Improvement'' as defined in Sec.  9.4 includes all 
actions taken to address substantial damage to a structure or facility. 
Because paragraphs (d)(2) and (d)(3)(i) specifically reference new 
construction or substantial improvement, FEMA must establish the 
floodplain in these circumstances by using one of the FFRMS approaches 
(which require the applicant to consider whether an action is a 
critical action) as detailed in Sec.  9.7(c). FEMA is proposing to 
remove current Sec.  9.11(d)(3)(ii) as it becomes redundant with 
changes proposed to Sec.  9.11(d)(3)(i) and redesignate current Sec.  
9.11(d)(3)(iii) as new Sec.  9.11(d)(3)(ii). FEMA guidance can be 
consulted for technical information on elevation methods for new 
construction and the retrofitting of existing structures with various 
types of foundations.\91\ FEMA proposes to revise current paragraph 
(d)(3)(iii) to eliminate references to the 100-year or 500-year level 
consistent with other proposed changes in the regulation to avoid 
confusion around the use of these terms given the revised process for 
the floodplain analysis set forth in proposed Sec.  9.7(c). FEMA is 
also proposing clarifying edits in current paragraph (d)(3)(iv) 
consistent with proposed changes to Sec.  9.4 definitions by changing 
``Federal Insurance Administration'' to reflect organizational changes 
to ``FEMA Resilience'' and other technical citation edits as well as 
replacing ``FIRM'' with ``FEMA regulatory product'' consistent with 
other proposed changes.
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    \91\ A catalogue of FEMA Building Science Branch publications, 
including descriptions of available publications for natural hazards 
can be accessed at https://www.fema.gov/emergency-managers/risk-management/building-science/publications (last accessed July 12, 
2023).
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    In paragraph (d)(4), FEMA proposes minor clarifying edits and to 
add clarifying terminology consistent with changes proposed to Sec.  
9.4 definitions of the base flood and base floodplain. FEMA also 
proposes to provide that encroachments or other development within a 
floodway that would result in an increase in flood elevation, rather 
than in flood levels, are prohibited. FEMA also proposes two further 
changes to help better address the concern of flood elevation increase 
because of such development. As revised, paragraph (d)(4) would provide 
that the increase in elevation must not be more than the amount 
designated by the NFIP or, as indicated later in this paragraph, the 
community, whichever is most restrictive. The current designated height 
of the elevation is no more than one foot at any point, which 
effectively restates the existing minimum standard under the NFIP.\92\ 
FEMA's proposed changes would remove reference to a one-foot standard, 
because this minimum standard is subject to change under the NFIP.\93\ 
Further, FEMA's proposed changes would provide that the appropriate 
elevation is set by either the NFIP or the community, whichever results 
in the more restrictive standard.
---------------------------------------------------------------------------

    \92\ 44 CFR 60.3.
    \93\ See 42 U.S.C. 4102(c).
---------------------------------------------------------------------------

    FEMA proposes to update terminology from ``disaster proofing'' to 
``flood proofing and/or elevation'' for clarity in paragraph (d)(9). 
For the same reasons as stated above for Sec. Sec.  9.11(d)(2) and 
(d)(3)(i), in paragraph (d)(9), FEMA proposes to remove the reference 
to the base flood or, in the case of critical actions, the 500-year 
flood from paragraph (d)(9) and instead reference the floodplain as 
established in Sec.  9.7(c) when describing the requirements for the 
replacement of building contents, material and equipment.
    FEMA proposes to remove Sec.  9.11(e) as the section's requirements 
are no longer required. At the time Sec.  9.11(e) was promulgated, FEMA 
had discrepancies in coastal studies data that resulted in an 
underrepresentation of flood risk in some areas and this paragraph was 
meant to address the issues associated with those data 
discrepancies.\94\ Since 1981, FEMA has updated the FIRMs for all 
coastal high hazard areas to address the earlier data issues and the 
program no longer maintains these special procedures for insurance or 
floodplain improvements. The V Zone Risk Factor Rating Form was 
discontinued by the agency on October 16, 2019, based on a lack of use 
\95\ and, given the effectiveness of FEMA's updated data resolving the 
initial discrepancies, resulted in little to no impact on an 
individual's actual flood insurance premium. Given the updated data 
available and FEMA's reliance on the best available information to 
determine the floodplain in Sec.  9.7(c), this paragraph is no longer 
relevant. Additionally, the provision found in paragraph (e)(4) was 
temporarily suspended via a November 28, 1980, Federal Register Notice 
of intent not to enforce certain regulation concerning denial of flood 
insurance coverage. (45 FR 79069). FEMA ultimately did not implement 
this provision and does not intend to do so now. Therefore, FEMA 
proposes to remove it from the regulation, and redesignate paragraph 
(f) as paragraph (e).
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    \94\ See 45 FR 59520, 59525 (Sept. 9, 1980).
    \95\ See 85 FR 31202 (May 22, 2020) and https://nfipservices.floodsmart.gov/sites/default/files/w-19014%20.pdf (last 
accessed July 2023).
---------------------------------------------------------------------------

M. Section 9.12--Final Public Notice

    FEMA proposes a minor edit to paragraph (d)(6) to update language 
to reflect current program terminology. Specifically, FEMA proposes to 
change the term ``Damage Survey Report'' to ``project application'' to 
reflect the current document utilized by FEMA's grant programs.

N. Section 9.13--Particular Types of Temporary Housing

    FEMA proposes to revise this section to clarify that this part 
applies to certain specified types of temporary housing at private, 
commercial, and group site. Currently, this section only applies to 
private and commercial sites. FEMA is proposing to incorporate group 
sites into this section so that all of the temporary housing 
requirements under this part will fall within the same section, 
promoting ease of use and consistency in the application of the 
relevant steps of the 8-step process to each type of temporary housing 
site. Group sites are generally a more intensive action for the agency, 
as they involve the development of a new site on which to place housing 
and these actions are currently subject to the normal 8-step process 
required for most FEMA actions under current Sec.  9.13(b) and (c)(2). 
However, FEMA's experience with group sites has demonstrated the 
importance of applying the considerations of Steps 3 (practicable 
alternatives) and 5 (minimization) to group sites as outlined in 
proposed Sec.  9.13, rather than the full 8-step process. Group sites 
share the same need for expedited review as private and commercial 
sites given the urgent need for shelter after a disaster and the same 
consideration of other factors such as cost effectiveness, potential 
flood risk to a temporary housing occupant in a temporary housing 
situation, and a location close enough to the occupant's former 
residence to make it possible for the occupant to recover quickly. 
Given these same considerations, FEMA is proposing to add group sites 
to coverage under this section. See proposed Sec. Sec.  9.13(a) and 
(b).
    Throughout this section, FEMA proposes to update the terminology 
from ``mobile home'' to ``temporary housing unit'' \96\ and to 
eliminate references to ``other readily fabricated dwellings'' that are 
redundant as a result of the change to clarify the types

[[Page 67897]]

of temporary housing units covered under this section. The statutes and 
regulations associated with the Individual Assistance Program use the 
term ``temporary housing unit.'' FEMA believes this proposed change 
will help eliminate confusion. Examples of temporary housing units 
include a readily fabricated dwelling such as recreational vehicles, 
manufactured housing units, travel trailers, yurts, and tiny 
houses.\97\
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    \96\ Temporary Housing Unit is defined as ``[a] house, 
apartment, cooperative, condominium, manufactured home, or other 
dwelling acquired by FEMA and made available to eligible applicants 
for a limited period of time.'' See https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf (last accessed July 28, 
2023).
    \97\ Tiny homes are typically between 100 and 400 square feet 
and rarely exceed 500 feet. See https://www.realtor.com/advice/buy/what-is-a-tiny-house/ (last accessed July 12, 2023).
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    In proposed Sec.  9.13(c)(1), FEMA proposes to specifically 
designate the use of the 1 percent annual chance (base) floodplain when 
evaluating whether to take a temporary housing action. In proposed 
Sec.  9.13(c)(3), consistent with the aforementioned proposed changes 
to Sec.  9.13(c)(1), FEMA proposes to revise the prohibition against 
housing an individual or family in the ``floodplain'' (which applies 
unless Regional Administrator has complied with the provisions in 
proposed Sec.  9.9 to determine that the site is the only practicable 
alternative), by instead referring to the ``1 percent annual chance 
(base) floodplain.'' FEMA proposes to designate the 1 percent annual 
chance (base) floodplain as the floodplain of choice when taking 
temporary housing actions for several reasons: (1) the temporary nature 
of the assistance means there is not an opportunity to improve 
community resilience or floodplain management long term, which is the 
intent of the FFRMS; (2) expansion of the base floodplain to the FFRMS 
floodplain and prohibiting placement of temporary housing in the FFRMS 
floodplain may result in the temporary housing of individuals and 
families many miles from their homes, which is not practicable; and (3) 
it is not always feasible to elevate mobile homes when they are being 
placed as temporary housing.
    Consistent with the proposed change to incorporate group sites into 
this section, FEMA proposes to add Sec.  9.13(c)(4) to clarify that 
Step 4 of the 8-step process continues to apply to group sites. As 
explained above, group sites are generally a more intensive action for 
the agency, as they involve the development of a new site on which to 
place housing. By adding this paragraph, FEMA is proposing to ensure 
that step 4 of the 8-step process is applied to group sites in 
accordance with Sec.  9.10 and that the effects of proposed actions are 
identified. FEMA is making this proposal because developing a new group 
site frequently involves development of infrastructure that could 
result in future development in the floodplain, to a greater extent 
than actions taken in existing private or commercial sites.
    In the 2016 NPRM, FEMA proposed the addition of language to current 
paragraph (d)(4)(i) to require that actual elevation levels of 
temporary housing units would be based on manufacturer specifications 
and applicable Agency guidance. Specifically, the 2016 NPRM stated that 
it was not always practicable to elevate mobile homes to a given level 
and that the proposed rule would require that such homes be elevated to 
the fullest extent practicable. 81 FR at 57419. This NPRM does not seek 
to add that language because the current regulatory text in paragraph 
(d)(4)(i) requires these homes to be elevated ``to the fullest extent 
practicable.'' FEMA believes that what constitutes the fullest extent 
practicable will vary by location, temporary housing unit type, and a 
range of other variables not suited for comprehensive identification in 
the regulation. While FEMA's current practice is to consider 
manufacturer specifications, the agency is no longer seeking to codify 
that sole variable into the regulation and will instead clarify the 
variables to consider in agency procedures.
    FEMA seeks to clarify that the agency will not temporarily place a 
housing unit unless the placement is consistent with the criteria of 
the NFIP or any more restrictive Federal, State, or local floodplain 
management standards. The NFIP requires that these units be elevated to 
at least the base flood elevation, absent a variance.\98\ See proposed 
Sec.  9.13(c)(5)(ii). FEMA also proposes to substitute ``44 CFR parts 
59-60'' for ``44 CFR part 59 et seq.'' (which currently appears in 
paragraph 9.13(d)(4)(ii), to clarify the specific sections of the 
regulations the language references. In addition, although not directly 
stated in current part 9, it is current FEMA practice to complete Step 
8 for temporary housing units. FEMA seeks to add proposed Sec.  
9.13(c)(7) to clarify that the agency must complete Step 8, ensuring 
that the requirements and decision-making process are fully integrated 
into the provision of temporary housing and current practices are 
codified in regulation.
---------------------------------------------------------------------------

    \98\ 44 CFR 60.3.
---------------------------------------------------------------------------

    In proposed Sec.  9.13(d)(2), FEMA also proposes to require the 
elevation of temporary housing units to at least the level of the FFRMS 
floodplain if FEMA intends to permanently install a unit that the 
agency is selling or otherwise disposing of that is located in the 
FFRMS floodplain.\99\ This proposal is consistent with other proposed 
changes in section 9.4 to the definition of new construction, which now 
includes permanent installation of a temporary housing unit, and the 
definition of an action subject to the FFRMS as new construction is 
subject to the FFRMS. Any sale or disposal of a temporary housing unit 
that includes permanent installation of a temporary housing unit for 
residential purposes no longer constitutes temporary housing; FEMA 
believes that any unit that is permanently installed should be 
protected to the fullest extent practicable, because the probability 
that a flood will occur within the floodplain is greater over the 
anticipated lifespan of a permanent structure than a temporary 
structure, and so the benefit of hazard mitigation is greater to the 
permanent structure than the temporary structure. Further, any 
permanent installation of a temporary housing unit would also be 
required meet NFIP requirements of residential structures by elevating 
the lowest floor to or above the base flood elevation, absent a 
variance.\100\ See proposed Sec.  9.13(d)(2).
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    \99\ By contrast, temporary housing units placed in the 
floodplain for the purposes of temporary housing must meet the 
criteria of the NFIP or any more restrictive standards unless the 
community has granted a variance. See proposed Sec.  9.13(c)(5)(ii).
    \100\ 44 CFR 206.118(a)(1)(i) and (iii) requires, as a condition 
of sale, the applicant to agree to purchase flood insurance on the 
unit (if it is or will be in a special flood hazard area) and have a 
site that complies with 44 CFR part 9. The NFIP requires communities 
to elevate manufactured housing units to or above the base flood 
elevation. See 44 CFR 60.3(c)(6)(iv) and 44 CFR 60.3(c)(12)(i).
---------------------------------------------------------------------------

    The proposed requirement to elevate to the FFRMS floodplain when 
permanently installing these units as part of a sale may result in 
fewer temporary housing units being sold by FEMA as it will not always 
be practicable or feasible to elevate a temporary housing unit to the 
FFRMS requirement. However, this condition is not the only condition 
placed on the sale to applicants of temporary housing units that will 
be permanently installed. FEMA already places eligibility and sale 
conditions on these units to applicants. The sale of a temporary 
housing unit to an applicant currently requires the unit to be sold 
only to an individual or household occupying the unit, and requires 
that the site of the permanent placement comply with local codes and 
ordinances, and also complies with 44 CFR part 9.\101\ FEMA also places 
a condition of sale on these units to include requirements for those 
units

[[Page 67898]]

located in a special flood hazard area to purchase flood 
insurance.\102\ Given the current conditions that apply to the sale of 
these units to applicants, FEMA does not believe the additional FFRMS 
floodplain requirement will overly burden applicants as FEMA currently 
intends to cover the costs of any additional elevation required for 
permanent installation when selling to an applicant.
---------------------------------------------------------------------------

    \101\ See 44 CFR 206.118(a)(1)(i).
    \102\ See 44 CFR 206.118(a)(1)(iii).
---------------------------------------------------------------------------

    Because this permanent installation constitutes a permanent housing 
solution for applicants as opposed to a temporary one lasting 18-24 
months on average,\103\ the agency believes these mitigation actions 
are necessary to minimize the long-term risk to human health, safety, 
and welfare associated with flooding and to meet the agency's 
obligation to lessen the impacts of our actions that relate to 
development in and occupancy of the floodplain. These units are 
generally sold for permanent installation in communities where 
individuals lack other permanent housing options through no fault of 
their own.\104\ Not requiring the higher resilience standard for these 
units would make the units more susceptible to future flood risks. 
Permanent installation of these units by sale to an applicant increases 
the housing stock in the community and FEMA seeks to ensure that new 
housing in these communities meets these higher resilience standards. 
Communities with less resilient housing become more susceptible to 
future flood risks. A more resilient and equitable nation requires that 
resilience standards be applied to protect life, health, and safety of 
all communities. FEMA believes the FFRMS requirement for permanent 
installation of housing units will improve community resilience and 
floodplain management long term, consistent with the intent of the 
FFRMS. By promoting safer permanent housing placement, FEMA can 
mitigate future flood risks particularly for those individuals and 
communities that have been historically disadvantaged.
---------------------------------------------------------------------------

    \103\ The Robert T. Stafford Disaster Relief and Emergency 
Assistance Act Sec.  408(c)(1)(B)(iii), 42 U.S.C. 
5174(c)(1)(B)(iii), 44 CFR 206.110(e), and Individual Assistance 
Program Policy and Guide (IAPPG) Version 1.1, pgs. 41, 98, found at 
https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets (last accessed July 12, 2023).
    \104\ See Individual Assistance Program Policy and Guide (IAPPG) 
Version 1.1, pg. 119, found at https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf (last accessed July 12, 2023).
---------------------------------------------------------------------------

    Additionally, FEMA is proposing to change the paragraph structure 
of Sec.  9.13. No substantive changes are intended as a result of this 
restructuring.

O. Section 9.14--Disposal of Agency Property

    FEMA proposes minor clarifying edits consistent with other proposed 
changes throughout this part. In Sec.  9.14(b)(4), FEMA proposes 
clarifying edits consistent with other changes in the regulatory text, 
replacing the term ``support'' with the term ``support of floodplain 
and wetland development.'' These edits would be made for clarity and 
would be consistent with the proposed definition of ``Support of 
Floodplain and Wetland Development'' found in proposed Sec.  9.4. As 
previously explained, this clarification helps further delineate the 
agency's requirement to consider the impacts to floodplains and 
wetlands and how decisions made in this part could directly or 
indirectly result in increased development in a floodplain or wetland. 
These edits would help eliminate confusion regarding the use of the 
term ``support'' in the regulatory text and ensure that actions taken 
under part 9 were done with the intent not to support floodplain and 
wetland development consistent with Executive Order 11988, as amended, 
and Executive Order 11990.
    In paragraph 9.14(b)(5), which currently directs FEMA to focus on 
minimization through floodproofing and restoration of natural values 
where improved property is involved, FEMA proposes to also require 
consideration of elevation. Elevation may be an appropriate focus of 
the minimization analysis depending on the nature of the improved 
structure; the current text's emphasis on floodproofing and restoration 
of natural values, to the exclusion of elevation, is unwarranted. FEMA 
proposes to make changes to paragraph (b)(7)(ii) to eliminate reference 
to the ``flood fringe'' and instead explain this concept in terminology 
more consistently used throughout part 9. This change would reduce the 
overall technical terminology used in the regulation, making it easier 
for stakeholders to understand the key concepts around flood risk and 
the application of part 9.

P. Section 9.16--Guidance for Applicants

    FEMA proposes clarifying edits in Sec.  9.16(b) to eliminate 
examples. The examples provided in current paragraph (b) do not 
necessarily reflect current agency terminology and, rather than limit 
the agency to current nomenclatures, FEMA proposes to eliminate 
references to the examples here. FEMA proposes edits in paragraph 
(b)(2) to clarify that the decision-making process set out in Sec.  9.6 
relates to the determination of whether to take action in floodplains 
or wetlands. FEMA is proposing this change to clarify that the decision 
made in Sec.  9.6 is the decision to act (or not take action) in the 
floodplain or wetland, not a decision generally on eligibility for 
assistance. FEMA recognizes that the decision to take no action may 
result in no assistance being provided, but that decision is not the 
only decision point in Sec.  9.6. FEMA also proposes additional 
clarifying edits in Sec.  9.16(b)(3)-(5) and Sec.  9.16(c) for 
readability.

Q. Section 9.17--Instructions to Applicants

    FEMA proposes clarifying edits throughout this section for 
readability. Additionally, in paragraph (a), FEMA proposes to add ``as 
amended'' to reflect amendments to Executive Order 11988 and in 
paragraph (b), FEMA proposes to update the reference to the 1978 
Guidelines to the full title for the Revised Guidelines. FEMA also 
proposes additional clarifying edits in Sec.  9.17(b)(3)-(5) to stay 
consistent with Sec.  9.16(b)(3)-(5).

R. Section 9.18--Responsibilities

    FEMA also proposes clarifying edits throughout this section, 
including updating the references to the Assistant Administrator to 
refer to FEMA Resilience as the office within FEMA that will review 
Regional Administrator decisions that are appealed and adding ``as 
amended'' to reflect amendments to Executive Order 11988.

S. Appendix A to Part 9--Decision-Making Process for E.O. 11988

    FEMA proposes to remove ``Appendix A to Part 9--Decision-Making 
Process for E.O. 11988'' in its entirety. The graphic is no longer 
accurate. Further, given the amendments to Executive Order 11988 and 
the Revised Guidelines, there is no utility to including the appendix 
in regulation. Instead, FEMA would include a revised version of the 
appendix, including the new decision-making process and the definition 
of the floodplain, in its policy implementing the FFRMS.

V. Comments Received Associated With Part 9 Revisions

    As explained above, FEMA previously sought to revise part 9 to 
incorporate the FFRMS. On November 17, 2015, FEMA released for public 
comment FEMA's Overview of FEMA's Intent to

[[Page 67899]]

Implement the FFRMS (Intent).\105\ Continuing our commitment to an 
open, collaborative, stakeholder-focused process in implementing the 
FFRMS, FEMA shared this framework for public comment on FEMA's website 
through December 17, 2015. FEMA received 12 comments in response to the 
Intent. Of the 12 comments received, 10 comments were supportive, 1 
comment was opposed, and 1 comment was not germane.\106\
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    \105\ Available on the public docket for FEMA-2015-0006 at FEMA-
2015-0006-0359.
    \106\ The comments are available on regulations.gov under docket 
ID FEMA-2015-0006.
---------------------------------------------------------------------------

    The 10 comments received in support of the Intent came from a 
variety of sources, including local governments, associations, 
environmental action organizations, and commenters that chose to reply 
in their private capacity. The adverse comment stated that the CISA 
would be ``a means to extort money from citizens based on a junk 
science forecasts/models of which so called projections have been 
outrageously inaccurate.'' The commenter did not provide any support 
for the statement. FEMA disagrees with the commenter's assessment that 
Climate-Informed Science Approach (CISA) is based on ``junk science 
forecasts/models.'' Scientists compare models' projections of 
historical climate trends to actual historical climate data to measure 
the confidence of the models' abilities to accurately predict future 
climate conditions.\107\ Many peer reviewed studies of climate models 
have found in general that climate model simulations of historical 
global temperature and other climactic variables are comparable to the 
historical recorded observations of those variables.\108\ These studies 
provide confidence in accuracy of climate models' projections of future 
climate conditions. Within the 10 supportive comments, the commenters 
provided suggestions and asked questions concerning FEMA's proposed 
framework. FEMA took these comments and questions into consideration 
during the drafting process for this proposed rule.
---------------------------------------------------------------------------

    \107\ Risbey et al. 2014. Well-estimated global surface warming 
in climate projections selected for ENSO phase. ``Nature Climate 
Change,'' 4, 835-840, at https://www.nature.com/articles/nclimate2310 (last accessed July 12, 2023).
    \108\ See Covey et al. 2003. An overview of results from the 
coupled model intercomparison project (CIMP). ``Global and Planetary 
Change,'' 37, 103-133; and Cubasch et al. 2013. Introduction. In: 
``Climate Change 2013: The Physical Science Basis. Contribution of 
Working Group I to the Fifth Assessment Report of the 
Intergovernmental Panel on Climate Change'' [Stocker et al. (eds)]. 
Cambridge University Press, Cambridge at 131.
---------------------------------------------------------------------------

    On August 22, 2016, FEMA issued a Notice of Proposed Rulemaking 
``Updates to Floodplain Management and Protection of Wetlands 
Regulations To Implement Executive Order 13690 and the Federal Flood 
Risk Management Standard.'' 81 FR 57401. In response to the NPRM, FEMA 
received submissions from 78 commenters. Eighty percent of the comments 
were favorable. Favorable commenters noted the NPRM represented working 
``smarter, not harder,'' and emphasized the importance of protecting 
taxpayer investments in areas that are vulnerable to recurring damage, 
considering future flooding from a sustainability point of view, and 
harmonizing Federal requirements with efforts already underway in 
States and local communities. FEMA also received comments that were 
unfavorable and suggestions for changes to the proposed rule. FEMA 
considered these comments and suggestions in drafting this new proposed 
rule. Specifically, FEMA is incorporating suggestions received to (1) 
resolve concerns in the definitions section by adding a definition for 
``actions subject to the FFRMS'' and retaining the definition of 
``emergency actions'' (as opposed to changing the defined term 
``emergency work,'' as FEMA had proposed in 2016); (2) set the 
effective date of the rule's changes and clarify that current Part 9, 
including use of the base floodplain (or 500-year floodplain for 
critical actions), would still apply to actions that are in the 
planning or development stage or undergoing implementation as of the 
effective date of the final rule revising part 9 while only new actions 
would be subject to revised part 9 ensuring the changes would not be 
applied to projects which have already been reviewed for compliance 
with Executive Order 11988 and may have incurred design expenses to 
meet the current floodplain management standards in Sec.  9.5(a)(3); 
and (3) update Sec.  9.7(c) to provide additional clarity in the 
floodplain determination process and incorporate additional relevant 
sources of available information for the floodplain determination. FEMA 
is also incorporating suggestions to ensure flexibility in the 
implementation of FFRMS while also leveraging the best available and 
actionable data to enhance resilience by utilizing the CISA where data 
is available and actionable and providing options for the use of the 
FVA or 0.2PFA depending on the type of action involved and data 
availability and actionability for each of the remaining approaches, 
while also addressing equity and cost concerns.
    In April 2021, FEMA issued a Request for Information (RFI) on 
FEMA's Programs, Regulations, and Policies. 86 FR 21325 (Apr. 22, 
2021). The RFI sought input from the public on specific FEMA programs, 
regulations, collections of information, and policies for the agency to 
consider modifying, streamlining, expanding, or repealing in light of 
recent Executive Orders.\109\ FEMA issued two additional RFIs 
associated with the National Flood Insurance Program \110\ in 2021. 
FEMA received comments related to 44 CFR part 9 as a result of each of 
these requests. FEMA received eight comments that discussed the FFRMS. 
One comment suggested confusion exists between the FFRMS and the 
floodplain management standards under the National Flood Insurance 
Program. The remaining seven comments were supportive of implementing 
the FFRMS and/or incorporating the FFRMS into the National Flood 
Insurance Program's floodplain management standards to increase 
resilience for communities. While changes to the floodplain management 
standards are outside this scope of this rulemaking, FEMA is 
considering a rulemaking to revise the NFIP minimum standards and will 
assess the expression of support from these comments in that future 
effort.
---------------------------------------------------------------------------

    \109\ See Executive Order 13985, ``Advancing Racial Equity and 
Support for Underserved Communities Through the Federal 
Government,'' 86 FR 7009 (Jan. 25, 2001); Executive Order 13990 
``Protecting Public Health and the Environment and Restoring Science 
to Tackle the Climate Crisis,'' 86 FR 7037 (Jan. 25, 2021); and 
Executive Order 14009, ``Tackling the Climate Crisis at Home and 
Abroad,'' 86 FR 7619 (Feb. 1, 2021).
    \110\ ``Request for Information on the National Flood Insurance 
Program's Community Rating System,'' 86 FR 47128 (Aug. 23, 2021) and 
``Request for Information on the National Flood Insurance Program's 
Floodplain Management Standards for Land Management and Use, and an 
Assessment of the Program's Impact on Threatened and Endangered 
Species and Their Habitats,'' 86 FR 56713 (Oct. 12, 2021).
---------------------------------------------------------------------------

VI. Regulatory Analyses

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

    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review) and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and

[[Page 67900]]

equity). Executive Order 13563 emphasizes the importance of quantifying 
both costs and benefits, of reducing costs, of harmonizing rules, and 
of promoting flexibility.
    The Office of Management and Budget (OMB) has designated this rule 
a ``significant regulatory action'' as defined under section 3(f) of 
Executive Order 12866, as amended by Executive Order 14094, but it is 
not significant under section 3(f)(1) because its annual effects on the 
economy do not exceed $200 million in any year based on the analysis 
conducted. Accordingly, OMB has reviewed it.
    This Regulatory Impact Analysis (RIA) provides an assessment of the 
potential costs, benefits, and transfer payments from the Updates to 
Floodplain Management and Protection of Wetlands Regulations to 
Implement the Federal Flood Risk Management Standard (FFRMS) Notice of 
Proposed Rulemaking (NPRM). This analysis does not attempt to replicate 
the regulatory language of the proposed rule or any other supporting 
documentation. FEMA urges the reader to review the NPRM before 
reviewing this report.
    The FFRMS is a flood resilience standard that is required for 
``Federally funded projects'' and provides a flexible framework to 
increase resilience against flooding and to help preserve the natural 
values of floodplains and wetlands. A floodplain is any land area that 
is subject to flooding and refers to geographic features with undefined 
boundaries. FEMA proposes to incorporate the FFRMS into its existing 
processes, to ensure that the floodplain for an action subject to the 
FFRMS is expanded from the current base flood elevation to a higher 
vertical elevation and corresponding horizontal floodplain and that, 
where practicable, natural systems, ecosystem processes, and nature-
based approaches would be considered when developing alternatives to 
locating Federal actions in the floodplain.
    Under current FEMA regulations set out in 44 CFR part 9, the 
floodplain is defined as the 100-year floodplain (1 percent annual 
chance) for non-critical actions and as the 500-year floodplain (0.2 
percent annual chance) for critical actions. New construction or 
substantial improvement of structures located in a floodplain must be 
elevated to or above the 1 percent annual chance flood level or base 
flood elevation (BFE). For critical actions, the new construction or 
substantial improvement of structures must be elevated to or above the 
0.2 percent annual flood level. Non-residential structures may be 
appropriately floodproofed rather than elevated to meet the applicable 
flood level.
    This rule proposes to implement the FFRMS policy in the expanded 
floodplain and codify implementation of the FFRMS policy in the current 
floodplain. FEMA has already implemented partial interim policies for 
PA and HMA, discussed in further detail below. Depending on the 
program, these programs apply the FFRMS policy either to the base 
floodplain, or to both the 100-year (base floodplain) and 500-year 
floodplain (for critical actions). Following guidance in OMB Circular 
A-4, FEMA assessed each impact of this rule against a pre-guidance 
baseline. The pre-guidance baseline is an assessment against what the 
world would be like if the relevant guidance (i.e., the partial interim 
policies for PA and HMA) had not been implemented.
    At the time this RIA was conducted, these partial implementation 
policies had been in place for less than 6 months, which is an 
insufficient period to provide adequate data for analysis. Therefore, 
FEMA was unable to complete an in-depth analysis of the impact of these 
interim policies. Accordingly, FEMA used a pre-guidance baseline for 
this proposed rule to measure the impacts of the rule against the world 
without the interim PA and HMA policies.
    Under the proposed rule, the Climate Informed Science Approach 
(CISA) would result in a flood elevation and corresponding horizontal 
expansion floodplain determination utilizing the best-available, 
actionable hydrologic and hydraulic data and methods that integrate 
current and future changes in flooding based on climate science. CISA 
is FEMA's preferred policy approach as FEMA believes it has the 
potential to be the best and most well-informed approach to building 
resilience in an equitable manner and ensuring a reduction in disaster 
suffering. CISA is the only approach that ensures projects are designed 
to meet current and future flood risks unique to the location and thus 
ensures the best overall resilience, cost effectiveness, and equity. 
The FFRMS considerations require FEMA to consider the type of 
criticality of the action involved, the availability and actionability 
of data, and equity concerns, as further explained in the current 
proposed supplementary policy. As actionable climate data are not 
currently available for all locations, FEMA is proposing the Freeboard 
Value Approach (FVA) and 0.2 Percent Annual Chance Flood Approach 
(0.2PFA) alternatives in the absence of actionable CISA data. 
Specifically:
     For critical actions: \111\ FEMA proposes the higher of 
the +3-foot FVA floodplain or the 0.2PFA floodplain.\112\ Where the 
0.2PFA data are not available, the +3-foot FVA will be utilized.
---------------------------------------------------------------------------

    \111\ A critical action is any activity for which even a slight 
chance of flooding would be too great. A non-critical action is any 
activity not considered a critical action.
    \112\ For all projects in coastal areas, if the 0.2 percent 
annual chance flood elevations do not account for the effects of 
wave action, the appropriate FVA must be used to determine the FFRMS 
floodplain.
---------------------------------------------------------------------------

     For non-critical actions: FEMA proposes the lower of the 
+2-foot FVA or 0.2PFA.
    The floodplain established by the FVA is the equivalent of the 1 
percent annual chance floodplain (also known as the 100-year flood), 
plus either 2- or 3-ft of vertical elevation, as applicable based on 
criticality, and a corresponding increase in the horizontal extent of 
the floodplain. The increased horizontal extent will not be the same in 
every case. When the same vertical increase is applied in multiple 
actions subject to the FFRMS in different areas, the amount of the 
increase in the horizontal extent of the respective floodplains will 
depend upon the topography of the area surrounding the proposed 
location of the action.
    Projects that are located near the SFHA, but not in it, may be in 
the expanded FFRMS floodplain. Currently, there are no FEMA products 
depicting the boundary of the FFRMS floodplain. For this reason, FEMA 
and its interagency partners are developing various tools, like a FFRMS 
floodplain determination job aid and a web-based decision support tool, 
that would provide the agency a guide to determining the FFRMS 
floodplain and flood elevation levels to use for the projects. The web-
based decision support tool would take into account the best available 
and actionable data. However, if this tool is not available to 
determine the FFRMS floodplain, FEMA would likely utilize the FFRMS 
floodplain determination job aid.
    FEMA believes that the benefits of the rule--quantified and 
unquantified--would justify its costs. Flooding is the most common type 
of natural disaster in the United States,\113\ and floods are expected 
to be more frequent and more severe over the next century due to the 
projected effects of changing conditions.^{114 115} The ocean 
has

[[Page 67901]]

warmed, polar ice has melted, and porous landmasses have subsided.\116\ 
Global sea level has risen by about 8 inches since reliable record 
keeping began in 1880. While a conservative scenario projects a sea 
level rise under a meter (or 3.3-ft) by 2100,^{117 118} it is 
projected to rise upwards of 8 feet by 2100 in an extreme 
scenario.\119\ Floods are costly natural disasters; between 1980 and 
2021, the United States suffered more than $1.7 trillion (in 2021 
dollars) in flood-related damages.\120\ This proposed rule would help 
protect Federal investments from future floods and would help minimize 
harm in floodplains by changing the standards used to determine future 
risk for FEMA-funded new construction and substantial improvement or to 
address substantial damage (i.e., ``Federally funded projects'').
---------------------------------------------------------------------------

    \113\ Department of Homeland Security. Natural Disasters. 
https://www.dhs.gov/natural-disasters (last accessed July 12, 2023).
    \114\ Climate change impacts. National Oceanic and Atmospheric 
Administration. U.S. Department of Commerce. https://www.noaa.gov/education/resource-collections/climate/climate-change-impacts (last 
accessed July 12, 2023).
    \115\ 1 Walsh, J., D. Wuebbles, K. Hayhoe, J. Kossin, K. Kunkel, 
G. Stephens, P. Thorne, R. Vose, M. Wehner, J. Willis, D. Anderson, 
S. Doney, R. Feely, P. Hennon, V. Kharin, T. Knutson, F. Landerer, 
T. Lenton, J. Kennedy, and R. Somerville, 2014: Ch. 2: Our Changing 
Climate. ``Climate Change Impacts in the United States: The Third 
National Climate Assessment'', J.M. Melillo, Terese (T.C.) Richmond, 
and G.W. Yohe, Eds., U.S. Global Change Research Program, 19-67. 
Doi.10.7930/J0KW5CXT. Page 20. https://nca2014.globalchange.gov/downloads/low/NCA3_Climate_Change_Impacts_in_the_United%20States_LowRes.pdf (last 
accessed July 12, 2023).
    \116\ Id. at pg. 21.
    \117\ Supplementary Material for the Regulatory Impact Analysis 
for the Supplemental Proposed Rulemaking, ``Standards of Performance 
for New, Reconstructed, and Modified Sources and Emissions 
Guidelines for Existing Sources: Oil and Natural Gas Sector Climate 
Review. Environmental Protection Agency (EPA). https://www.epa.gov/system/files/documents/2022-11/epa_scghg_report_draft_0.pdf. Page 
36. Last accessed: September 14, 2023.
    \118\ EPA uses the Framework for Assessing Changes To Sea-level 
(FACTS) and Building Blocks for Relevant Ice and Climate Knowledge 
(BRICK) sea-level rise models for their projections.
    \119\ Payne, J., Sweet, W., Felming, E., Craghan, M., Haines, 
J., Hart, J., Stiller, H., Sutton-Frier, A., Kruk, M., 2018. 
Impacts, Risks, and Adaptation in the United States: Fourth National 
Climate Assessment, Volume I. Ch 8: Coastal Effects. National 
Climate Assessment. https://nca2018.globalchange.gov/downloads/NCA4_Ch08_Coastal-Effects_Full.pdf. Page 329. Last accessed 
September 14, 2023.
    \120\ U.S. billion-dollar weather and climate disasters. 
Climate.gov. https://www.ncei.noaa.gov/access/billions/summary-stats/US/1980-2021 (last accessed July 12, 2023). Flood related 
damages are from flooding, severe storms, and tropical cyclones. 
Data are CPI adjusted.
---------------------------------------------------------------------------

    The requirements of this rule would apply to grants for projects 
funding the new construction, substantial improvement, or repair of 
substantial damage under FEMA programs such as Individual Assistance 
(IA), Public Assistance (PA), Hazard Mitigation Assistance (HMA) 
programs, and grants processed by FEMA's Grants Programs Directorate 
(GPD) (involving grants for preparedness activities). The primary focus 
of this analysis is to estimate the costs and benefits resulting from a 
higher vertical elevation and associated horizontal expansion of the 
floodplain for specific projects paid for with Federal funds. The 
expected impacts of this proposed rule primarily result from the cost 
for the increased elevation or floodproofing requirements of structures 
in the FFRMS floodplain. The majority of these costs would be funded by 
FEMA through several grant programs. For the grant programs that have a 
cost-share requirement, FEMA grant recipients typically would bear 
about 25 percent of the elevation and floodproofing project costs. 
Additionally, FEMA expects to incur costs for administration of the 
proposed requirements, including training FEMA personnel.
    To estimate how many projects would be subject to the requirements 
of this rule, FEMA used historical PA, IA, and HMA data. First, FEMA 
estimated the number of past new construction, substantial improvement, 
or repairs to substantial damage projects were in the existing 
floodplain. Next, FEMA relied upon data from samples of floodplain 
expansion at varying levels of freeboard in inland and coastal areas to 
estimate an average percentage expansion of the floodplain under each 
of the three FFRMS approaches. FEMA then multiplied the expansion 
percentages by the estimated number of projects in the current 
floodplain to estimate the number of projects that would be in the 
expanded floodplain under each of the FFRMS approaches.
    To estimate the cost of the proposed elevation requirements, FEMA 
used reports from the National Flood Insurance Program (NFIP) to 
determine the increased cost per square foot associated with elevation 
and floodproofing. FEMA presents the costs as a range because of 
uncertainty about whether new construction projects would choose to 
floodproof or elevate.
    Finally, to present the total impacts of the proposed rule, FEMA 
analyzed the impact of the FVA, 0.2PFA, and CISA for each of the 
programs, PA, IA, and HMA, as if each approach were the only FFRMS 
expansion option. This is because it is unknown exactly how many 
projects would be subject to the FVA, 0.2PFA, or CISA requirements 
under the proposed rule as this will continue to change with the 
addition of CISA data over time. Accordingly, FEMA estimated the costs 
of the proposed requirements for each of the approaches separately. 
This allowed FEMA to create a range for each approach. FEMA opted to 
use this methodology because it would allow FEMA to estimate the 
highest and lowest probable costs, transfers, and benefits associated 
with each of the FFRMS expansion options for each of the programs.
    FEMA examined the number of projects that would be subject to the 
proposed requirements in the first 10 years after the rule's 
publication.\121\ FEMA's analysis focused on the costs, benefits, and 
transfer payments (i.e., impacts on FEMA grants), that would result 
over a 50-year period from applying the requirements of the proposed 
rule to those projects, for a total period of analysis spanning 60 
years. For example, if a structure is built in Year 10, the analysis 
covers 50 years of costs, benefits, and transfers for that structure 
starting in Year 10. However, if a structure is built in Year 11, that 
is outside of the first 10 years and so the analysis does not consider 
the costs, benefits, or transfers of the proposed requirements on that 
structure.\122\ The costs and transfers occur in the first 10 years of 
the 60-year period because that is when the initial investment to 
elevate or floodproof those projects take place. This is an upfront 
cost that occurs when the project is constructed. However, the benefits 
of the proposed rule are estimated over the 50-year useful life of the 
affected structures.
---------------------------------------------------------------------------

    \121\ FEMA used an average of the number of affected projects 
during the prior 10-year period to estimate the average annual 
impacts of the future 10-year period.
    \122\ If FEMA limited the analysis to only 10 years of impacts, 
it would consider all of the costs and transfers but only a small 
portion of the benefits from additional protection from flood events 
because the life of the structure is more than 10 years. After year 
10, the proposed rule would continue to impact FEMA projects funding 
new construction, substantial improvements or repairs to fix 
substantial damage, but FEMA chose to limit the analysis to 10 years 
of affected structures because FEMA believes the number of 
structures affected in this 10-year period is enough to provide a 
reasonable estimate of the costs, benefits, and transfers resulting 
from the proposed rule. Accordingly, FEMA's analysis focuses on the 
50-year impacts of the rule on projects that take place in the 
nearest 10-year period, for a total period of analysis spanning 60 
years.
---------------------------------------------------------------------------

    The table below provides the estimated number of structures and 
facilities affected by the proposed rule over the first 10 years, 
assuming that each approach is the only expansion option. Structures, 
which are walled and roofed buildings, would comply with the proposed 
FFRMS through elevating or floodproofing to the required height. 
Facilities, which are any human-made or human-placed items other than a 
structure such as roads and bridges, would require different mitigation 
measures in order to

[[Page 67902]]

comply with the increased resiliency standard of the proposed rule. The 
monetized impacts of this rule are representative of the floodproofing 
and elevation mitigation measures that would be required of structures. 
However, for reasons explained in more detail later, FEMA was unable to 
monetize the impacts of the rule for facilities.

                           Table 5--Estimated Number of Structures and Facilities Affected by the Proposed Rule in Years 1-10
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Structures                               Facilities
                     FFRMS approach                     ---------------------------------     Total    ----------------------     Total         Total
                                                             PA         IA        HMA      structures       PA        HMA      facilities     projects
--------------------------------------------------------------------------------------------------------------------------------------------------------
FVA....................................................      1,090      2,650      9,492        13,232     20,120        841        20,961        34,193
0.2PFA.................................................        840      2,650      9,447        12,937     20,120        841        20,961        33,898
CISA...................................................      1,173      2,903     10,351        14,427     20,120        841        20,961        35,388
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The proposed rule would increase construction and resiliency 
standards for FFRMS-affected structures and facilities. Implementing 
these standards, through higher vertical elevation or floodproofing, or 
other mitigation measures, is new economic activity that would result 
from this rule. Accordingly, these compliance activities are a cost of 
this rule.
    Using CISA as the primary approach, FEMA estimates that this 
proposed rule would affect 14,427 PA, IA, and HMA structures over the 
first 10 years, which would result in a total cost of between $142.1 
million and $156.3 million, undiscounted, over the 60-year period of 
analysis. Discounted, the low estimate cost would be between $121.3 
million and $100 million, using 3 and 7 percent respectively, with a 
60-year annualized cost between $4.4 million and $7.1 million, using 3 
and 7 percent. Discounted, the high estimate cost would be between 
$133.4 million and $109.9 million, using 3 and 7 percent respectively, 
with a 60-year annualized cost between $4.8 million and $7.8 million, 
using 3 and 7 percent respectively. These costs include additional 
training for FEMA staff as well as the total cost for additional 
elevation and floodproofing.\123\ FEMA was unable to quantify the cost 
for increased resiliency standards for an estimated 20,961 affected 
facility projects over the 10-year period of analysis. Additionally, 
FEMA was unable to quantify the cost for projects that may be diverted 
out of the floodplain, impacts to projects with existing basements, 
project delays, or forgone projects that may result from this rule.
---------------------------------------------------------------------------

    \123\ To obtain total costs using tables 6 and 7, please see 
rows CISA Total (primary) (+5-ft) and FEMA admin.
---------------------------------------------------------------------------

    Because the cost to implement the proposed mitigation measures 
would be shared between FEMA and grant recipients according to the 
statutory cost share, there are also important distributional impacts. 
The majority of these costs would be borne by FEMA through additional 
grants (a transfer from FEMA to grant recipients). Grant recipients 
would bear the remaining cost. Using CISA as the primary approach, FEMA 
estimated that this proposed rule would affect 14,427 structures in the 
first 10 years, which would result in an increase in transfers from 
FEMA to grant recipients of between $109.2 million and $119.6 million, 
undiscounted, over the 60-year period of analysis. FEMA presents the 
change in transfer payments as a range because of uncertainty regarding 
whether new construction projects would be floodproofed or elevated. 
Discounted, the low estimate would be $93.2 million and $76.7 million, 
using 3 and 7 percent respectively, with a 60-year annualized increase 
in transfers between $3.4 million and $5.5 million, at 3 and 7 percent 
respectively. Discounted, the high estimate would be $102.1 million and 
$84.0 million, using 3 and 7 percent respectively, with a 60-year 
annualized increase in transfers between $3.7 million and $6.0 million, 
at 3 and 7 percent respectively. Grant recipients would be responsible 
for between $29.2 million and $31.7 million, undiscounted. Discounted, 
the low estimate would be $24.9 million and $20.5 million, using 3 and 
7 percent respectively, with a 60-year annualized amount between $0.9 
million and $1.5 million, at 3 and 7 percent respectively. Discounted, 
the high estimate would be $27.0 million and $22.2 million, using 3 and 
7 percent respectively, with a 60-year annualized amount of $1.0 
million and $1.6 million, at 3 and 7 percent respectively. Not included 
in these estimates are the additional grants FEMA would provide, and 
additional costs recipients would incur for their portion of the cost 
share, for any of the elevation and floodproofing costs that FEMA was 
unable to monetize.
    FEMA was able to quantify benefits for a portion of projects 
affected by the rule. Using CISA as the primary approach, FEMA 
estimated that 1,173 PA Category E (Public Buildings and Contents) 
projects would be subject to the FFRMS in the first 10 years. Assuming 
a 59-inch Sea Level Rise,\124\ FEMA estimated that the present value 
benefits of one additional foot of freeboard for the 50-year useful 
life of projects undertaken during the 10-year period of analysis would 
be between $55.2 million and $62.0 million, undiscounted. The low 
estimate would range between $47.1 million and $38.8 million, 
discounted at 3 and 7 percent respectively, with a 60-year annualized 
benefit between $1.7 million and $2.8 million. The high estimate would 
range between $52.9 million and $43.5 million, discounted at 3 and 7 
percent respectively, with a 60-year annualized benefit between $1.9 
million and $3.1 million. These quantified benefits include estimates 
of avoided physical damage, avoided displacement, and avoided loss of 
function for the 1,173 PA Category E projects over their 50-year useful 
life. In addition, unquantified benefits of this proposed rule include 
the reduction in damage to 13,254 affected IA and HMA structures and 
their contents from future floods, 20,961 PA and HMA facilities, 
potential lives saved, public health and safety benefits, reduced 
recovery time from floods, and increased community resilience to 
flooding.
---------------------------------------------------------------------------

    \124\ For FEMA's primary estimate, FEMA used 59 inches of SLR 
due to it being the closest SLR option to CISA+5-ft. CISA is the 
preferred approach for FFRMS if the data are available. Since 5 ft 
is equivalent to 60 inches (5 x 12 inches per foot), 59-inch SLR 
would be the closest SLR option that FEMA has available to use for 
this portion of the analysis.
---------------------------------------------------------------------------

    Tables 6 and 7 show the estimated low and high costs, transfer 
payments, and benefits by FFRMS approach (assuming each approach is the 
only expansion option used), as well as by program for FEMA's primary 
approach.

[[Page 67903]]



   Table 6--Summary of 60-Year Costs, Transfers, and Benefits by Approach and Program for Affected Projects in
                                                   Years 1-10
                                              [Low estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                        3% Discount rate                 7% Discount rate
            Costs *              Undiscounted  -----------------------------------------------------------------
                                                 Present value     Annualized     Present value     Annualized
----------------------------------------------------------------------------------------------------------------
CISA Total (primary) (+5-ft)..    $138,393,786     $118,052,707      $4,265,594      $97,202,003      $6,923,623
    PA........................     102,794,460       87,685,759       3,168,346       72,198,527       5,142,645
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      48,908,310       41,719,781       1,507,459       34,351,150       2,446,806
FVA Total.....................      61,994,588       52,882,642       1,910,806       43,542,402       3,101,492
0.2PFA Total..................      53,397,625       45,549,257       1,645,829       37,504,256       2,671,399
FEMA Admin....................       3,741,680        3,267,150         118,052        2,776,613         197,776
----------------------------------------------------------------------------------------------------------------
Not Quantified................  Not Estimated: Increased resiliency standard for approximately 20,961 facility
                                projects over 10 years, Additional costs for Adding Requirements to Buildings
                                with Basements, Diversion of Projects Out of the Floodplain, Lifecycle
                                maintenance costs for floodproofing, and Project Delays and Forgone Projects.
----------------------------------------------------------------------------------------------------------------
                                 Transfer Payments from FEMA to Grant Recipients
----------------------------------------------------------------------------------------------------------------
CISA Total (primary) (+5-ft)..     109,216,359       93,163,768       3,366,283       76,709,000       5,463,923
    PA........................      82,955,130       70,762,410       2,556,855       58,264,212       4,150,115
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      36,681,233       31,289,834       1,130,594       25,763,363       1,835,104
FVA Total.....................      48,898,424       41,711,348       1,507,154       34,344,206       2,446,311
0.2PFA Total..................      41,973,888       35,804,576       1,293,725       29,480,702       2,099,888
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
PA (CISA, primary) (+1-ft)....      55,180,000       47,069,660       1,700,766       38,756,122       2,760,569
----------------------------------------------------------------------------------------------------------------
Not Quantified................  Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure
                                projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives
                                Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of
                                Critical Facilities, Reduction of Personal and Community Impacts.
----------------------------------------------------------------------------------------------------------------
* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication. FEMA
  considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a
  50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year
  period because that is when the initial investment to elevate or floodproof them to meet the proposed
  requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
  benefits of the proposed rule are realized over the 50-year useful life of the affected structures.


   Table 7--Summary of 60-Year Costs, Transfers, and Benefits by Approach and Program for Affected Projects in
                                                   Years 1-10
                                             [High estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                        3% Discount rate                 7% Discount rate
            Costs *              Undiscounted  -----------------------------------------------------------------
                                                 Present value     Annualized     Present value     Annualized
----------------------------------------------------------------------------------------------------------------
CISA Total (primary) (+5-ft)..    $151,319,537     $129,078,635      $4,663,993     $106,280,511      $7,570,278
    PA........................     120,722,020      102,978,331       3,720,912       84,790,095       6,039,533
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      48,908,310       41,719,781       1,507,459       34,351,150       2,446,806
FVA Total.....................      68,035,769       58,035,891       2,097,008       47,785,478       3,403,723
0.2PFA Total..................      57,766,400       49,275,911       1,780,484       40,572,701       2,889,962
FEMA Admin....................       4,942,430        4,291,414         155,061        3,619,968         257,848
----------------------------------------------------------------------------------------------------------------
Not Quantified................  Not Estimated: Increased resiliency standard for approximately 20,961 facility
                                projects over 10 years, Additional costs for Adding Requirements to Buildings
                                with Basements, Diversion of Projects Out of the Floodplain, Lifecycle
                                maintenance costs for floodproofing, and Project Delays and Forgone Projects.
----------------------------------------------------------------------------------------------------------------
                                 Transfer Payments from FEMA to Grant Recipients
----------------------------------------------------------------------------------------------------------------
CISA Total (primary) (+5-ft)..     119,647,439      102,061,693       3,687,791       84,035,355       5,985,773
    PA........................      97,422,670       83,103,514       3,002,776       68,425,607       4,873,903
    IA........................       1,421,690        1,212,730          43,820          998,537          71,125
    HMA.......................      36,681,233       31,289,834       1,130,594       25,763,363       1,835,104
FVA Total.....................      53,773,657       45,870,019       1,657,420       37,768,366       1,657,420
0.2PFA Total..................      45,499,493       38,811,991       1,402,392       31,956,941       2,276,268
----------------------------------------------------------------------------------------------------------------

[[Page 67904]]

 
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
PA (CISA, primary) (+1-ft)....      61,985,720       52,875,076       1,910,533       43,536,175       3,101,048
----------------------------------------------------------------------------------------------------------------
Not Quantified................  Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure
                                projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives
                                Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of
                                Critical Facilities, Reduction of Personal and Community Impacts.
----------------------------------------------------------------------------------------------------------------
* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication. FEMA
  considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a
  50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year
  period because that is when the initial investment to elevate or floodproof them to meet the proposed
  requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
  benefits of the proposed rule are realized over the 50-year useful life of the affected structures.

    Quantified estimates of the benefits of this rule are available for 
only PA Category E projects. Tables 6 and 7 show that the total 60-year 
benefits for PA Category E projects in the first 10 years is $43.5 
million (7 percent, high). This benefit is for adding one foot of 
freeboard, assuming a 59-inch SLR. Although the cost for PA Category E 
projects is $84.8 million, this cost represents 5 feet of freeboard 
(FEMA's assumption for CISA).\125\ FEMA does not have data to quantify 
the benefits of additional freeboard and thus the quantified benefits 
represent only a portion of the increased risk reduction that would be 
achieved through this rule. Ensuring projects are built to the height 
necessary to avoid additional loss scenarios would provide additional 
unquantified benefits of avoided damages to the structure, decreased 
cleanup time and disruption to the community, and increased public 
health and safety. Moreover, FEMA's use of CISA as its preferred 
approach would use the best available and actionable scientific data to 
tailor future flooding risk to each project ensuring that projects are 
built only to the height necessary and thus maximizing net benefits. 
Accordingly, FEMA believes the benefits of the rule--quantified and 
unquantified--would justify its costs.
---------------------------------------------------------------------------

    \125\ Costs for the FVA may be a better comparison because they 
represent 2 or 3 feet of freeboard, depending on criticality. 
However, the number of projects using FVA and CISA differ, making 
such a comparison difficult.
---------------------------------------------------------------------------

PA Projects
    FEMA provides PA grants to public and certain non-profit entities 
for rebuilding, replacement, or repair of public and non-profit 
structures and facilities damaged by disasters. PA projects that 
involve new construction, substantial improvement, or repairs to 
address substantial damage would be affected by this rule.\126\ FEMA 
divides its PA work into categories A-G. Projects funded under PA 
Categories C (Roads and Bridges), D (Water Control Facilities), E 
(Public Buildings), F (Utilities), and G (Parks, Recreational Areas, 
and Other Facilities) would be affected by the rule, but FEMA is only 
able to provide estimates of costs associated with Category E (Public 
Buildings). The reason FEMA was only able to provide estimates of costs 
for Category E projects is that Category E projects are for structures 
whereas projects funded under the remaining categories are for 
facilities.
---------------------------------------------------------------------------

    \126\ FEMA's PA program requires the use of the American Society 
of Civil Engineers Standard (ASCE) 24 that establishes minimum 
requirements for flood-related design and construction of structures 
that are located in whole or in part in flood hazard areas for PA 
projects. FEMA was unable to account for these additional baseline 
requirements since FEMA databases do not identify projects that were 
built to ASCE standards as these databases were not designed for 
data analysis. Additionally, these standards are based on the flood 
zone where the project is located, and FEMA was unable to identify 
the flood zones where individual projects were located. Instead, 
FEMA measures the effects of this rule against the current 
requirements of 44 CFR part 9. Accordingly, the estimated costs of 
compliance for PA structures may be overstated. See FEMA Recovery 
Interim Policy FP-104-009-11 Version 2, Consensus-Based Codes, 
Specifications and Standards for Public Assistance (December 2019) 
FEMA Recovery Interim Policy FP-104-009-11 Version 2 (last accessed 
July 12, 2023) (referencing FEMA's Public Assistance Program and 
Policy Guide, FP104-009-2 (April 2018)).
---------------------------------------------------------------------------

    FEMA 44 CFR part 9 classifies projects as either structures or 
facilities. Under this proposal, a structure is a walled and roofed 
building, including mobile homes and gas or liquid storage tanks. 
Structures are subject to freeboard requirements to floodproof or 
elevate to a certain level above the BFE. Freeboard is the additional 
height above the BFE to which the structure is floodproofed or elevated 
for the purpose of reducing the risk of flood damage.
    In contrast, facilities are any human-made or human-placed item 
other than a structure, such as roads and bridges. Facility mitigation 
measures are more varied and highly project-specific. For example, 
damage to roads during flood events can be caused by numerous events, 
such as erosion and scour, inundation by floodwater, or debris 
blockage. Likewise, the mitigation measures to address the damages can 
include a variety of approaches, such as installing low water 
crossings, increasing culvert size, installing a relief culvert, adding 
riprap to a road embankment, and many others.\127\
---------------------------------------------------------------------------

    \127\ See FEMA, ``FEMA B-797 Hazard Mitigation Field Book: 
Roadways,'' (2010), available at https://www.fema.gov/sites/default/files/2020-07/b797_hazmit_handbook.pdf (last accessed July 12, 
2023).
---------------------------------------------------------------------------

    Due to the vast diversity of facilities, the highly project-
specific nature of facilities projects, and numerous options for making 
them resilient, FEMA could not estimate the costs of improving flood 
resiliency of facilities. Where facilities are new construction, 
substantial improvement, or substantially damaged, they will 
incorporate minimization measures that will consider the FFRMS flood 
elevation. However, floodproofing and elevation to a specific height 
would likely not be appropriate. FEMA cannot estimate the cost due to 
the variability of those measures, which may include a variety of 
approaches, such as installing low water crossings, increasing culvert 
size, installing a relief culvert, and many others. Facilities that are 
already located in the Special Flood Hazard Area (SFHAs) or 0.2 percent 
annual chance floodplain for critical actions must take resilience 
measures

[[Page 67905]]

under current regulations. Based on 2012-2021 data, FEMA estimates that 
about 1,181 Category C projects, 131 Category D projects, 254 Category 
F projects, and 446 Category G projects might be affected by the FFRMS 
each year.
    For PA Category E projects, if FVA were the only expansion option, 
FEMA estimates the proposed rule would affect 1,090 projects over the 
first 10 years, which would result in a total cost of between $44.3 
million and $53.2 million, undiscounted, over the 60-year period of 
analysis. The costs are incurred in the first 10 years of the 60-year 
period because that is when the investment in those projects takes 
place. Accordingly, FEMA estimates average annual costs in years 1-10 
would range between $3.9 million and $5.9 million. The average Federal 
cost share for PA projects from 2012-2021 was 80.7 percent. 
Accordingly, FEMA estimates that it would cover 80.7 percent of the 
cost to elevate or floodproof PA projects, for a total of between $3.2 
million and $3.7 million in additional grants per year for the first 10 
years. Grant recipients would bear the remaining cost of between $0.9 
million and $1.0 million per year for the first 10 years.
    For PA Category E projects, if 0.2PFA were the only expansion 
option, FEMA estimates the proposed rule would affect 840 projects over 
the first 10 years, which would result in a total cost of between $39.5 
million and $46.0 million, undiscounted, over the 60-year period of 
analysis. Because these costs are incurred in the first 10 years, FEMA 
estimates the average annual costs in years 1-10 would range between 
$3.2 million and $3.6 million. Using the historical average 80.7 
percent Federal cost share, FEMA estimated that it would cover 80.7 
percent of the cost to elevate or floodproof PA projects, for a total 
of between $3.2 million and $3.7 million in additional grants per year 
for the first 10 years. Grant recipients would bear the remaining cost 
approximately $0.8 million and $0.9 million per year for the first 10 
years.
    For PA Category E projects, if CISA were the only expansion option, 
FEMA estimates the proposed rule would affect 1,173 projects over the 
first 10 years, which would result in a total cost of between $88.9 
million and $101.8 million, undiscounted, over the 60-year period of 
analysis. Because these costs are incurred in the first 10 years, FEMA 
estimates the average annual costs in years 1-10 would range between 
$8.9 million and $10.2 million. Using the historical average 80.7 
percent Federal cost share, FEMA estimated that it would cover 80.7 
percent of the cost to elevate or floodproof PA projects, for a total 
of between $7.2 million and $8.2 million in additional grants per year 
for the first 10 years. Grant recipients would bear the remaining cost 
of between $1.7 million and $2.0 million per year for the first 10 
years.

Table 8--Summary of FFRMS PA Category E Project Costs and Distributional
                           Impacts by Approach
------------------------------------------------------------------------
                                     FVA         0.2PFA         CISA
------------------------------------------------------------------------
Low Estimate:
    Annual cost (Years 1-10)...   $3,990,396    $3,153,882    $8,887,014
    FEMA's portion (grants from    3,220,250     2,545,183     7,171,820
     FEMA to recipients).......
    Recipients' portion........      770,150       608,700     1,715,190
High Estimate:
    Annual cost (Years 1-10)...    4,594,514     3,590,760    10,179,589
    FEMA's portion (grants from    3,707,773     2,897,743     8,214,928
     FEMA to recipients).......
Recipients' portion............      886,740       693,020     1,964,660
------------------------------------------------------------------------
Unquantified: Increased resiliency standard for structures that would
 affect an estimated 1,181 Category C projects, 131 Category D projects,
 254 Category F projects, and 446 Category G projects per year.
------------------------------------------------------------------------

IA Projects
    IA grants are provided to individuals who, as a direct result of a 
disaster, have necessary expenses and serious needs that they are 
unable to meet through other means. IA is divided into housing 
assistance and other needs assistance. Other Needs Assistance under IA 
provides a financial assistance for medical, dental, childcare, 
funeral, personal property, transportation, or other necessary expenses 
or serious needs. Under Housing Assistance, FEMA may provide temporary 
housing assistance (financial assistance or direct assistance in the 
form of temporary housing units); a capped amount of financial 
assistance for the repair or replacement of disaster-damaged private 
residences; and, in rare circumstances, financial or direct assistance 
to construct permanent or semi-permanent housing.
    The financial caps on housing repair or replacement assistance 
means IA grants generally do not fund new construction or substantial 
improvements. However, there are two types that would be affected by 
this proposed rule: IA Permanent Housing Construction (PHC) projects 
and sales and disposal of temporary housing units (THUs). PHC is 
Federal assistance that FEMA provides under IA for the purpose of 
constructing permanent housing where alternative housing resources are 
unavailable or scarce. IA also includes the sale and disposal of THUs, 
such as mobile housing units and recreational vehicles, and THUs 
located in the FFRMS floodplain would be subject to the requirements of 
this rule. FEMA regulations prohibit the floodproofing of residential 
structures at or below the BFE: elevation is the only option.\128\ FEMA 
calculated the cost of elevating PHC structures, depending on FFRMS 
approach and location and type of project.\129\ FEMA subtracted certain 
costs that it determined to be part of the baseline. Specifically, 
numerous States and Localities have existing freeboard requirements 
that would result in elevation costs and benefits regardless of this 
rule, so costs and benefits for these areas were reduced based on 
existing requirements.\130\
---------------------------------------------------------------------------

    \128\ See 44 CFR 60.3. See also Floodproofing, FEMA, available 
at: https://www.fema.gov/glossary/floodproofing (last accessed July 
12, 2023).
    \129\ Projects outside of the 1 percent annual chance 
floodplain, but below the required level would need to be elevated 
to the required level. These projects require elevations of 
different levels, depending on the structure's current elevation. 
FEMA assumed that half of the projects would need to be elevated 1-
ft and the other half or projects would need to be elevated 2-ft. 
This assumption was made because FEMA is unsure of the actual number 
of projects that would need to be elevated by 1-ft or 2-ft and so 
assumed that it would be an even proportion for each height. IA 
projects are all considered non-critical actions and would not 
require a 3-ft level.
    \130\ FEMA estimated that about 43.75 percent of the U.S. 
population lives in areas with no existing freeboard requirements, 
while 37.63 percent of the U.S. population lives in area with a 1-ft 
freeboard requirement and 12.87 percent lives with a 2-ft 
requirement. A further 5.25 percent of the population is subject to 
a 3-foot existing freeboard requirement and 0.50 percent to a 4-foot 
requirement.

---------------------------------------------------------------------------

[[Page 67906]]

    For IA, if FVA were the only expansion option, FEMA estimates the 
proposed rule would affect 2,650 structures over the first 10 years, 
which would result in a total cost of $511,822, undiscounted, over the 
60-year period of analysis. The costs are incurred in the first 10 
years of the 60-year period because that is when the investment in 
those projects takes place. Accordingly, FEMA estimates average annual 
costs of $51,182 in years 1-10. Since there is no cost share for IA, 
FEMA would fund the entire cost of elevating IA projects through 
grants.
    For IA, if 0.2PFA were the only expansion option, FEMA estimates 
the proposed rule would affect 2,650 structures over the first 10 
years, which would result in a total cost of $511,822, undiscounted, 
over the 60-year period of analysis. Because these costs are incurred 
in the first 10 years of the analysis, FEMA estimates the average 
annual cost in years 1-10 is $51,182. Since there is no cost share for 
IA, FEMA would fund the entire cost of elevating IA projects through 
grants.
    For IA, if CISA were the only expansion option, FEMA estimates the 
proposed rule would affect 2,903 projects over the first 10 years, 
which would result in a total cost of $1,421,690, undiscounted, over 
the 60-year period of analysis.\131\ Because these costs are incurred 
in the first 10 years of the analysis, FEMA estimates the average 
annual cost in years 1-10 is $142,169. Since there is no cost share for 
IA, FEMA would fund the entire cost of elevating IA projects through 
grants.
---------------------------------------------------------------------------

    \131\ For analysis purposes, FEMA calculated the expanded 
floodplain using the mid-point +5-ft CISA by expanding the 
floodplain by 26 percent. FEMA opted for the mid-point level for 
CISA because this is the best approach with available data. Please 
see further explanation in the appropriate CISA sections: 6.4.3, 
6.5.3, and 6.6.3.

                Table 9--Summary of FFRMS IA Project Costs and Distributional Impacts by Approach
----------------------------------------------------------------------------------------------------------------
                                                                        FVA           0.2PFA           CISA
----------------------------------------------------------------------------------------------------------------
Annual cost (Years 1-10)........................................         $51,182         $51,182        $142,169
    FEMA's portion (grants from FEMA to recipients).............          51,182          51,182         142,169
    Recipients' portion.........................................               0               0               0
----------------------------------------------------------------------------------------------------------------

HMA Projects
    FEMA provides HMA grants to States, territories, Federally-
recognized Tribes, and local communities for the implementation of 
hazard mitigation measures to increase resiliency to disasters. HMA 
projects relating to flood mitigation mainly include elevation of 
structures, floodproofing of structures,\132\ and acquisition of 
properties that are at a high risk of damage from flooding. HMA also 
funds various other types of projects, such as minor flood control, 
property acquisition, and generators, but FEMA was unable to estimate 
the potential costs associated with these projects because the manner 
in which each applicant meets the resiliency standards would be fact-
specific and dependent upon the nature of the design and purpose of the 
project. Between 2010 and 2019, FEMA funded a total of 841 minor flood 
controls and generators projects, for an average of 84 such projects 
per year. Additional minor mitigation measures would have to be taken 
for these projects, if located in the expanded FFRMS floodplain.
---------------------------------------------------------------------------

    \132\ FEMA's HMA program requires the use of the American 
Society of Civil Engineers Standard (ASCE) 24 that establishes 
minimum requirements for flood-related design and construction of 
structures that are located in whole or in part in flood hazard 
areas for structure elevation, mitigation reconstruction, and 
floodproofing projects for HMA. FEMA was unable to account for these 
additional baseline requirements since the database does not 
identify projects that were built to ASCE standards as this database 
was not designed for data analysis. Additionally, these standards 
are based on the flood zone where the project is located, and FEMA 
was unable to identify the flood zones where individual projects 
were located. Instead, FEMA measures the effects of this rule 
against the current requirements of 44 CFR part 9. Accordingly, the 
estimated costs of compliance for HMA structures may be overstated. 
See FEMA Policy-203-074-1; issued April 21, 2014. https://www.fema.gov/sites/default/files/2020-07/asce24-14_highlights_jan2015.pdf (last accessed July 12, 2023).
---------------------------------------------------------------------------

    FEMA used data from HMA grant approvals for projects that include 
the elevation or floodproofing of structures from 2010-2019 and a 
multi-step process to estimate the range of costs for elevating or 
floodproofing these structures to the FFRMS.\133\
---------------------------------------------------------------------------

    \133\ To estimate the HMA costs to this section of the proposed 
rule, FEMA reviewed their HMA database to identify projects over a 
10-year period (2010-2019) that would be subject to the FFRMS. FEMA 
was unable to obtain a 10-year of historical data from 2012-2021 for 
HMA due to changes within the program's database. From 2010 to 2019, 
HMA used the Pre-Disaster Mitigation (PDM) grant program. Starting 
in 2020, HMA used the Building Resilient Infrastructure and 
Communities (BRIC) grant program. BRIC would only be able to provide 
limited data over the last 2 years of which would not be sufficient 
for this analysis. Additionally, PDM and BRIC databases are not 
compatible with each other. Therefore, FEMA analyzed the best 
available data from PDM for years between 2010-2019.
---------------------------------------------------------------------------

    For HMA, if FVA were the only expansion option, FEMA estimates the 
proposed rule would affect 9,492 structures over the first 10 years, 
which would result in a total cost of $21.6 million, undiscounted, over 
the 60-year period of analysis. These costs are incurred in the first 
10 years of the 60-year period because that is when the investment in 
those projects takes place. Accordingly, FEMA estimates average annual 
costs in years 1-10 of $2.2 million. Using the 75 percent Federal cost 
share, FEMA estimated that it would cover 75 percent of the cost to 
elevate or floodproof HMA projects, for a total of $1.6 million in 
additional grants per year in years 1-10. Grant recipients would bear 
the remaining cost of $0.5 million per year.
    For HMA, if 0.2PFA were the only expansion option, FEMA estimates 
the proposed rule would affect 9,447 structures in the first 10 years, 
which would result in a total cost of $21.3 million, undiscounted, over 
the 60-year period of analysis. Because these costs are incurred in the 
first 10 years of the analysis, FEMA estimates the average annual cost 
in years 1-10 would be $2.1 million. Using the 75 percent Federal cost 
share, FEMA estimated that it would cover 75 percent of the cost to 
elevate or floodproof HMA projects, for a total of $1.6 million in 
additional grants per year in years 1-10. Grant recipients would bear 
the remaining cost of $0.5 million per year.
    For HMA, if CISA were the only expansion option, FEMA estimates the 
proposed rule would affect 10,351 structures over the first 10 years, 
which would result in a total cost of $48.1 million, undiscounted, over 
the 60-year period of analysis. Because these costs are incurred in the 
first 10 years, FEMA

[[Page 67907]]

estimates the average annual cost in years 1-10 is $4.8 million. Using 
the 75 percent Federal cost share, FEMA estimates that it would cover 
75 percent of the cost to elevate or floodproof HMA projects, for a 
total of $3.6 million in additional grants per year. Grant recipients 
would bear the remaining cost of $1.2 million per year.

          Table 10--Summary of FFRMS HMA Structure Project Costs and Distributional Impacts by Approach
----------------------------------------------------------------------------------------------------------------
                                                                        FVA           0.2PFA           CISA
----------------------------------------------------------------------------------------------------------------
Quantified Estimates:
    Annual cost (Years 1-10)....................................      $2,157,881      $2,134,698      $4,810,196
        FEMA's portion (grants from FEMA to recipients).........       1,618,411       1,601,024       3,607,647
        Recipients' portion.....................................         539,470         533,675       1,202,549
----------------------------------------------------------------------------------------------------------------
Unquantified: Increased resiliency standard for an estimated 84 minor flood controls and generators projects per
 year.
----------------------------------------------------------------------------------------------------------------

Total Costs
    The proposed rule would increase costs for certain IA, PA, and HMA 
program projects, as well as result in administrative costs for FEMA. 
FEMA expects minimal effects on grants processed by FEMA's GPD because 
these programs involve grants for preparedness activities and generally 
do not fund new construction or substantial improvement projects. 
Future FEMA facilities that may be located within the FFRMS floodplain 
would also be subject to the requirements of the proposed rule.
    FEMA was unable to quantify the cost for increased resiliency 
standards for the 20,961 facility projects estimated to be affected in 
the first 10 years after the rule's publication. Additionally, FEMA was 
unable to quantify the cost for projects that may be diverted out of 
the floodplain, impacts to projects with existing basements, project 
delays, or forgone projects that may result from this rule.
    Using CISA as the primary approach, FEMA estimates that the 
proposed rule would affect 14,427 PA, IA, and HMA structures over the 
first 10 years, which would result in a total cost of between $142.1 
million and $156.3 million, undiscounted, over the 60-year period of 
analysis. The costs are incurred in the first 10 years of the 60-year 
period because that is when the investment in those projects takes 
place.\134\ Discounted over 60 years, the low estimate cost would be 
between $121.3 million and $100 million, using 3 and 7 percent 
respectively, with a 60-year annualized cost of $4.4 million and $7.1 
million, using 3 and 7 percent respectively (see Table 11). Discounted 
over 60 years, the high estimate cost for would be between $133.4 
million and $109.9 million, using 3 and 7 percent respectively, with a 
60-year annualized cost of $4.8 million and $7.8 million, using 3 and 7 
percent (see Table 12). Monetized costs include additional training for 
FEMA staff as well as the cost for the additional elevation or 
floodproofing. FEMA was unable to quantify the cost for increased 
resiliency standards for an estimated 20,961 affected facility projects 
over the 10-year period of analysis. Additionally, FEMA was unable to 
quantify the cost for projects that may be diverted out of the 
floodplain, impacts to projects with existing basements, project 
delays, or forgone projects that may result from this rule.
---------------------------------------------------------------------------

    \134\ FEMA focused its analysis on the projects impacted in the 
first 10 years after the rule's publication. FEMA considered the 
resulting costs, benefits, and transfer payments of the proposed 
rule on those projects over a 50-year period, for a total of 60 
years. The costs and transfers occur in the first 10 years of the 
60-year period because that is when the initial investment to 
elevate or floodproof them to meet the proposed requirements takes 
place. This is an upfront cost that occurs when the project is 
constructed. However, the benefits of the proposed rule are realized 
over the 50-year useful life of the affected structures.

              Table 11--Primary Approach (CISA) Estimated Costs Over the 60-Year Period of Analysis
                                              [Low estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                   Elevation and                   Annual costs    Annual costs
                Year                  FEMA admin   floodproofing   Undiscounted    discounted at   discounted at
                                        costs          costs       annual costs         3%              7%
----------------------------------------------------------------------------------------------------------------
1..................................     $950,132     $13,839,379     $14,789,511     $14,358,748     $13,821,973
2..................................      310,172      13,839,379      14,149,551      13,337,309      12,358,765
3..................................      310,172      13,839,379      14,149,551      12,948,843      11,550,248
4..................................      310,172      13,839,379      14,149,551      12,571,692      10,794,624
5..................................      310,172      13,839,379      14,149,551      12,205,527      10,088,434
6..................................      310,172      13,839,379      14,149,551      11,850,026       9,428,443
7..................................      310,172      13,839,379      14,149,551      11,504,879       8,811,629
8..................................      310,172      13,839,379      14,149,551      11,169,786       8,235,167
9..................................      310,172      13,839,379      14,149,551      10,844,452       7,696,418
10.................................      310,172      13,839,379      14,149,551      10,528,594       7,192,914
11-60 *............................            0               0               0               0               0
                                    ----------------------------------------------------------------------------
    Total..........................    3,741,680     138,393,786     142,135,466     121,319,856      99,978,615
    Annualized.....................  ...........  ..............  ..............       4,383,645       7,121,399
----------------------------------------------------------------------------------------------------------------
* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial
  improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of
  affected structures because FEMA believes the number of structures affected in this 10-year period is enough
  to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule.
  Accordingly, FEMA's analysis focuses on the 50-year impacts of the rule on projects that take place in the
  nearest 10-year period, for a total period of analysis spanning 60 years.


[[Page 67908]]


              Table 12--Primary Approach (CISA) Estimated Costs Over the 60-Year Period of Analysis
                                             [High estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                   Elevation and                   Annual costs    Annual costs
                Year                  FEMA admin   floodproofing   Undiscounted    discounted at   discounted at
                                        costs          costs       annual costs         3%              7%
----------------------------------------------------------------------------------------------------------------
1..................................   $1,070,207     $15,131,954     $16,202,161     $15,730,253     $15,142,206
2..................................      430,247      15,131,954      15,562,201      14,668,867      13,592,629
3..................................      430,247      15,131,954      15,562,201      14,241,618      12,703,391
4..................................      430,247      15,131,954      15,562,201      13,826,814      11,872,328
5..................................      430,247      15,131,954      15,562,201      13,424,091      11,095,634
6..................................      430,247      15,131,954      15,562,201      13,033,098      10,369,751
7..................................      430,247      15,131,954      15,562,201      12,653,493       9,691,356
8..................................      430,247      15,131,954      15,562,201      12,284,945       9,057,342
9..................................      430,247      15,131,954      15,562,201      11,927,131       8,464,806
10.................................      430,247      15,131,954      15,562,201      11,579,739       7,911,034
11-60 *............................            0               0               0               0               0
                                    ----------------------------------------------------------------------------
    Total..........................    4,942,430     151,319,537     156,261,967     133,370,049     109,900,477
    Annualized.....................  ...........  ..............  ..............       4,819,054       7,828,126
----------------------------------------------------------------------------------------------------------------
* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial
  improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of
  affected structures because FEMA believes the number of structures affected in this 10-year period is enough
  to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule.
  Accordingly, FEMA's analysis focuses on the 50-year impacts of the rule on projects that take place in the
  nearest 10-year period, for a total period of analysis spanning 60 years.

Total Transfer Payments
    Because the cost to implement the proposed mitigation measures 
would be shared between FEMA and grant recipients according to the 
statutory cost share, there are also important distributional impacts. 
The majority of elevation and floodproofing costs would be borne by 
FEMA through additional grants (a transfer from FEMA to grant 
recipients). Grant recipients would bear the remaining cost. The below 
section shows the additional transfers from FEMA to grant recipients. 
Using CISA as the primary approach, FEMA estimated that this proposed 
rule would affect 14,427 structures in the first 10 years, which would 
result in an increase in transfer payments (i.e., grants) from FEMA to 
grant recipients, of between $109.2 million and $119.6 million, 
undiscounted, over the 60-year period of analysis. Discounted using 3 
and 7 percent respectively, FEMA's low estimate of the increase in 
transfer payments is between $93.2 million and $76.7 million, with a 
60-year annualized transfer between $3.4 million and $5.5 million, at 3 
and 7 percent respectively (see Table 13). Discounted using 3 and 7 
percent respectively, FEMA's high estimate of the increase in transfer 
payments would be between $102.1 million and $84.0 million, with a 60-
year annualized transfer between $3.7 million and $6.0 million, at 3 
and 7 percent respectively (see Table 14).

            Table 13--Primary Approach (CISA) Estimated Transfers Over the 60-Year Period of Analysis
                                              [Low estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                           Transfers from
                          Year                                FEMA to        Total transfers    Total transfers
                                                             recipients      discounted at 3%   discounted at 7%
----------------------------------------------------------------------------------------------------------------
1......................................................        $10,921,636        $10,603,530        $10,207,136
2......................................................         10,921,636         10,294,689          9,539,380
3......................................................         10,921,636          9,994,844          8,915,308
4......................................................         10,921,636          9,703,732          8,332,064
5......................................................         10,921,636          9,421,099          7,786,975
6......................................................         10,921,636          9,146,698          7,277,547
7......................................................         10,921,636          8,880,289          6,801,446
8......................................................         10,921,636          8,621,640          6,356,492
9......................................................         10,921,636          8,370,524          5,940,646
10.....................................................         10,921,636          8,126,723          5,552,006
11-60 *................................................                  0                  0                  0
                                                        --------------------------------------------------------
    Total..............................................        109,216,359         93,163,768         76,709,000
    Annualized.........................................  .................          3,366,283          5,463,923
----------------------------------------------------------------------------------------------------------------
* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial
  improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of
  affected structures because FEMA believes the number of structures affected in this 10-year period is enough
  to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule.
  Accordingly, FEMA's analysis focuses on the 50-year impacts of the rule on projects that take place in the
  nearest 10-year period, for a total period of analysis spanning 60 years.


[[Page 67909]]


            Table 14--Primary Approach (CISA) Estimated Transfers Over the 60-Year Period of Analysis
                                             [High estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                           Transfers from
                          Year                                FEMA to        Total transfers    Total transfers
                                                             recipients      discounted at 3%   discounted at 7%
----------------------------------------------------------------------------------------------------------------
1......................................................        $11,964,744        $11,616,256        $11,182,004
2......................................................         11,964,744         11,277,919         10,450,471
3......................................................         11,964,744         10,949,436          9,766,795
4......................................................         11,964,744         10,630,520          9,127,846
5......................................................         11,964,744         10,320,893          8,530,697
6......................................................         11,964,744         10,020,285          7,972,614
7......................................................         11,964,744          9,728,432          7,451,041
8......................................................         11,964,744          9,445,079          6,963,590
9......................................................         11,964,744          9,169,980          6,508,028
10.....................................................         11,964,744          8,902,893          6,082,269
11-60 *................................................                  0                  0                  0
                                                        --------------------------------------------------------
    Total..............................................        119,647,439        102,061,693         84,035,355
    Annualized.........................................  .................          3,687,791          5,985,773
----------------------------------------------------------------------------------------------------------------
* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial
  improvements or repairs to fix substantial damage, but FEMA chose to limit the analysis to 10 years of
  affected structures because FEMA believes the number of structures affected in this 10-year period is enough
  to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule.
  Accordingly, FEMA's analysis focuses on the 50-year impacts of the rule on projects that take place in the
  nearest 10-year period, for a total period of analysis spanning 60 years.

Total Benefits
    FEMA believes that the benefits of the proposed rule would justify 
the costs. FEMA has identified qualitative benefits, including the 
reduction in damage to properties and contents from future floods, 
potential lives saved, public health and safety benefits, reduced 
recovery time from floods, and increased community resilience to 
flooding. FEMA has also analyzed quantified benefits of one additional 
foot of freeboard for PA projects.
    FEMA believes this proposed rule would result in savings in time 
and money from a reduced recovery period after a flood and increased 
safety of individuals. Generally, if properties are protected, there 
would be less damage, resulting in less recovery time. In addition, 
higher elevations would help to protect people, leading to increased 
safety. FEMA is unable to quantify these benefits.
    In support of these benefits, FEMA uses the 2022 Benefits Analysis 
of Increased Freeboard for Public and Nonresidential Buildings in 
Riverine and Coastal Floodplains \135\ (2022 report), which analyzed 
potential benefits, such as reduction in damages, displacement, and 
loss of function, from increased flood protection requirements for 
public and nonresidential use buildings located in riverine and coastal 
SFHAs. This report's scope included six construction methods in coastal 
and riverine areas: Elementary School 1-Story, Hospital 2-3 Stories, 
Police Station 2-Stories, Office Building (Business) 1-Story, Office 
Building (Business) 3-Story, and Office Building (Government office) 1-
Story. The riverine analysis considered locations along 14 rivers, 
while the coastal analysis considered 12 different locations along a 
hypothetical coastal transect, and both only considered scenarios based 
on future conditions.
---------------------------------------------------------------------------

    \135\ This report is available on regulations.gov under Docket 
ID FEMA-2023-0026.
---------------------------------------------------------------------------

    Future conditions for the riverine analysis included two climate 
change scenarios: the Representative Concentration Pathways (RCP) 4.5 
scenario and 8.5 scenario, which represent medium and low efforts to 
curb emissions, respectively. The study used these two climate change 
scenarios to evaluate the amount of increase or decrease in riverine 
flood elevations over the next 50 years. For the coastal analysis, the 
study included the impact of various sea level rise conditions in areas 
with wave heights less than 1.5-ft (flood zone A) that are subject to 
coastal storm surge. The sea level rise conditions replicated a 2016 
evaluation considering 8-, 20-, 39- and 59-inch sea level rise by 2100. 
FEMA evaluates benefits associated with the rule using both RCP 4.5 and 
8.5 scenarios, and three of the four sea level rise conditions: 8-, 39-
, and 59-inches.
    The 2022 report used FEMA's BCA Toolkit to calculate benefits for 
each year between 2023 and 2072 and then used these projections to 
calculate the present value benefits for each scenario.\136\ The 
Toolkit used standard depth-damage functions (curves) to estimate 
damages from inundation and to calculate the benefits of mitigation, 
which included avoided physical damage, avoided displacement (costs 
incurred while staying in a temporary location following an event), and 
avoided loss of function (the economic impact to a community due to a 
lack of critical services). The study considered the potential avoided 
losses (or benefits) associated with either dry floodproofing or 
elevation of nonresidential and public use buildings.\137\ It compared 
existing freeboard requirements against one additional foot of 
freeboard; that is, the study evaluates the benefits of elevating or 
floodproofing to the BFE+2 from a current assumed height of BFE+1 for 
non-critical actions and to BFE+3 from a current assumed height of 
BFE+2 for critical actions.
---------------------------------------------------------------------------

    \136\ FEMA developed the BCA Toolkit to perform an analysis of 
cost-effectiveness of mitigation projects. The BCA Toolkit uses 
Office of Management and Budget cost-effectiveness guidelines and 
FEMA-approved methodologies and tools to complete a benefit-cost 
analysis. The tool can be found here: https://www.fema.gov/grants/tools/benefit-cost-analysis#toolkit (last accessed July 12, 2023).
    \137\ 2016 Evaluation of the Benefits of Freeboard for Public 
and Nonresidential Buildings in Coastal Areas. https://www.regulations.gov/document/FEMA-2015-0006-0379 at page 7 (last 
accessed July 12, 2023).
---------------------------------------------------------------------------

    According to this report, for critical facilities in coastal SFHAs, 
such as police stations and hospitals, inclusion of one additional foot 
of freeboard will provide increased protection and continuity of 
operations and would result in a quantifiable benefit. Elevating 
buildings would help to maintain community resiliency further into the 
future. The riverine analysis indicated that despite the large 
variation in the flood data for the 14 sites, inclusion of

[[Page 67910]]

one additional foot of freeboard would result in quantifiable average 
benefits. Critical actions and schools had the highest benefits across 
various riverine locations.
    FEMA used this study to estimate the benefits of an additional foot 
of freeboard for non-residential PA projects. FEMA was unable to use 
the benefits study to estimate the benefits for HMA and IA projects 
since HMA data could not be broken out by building types and IA data 
were limited to residential-related projects.
    For FEMA's primary estimate, FEMA used 59 inches of SLR due to it 
being the closest SLR option to CISA+5-ft. CISA is the preferred 
approach for FFRMS if the data are available. Since 5 ft is equivalent 
to 60 inches (5 x 12 inches per foot), 59-inch SLR would be the closest 
SLR option that FEMA has available to use for this portion of the 
analysis. If FEMA used CISA for all PA Category E projects that were 
subject to the FFRMS with the assumption that there would be a 59-inch 
SLR, FEMA estimated that the present value benefits of one additional 
foot of freeboard for the 50-year useful life of 1,173 PA Category E 
projects undertaken during the first 10 years after the rule's 
publication would be between $55.2 million and $62.0 million, 
undiscounted. The low estimate would range between $47.1 million and 
$38.8 million, discounted at 3 and 7 percent respectively, with a 60-
year annualized benefit of $1.7 million and $2.8 million, at 3 and 7 
percent (See Table 15). The high estimate would range between $52.9 
million and $43.5 million, discounted at 3 and 7 percent respectively, 
with a 60-year annualized benefit of $1.9 million and $3.1 million, at 
3 and 7 percent. (See Table 16).
    In Tables 15 and 16 below, FEMA shows the number of projects 
constructed each year (column 2), the present value of the benefits as 
of the year in which they were constructed (column 3), and the present 
value of the benefits as of the beginning of Year 1 using a 3 percent 
and 7 percent discount rate (columns 3 and 4, respectively). For 
example, the benefits shown in Year 1 represent the present value of 
the benefits for the 117 Category E projects constructed in Year 1 over 
their 50-year useful life (i.e., in Years 1-50 of the analysis). The 
analysis does not account for any benefits for Year 1 projects after 
their 50-year useful life. The benefits shown in Year 10 represent the 
present value of the benefits for projects constructed in Year 10 over 
their 50-year useful life, (i.e., in Years 11-60 of the analysis).

 Table 15--Primary Approach (CISA) Estimated 50-Year Benefits for PA Category E Projects Undertaken During Years
                                                      1-10
                                              [Low estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                                 Total 50-year
                                                                 present value
                                                Number of PA      benefit for
                     Year                        Category E         projects       Discounted 3%   Discounted 7%
                                                  projects       constructed in
                                                                  each year *
----------------------------------------------------------------------------------------------------------------
1............................................             117         $5,518,000      $5,357,282      $5,157,009
2............................................             117          5,518,000       5,201,244       4,819,635
3............................................             117          5,518,000       5,049,752       4,504,332
4............................................             117          5,518,000       4,902,672       4,209,656
5............................................             117          5,518,000       4,759,875       3,934,258
6............................................             117          5,518,000       4,621,238       3,676,876
7............................................             117          5,518,000       4,486,639       3,436,333
8............................................             117          5,518,000       4,355,960       3,211,526
9............................................             117          5,518,000       4,229,088       3,001,426
10...........................................             117          5,518,000       4,105,910       2,805,071
                                              ------------------------------------------------------------------
    60-Year Total *..........................           1,173  .................      47,069,660      38,756,122
    Annualized **............................  ..............  .................       1,700,766       2,760,569
----------------------------------------------------------------------------------------------------------------
* The benefits in this column represent the present value of the benefits for structures constructed in that
  year over their 50-year useful life, as of the year in which they were constructed.
** The total benefits represent the total present value of benefits as of the beginning of Year 1.


 Table 16--Primary Approach (CISA) Estimated 50-Year Benefits for PA Category E Projects Undertaken During Years
                                                      1-10
                                             [High estimate, 2021$]
----------------------------------------------------------------------------------------------------------------
                                                                 Total 50-year
                                                                 present value
                                                Number of PA      benefit for
                     Year                        Category E         projects       Discounted 3%   Discounted 7%
                                                  projects       constructed in
                                                                  each year *
----------------------------------------------------------------------------------------------------------------
1............................................             117         $6,198,572      $6,018,031      $5,793,058
2............................................             117          6,198,572       5,842,749       5,414,073
3............................................             117          6,198,572       5,672,571       5,059,881
4............................................             117          6,198,572       5,507,351       4,728,861
5............................................             117          6,198,572       5,346,943       4,419,496
6............................................             117          6,198,572       5,191,206       4,130,370
7............................................             117          6,198,572       5,040,006       3,860,159
8............................................             117          6,198,572       4,893,210       3,607,625
9............................................             117          6,198,572       4,750,689       3,371,612

[[Page 67911]]

 
10...........................................             117          6,198,572       4,612,320       3,151,040
                                              ------------------------------------------------------------------
    60-Year Total *..........................           1,173  .................      52,875,076      43,536,175
    Annualized **............................  ..............  .................       1,910,533       3,101,048
----------------------------------------------------------------------------------------------------------------
* The benefits in this column represent the present value of the benefits for structures constructed in that
  year over their 50-year useful life, as of the year in which they were constructed.
** Annualized over the 60-year period of analysis.

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

B. Regulatory Flexibility Act

    This section considers the effects that this proposed rule would 
have on small entities as required by the Regulatory Flexibility Act 
(RFA, 5 U.S.C. 601 et seq., Pub. L. 96-354) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have a 
``significant economic impact on a substantial number of small 
entities.'' 5 U.S.C. 605(b). Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    FEMA prepared an Initial Regulatory Flexibility Analysis (IRFA) for 
this proposed rule. This analysis is detailed in this section and 
represents FEMA's assessment of the impacts of this proposed rule on 
small entities. Section 1 outlines FEMA's initial assessment of small 
entities that would be affected by the proposed regulations. Section 2 
presents FEMA's analysis and summarizes the steps taken by FEMA to 
comply with the RFA.
1. Initial Assessment of Small Entities Affected by the Proposed 
Regulations
    The proposed rule would affect FEMA grant recipients that receive 
Federal funds for new construction, substantial improvement to 
structures, or to address substantial damage to structures and 
facilities. Many of these grants are available to local governmental 
jurisdictions and non-profit organizations. FEMA does not provide 
grants to for-profit businesses.
2. Analysis and Steps Taken To Comply With the Regulatory Flexibility 
Act
    The following IRFA addresses the following requirements of the RFA:
    (1) a description of the reasons why action by the agency is being 
considered;
    (2) a succinct statement of the objectives of, and legal basis for, 
the proposed rule;
    (3) a description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply;
    (4) a description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record;
    (5) an identification, to the extent practicable, of all relevant 
Federal rules which may duplicate, overlap, or conflict with the 
proposed rule;
    (6) a description of any significant alternatives to the proposed 
rule which accomplish the stated objectives of applicable statutes, and 
which minimize any significant economic impact of the proposed rule on 
small entities. Consistent with the stated objectives of applicable 
statutes, the analysis shall discuss significant alternatives such as: 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; the use of performance rather than design standards; and an 
exemption from coverage of the rule, or any part thereof, for such 
small entities.
2.1 Description of the Reasons Why Action by the Agency Is Being 
Considered
    The President issued Executive Order 11988 in 1977 in furtherance 
of the National Flood Insurance Act of 1968, as amended; the Flood 
Disaster Protection Act of 1973, as amended; and the National 
Environmental Policy Act of 1969 (NEPA). Executive Order 11988 requires 
Federal agencies to avoid, to the extent possible, the long- and short-
term adverse impacts associated with the occupancy and modification of 
floodplains, where there is a practicable alternative. Executive Order 
11988 requires agencies to prepare implementing procedures in 
consultation with the Water Resources Council (WRC), FEMA, and the 
Council on Environmental Quality (CEQ). The WRC issued ``Floodplain 
Management Guidelines'' (1978 Guidelines or Implementing Guidelines), 
the authoritative interpretation of Executive Order 11988. The 1978 
Guidelines provided a section-by-section analysis, defined key terms, 
and outlined an 8-step decision-making process for carrying out the 
directives of Executive Order 11988.
    After Hurricane Sandy it became clear to the Federal Government 
that there should be a reevaluation of the current flood risk reduction 
standards. The President issued Executive Order 13632, which created 
the Federal Interagency Hurricane Sandy Rebuilding Task Force (Sandy 
Task Force). Pursuant to direction from Executive Order 13632 to remove 
obstacles to resilient rebuilding, the Sandy Task Force reevaluated the 
1 percent annual chance/100-year standard. In April 2013, the Sandy 
Task Force announced a new Federal flood risk reduction standard that 
required elevation or other floodproofing to one-foot above the best 
available and most recent base flood elevation and applied

[[Page 67912]]

that standard to all investments in Sandy-affected communities. The 
Sandy Task Force called for all major Sandy rebuilding projects in 
Sandy-affected communities using Federal funding to be elevated or 
otherwise floodproofed according to this new flood risk reduction 
standard.
    In June 2013, the President issued a Climate Action Plan that 
directs agencies to take appropriate actions to reduce risk to Federal 
investments, specifically directing agencies to build on the work done 
by the Sandy Task Force and to update their flood risk reduction 
standards for ``federally-funded . . . projects'' to ensure that 
``projects funded with taxpayer dollars last as long as intended.'' In 
November 2013, the President's State, Local, and Tribal Leaders Task 
Force on Climate Preparedness and Resilience (Climate Task Force) 
convened, with 26 Governors, Mayors, and Local and Tribal leaders 
serving as members. After a year-long process of receiving input from 
States, Local, Tribal, Territorial (SLTT) governments; private 
businesses; trade associations; academic organizations; civil society; 
and other stakeholders, the Task Force provided a recommendation to the 
President in November 2014. In order to ensure resiliency, Federal 
agencies, when taking actions in and around floodplains, should include 
considerations of the effects of changing conditions, including sea 
level rise, more frequent and severe storms, and increasing river flood 
risks. The Climate Task Force also recommended that the best available 
climate data should be used in siting and designing projects receiving 
Federal funding, and that margins of safety, such as freeboard and 
setbacks, should be included.
    On January 30, 2015, the President issued Executive Order 13690, 
which amended Executive Order 11988 and established a new flood risk 
management standard called the FFRMS. Executive Order 11988, as 
amended, and the FFRMS changed the Executive Branch-wide guidance for 
defining the ``floodplain'' with respect to ``Federally funded 
projects'' (i.e., actions involving the use of Federal funds for new 
construction, substantial improvement, or to address substantial damage 
to a structure or facility). It required FEMA to publish an updated 
version of the Implementing Guidelines (revised to incorporate the 
changes required by Executive Order 13690 and the FFRMS) in the Federal 
Register for notice and comment. Finally, Executive Order 13690 
required the WRC to issue final Guidelines to agencies on the 
implementation of Executive Order 11988, as amended, consistent with 
the FFRMS.
    On February 5, 2015, FEMA, on behalf of the Mitigation Framework 
Leadership Group, published a Federal Register notice for a 60-day 
notice and comment period seeking comments on a draft of the Revised 
Guidelines. The final Revised Guidelines were issued on October 8, 
2015. The Revised Guidelines contain an updated version of the FFRMS 
(located at Appendix G of the Revised Guidelines), reiterate key 
concepts from the 1978 Guidelines, and explain the new concepts 
resulting from the FFRMS.
    On August 22, 2016, FEMA issued a Notice of Proposed Rulemaking, 
``Updates to Floodplain Management and Protection of Wetlands 
Regulations To Implement Executive Order 13690 and the Federal Flood 
Risk Management Standard.'' On August 15, 2017, Executive Order 13807 
revoked Executive Order 13690. On March 6, 2018, FEMA withdrew its 
Notice of Proposed Rulemaking and proposed supplementary policy in 
light of the revocation of the Executive Order 13690. FEMA wrote that 
it would continue to seek more effective ways in its programs to assess 
and reduce the risk of current and future flooding and increase 
community resilience.
    On May 25, 2021, Executive Order 14030 subsequently revoked 
Executive Order 13807 and reinstated Executive Order 13690, thereby 
reestablishing the FFRMS. The E.O. also states that the Revised 
Guidelines issued in 2015 were never revoked and remain in effect.
    The FFRMS is a flexible framework to increase resilience against 
flooding and help preserve the natural and beneficial values of 
floodplains. Incorporating the FFRMS into FEMA regulations would ensure 
that FEMA expands flood risk management from the current base flood 
elevation to a higher vertical elevation and corresponding horizontal 
floodplain to address current and future flood risk and ensure that 
projects funded with taxpayer dollars last as long as intended. Several 
programs exist in order to assist with flood mitigation or recovery 
efforts after a flood.\138\ IA and PA are disaster relief programs and 
primarily provide assistance after a disaster. HMA Grants are provided 
in order to increase resilience to hazards, and these have been shown 
to be very effective. By requiring recipients of FEMA funding to 
consider an expanded floodplain and build a higher level of flood 
resilience into their projects, the rule would reduce the likelihood of 
further damage and help prevent the loss of life in future flooding 
events. This would compel public recipients of Federal funds to build 
to higher flood resiliency standards and avoid repetitive loss 
situations.
---------------------------------------------------------------------------

    \138\ In addition to the FEMA-administered grant programs 
discussed in this analysis (IA, PA, HMA, and programs administered 
by GPD), FEMA also provides flood insurance through the NFIP. FEMA 
does not apply 44 CFR part 9 to non-grant site specific actions 
under the NFIP.
---------------------------------------------------------------------------

2.2 Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    FEMA is responsible for publishing information on floodplain areas 
and identifying special hazards. FEMA is also responsible for several 
grant programs that use Federal funds to assist in construction or 
reconstruction following a disaster, as well as grants for hazard 
mitigation and recovery. These grants can potentially be used for 
locations within a floodplain.
    To meet the requirements of section 2(d) of Executive Order 11988, 
requiring agencies to issue or amend existing regulations and 
procedures to implement the Executive Order, FEMA promulgated 
regulations which are located at 44 CFR part 9. FEMA is revising 44 CFR 
part 9 to reflect the changes to Executive Order 11988 made via 
Executive Order 13690.
    The objective of the proposed rule is to revise the regulations for 
locating actions subject to the FFRMS in an expanded floodplain to 
reduce the risk of flooding to those projects. In addition, for actions 
that are determined to be ``critical actions'' as defined by the 
proposed rule, the proposed rule would impose more stringent elevation 
and resiliency requirements. This is necessary to protect actions where 
even a slight chance of flooding is too great.
    The rule would also require the use, where possible, of natural 
features and nature-based approaches when developing alternatives for 
consideration that would accomplish the same purpose as a considered 
action, but which have less potential to affect or be affected by the 
floodplain. Common examples of a nature-based approach would be 
replacing concrete drainage systems with natural drainage or covering 
an area with plants to absorb water and reduce runoff.
2.3 Description of, and Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
    This rule would affect certain recipients of FEMA grants. These 
would primarily be PA and HMA grant recipients, which include States, 
Tribal governments, local governments, and certain non-profit 
organizations. The PA

[[Page 67913]]

grant recipients would include Categories C, D, E, F, and G projects; 
however, FEMA is only able to provide reasonable estimates of the 
number of entities and costs associated with Categories E (public 
buildings) because Category E projects are for structures whereas 
projects funded under the remaining categories are for facilities. 
Facilities would not be required to floodproof or elevate but would 
instead need to be made resilient to the appropriate flood levels, 
which is highly project-specific nature and lack of data for such 
projects makes it exceedingly difficult to estimate costs. IA and GPD 
are not discussed in this analysis. IA provides grants directly to 
individuals, who are not small entities as defined in 5 U.S.C. 601(6). 
FEMA finds that this rule would likely have no effect on GPD grants 
because GPD projects are not typically substantial improvement or new 
construction.
    FEMA has estimated that the FFRMS requirements would expand the 
floodplain between 5 percent and 43 percent based on a study \139\ 
conducted in 800 square miles of mapped flood zone areas. FEMA 
developed floodplain expansion estimates for two distinct areas of the 
country: coastal and riverine. The first estimate is for coastal areas 
where FEMA anticipates implementing the CISA approach using currently 
actionable sea level rise data. The second estimate is for the area 
that represents the rest of the country where the 0.2PFA or FVA 
approaches will likely be applied. A total of 400 square miles of 
mapped flood zones was used as the baseline estimate for each of the 
two areas of the country. FEMA selected 40 random samples of the 
coastal and riverine areas since these are the areas where the FFRMS 
would apply, with various topography, with at least 10 square miles in 
each sampled area. FEMA calculated the floodplain expansion in each 
sample at various levels of freeboard so that there was a total of 400 
square miles of expansion information for each area.
---------------------------------------------------------------------------

    \139\ FEMA conducted a study in 2022 in regard to the FFRMS 
Horizontal Floodplain Expansion Data (also referred to as the 
``FFRMS Expansion Study''). Further information can be found in 
Appendix A to the FFRMS Regulatory Impact Analysis, available on 
regulations.gov under Docket ID FEMA-2023-0026.
---------------------------------------------------------------------------

    FEMA selected CISA as its primary approach to evaluate the impacts 
of this proposed rule. FEMA's accompanying policy proposes use of CISA 
as the preferred approach because it is the only approach that would 
ensure projects are designed to meet current and future flood risks 
unique to the location and thus would ensure the best overall 
resilience, cost effectiveness, and equity. FEMA does not have data 
detailed enough to estimate the average CISA level within the United 
States for this analysis. For CISA, FEMA evaluated a range from 1 to 10 
feet of freeboard based on anticipated interagency tools that are 
currently in development and are projected to apply CISA in those 
rounded amounts as ``climate-informed freeboard.'' The 10-foot ceiling 
would account for the highest levels of anticipated sea level rise 
along the Gulf and Atlantic coasts. Depending on location, under CISA, 
some places may be required to elevate or floodproof to +1-ft above the 
1 percent annual chance plain while other places may be required to use 
+10-ft above the 1 percent annual chance plain. However, there is no 
data or research to know what the required levels are or how many 
structures would be subject to the requirements. For this analysis, 
FEMA calculated the expanded floodplain using the mid-point +5-ft 
freeboard level, which FEMA estimates expands the floodplain by 26 
percent, on average, in coastal areas.
    FEMA considered using the minimum and maximum levels as 
alternatives to the mid-point level, but the minimum and maximum would 
not reflect the impacts of the rule accurately. FEMA did not use the 
minimum level because it would reflect a large number of structures not 
elevated or floodproofed to a high enough standard, when in reality, 
the rule would require them to be subject to a higher standard. If FEMA 
modeled all structures at the minimum standard, the costs would be 
underestimated compared to the true impact of the rule. The benefits of 
protecting the structures from flood would also be underestimated 
because at the minimum level. many structures would be left vulnerable 
to devastating flood damage. Likewise, FEMA did not use the maximum 
level because it would reflect a large number of structures elevated or 
floodproofed to a standard too high compared to what the rule would 
require. If FEMA modeled all structures at the maximum standard, the 
costs would be overestimated compared to the true impact. The benefits 
of protecting the structures from flood could potentially be 
overestimated, as well, and not reflect the true impact of the rule.
    PA provides grants to States, Tribal governments, local governments 
and certain non-profit organizations for rebuilding, replacement, or 
repair of public and non-profit facilities damaged by disasters. Where 
such rebuilding, replacement or repair involves new construction, 
substantial improvement, and repair of substantial damage of structures 
in the expanded FFRMS floodplain, PA recipients would incur additional 
costs to comply with proposed elevation and floodproofing requirements. 
From 2012-2021, 930 individual PA Category E grant recipients received 
FEMA funding for substantial improvement floodproofing \140\ or new 
construction. Under the CISA approach, with the 26 percent expansion of 
the floodplain, an additional 242 PA Category E projects (930 x 26 
percent), for a total of 1,172 (930 + 242) projects, would be located 
in the 1 percent annual chance floodplain or expanded FFRMS floodplain 
over the 10-year period. FEMA randomly sampled 92 projects.\141\ Of the 
92 projects, 40 projects, or 43 percent (40 / 92), would meet the 
definition of small entities under the Regulatory Flexibility Act.
---------------------------------------------------------------------------

    \140\ The cost of elevating an existing structure is 
significantly higher than the cost of retrofitting the structure to 
be floodproofed, so FEMA assumed that substantial improvement 
projects would elect to floodproof rather than elevate.
    \141\ The population of PA Category E projects includes all 
``Public Buildings'' grants from 2012-2021 that received substantial 
improvement floodproofing or new construction funding. Because of 
the large population, FEMA used Slovin's formula and a 90 percent 
confidence interval to determine the sample size. Slovin's formula: 
n = ^N/(1+^N*e[supcaret]2). Therefore, 1,172/(1 
+ 1,172 x 0.1[supcaret]2) = 92 (rounded).
---------------------------------------------------------------------------

    HMA provides mitigation grants to States, Tribal governments, local 
governments, and certain non-profit organizations to, among other 
things, relocate property outside of the floodplain, or to elevate or 
floodproof structures to the flood level. FEMA proposes to apply the 
FFRMS to all actions subject to the FFRMS, and all structure elevation, 
mitigation reconstruction, and dry floodproofing projects. As noted in 
the Regulatory Evaluation, FEMA funded an average of about 84 HMA 
elevation, mitigation reconstruction, and floodproofing structure 
projects per year from 2010-2019.\142\ Unlike PA grants, the majority 
of HMA grants are for projects located in the floodplain, so for this 
analysis FEMA assumes that all HMA elevation, mitigation reconstruction 
and dry floodproofing projects are in the floodplain. FEMA cannot 
estimate what projects might be considered actions subject to the FFRMS 
in addition to structure elevation, mitigation reconstruction, and dry 
floodproofing projects because HMA data does not distinguish whether 
projects are

[[Page 67914]]

considered new construction, substantial improvement, or repairs to 
address substantial damage. However, structure elevation, mitigation 
reconstruction, and dry floodproofing are the primary HMA projects 
relating to flood mitigation.\143\
---------------------------------------------------------------------------

    \142\ FEMA was unable to obtain 10-years of historical data from 
2012-2021 for HMA due to changes within the program's database and 
used the best available data for years 2010 through 2019 instead.
    \143\ The other project type related to flood mitigation is 
acquisition. Generally, acquisition projects are for open space 
purposes and restore the natural and beneficial functions of the 
floodplain. Property acquisitions that result in relocated 
structures would be subject to FFRMS elevation and floodproofing 
requirements if the structure is relocated within the FFRMS 
floodplain. HMA data does not break out relocation costs from 
acquisition costs, so FEMA is unable to estimate additional 
relocation expenses for acquisition projects.
---------------------------------------------------------------------------

    With the 26 percent expansion of the floodplain, an additional 22 
HMA projects per year (84 x 26 percent), for a total of 106 (84 + 22) 
projects, would be located in the 1 percent annual chance floodplain or 
expanded FFRMS floodplain. Assuming 43 percent \144\ of HMA grant 
recipients are small entities, approximately 46 small entities 
receiving HMA grants would be affected per year (106 projects x 43 
percent).
---------------------------------------------------------------------------

    \144\ In FEMA's dataset, HMA recipients only included project 
titles and not the name of the grantee. This prevented FEMA from 
determining if a grant recipient was a small entity. Since PA and 
HMA provide funding to similar entities (States, Tribal governments, 
local governments, and certain non-profit organizations) for 
disaster related activity, FEMA used the percentages of small entity 
grant recipients found in PA Category E as a proxy for HMA small 
entities.
---------------------------------------------------------------------------

    Facilities would not be required to floodproof or elevate but would 
instead need to be made resilient to the appropriate flood levels, 
which is highly project-specific nature and lack of data for such 
projects makes it exceedingly difficult to estimate costs. FEMA could 
not estimate the cost of this rule on small entities for facilities. 
However, FEMA conducted an analysis to estimate the number of small 
entities for affected facility projects based on historical data.
    In an average year, FFRMS would impact about 1,181 PA Category C 
facilities. Based on a random sample of 92 projects,\145\ FEMA found 
that grant recipients for 71 of the projects, or 77.2 percent (71 / 
92), were small entities that would meet the definition of small 
entities under the Regulatory Flexibility Act.
---------------------------------------------------------------------------

    \145\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[supcaret]2). Therefore, 1,181/
(1 + 1,181 x 0.1[supcaret]2) = 92 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS would impact about 131 PA Category D 
facilities. Based on a random sample of 57 projects,\146\ FEMA found 
that grant recipients for 38 of the projects, or 66.7 percent (38 / 
57), were small entities that would meet the definition of small 
entities under the Regulatory Flexibility Act.
---------------------------------------------------------------------------

    \146\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[supcaret]2). Therefore, 131/(1 
+ 131 x 0.1[supcaret]2) = 57 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS would impact about 254 PA Category F 
facilities. Based on a random sample of 72 projects,\147\ FEMA found 
that grant recipients for 52 of the projects, or 72.2 percent (52 / 
72), were small entities that would meet the definition of small 
entities under the Regulatory Flexibility Act.
---------------------------------------------------------------------------

    \147\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[supcaret]2). Therefore, 254/(1 
+ 254 x 0.1[supcaret]2) = 72 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS would impact about 446 PA Category G 
facilities. Based on a random sample of 82 projects,\148\ FEMA found 
that grant recipients for 38 of the projects, or 46.3 percent (38 / 
82), were small entities that would meet the definition of small 
entities under the Regulatory Flexibility Act.
---------------------------------------------------------------------------

    \148\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[supcaret]2). Therefore, 446/(1 
+ 446 x 0.1[supcaret]2) = 82 (rounded).
---------------------------------------------------------------------------

    In an average year, FFRMS would impact about 84 HMA grant 
recipients received FEMA funding per year for minor flood controls and 
generator projects. Based on a random sample of 46 projects,\149\ FEMA 
found that grant recipients for 24 of the projects, or 52.1 percent (24 
/ 46), were small entities that would meet the definition of small 
entities under the Regulatory Flexibility Act.
---------------------------------------------------------------------------

    \149\ Because of the large population, FEMA used Slovin's 
formula and a 90 percent confidence interval to determine the sample 
size. Slovin's formula: n = N/(1+N*e[supcaret]2). Therefore, 84/(1 + 
84 x 0.1[supcaret]2) = 46 (rounded).
---------------------------------------------------------------------------

2.4 Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
    FEMA will not be changing the application process for its grant 
programs. The majority of the costs for the increased elevation or 
floodproofing requirements of structures in the FFRMS floodplain would 
be funded by FEMA through several grant programs. Small entities, like 
all entities, would be subject to additional costs not covered by these 
grants for the floodproofing, elevation of structures, and flood 
resiliency measures required by the proposed rule. For the purposes of 
this analysis, and based on historical data, FEMA presents the costs 
such that all projects would choose to elevate because of the 
additional level of safety elevation provides over floodproofing and a 
historically higher number of HMA projects that involved elevation as 
opposed to floodproofing.\150\ FEMA uses an NFIP report to estimate the 
cost of the proposed elevation requirements.\151\ The report provides 
estimates for the cost of elevating structures as a percentage of total 
construction cost.
---------------------------------------------------------------------------

    \150\ According to historical HMA data, there have been an 
average of 63 elevation projects and only 4 floodproofing projects 
per year.
    \151\ FEMA, ``2008 Supplement to the 2006 Evaluation of the 
National Flood Insurance Program's Building Standards'' Table 3. 
(last accessed July 12, 2023).
---------------------------------------------------------------------------

    The cost of elevating an existing structure is considerably higher 
than the cost of retrofitting the structure to be floodproofed. 
Floodproofing involves sealing off areas below the flood level so that 
water cannot enter or altering the use of these areas so that flood 
waters may pass through without causing serious damage. Non-residential 
structures, where elevation is not feasible, may be floodproofed rather 
than elevated. Additionally, floodproofing existing properties may be 
less costly than elevating an existing property. So, where a project 
may floodproof rather than elevate, costs may be lower for some 
projects than the costs presented here. However, for existing 
properties that choose to elevate rather than floodproof, costs may be 
higher for some projects than the costs presented here because the NFIP 
report cost estimates are for when freeboard is included in the design 
of a structure. New buildings would be evaluated for both dry 
floodproofing (preventing the intrusion of floodwaters into the 
building by using a system of waterproofing and shields) and elevation 
(constructing higher), while existing buildings would only be evaluated 
for dry floodproofing. FEMA requests comments on these assumptions.
    As established above, FEMA estimates this rule would impact 40 
small entity PA Category E projects annually. Using CISA as the primary 
approach, FEMA estimates that the total cost for the elevation and 
floodproofing requirements of this proposed rule for all PA Category E 
projects would be between $8,887,014 ($88,870,138 / 10 years) and 
$10,179,589 ($101,795,889 / 10 years) annually for 117 (1,173 PA Total 
FFRMS action Category E projects / 10 years) projects annually. 
Therefore,

[[Page 67915]]

each project would cost between $75,957 ($8,887,014 / 117 projects) and 
$87,005 ($10,179,589 / 117 projects). There is an average of 40 small 
entity PA projects per year. Small entity projects would have a total 
average expected cost between $3,038,280 ($75,957 x 40 small entities 
PA projects) and $3,480,200 ($87,005 x 40 small entities PA projects) 
per year. The historical average cost share for PA Category E projects 
is 80.7 percent covered by FEMA and 19.3 percent covered by the 
recipients, with the majority of recipients receiving a 75 percent or a 
90 percent cost share, depending on the type of disaster declaration. 
FEMA estimates that, for PA Category E projects, each small entity 
would have an average expected cost (i.e., their portion of the cost 
share), of between $13,141 ($75,957 x 17.3 percent) and $15,052 
($87,005 x 17.3 percent) per project.
    As established above, FEMA estimates that this rule would affect 
approximately 43 small HMA grant recipients per year. Using CISA as the 
primary approach, FEMA estimates that the total 10-year cost for the 
elevation and floodproofing requirements of this proposed rule for HMA 
projects would be $4,810,196 ($48,101,958 / 10 years) annually for 
1,035 (10,351 HMA Total FFRMS action projects / 10 years) projects 
annually. There is an average of 43 small entities HMA projects per 
year. The average HMA project cost is $4,648 ($4,810,196 / 1,035 HMA 
projects) per project. The cost-sharing arrangement for HMA is 75 
percent Federal and 25 percent recipient, so HMA recipients would be 
required to fund 25 percent of the costs to comply with the 
requirements of the proposed rule. Each small entity cost share would 
have an average expected cost is $1,162 ($4,648 x 25 percent).
    Reporting and recordkeeping are not expected to change with the 
exception of minor changes to FEMA's Mitigation Grant Program/e-Grants 
system. FEMA would still make the determination if a project would take 
place in an FFRMS floodplain.
2.5 Identification, to the Extent Practicable, of Relevant Federal 
Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule
    Situations may arise where multiple Federal agencies are 
conducting, supporting (including funding), or permitting actions in 
the same geographic area as FEMA actions subject to the FFRMS. In order 
to address this possibility, Sec. H of FEMA's policy will leverage the 
Unified Federal Review process. Because FEMA has a coordination process 
in place for these occasions, the rule does not conflict with or 
duplicate the rules of other Federal agencies.
    This rule proposes to modify existing FEMA regulations relating to 
compliance with Executive Order 11988, Floodplain Management are being 
modified to comply with Executive Order 11988, as amended.
2.6 Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes, and 
Which Minimize Any Significant Economic Impact of the Proposed Rule on 
Small Entities
    The standards proposed in this rule represent FEMA's efforts to 
implement Executive Order 11988, as amended, which establishes 
executive branch-wide policy in this area. Executive Order 13690 
establishes the FFRMS. The policies established in these EOs do not 
consider exempting small entities from all or part of the standard; the 
purpose of the FFRMS is to ensure that agencies expand management from 
the current base flood level to a higher vertical elevation and 
corresponding horizontal floodplain to address current and future flood 
risk and ensure that projects funded with taxpayer dollars last as long 
as intended. Accordingly, FEMA proposes that the rule apply to all 
affected FEMA projects, including small entities.
    As discussed previously, most of the cost of the mitigation 
standards required by this rule would be paid by FEMA in the form of 
additional PA, IA, or HMA grants. Cost sharing is required for most 
FEMA grant programs. For PA and HMA, affected small entities would be 
required to pay the recipient portion of the cost share, which is 25 
percent in most cases. There are, however, some exceptions and cost 
shares can be waived or set at a different level by Congress. FEMA does 
not have the authority to adjust the cost share specifically for small 
entities.
    Executive Order 11988, as amended, allows several approaches to 
determine the FFRMS floodplain. Section F of this NPRM, FEMA's 
Implementation of Executive Order 11988, as amended, and FFRMS, 
describes the FFRMS approaches allowed by Executive Order 11988, as 
amended, and FEMA's considerations when selecting between the FFRMS 
approaches. FEMA is proposing, in its accompanying policy, to use CISA 
as the preferred approach. FEMA has chosen CISA as its preferred 
approach because it is the only one that uses the best available 
climate science to ensure projects are designed to meet current and 
future flood risks unique to the location and thus ensures the best 
overall resilience, cost effectiveness, and equity. Accordingly, FEMA 
believes its preferred approach will minimize the risk that affected 
small entities incur more costs than necessary because of 
overprotection or incur preventable costs from future damage because of 
under protection.
    Small entities affected by the proposed rule, as with any entity 
affected by the rule, would have the option to relocate outside of the 
floodplain. This may be preferable in cases where property can be 
obtained and new facilities built for less cost than elevating or 
floodproofing to the FFRMS level in the floodplain, and the recipient 
has the ability to relocate.
    FEMA requests public comment on alternatives to the proposed rule 
that it may not have considered, which accomplish the stated objectives 
of applicable statutes, and which minimize any significant economic 
impact of the rule on small entities. FEMA also invites all interested 
parties to submit data and information regarding the potential economic 
impact on small entities from adoption of this proposed rule. FEMA will 
consider all comments received in the public comment process.

C. Unfunded Mandates Reform Act

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

[[Page 67916]]

D. National Environmental Policy Act (NEPA) of 1969

    Section 102 of the National Environmental Policy Act of 1969 
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 
et seq.) requires Federal agencies to evaluate the impact of a proposed 
major Federal action significantly affecting the human environment, 
consider alternatives to the proposed action, provide public notice and 
opportunity for comment, and properly document its analysis. 40 CFR 
parts 1501, 1502, 1506.6. DHS and its component agencies analyze 
proposed actions to determine whether NEPA applies and, if so, what 
level of analysis and documentation is required. 40 CFR 1501.3. DHS 
Directive 023-01, Rev. 01 and DHS Instruction Manual 023-01-001-01, 
Rev. 01 (Instruction Manual) establish the policies and procedures DHS 
and its component agencies use to comply with NEPA and the Council on 
Environmental Quality (CEQ) regulations for implementing the procedural 
requirements of NEPA codified in 40 CFR parts 1500 through 1508. The 
CEQ regulations allow Federal agencies to establish--in their NEPA 
implementing procedures with CEQ review and concurrence--categories of 
actions (``categorical exclusions'') that normally do not have a 
significant effect on the human environment. Therefore, these 
categorically excluded actions do not require preparation of an 
environmental assessment or environmental impact statement. 40 CFR 
1501.4, 1507.3(e)(2)(ii), 1508.1(d). The Instruction Manual, Appendix 
A, lists the DHS categorical exclusions. Under DHS NEPA implementing 
procedures, for an action to be categorically excluded it must satisfy 
each of the following conditions: (1) the entire action clearly fits 
within one or more of the categorical exclusions; (2) the action is not 
a piece of a larger action; and (3) no extraordinary circumstances 
exist that create the potential for a significant environmental effect.
    The proposed rule would update the Floodplain Management and 
Protection of Wetland requirements to adopt the approaches outlined in 
E.O. 11988, as amended. This involves establishing the floodplain, 
using the vertical elevation and corresponding horizontal extent, in 
the 8-step decision making process FEMA follows in applying E.O. 11988 
to its actions. FEMA proposes to amend regulations codified at 44 CFR 
part 9 to revise the definition of the floodplain based on the 
approaches in E.O. 11988, as amended, consisting of the Climate-
Informed Science Approach, the freeboard value approach, the 0.2 
percent annual chance flood approach, and any other method identified 
in updates. The proposed rule allows FEMA to select and prioritize 
among these approaches. The rule revises the 8-step decision making 
process to incorporate consideration of the approaches in determining 
if the project is in the floodplain. The rule would also add a 
requirement, where possible, to use natural systems, ecosystem 
processes, and nature-based approaches in the development of 
alternatives for Federal actions in a floodplain. The result of 
redefining the floodplain and applying the approaches outlined in 
Executive Order 11988, as amended, may be that structures determined to 
be in the floodplain (``the FFRMS floodplain'') would be elevated or 
floodproofed to a higher level, and more structures--due to the 
corresponding horizontal expansion of the floodplain--might be subject 
to an elevation requirement and/or other mitigation measures. Further, 
with the expanded horizontal floodplain, and application of the 8-step 
decision making process which allows for Federal actions in the 
floodplain only if there is no practicable alternative, it is possible 
some structures that otherwise would be constructed in a high-risk 
flood area, would be constructed elsewhere. This would result in better 
protection of people and their property, the floodplain and 
environment. When placing the action in the floodplain cannot be 
avoided, implementing mitigation measures to structures in the FFRMS 
floodplain will not only promote public safety and lessen flood risk, 
but may also reduce the impact of the action on the floodplain, and 
thereby contribute to preserving the natural and beneficial values of 
the floodplain per the mandate in E.O. 11988. Similarly, the 
requirement to use natural systems, ecosystem processes, and nature-
based approaches, where possible, in alternatives to the proposed 
action would contribute to restoring and preserving the natural and 
beneficial values of the floodplain.
    FEMA has determined that NEPA applies to the proposed rule because 
it fits the definition of a ``major federal action.'' CEQ's NEPA 
regulations define ``major federal action'' to include ``new or revised 
agency rules,'' regulations and policies. 40 CFR 1508.1(q)(2). The 
proposed rule, involving revision of the regulations at 44 CFR part 9, 
and accompanying new policy, constitute a ``major federal action.''
    FEMA analyzed the proposed rule and finds that it meets the three 
DHS criteria for a categorical exclusion. FEMA has determined that 
consistent with the first criterion, the rule clearly fits within the 
categorical exclusion found at A3 in the DHS Instruction Manual, 
Appendix A. Categorical exclusion A3 states that ``promulgation of 
rules, issuance of rulings or interpretations, and the development and 
publications of policies'' may be categorically excluded if such 
actions ``interpret or amend an existing regulation without changing 
its environmental effect.'' Instruction Manual, Appendix A, A3(d). The 
proposed rule may result in requiring a structure to have either higher 
elevation or floodproofing, or more resilient design. The rule, 
however, does not change the environmental impacts because the 
modifications do not expand the footprint of the structure. It is 
possible the expanded horizontal floodplain may discourage placing a 
``federal action'' in the floodplain as under the 8-step decision 
making process, a structure may be located in the floodplain only if 
there is no practicable alternative. In the event there is a 
practicable alternative, and new construction is consequently located 
outside the floodplain, the effect of the proposed rule would be to 
benefit the environment by contributing to restoring and preserving the 
values of the floodplain as well as enhancing public safety.
    If the Federal action must be located in the FFRMS floodplain, that 
is, there no practicable alternative, it will be subject to one of the 
three approaches or a combination of them. FEMA's preferred approach is 
CISA. If the CISA approach is used, it could result in an estimated 
average of 5 feet of additional elevation for a structure (or 
floodproofing to that level). FEMA prefers the CISA approach because it 
perceives that using the best actionable and available climate informed 
science to determine the floodplain is the most effective way to make 
the structure resilient. If CISA is not available, the proposed rule 
provides alternatives for determining the floodplain for critical 
actions and non-critical actions: for non-critical actions, the lesser 
of the freeboard value approach (2 or 3 feet above base flood 
elevation) or the .2 percent annual flood; and for critical actions, 
the higher of the freeboard value approach or .2 percent annual flood. 
Given CISA or the combination of approaches may be used, the potential 
for the change in elevation (or floodproofing) levels varies. Further, 
if communities have stricter standards, which they are required to 
apply, the

[[Page 67917]]

communities will still apply that standard and thus application of the 
FFRMS would not require a change in elevation. If the ``federal 
action'' is substantial improvement or addresses substantial damage to 
a structure or facility, it would involve action in a pre-built 
environment, with the only change being that the structure or facility 
might be elevated or floodproofed to the appropriate higher level. If 
design rather than elevation or in addition to elevation is used to 
comply with the FFRMS resilience standard, it is not anticipated to 
change the footprint of the structure or to significantly impact the 
environment. As part of implementing the FFRMS resilience standard, 
nature-based solutions are required in alternatives to the proposed 
action, where possible. When applied, they will benefit the environment 
by contributing to restoring and preserving the natural and beneficial 
values of the floodplain.
    None of the changes required by any of the combined FFRMS 
approaches are anticipated to change the environmental effects of 
application of the 8-step process. In addition to and apart from 
application of the decision process in this proposed rule, all Federal 
actions, new construction, substantial improvement, and actions 
addressing substantial damage, are subject to NEPA review and must 
comply with NEPA requirements. Each Federal action (or project) subject 
to the FFRMS will be evaluated on an individual basis under NEPA and 
related environmental laws, regulations, and executive orders. The 
Federal action will not be approved unless it meets all applicable 
environmental and historic preservation requirements. Further, the 
Federal actions subject to the proposed rule must comply with all 
applicable floodplain requirements. See 44 CFR 9.11(d)(6) (referring to 
requirement to be consistent with the criteria of the National Flood 
Insurance Program at 44 CFR part 59 et seq. or any more restrictive 
Federal, State, or local floodplain management standard).
    FEMA therefore concludes the proposed rule clearly fits within 
categorical exclusion A3. FEMA also finds the proposed rule meets the 
second and third DHS criteria for applying a categorical exclusion. The 
proposed rule is not a piece of a larger action as it will be 
implemented independently of other FEMA actions and is a separate 
action unto itself. Furthermore, FEMA finds that adopting the 
floodplain management and protection approaches outlined in E.O. 11988 
presents no extraordinary circumstances that increase the potential for 
significant environmental effects to the environment. Accordingly, the 
proposed rule is categorically excluded, and no further NEPA analysis 
or documentation is required.

E. Paperwork Reduction Act (PRA) of 1995

    As required by the Paperwork Reduction Act of 1995 (PRA), Public 
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.), 
FEMA may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless the collection of 
information displays a valid OMB control number. See 44 U.S.C. 3506, 
3507. This proposed rulemaking would call for no new collections of 
information under the PRA. This proposed rule includes information 
currently collected by FEMA and approved in OMB information collections 
1660-0072 (FEMA Mitigation Grant Programs) and 1660-0076 (Hazard 
Mitigation Grant Program (HMGP) Application and Reporting). With 
respect to these collections, this proposed rulemaking would not impose 
any additional burden and would not require a change to the forms, the 
substance of the forms, or the number of recipients who would submit 
the forms to FEMA.

F. Privacy Act

    Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must 
determine whether implementation of a proposed regulation would result 
in a system of records. A ``record'' is any item, collection, or 
grouping of information about an individual that is maintained by an 
agency, including, but not limited to, his/her education, financial 
transactions, medical history, and criminal or employment history and 
that contains his/her name, or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of 
records'' is a group of records under the control of an agency from 
which information is retrieved by the name of the individual or by some 
identifying number, symbol, or other identifying particular assigned to 
the individual. See 5 U.S.C. 552a(a)(5). An agency cannot disclose any 
record, which is contained in a system of records, except by following 
specific procedures.
    In accordance with DHS policy, FEMA has completed a Privacy 
Threshold Analysis for this proposed rule. This rule is covered by the 
following PIAs: DHS/FEMA/PIA-006 FEMA National Emergency Management 
Electronic Grants System, DHS/FEMA/PIA-025-Hazard Mitigation Grant 
Program (HMGP) System, DHS/FEMA/PIA-026 Operational Data Store and 
Enterprise Data Warehouse PIA, and DHS/FEMA/PIA-031 Authentication and 
Provisioning Services (APS). No updates to these PIAs are necessary. 
Further, this rule is covered under the following System of Records 
Notices (SORNs): DHS/FEMA-009 Hazard Mitigation, Disaster Public 
Assistance, and Disaster Loan Programs, 79 FR 16015, Mar. 24, 2014; 
DHS/ALL-004 General Information Technology Access Account Records 
System (GITAARS), 77 FR 70792, Nov. 27, 2012; and DHS/FEMA-008 Disaster 
Recovery Assistance Files. This proposed rule would not create a new 
system of records and no update to these SORNs are necessary.

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

    Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments,'' 65 FR 67249, Nov. 9, 2000, applies to agency 
regulations that have Tribal implications, that is, regulations that 
have substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes. 
Under this Executive Order, to the extent practicable and permitted by 
law, no agency shall promulgate any regulation that has Tribal 
implications, that imposes substantial direct compliance costs on 
Indian Tribal governments, and that is not required by statute, unless 
funds necessary to pay the direct costs incurred by the Indian Tribal 
government or the Tribe in complying with the regulations are provided 
by the Federal Government, or the agency consults with Tribal 
officials.
    FEMA has reviewed this proposed rule under Executive Order 13175 
and has determined that this rule would not have a substantial direct 
effect on one or more Indian Tribes, on the relationship between the 
Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes.
    Part 9 applies to FEMA disaster and non-disaster assistance 
programs, including PA, Individual Assistance, HMA, and grants 
processed by GPD. Pursuant to section 8 of Executive Order 11988, part 
9 does not apply to

[[Page 67918]]

assistance provided for emergency work essential to save lives and 
protect property and public health and safety, performed pursuant to 
sections 403 and 502 of the Stafford Act, as amended (42 U.S.C. 5170b 
and 5192).
    Indian Tribes have the same opportunity to participate in FEMA's 
grant programs as other eligible participants, and participation is 
voluntary. The requirements of this rule do not affect Tribes 
differently than other grant recipients. Therefore, FEMA does not 
expect this proposed rule would have a substantial direct effect on one 
or more Indian Tribes or impose substantial direct compliance costs on 
Indian Tribal governments but will consider any information provided in 
comments to inform its analysis of this issue as part of a final rule.
    Notwithstanding FEMA's conclusion that this proposed rule would not 
have tribal implications, FEMA recognizes the importance of engaging 
with Tribes with respect to the FFRMS. FEMA therefore summarizes below 
the extensive engagement process that precedes this rule, including 
significant engagement with Tribal leaders. As noted above, in the 
aftermath of Hurricane Sandy, the President issued Executive Order 
13632,\152\ which created the Federal Interagency Hurricane Sandy 
Rebuilding Task Force (Sandy Task Force). This Task Force was chaired 
by the Secretary of HUD, who led the effort in coordination with 
multiple Federal partners, as well as an advisory group composed of 
State, local, and Tribal elected leaders.
---------------------------------------------------------------------------

    \152\ 77 FR 74341, Dec. 14, 2012.
---------------------------------------------------------------------------

    In June 2013, the President issued a Climate Action Plan that 
directed agencies to take the appropriate actions to reduce risk to 
Federal investments, specifically directing agencies to build on the 
work done by the Sandy Task Force and update their flood risk reduction 
standards for ``federally-funded projects'' to ensure that ``projects 
funded with taxpayer dollars last as long as intended.'' In November 
2013, the Climate Task Force convened, with 26 Governors, mayors, and 
local and Tribal leaders serving as members. After a year-long process 
of receiving input from across State, local, Tribal and territorial 
governments; private businesses; trade associations; academic 
organizations; civil society; and other stakeholders, the Task Force 
provided a recommendation to the President in November 2014 that, in 
order to ensure resiliency, Federal agencies, when taking actions in 
and around floodplains, should include considerations of the effects of 
changing conditions, including sea level rise, more frequent and severe 
storms, and increasing river flood risks.
    Executive Order 11988, as amended, established the FFRMS. It also 
set forth a process by which additional input from stakeholders could 
be solicited and considered before agencies took any action to 
implement the FFRMS. It required FEMA to publish an updated draft 
version of the 1978 Guidelines \153\ revised to incorporate the changes 
required by Executive Order 13690 and the FFRMS in the Federal Register 
for notice and comment. Finally, Executive Order 13690 required the WRC 
to issue final Guidelines to provide guidance to agencies on the 
implementation of Executive Order 11988, as amended, consistent with 
the FFRMS.
---------------------------------------------------------------------------

    \153\ The 1978 Guidelines were the original interpretation of 
Executive Order 11988.
---------------------------------------------------------------------------

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

H. Executive Order 13132, Federalism

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

I. Executive Order 12898, Environmental Justice; Executive Order 14096, 
Revitalizing Our Nation's Commitment to Environmental Justice for All

    Under Executive Order 12898, ``Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' (59 FR 7629, Feb. 16, 1994); and Executive Order 14096, 
``Revitalizing Our Nation's Commitment to Environmental Justice for All 
(88 FR 25251, Apr. 26, 2023), FEMA incorporates environmental justice 
into its policies and programs. Executive Order 14096 charges agencies 
to make achieving environmental justice part of their missions 
consistent with statutory

[[Page 67919]]

authority by identifying, analyzing, and addressing disproportionate 
and adverse human health and environmental effects and hazards of 
Federal activities, including those related to climate change and 
cumulative impacts of environmental and other burdens on communities 
with environmental justice concerns.
    FEMA does not expect this rule to have a disproportionate and 
adverse human health or environmental effect on communities with 
environmental justice concerns but will consider any information 
provided in comments to inform its analysis of this issue as part of a 
final rule.

J. Executive Order 12630, Taking of Private Property

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

K. Executive Order 12988, Civil Justice Reform

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

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

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

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

    ``Voluntary consensus standards'' are standards developed or 
adopted by voluntary consensus standards bodies, both domestic and 
international. These standards include provisions requiring that owners 
of relevant intellectual property have agreed to make that intellectual 
property available on a non-discriminatory, royalty-free, or reasonable 
royalty basis to all interested parties. OMB Circular A-119 directs 
agencies to use voluntary consensus standards in their regulatory 
actions in lieu of government-unique standards except where 
inconsistent with law or otherwise impractical. The policies in the 
Circular are intended to reduce to a minimum the reliance by agencies 
on government-unique standards.
    Consistent with then-President Obama's Climate Action Plan,\154\ 
the National Security Council staff coordinated an interagency effort 
to create a new flood risk reduction standard for Federally funded 
projects. The views of Governors, mayors, and other stakeholders were 
solicited and considered as efforts were made to establish a new flood 
risk reduction standard for Federally funded projects. The FFRMS is the 
result of these efforts.
---------------------------------------------------------------------------

    \154\ The White House, ``President Obama's Climate Action Plan, 
2nd Anniversary Progress Report--Continuing to cut carbon, 
pollution, protect American communities, and lead internationally.'' 
June 2015 found at https://obamawhitehouse.archives.gov/sites/default/files/docs/cap_progress_report_final_w_cover.pdf (last 
accessed July 12, 2023).
---------------------------------------------------------------------------

List of Subjects in 44 CFR Part 9

    Flood plains, Reporting and recordkeeping requirements.

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

PART 9--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS

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

    Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42 
U.S.C. 4321 et seq.; E.O. 11988 of May 24, 1977, 42 FR 26951, 3 CFR, 
1977 Comp., p. 117; E.O. 11990 of May 24, 1977, 42 FR 26961, 3 CFR, 
1977 Comp. p. 121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 FR 27967.

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


Sec.  9.1  Purpose.

    This part sets forth the policy, procedure, and responsibilities to 
implement and enforce relevant sections of the National Flood Insurance 
Act of 1968, as amended, and the Flood Disaster Protection Act of 1973, 
as amended, 42 U.S.C. 4001 et seq., the National Environmental Policy 
Act of 1969, 42 U.S.C. 4321 et seq., as amended, and other relevant 
statutory authorities in conjunction with Executive Order 11988, 
Floodplain Management, as amended, and Executive Order 11990, 
Protection of Wetlands.
0
3. Amend Sec.  9.2 by revising paragraph (b) and adding paragraphs (c) 
and (d) to read as follows:


Sec.  9.2  Policy.

* * * * *
    (b) The Agency will provide leadership in floodplain management and 
the protection of wetlands, informed by the best available and 
actionable science, to bolster the resilience of communities and 
Federal assets against the impacts of flooding, which are anticipated 
to increase over time due to the effects of changing conditions which 
adversely affect the environment, economic prosperity, public health 
and safety, and national security.
    (c) The Agency shall integrate the goals of the Orders to the 
greatest possible degree into its procedures for implementing the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
    (d) The Agency shall:
    (1) Minimize the impact of floods on human health, safety, and 
welfare;
    (2) Avoid long- and short-term adverse impacts associated with the 
occupancy and modification of floodplains and the destruction and 
modification of wetlands;
    (3) Avoid direct and indirect support of floodplain development and 
new construction in wetlands wherever there is a practicable 
alternative;
    (4) Reduce the risk of flood loss;
    (5) Promote the use of nonstructural flood protection methods to 
reduce the risk of flood loss;
    (6) Minimize the destruction, loss, or degradation of wetlands;
    (7) Restore and preserve the natural and beneficial values served 
by floodplains;
    (8) Preserve and enhance the natural values of wetlands;
    (9) Involve the public throughout the floodplain management and 
wetlands protection decision-making process;
    (10) Adhere to the objectives of the Unified National Program for 
Floodplain Management; and
    (11) Improve and coordinate the Agency's plans, programs, 
functions, and resources so that the Nation may attain the widest range 
of beneficial uses of the environment without degradation or risk to 
health and safety.
0
4. Amend Sec.  9.3 by revising to read as follows:


Sec.  9.3  Severability.

    Any provision of this part held to be invalid or unenforceable as 
applied to any action should be construed so as to continue to give the 
maximum effect to the provision permitted by law, unless such holding 
is that the provision of this part is invalid and unenforceable in all 
circumstances, in which event the provision should be severable from 
the remainder of this subpart and shall not affect the remainder 
thereof.
0
5. Amend Sec.  9.4 by:
0
a. Adding in alphanumeric order definitions for ``0.2 Percent Annual 
Chance Flood Elevation,'' ``0.2 Percent

[[Page 67920]]

Annual Chance Floodplain,'' ``1 Percent Annual Chance Flood 
Elevation,'' and ``1 Percent Annual Chance Floodplain;''
0
b. Revising the definitions of ``Action'' and ``Actions Affecting or 
Affected by Floodplains or Wetlands;''
0
c. Adding the definition of ``Action Subject to the Federal Flood Risk 
Management Standard;''
0
d. Removing the definitions of ``Base Flood'' and ``Base Floodplain;''
0
e. Adding the definition of ``Base Flood Elevation;''
0
f. Revising the definitions of ``Coastal High Hazard Area,'' ``Critical 
Action'' and ``Emergency Actions;''
0
g. Adding in alphabetical order definitions for ``Federal Flood Risk 
Management Standard (FFRMS),'' ``Federal Flood Risk Management Standard 
Floodplain,'' ``Federally Funded Project,'' and ``FEMA Resilience;''
0
h. Removing the definitions of ``Five Hundred Year Floodplain'' and 
``FIA;''
0
i. Revising the definition of ``Flood or Flooding;''
0
j. Removing the definitions of ``Flood Fringe,'' ``Flood Hazard 
Boundary Map (FHBM),'' ``Flood Insurance Rate Map (FIRM),'' and ``Flood 
Insurance Study;''
0
k. Revising the definitions of ``Floodplain'', ``Functionally Dependent 
Use'', and ``Mitigation;''
0
l. Removing the definition of ``Mitigation Directorate;''
0
m. Adding in alphabetical order a definition for ``National Security'' 
and ``Nature-Based Approaches,'' ``Natural and Beneficial Values of 
Floodplains and Wetlands,'' and ``Natural Features;''
0
n. Removing the definition of ``Natural Values of Floodplains and 
Wetlands;''
0
o. Revising the definition of ``New Construction;''
0
p. Removing the definition of ``New Construction in Wetlands;''
0
q. Revising the definitions of ``Orders'', ``Practicable'', and 
``Regulatory Floodway'', ``Restore'', ``Structures'', and ``Substantial 
Improvement;''
0
r. Adding the definition of ``Support of Floodplain and Wetland 
Development;''
0
s. Removing the definition of ``Support;'' and
0
t. Revising the definition of ``Wetlands.''
    The additions and revisions read as follows:


Sec.  9.4  Definitions.

    0.2 Percent Annual Chance Flood Elevation means the elevation to 
which floodwater is anticipated to rise during the 0.2 percent annual 
chance flood (also known as the 500-year flood).
    0.2 Percent Annual Chance Floodplain means the area subject to 
flooding by the 0.2 percent annual chance flood (also known as the 500-
year floodplain).
    1 Percent Annual Chance Flood Elevation--see Base Flood Elevation.
    1 Percent Annual Chance Floodplain means the area subject to 
flooding by the 1 percent annual chance flood (also known as the 100-
year floodplain or base floodplain).
    Action means
    (1) Acquiring, managing, and disposing of Federal lands and 
facilities;
    (2) Providing federally undertaken, financed, or assisted 
construction and improvements; and
    (3) Conducting Federal activities and programs affecting land use, 
including, but not limited to, water and related land resources, 
planning, regulating, and licensing activities.
    Actions Affecting or Affected by Floodplains or Wetlands means 
actions which have the potential to result in the long- or short-term 
impacts associated with:
    (1) The occupancy or modification of floodplains, and the direct or 
indirect support of floodplain development, or
    (2) The destruction and modification of wetlands and the direct or 
indirect support of new construction in wetlands.
    Action Subject to the Federal Flood Risk Management Standard 
(FFRMS) means any action where FEMA funds are used for new 
construction, substantial improvement, or to address substantial damage 
to a structure or facility.
* * * * *
    Base Flood Elevation means the elevation to which floodwater is 
anticipated to rise during the 1 percent annual chance flood (also 
known as the base flood or 100-year flood). The terms ``base flood 
elevation,'' ``1 percent annual change flood elevation,'' and ``100-
year flood elevation'' are synonymous and are used interchangeably.
    Coastal High Hazard Area means an area of flood hazard extending 
from offshore to the inland limit of a primary frontal dune along an 
open coast and any other area subject to high velocity wave action from 
storms or seismic sources.
    Critical Action means any action for which even a slight chance of 
flooding is too great. Critical actions include, but are not limited 
to, those which create or extend the useful life of structures or 
facilities:
    (1) Such as those which produce, use or store highly volatile, 
flammable, explosive, toxic or water-reactive materials;
    (2) Such as hospitals and nursing homes, and housing for the 
elderly, which are likely to contain occupants who may not be 
sufficiently mobile to avoid the loss of life or injury during flood 
and storm events;
    (3) Such as emergency operation centers, or data storage centers 
which contain records or services that may become lost or inoperative 
during flood and storm events; and
    (4) Such as generating plants, and other principal points of 
utility lines.
* * * * *
    Emergency Actions means emergency work essential to save lives and 
protect property and public health and safety performed under sections 
403 and 502 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act of 1988 (42 U.S.C. 5170b and 5192).
* * * * *
    Federal Flood Risk Management Standard (FFRMS) means the Federal 
flood risk management standard to be incorporated into existing 
processes used to implement Executive Order 11988, as amended.
    Federal Flood Risk Management Standard (FFRMS) Floodplain means the 
floodplain established using one of the approaches described in Sec.  
9.7(c) of this part.
    Federally Funded Project--see Action Subject to the Federal Flood 
Risk Management Standard.
    FEMA Resilience means the organization within FEMA that includes 
the Federal Insurance and Mitigation Administration, the Grants Program 
Directorate, and the National Preparedness Directorate.
* * * * *
    Flood or flooding means the general and temporary condition of 
partial or complete inundation of normally dry land areas from the 
overflow of inland and/or tidal waters, and/or the unusual and rapid 
accumulation of runoff of surface waters from any source. 0.2 Percent 
Annual Chance Flood means the flood which has a 0.2 percent chance of 
being equaled or exceeded in any given year (also known as the 500-year 
flood). 1 Percent Annual Chance Flood means the flood which has a 1 
percent chance of being equaled or exceeded in any given year (also 
known as the 100-year flood or base flood). The terms ``base flood,'' 
``1 percent annual chance flood,'' and ``100-year flood'' are 
synonymous and are used interchangeably.
* * * * *
    Floodplain means any land area that is subject to flooding. The 
term

[[Page 67921]]

``floodplain,'' by itself, refers to geographic features with undefined 
boundaries. For the purposes of this part, the FFRMS floodplain shall 
be established using one of the approaches described in Sec.  9.7(c) of 
this part. See 0.2 Percent Annual Chance Floodplain, 1 Percent Annual 
Chance Floodplain, and Federal Flood Risk Management Standard 
Floodplain.
* * * * *
    Functionally Dependent Use means a use which cannot perform its 
intended purpose unless it is located or carried out in close proximity 
to water.
* * * * *
    Mitigation means steps necessary to minimize the potentially 
adverse effects of the proposed action, and to restore and preserve the 
natural and beneficial floodplain values and to preserve and enhance 
natural values of wetlands.
* * * * *
    National Security means a condition that is provided by either (1) 
a military or defense advantage over any foreign nation or group of 
nations; (2) a favorable foreign relations position; or (3) a defense 
posture capable of successfully resisting hostile or destructive action 
from within or without, overt or covert. National security encompasses 
both national defense and foreign relations of the United States.
    Nature-Based Approaches means the features (sometimes referred to 
as ``green infrastructure'') designed to mimic natural processes and 
provide specific services such as reducing flood risk and/or improving 
water quality. Nature-based approaches are created by human design (in 
concert with and to accommodate natural processes) and generally, but 
not always, must be maintained in order to reliably provide the 
intended level of service.
    Natural and Beneficial Values of Floodplains and Wetlands means 
features or resources that provide environmental and societal benefits. 
Water and biological resources are often referred to as ``natural 
functions of floodplains and wetlands.'' These values include, but are 
not limited to:
    (1) Water Resource Values (storing and conveying floodwaters, 
maintaining water quality, and groundwater recharge);
    (2) Living Resource Values (providing habitats and enhancing 
biodiversity for fish, wildlife, and plant resources);
    (3) Cultural Resource Values (providing open space, natural beauty, 
recreation, scientific study, historic and archaeological resources, 
and education; and
    (4) Cultivated Resource Values (creating rich soils for 
agriculture, aquaculture, and forestry).
    Natural Features means characteristics of a particular environment 
(e.g., barrier islands, sand dunes, wetlands) that are created by 
physical, geological, biological, and chemical processes and exist in 
dynamic equilibrium. Natural features are self-sustaining parts of the 
landscape that require little or no maintenance to continue providing 
their ecosystem services (functions).
    New Construction means the construction of a new structure or 
facility or the replacement of a structure or facility which has been 
totally destroyed. New construction includes permanent installation of 
temporary housing units. New construction in wetlands includes 
draining, dredging, channelizing, filling, diking, impounding, and 
related activities.
* * * * *
    Orders means Executive Order 11988, Floodplain Management, as 
amended, and Executive Order 11990, Protection of Wetlands.
    Practicable means capable of being done within existing 
constraints. The test of what is practicable depends on the situation 
and includes consideration of all pertinent factors, such as natural 
environment, social concerns, economic aspects, legal constraints, and 
agency authorities.
* * * * *
    Regulatory Floodway means the area regulated by Federal, State, or 
local requirements to provide for the discharge of the base flood so 
the cumulative rise in the water surface is no more than a designated 
amount above the base flood elevation.
    Restore means to reestablish a setting or environment in which the 
natural functions of the floodplain can operate.
    Structure means a walled and roofed building, including a temporary 
housing unit (manufactured housing) or a gas or liquid storage tank.
    Substantial Improvement means any repair, reconstruction or other 
improvement of a structure or facility, which has been damaged in 
excess of, or the cost of which equals or exceeds, 50% of the pre-
disaster market value of the structure or replacement cost of the 
facility (including all ``public facilities'' as defined in the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act of 1988) (1) 
before the repair or improvement is started, or (2) if the structure or 
facility has been damaged and is proposed to be restored. Substantial 
improvement includes work to address substantial damage to a structure 
or facility. If a facility is an essential link in a larger system, the 
percentage of damage will be based on the cost of repairing the damaged 
facility relative to the replacement cost of the portion of the system 
which is operationally dependent on the facility. The term 
``substantial improvement'' does not include any alteration of a 
structure or facility listed on the National Register of Historic 
Places or a State Inventory of Historic Places.
* * * * *
    Support of Floodplain and Wetland Development means to, directly or 
indirectly, encourage, allow, serve, or otherwise facilitate 
development in floodplains or wetlands. Development means any man-made 
change to improved or unimproved real estate, including but not limited 
to new construction, mining, dredging, filling, grading, paving, 
excavation or drilling operations, or storage of equipment or 
materials. Direct support results from actions within floodplains or 
wetlands, and indirect support results from actions outside of 
floodplains or wetlands.
    Wetlands means those areas which are inundated or saturated by 
surface or ground water with a frequency sufficient to support, or that 
under normal hydrologic conditions does or would support, a prevalence 
of vegetation or aquatic life typically adapted for life in saturated 
or seasonally saturated soil conditions, including wetlands areas 
separated from their natural supply of water as a result of 
construction activities such as structural flood protection methods or 
solid-fill road beds, and activities such as mineral extraction and 
navigation improvements. Examples of wetlands include, but are not 
limited to, swamps, fresh and salt water marshes, estuaries, bogs, 
beaches, wet meadows, sloughs, potholes, mud flats, river overflows, 
and other similar areas. This definition is intended to be consistent 
with the definition utilized by the U.S. Fish and Wildlife Service.
0
6. Amend Sec.  9.5 by revising paragraph (a)(3), the first sentence of 
paragraph (b)(1), and paragraphs (c) through (g) to read as follows:


Sec.  9.5  Scope.

    (a) * * *
    (3) The amendments to this part made on [EFFECTIVE DATE OF FINAL 
RULE] apply to new actions for which assistance is made available 
pursuant to declarations under the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act of 1988 on or after [EFFECTIVE DATE OF 
FINAL RULE] and new actions for which assistance is

[[Page 67922]]

made available pursuant to notices of funding opportunities published 
on or after [EFFECTIVE DATE OF FINAL RULE]. For ongoing actions for 
which assistance was made available prior to that date, legacy program 
regulations set forth in guidance and available at https://www.fema.gov 
shall apply.
    (b) * * *
    (1) Executive Order 11990, Protection of Wetlands, contains a 
limited exemption not found in Executive Order 11988, Floodplain 
Management, as amended. * * *
* * * * *
    (c) Decision-making involving certain categories of actions. The 
provisions set forth in this part are not applicable to the actions 
enumerated in paragraphs (c)(1) through (10) of this section except 
that the Regional Administrators shall comply with the spirit of 
Executive Order 11988, as amended, and Executive Order 11990 to the 
extent practicable. For any action which is excluded from the actions 
enumerated below, the full 8-step process applies (see Sec.  9.6) 
(except as indicated at paragraphs (d), (e), and (g) of this section 
regarding other categories of partial or total exclusion). The 
provisions of this part do not apply to the following (all references 
are to the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act of 1988, Pub. L. 93-288, as amended, except as noted):
    (1) Assistance provided for emergency work essential to save lives 
and protect property and public health and safety performed pursuant to 
sections 403 and 502;
    (2) Emergency Support Teams (section 303);
    (3) Emergency Communications (section 418);
    (4) Emergency Public Transportation (section 419);
    (5) Fire Management Assistance (section 420), except for hazard 
mitigation assistance under sections 404 and 420(d);
    (6) Community Disaster Loans (section 417), except to the extent 
that the proceeds of the loan will be used for repair of facilities or 
structures or for construction of additional facilities or structures;
    (7) The following Federal Assistance to Individuals and Households 
Program (section 408) categories of assistance:
    (i) Financial assistance for temporary housing (section 
408(c)(1)(A));
    (ii) Lease and repair of rental units for temporary housing 
(section 408(c)(1)(B)(ii)), except that Step 1 (Sec.  9.7) shall be 
carried out;
    (iii) Repairs (section 408(c)(2));
    (iv) Replacement (section 408(c)(3)); and
    (v) Financial assistance to address other needs (section 408(e)).
    (8) Debris clearance and removal (sections 403 and 502), except 
those grants involving non-emergency disposal of debris within a 
floodplain or wetland (section 407);
    (9) Actions under sections 406 and 407 of less than $18,000. Such 
$18,000 amount will be adjusted annually to reflect changes in the 
Consumer Price Index for All Urban Consumers published by the 
Department of Labor;
    (10) Placement of families in existing resources and Temporary 
Relocation Assistance provided to those families so placed under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980, Public Law 96-510.
    (d) Abbreviated decision-making process applying steps 1, 4, 5, and 
8. The Regional Administrator shall apply steps 1, 4, 5, and 8 of the 
decision-making process (Sec. Sec.  9.7, 9.10, and 9.11) to repairs 
under section 406 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act of 1988, Public Law 93-288, as amended, 
between $18,000 and $91,000. Such $18,000 and $91,000 amounts will be 
adjusted annually to reflect changes in the Consumer Price Index for 
All Urban Consumers published by the Department of Labor. For any 
action which is excepted from the actions listed below (except as 
otherwise provided in Sec.  9.5 regarding other categories of partial 
or total exclusion), the full 8-step process applies (See Sec.  9.6). 
The Regional Administrator may also require certain other portions of 
the decision-making process to be carried out for individual actions as 
is deemed necessary. Steps 1, 4, 5, and 8 of the decision-making 
process apply to actions under section 406 of the Stafford Act 
referenced above except for:
    (1) Actions in a floodway or coastal high hazard area; or
    (2) New construction, substantial improvement, or repairs to 
address substantial damage of structures or facilities; or
    (3) Facilities or structures which have previously sustained damage 
from flooding due to a major disaster or emergency or on which a flood 
insurance claim has been paid; or
    (4) Critical actions.
    (e) Abbreviated decision-making process applying steps 1, 2, 4, 5, 
and 8. The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 
of the decision-making process (Sec. Sec.  9.7, 9.8, 9.10, and 9.11, 
see Sec.  9.6) to certain actions under Section 406 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act of 1988, Public 
Law 93-288, as amended, provided in paragraphs (1) and (2) below. Steps 
3 and 6 (Sec.  9.9) shall be carried out except that alternative sites 
outside the floodplain or wetland need not be considered. After 
assessing impacts of the proposed action on the floodplain or wetlands 
and of the site on the proposed action, alternative actions to the 
proposed action, if any, and the ``no action'' alternative shall be 
considered. The Regional Administrator may also require certain other 
portions of the decision-making process to be carried out for 
individual actions as is deemed necessary. For any action which is 
excluded from the actions listed below (except as otherwise provided in 
Sec.  9.5 regarding other categories of partial or total exclusion), 
the full 8-step process applies (see Sec.  9.6). The Regional 
Administrator shall apply steps 1, 2, 4, 5, and 8 of the decision-
making process (Sec. Sec.  9.7, 9.8, 9.10, and 9.11, see Sec.  9.6) to:
    (1) Replacement of building contents, materials, and equipment 
(section 406).
    (2) Repairs under section 406 to damaged facilities or structures, 
except any such action for which one or more of the following is 
applicable:
    (i) FEMA estimated cost of repairs is more than 50 percent of the 
estimated reconstruction cost of the entire facility or structure or is 
more than $364,000. Such $364,000 amount will be adjusted annually to 
reflect changes in the Consumer Price Index for All Urban Consumers 
published by the Department of Labor; or
    (ii) The action is located in a floodway or coastal high hazard 
area; or
    (iii) Facilities or structures which have previously sustained 
structural damage from flooding due to a major disaster or emergency or 
on which a flood insurance claim has been paid; or
    (iv) The action is a critical action.
    (f) Other categories of actions. Based upon the completion of the 
8-step decision-making process (Sec.  9.6), the Regional Administrator 
may find that a specific category of actions either offers no potential 
for carrying out the purposes of the Orders and shall be treated as 
those actions listed in Sec.  9.5(c), or has no practicable alternative 
sites and shall be treated as those actions listed in Sec.  9.5(e), or 
has no practicable alternative actions or sites and shall be treated as 
those actions listed in Sec.  9.5(d). This finding will be made in 
consultation with FEMA Resilience and the Council on Environmental 
Quality as provided in section 2(d) of Executive Order 11988, as 
amended. Public notice of each of these determinations shall

[[Page 67923]]

include publication in the Federal Register and a 30-day comment 
period.
    (g) The National Flood Insurance Program (NFIP). (1) FEMA 
Resilience shall apply the 8-step decision-making process to program-
wide actions under the NFIP, including all regulations, procedures, and 
other issuances making or amending program policy, and the 
establishment of programmatic standards or criteria. FEMA Resilience 
shall not apply the 8-step decision-making process to the application 
of programmatic standards or criteria to specific situations. Thus, for 
example, FEMA Resilience would apply the 8-step process to a 
programmatic determination of categories of structures to be insured, 
but not to whether to insure each individual structure.
    (2) The provisions set forth in this part are not applicable to the 
actions enumerated below except that FEMA Resilience shall comply with 
the spirit of the Orders to the extent practicable:
    (i) The issuance of individual flood insurance policies and policy 
interpretations;
    (ii) The adjustment of claims made under the Standard Flood 
Insurance Policy;
    (iii) The hiring of independent contractors to assist in the 
implementation of the NFIP;
    (iv) The issuance of individual flood insurance maps, Map 
Information Facility map determinations, and map amendments; and
    (v) The conferring of eligibility for emergency or regular program 
(NFIP) benefits upon communities.
0
7. Revise Sec.  9.6 to read as follows:


Sec.  9.6  Decision-making process.

    (a) Purpose. This section sets out the floodplain management and 
wetlands protection decision-making process to be followed by the 
Agency in applying the Orders to its actions. The numbering of Steps 1 
through 8 does not require that the steps be followed sequentially. As 
information is gathered through the decision-making process, and as 
additional information is needed, reevaluation of lower numbered steps 
may be necessary.
    (b) Decision-making process. Except as otherwise provided in Sec.  
9.5 regarding categories of partial or total exclusion when proposing 
an action, the Agency shall apply the 8-step decision-making process. 
FEMA shall:
    (1) Step 1. Determine whether the proposed action is located in a 
floodplain and/or a wetland as established by Sec.  9.7; and whether it 
has the potential to affect or be affected by a floodplain or wetland 
(see Sec.  9.7);
    (2) Step 2. Notify the public at the earliest possible time of the 
intent to carry out an action in a floodplain or wetland, and involve 
the affected and interested public in the decision-making process (see 
Sec.  9.8);
    (3) Step 3. Identify and evaluate practicable alternatives to 
locating the proposed action in a floodplain or wetland (including 
alternative sites, actions, natural features, nature-based approaches, 
and the ``no action'' option) (see Sec.  9.9). If a practicable 
alternative exists outside the floodplain or wetland FEMA must locate 
the action at the alternative site.
    (4) Step 4. Identify the potential direct and indirect impacts 
associated with the occupancy or modification of floodplains and 
wetlands and the potential direct and indirect support of floodplain 
and wetland development that could result from the proposed action (see 
Sec.  9.10);
    (5) Step 5. Minimize the potential adverse impacts to or within 
floodplains and wetlands and minimize support of floodplain and wetland 
development identified under Step 4. Restore and preserve the natural 
and beneficial values served by floodplains, and preserve and enhance 
the natural and beneficial values served by wetlands. Integrate nature-
based approaches where appropriate (see Sec.  9.11);
    (6) Step 6. Reevaluate the proposed action to determine first, if 
it is still practicable in light of its exposure to flood hazards, the 
extent to which it will aggravate hazards to others, and its potential 
to disrupt floodplain and wetland values; and second, if alternatives 
preliminarily rejected at Step 3 are practicable in light of the 
information gained in Steps 4 and 5. FEMA shall not act in a floodplain 
or wetland unless it is the only practicable location (see Sec.  9.9);
    (7) Step 7. Prepare and provide the public with a finding and 
public explanation of any final decision that the floodplain or wetland 
is the only practicable alternative (see Sec.  9.12); and
    (8) Step 8. Review the implementation and post-implementation 
phases of the proposed action to ensure that the requirements stated in 
Sec.  9.11 are fully implemented. Oversight responsibility shall be 
integrated into existing processes.
0
8. Amend Sec.  9.7 by revising paragraphs (a), (b), (c), (d)(3) and (4) 
to read as follows:


Sec.  9.7  Determination of proposed action's location.

    (a) Purpose. This section establishes Agency procedures for 
determining whether any action as proposed is located in or affects a 
floodplain established in paragraph (c) of this section or a wetland.
    (b) Information needed. (1) The Agency shall obtain enough 
information so that it can fulfill the requirements in this part to:
    (i) Avoid Federal action in floodplain and wetland locations unless 
they are the only practicable alternatives; and
    (ii) Minimize harm to and within floodplains and wetlands.
    (2) In all cases, FEMA shall determine whether the proposed action 
is located in a floodplain or wetland. Information about the floodplain 
as established by Sec.  9.7(c) and the location of floodways and 
coastal high hazard areas may also be needed to comply with this part, 
especially Sec.  9.11.
    (3) The following additional current and future flooding 
characteristics may be identified by the Regional Administrator as 
applicable:
    (i) Velocity of floodwater;
    (ii) Rate of rise of floodwater;
    (iii) Duration of flooding;
    (iv) Available warning and evacuation time and routes;
    (v) Special problems:
    (A) Levees;
    (B) Erosion;
    (C) Subsidence;
    (D) Sink holes;
    (E) Ice jams;
    (F) Debris load;
    (G) Pollutants;
    (H) Wave heights;
    (I) Groundwater flooding;
    (J) Mudflow.
    (vi) Any other applicable flooding characteristics.
    (c) Floodplain determination. In the absence of a finding to the 
contrary, FEMA will determine that a proposed action involving a 
facility or structure that has been flooded previously is in the 
floodplain. In determining if a proposed action is in the floodplain:
    (1) FEMA shall determine whether the action is an action subject to 
the FFRMS as defined in Sec.  9.4.
    (i) If the action is an action subject to the FFRMS, FEMA shall 
establish the FFRMS floodplain area and associated flood elevation by 
using the process specified in (c)(3) of this section and one of the 
following approaches:
    (A) Climate-Informed Science Approach (CISA): Using a climate-
informed science approach that uses the best-available, actionable 
hydrologic and hydraulic data and methods that integrate current and 
future changes in flooding based on climate science. This approach will 
also include an emphasis on whether the action is a critical action as 
one of the factors to be considered when conducting the analysis;

[[Page 67924]]

    (B) Freeboard Value Approach (FVA): Using the freeboard value, 
reached by adding an additional 2 feet to the base flood elevation for 
non-critical actions and by adding an additional 3 feet to the base 
flood elevation for critical actions;
    (C) 0.2 Percent Annual Chance Flood Approach (0.2PFA): The 0.2 
percent annual chance flood; or
    (D) Any other method identified in an update to the FFRMS.
    (ii) FEMA may select among and prioritize the approaches in 
paragraph (c)(1) by policy.
    (iii) FEMA may provide an exception to using the FFRMS floodplain 
and corresponding flood elevation for an action subject to the FFRMS 
and instead use the 1 percent annual chance (base) floodplain for non-
critical actions or the 0.2 percent annual chance floodplain for 
critical actions where the action is in the interest of national 
security, where the action is an emergency action, or where the action 
is a mission-critical requirement related to a national security 
interest or an emergency action.
    (2) If the action is not an action subject to the FFRMS as defined 
in Sec.  9.4, FEMA shall use, at a minimum:
    (i) The 1 percent annual chance (base) floodplain and flood 
elevation for non-critical actions; and
    (ii) The 0.2 percent annual chance floodplain and flood elevation 
for critical actions.
    (3) FEMA shall establish the floodplain and corresponding elevation 
using the best available information. The floodplain and corresponding 
elevation determined using the best available information must be at 
least as restrictive as FEMA's regulatory determinations under the NFIP 
where such determinations are available. In obtaining the best 
available information, FEMA may consider other FEMA information as well 
as other available information, such as:
    (i) Department of Agriculture: Natural Resources Conservation 
Service, U.S. Forest Service;
    (ii) Department of Defense: U.S. Army Corps of Engineers;
    (iii) Department of Commerce: National Oceanic and Atmospheric 
Administration;
    (iv) Department of the Interior: Bureau of Land Management, Bureau 
of Reclamation, U.S. Fish and Wildlife Service, United States 
Geological Survey;
    (v) Tennessee Valley Authority;
    (vi) Department of Transportation;
    (vii) Environmental Protection Agency;
    (viii) General Services Administration;
    (ix) States and Regional Agencies; or
    (x) Local sources such as Floodplain Administrators, Regional Flood 
Control Districts, or Transportation Departments.
    (4) If the sources listed in paragraph (c)(3) of this section do 
not have or know of the information necessary to comply with the 
requirements in this part, the Regional Administrator may seek the 
services of a professional registered engineer.
    (5) If a decision involves an area or location within extensive 
Federal or state holdings or a headwater area and FEMA's regulatory 
determinations under the National Flood Insurance Program are not 
available, the Regional Administrator shall seek information from the 
land administering agency before information and/or assistance is 
sought from the sources listed in paragraph (c)(3).
    (d) * * *
    (3) If the identified sources do not have adequate information upon 
which to base the determination, the Agency shall carry out an on-site 
analysis performed by a representative of the FWS or other qualified 
individual for wetlands characteristics based on the definition of a 
wetland in Sec.  9.4.
    (4) If an action constitutes new construction and is in a wetland 
but not in a floodplain, the provisions of this part shall apply. If 
the action is not in a wetland, the Regional Administrator shall 
determine if the action has the potential to result in indirect impacts 
on wetlands. If so, all potential adverse impacts shall be minimized. 
For actions which are in a wetland and the floodplain, completion of 
the decision-making process is required. (See Sec.  9.6). In such a 
case, the wetland will be considered as one of the natural and 
beneficial values of the floodplain.
0
9. Amend Sec.  9.8 by revising paragraphs (a), (c)(1), the first 
sentence of paragraph (c)(2), the introductory text of paragraph 
(c)(3), paragraph (c)(3)(v), paragraphs (c)(4) and (5) to read as 
follows:


Sec.  9.8  Public notice requirements.

    (a) Purpose. This section establishes the initial notice procedures 
to be followed when the Agency proposes any action in or affecting 
floodplains or wetlands.
* * * * *
    (c) * * *
    (1) For an action for which an environmental impact statement is 
being prepared, the Notice of Intent to File an EIS constitutes the 
early public notice if it includes the information required under 
paragraph (c)(5) of this section.
    (2) For each action having national significance for which notice 
is being provided, the Agency at a minimum shall provide notice by 
publication in the Federal Register and shall provide notice by mail to 
national organizations reasonably expected to be interested in the 
action. * * *
    (3) The Agency shall determine whether it has provided appropriate 
notices, adequate comment periods, and whether to issue cumulative 
notices (paragraphs (c)(4), (6), and (7) of this section) based on 
factors which include, but are not limited to:
* * * * *
    (v) Anticipated potential impact of the action.
    (4) For each action having primarily local importance for which 
notice is being provided, notice shall be made in accordance with the 
criteria under paragraph (c)(3) of this section, and shall include, as 
appropriate:
    (i) Notice through the internet or another comparable method.
    (ii) Notice to Indian tribes when effects may occur on 
reservations.
    (iii) Information required in the affected State's public notice 
procedures for comparable actions.
    (iv) Publication in local newspapers.
    (v) Notice through other local media including newsletters.
    (vi) Notice to potential interested community organizations.
    (vii) Direct mailing to owners and occupants of nearby or affected 
property.
    (viii) Posting of notice on and off site in the area where the 
action is to be located.
    (ix) Public hearing.
    (5) The notice shall:
    (i) Describe the action, its purposes, and a statement of the 
intent to carry out an action affecting or affected by a floodplain or 
wetland;
    (ii) Based on the factors in paragraph (c)(3) of this section, 
include a map of the area and other identification of the floodplain 
and/or wetland areas which is of adequate scale and detail; 
alternatively, FEMA may state that such map is available for public 
inspection, including the location at which such map may be inspected 
and a telephone number to call for information or may provide a link to 
access the map online;
    (iii) Based on the factors in paragraph (c)(3) of this section, 
describe the type, extent, and degree of hazard involved and the 
floodplain or wetland values present; and
    (iv) Identify the responsible official or organization for 
implementing the proposed action, and from whom further information can 
be obtained.
* * * * *
0
10. Amend Sec.  9.9 by:

[[Page 67925]]

0
a. Revising paragraphs (a)(1), (b)(2), and (c)(1) through (4);
0
b. Adding paragraph (c)(5);
0
c. Revising paragraphs (d), (e)(1)(i), (e)(1)(iii), (e)(1)(iv); (e)(2) 
introductory text, (e)(3) introductory text, and (e)(4);
0
d. Lifting the suspension of paragraph (e)(6) and removing the 
paragraph.
    The addition and revisions read as follows:


Sec.  9.9  Analysis and reevaluation of practicable alternatives.

    (a) * * *
    (1) This section expands upon the directives set out in Sec.  9.6 
of this part in order to clarify and emphasize the requirements to 
avoid floodplains and wetlands unless there is no practicable 
alternative.
* * * * *
    (b) * * *
    (2) Alternative actions which serve essentially the same purpose as 
the proposed action, but which have less potential to affect or be 
affected by the floodplain or wetlands. In developing the alternative 
actions, the Agency shall use, where possible, natural systems, 
ecosystem processes, and nature-based approaches; and
* * * * *
    (c) * * *
    (1) Natural environment (including, but not limited to topography, 
habitat, hazards, when applicable);
    (2) Social concerns (including, but not limited to aesthetics, 
historical and cultural values, land patterns, when applicable);
    (3) Economic aspects (including, but not limited to costs of space, 
technology, construction, services, relocation, when applicable);
    (4) Legal constraints (including, but not limited to deeds and 
leases, when applicable); and
    (5) Agency authorities.
    (d) * * *
    (1) The Agency shall not locate the proposed action in the 
floodplain as established by Sec.  9.7(c) or in a wetland if a 
practicable alternative exists outside the floodplain or wetland.
    (2) If no practicable alternative exists outside the floodplain or 
wetland, in order to carry out the action the floodplain or wetland 
must itself be a practicable location in light of the review required 
in this section.
    (e) * * *
    (1) * * *
    (i) The action is still practicable at a floodplain or wetland 
site, considering the flood risk and the ensuing disruption of natural 
values;
* * * * *
    (iii) The scope of the action can be limited to increase the 
practicability of previously rejected non-floodplain or wetland sites 
and alternative actions; and
    (iv) Harm to or within the floodplain can be minimized using all 
practicable means.
    (2) Take no action in a floodplain unless the importance of the 
floodplain site clearly outweighs the requirements to:
* * * * *
    (3) Take no action in a wetland unless the importance of the 
wetland site clearly outweighs the requirements to:
* * * * *
    (4) In carrying out this balancing process, give the factors in 
paragraphs (e)(2) and (3) of this section great weight.
* * * * *
0
11. Amend Sec.  9.10 by revising paragraph (a), the second sentence of 
paragraph (b), (c) and (d) to read as follows:


Sec.  9.10  Identify impacts of proposed actions.

    (a) This section ensures that the effects of proposed Agency 
actions are identified.
    (b) * * * Such identification of impacts shall be to the extent 
necessary to comply with the requirements of this part to avoid 
floodplain and wetland locations unless they are the only practicable 
alternatives to minimize harm to and within floodplains and wetlands.
    (c) This identification shall consider whether the proposed action 
will result in an increase in the useful life of any structure or 
facility in question, maintain the investment at risk and exposure of 
lives to the flood hazard or forego an opportunity to restore the 
natural and beneficial values served by floodplains or wetlands.
    (d) In the review of a proposed or alternative action, the Regional 
Administrator shall consider and evaluate: impacts associated with 
modification of wetlands and floodplains regardless of its location; 
additional impacts which may occur when certain types of actions may 
support subsequent action which have additional impacts of their own; 
adverse impacts of the proposed actions on lives and property and on 
natural and beneficial floodplain and wetland values; and the three 
categories of factors listed below:
    (1) Flood hazard-related factors. These include, but are not 
limited to, the factors listed in Sec.  9.7(b)(3);
    (2) Natural values-related factors. These include, but are not 
limited to: water resource values, as in storing and conveying 
floodwaters, maintaining water quality, and groundwater recharge; 
living resource values, as in providing habitats and enhancing 
biodiversity for fish and wildlife and plant resources; cultural 
resource values, as in providing open space, natural beauty, 
recreation, scientific study, historical and archaeological resources, 
and education; and cultivated resource values, as in creating rich 
soils for agriculture, aquaculture, and forestry.
    (3) Factors relevant to a proposed action's effects on the survival 
and quality of wetlands. These include, but are not limited to: Public 
health, safety, and welfare, including water supply, quality, recharge 
and discharge; pollution; flood and storm hazards; and sediment and 
erosion; maintenance of natural systems, including conservation and 
long term productivity of existing flora and fauna, species and habitat 
diversity and stability, hydrologic utility, fish, wildlife, timber, 
and food and fiber resources; and other uses of wetlands in the public 
interest, including recreational, scientific, and cultural uses.
0
12. Amend Sec.  9.11 by:
0
a. Revising paragraphs (a) and (c)(1);
0
b. Revising the first sentence of paragraph (d) introductory text, the 
introductory text of paragraph (d)(1), paragraphs (d)(2), (3) and (4), 
the introductory text of paragraph (d)(5), and paragraph (d)(9);
0
c. Lifting the suspension of paragraph (e)(4) and removing paragraph 
(e); and
0
d. Redesignating paragraph (f) as paragraph (e) and revising newly 
redesignated paragraph (e).
    The revisions read as follows:


Sec.  9.11  Mitigation.

    (a) Purpose. This section expands upon the directives set out in 
Sec.  9.6 of this part and sets out the mitigative actions required if 
the preliminary determination is made to carry out an action that 
affects or is in a floodplain or wetland.
* * * * *
    (c) * * *
    (1) Potential harm to lives and the investment from flooding based 
on flood elevations as established by Sec.  9.7(c);
* * * * *
    (d) Minimization Standards. The Agency shall apply, at a minimum, 
the following standards to its actions to comply with the requirements 
of paragraphs (b) and (c) of this section (except as provided in Sec.  
9.5(c), (d), and (g) regarding categories of partial or total 
exclusion). * * *
    (1) There shall be no new construction or substantial

[[Page 67926]]

improvement in a floodway and no new construction in a coastal high 
hazard area, except for: * * *
    (2) For a structure which is a functionally dependent use or which 
facilitates an open space use, the following applies: Any construction 
of a new or substantially improved structure in a coastal high hazard 
area must be elevated on adequately anchored pilings or columns, and 
securely anchored to such piles or columns so that the lowest portion 
of the structural members of the lowest floor (excluding the pilings or 
columns) is elevated to or above the floodplain as established by Sec.  
9.7(c). The structure shall be anchored so as to withstand velocity 
waters and hurricane wave wash.
    (3) Elevation of structures. The following applies to elevation of 
structures:
    (i) There shall be no new construction or substantial improvement 
of structures unless the lowest floor of the structures (including 
basement) is at or above the elevation of the floodplain as established 
by Sec.  9.7(c).
    (ii) If the subject structure is nonresidential, instead of 
elevating the structure, FEMA may approve the design of the structure 
and its attendant utility and sanitary facilities so that the structure 
is water tight below the flood elevation with walls substantially 
impermeable to the passage of water and with structural components 
having the capability of resisting hydrostatic and hydrodynamic loads 
and effects of buoyancy.
    (iii) The provisions of paragraphs (d)(3)(i) and (ii) of this 
section do not apply to the extent that FEMA Resilience has granted an 
exception under Sec.  60.6(b) of this chapter, or the community has 
granted a variance which the Regional Administrator determines is 
consistent with Sec.  60.6(a) of this chapter. In a community which 
does not have a FEMA regulatory product in effect, FEMA may approve a 
variance from the standards of paragraphs (d)(3)(i) and (ii) of this 
section, after compliance with the standards of Sec.  60.6(a) of this 
chapter.
    (4) There shall be no encroachments, including but not limited to 
fill, new construction, substantial improvements of structures or 
facilities, or other development within a designated regulatory 
floodway that would result in any increase in flood elevation within 
the community during the occurrence of the 1 percent annual chance 
(base) flood discharge. Until a regulatory floodway is designated, no 
fill, new construction, substantial improvements, or other development 
shall be permitted within the 1 percent annual chance (base) floodplain 
unless it is demonstrated that the cumulative effect of the proposed 
development, when combined with all other existing and anticipated 
development, will not increase the water surface elevation of the 1 
percent annual chance (base) flood more than the amount designated by 
the NFIP or the community, whichever is most restrictive.
    (5) Even if an action is a functionally dependent use or 
facilitates open space uses (under paragraph (d)(1) or (2) of this 
section) and does not increase flood heights (under paragraph (d)(4) of 
this section), such action may only be taken in a floodway or coastal 
high hazard area if: * * *
* * * * *
    (9) In the replacement of building contents, materials and 
equipment, the Regional Administrator shall require as appropriate, 
flood proofing and/or elevation of the building and/or elimination of 
such future losses by relocation of those building contents, materials, 
and equipment outside or above the floodplain as established by Sec.  
9.7(c).
    (e) Restore and preserve. (1) For any action taken by the Agency 
which affects the floodplain or wetland and which has resulted in, or 
will result in, harm to the floodplain or wetland, the Agency shall act 
to restore and preserve the natural and beneficial values served by 
floodplains and wetlands.
    (2) Where floodplain or wetland values have been degraded by the 
proposed action, the Agency shall identify, evaluate, and implement 
measures to restore the values.
    (3) If an action will result in harm to or within the floodplain or 
wetland, the Agency shall design or modify the action to preserve as 
much of the natural and beneficial floodplain and wetland values as is 
possible.
0
13. In Sec.  9.12 amend paragraph (d) by:
0
a. Designating the introductory text as paragraph (d)(1);
0
b. Designating paragraphs (d)(1) through (6) as paragraphs (d)(1)(i) 
through (d)(1)(vi);
0
c. Designate the undesignated text after newly designated paragraph 
(d)(1)(vi) as paragraph (d)(2) and revise newly designated paragraph 
(d)(2) to read as follows:


Sec.  9.12  Final public notice.

* * * * *
    (d) * * *
    (2) When a damaged structure or facility is already being repaired 
by the State or local government at the time of the project 
application, the requirements of Steps 2 and 7 (Sec. Sec.  9.8 and this 
9.12) may be met by a single notice. Such notice shall contain all the 
information required by both sections.
0
14. Revise Sec.  9.13 to read as follows:


Sec.  9.13  Particular types of temporary housing.

    (a) This section sets forth the procedures whereby the Agency will 
provide certain specified types of temporary housing at a private, 
commercial, or group site.
    (b) Prior to providing the temporary housing described in paragraph 
(a) of this section, the Agency shall comply with the provisions of 
this section. For temporary housing not enumerated above, the full 8-
step process (see Sec.  9.6) applies.
    (c) The actions described in paragraph (a) of this section are 
subject to the following decision-making process:
    (1) The temporary housing action shall be evaluated in accordance 
with the provisions of Sec.  9.7 to determine if it is in or affects 
the 1 percent annual chance (base) floodplain or wetland.
    (2) No temporary housing unit may be placed on a site in a floodway 
or coastal high hazard area.
    (3) An individual or family shall not be housed in the 1 percent 
annual chance (base) floodplain or wetland unless the Regional 
Administrator has complied with the provisions of Sec.  9.9 to 
determine that such site is the only practicable alternative. The 
following factors shall be substituted for the factors in Sec.  9.9(c) 
and (e)(2) through (4):
    (i) Speedy provision of temporary housing;
    (ii) Potential flood risk to the temporary housing occupant;
    (iii) Cost effectiveness;
    (iv) Social and neighborhood patterns;
    (v) Timely availability of other housing resources; and
    (vi) Potential harm to the floodplain or wetland.
    (4) For temporary housing units at group sites, Step 4 of the 8-
step process shall be applied in accordance with Sec.  9.10.
    (5) An individual or family shall not be housed in a floodplain or 
wetland (except in existing resources) unless the Regional 
Administrator has complied with the provisions of Sec.  9.11 to 
minimize harm to and within floodplains and wetlands. The following 
provisions shall be substituted for the provisions of Sec.  9.11(d) for 
temporary housing units:
    (i) No temporary housing unit may be placed unless it is elevated 
to the fullest extent practicable up to the base flood elevation and 
adequately anchored.
    (ii) No temporary housing unit may be placed if such placement is 
inconsistent with the criteria of the NFIP (44 CFR

[[Page 67927]]

parts 59 and 60) or any more restrictive Federal, State, or local 
floodplain management standard. Such standards may require elevation to 
the base flood elevation in the absence of a variance.
    (iii) Temporary housing units shall be elevated on open works 
(walls, columns, piers, piles, etc.) rather than on fill where 
practicable.
    (iv) To minimize the effect of floods on human health, safety and 
welfare, the Agency shall:
    (A) Where appropriate, integrate all of its proposed actions in 
placing temporary housing units for temporary housing in floodplains 
into existing flood warning or preparedness plans and ensure that 
available flood warning time is reflected;
    (B) Provide adequate access and egress to and from the proposed 
site of the temporary housing unit; and
    (C) Give special consideration to the unique hazard potential in 
flash flood and rapid-rise areas.
    (6) FEMA shall comply with Step 2 Early Public Notice (Sec.  
9.8(c)) and Step 7 Final Public Notice (Sec.  9.12). In providing these 
notices, the emergency nature of temporary housing shall be taken into 
account.
    (7) FEMA shall carry out the actions in accordance with Step 8, 
ensuring the requirements of this section and the decision-making 
process are fully integrated into the provision of temporary housing.
    (d) Sale or disposal of temporary housing. The following applies to 
the permanent installation of a temporary housing unit as part of a 
sale or disposal of temporary housing:
    (1) FEMA shall not permanently install temporary housing units in 
floodways or coastal high hazard areas. FEMA shall not permanently 
install a temporary housing unit in floodplains as established by 
9.7(c) or wetlands unless there is full compliance with the 8-step 
process. Given the vulnerability of temporary housing units to 
flooding, a rejection of a non-floodplain location alternative and of 
the no-action alternative shall be based on:
    (i) A compelling need of the family or individual to buy a 
temporary housing unit for permanent housing; and
    (ii) A compelling requirement to permanently install the unit in a 
floodplain.
    (2) FEMA shall not permanently install temporary housing units in 
the floodplain as established by Sec.  9.7(c) unless they are or will 
be elevated at least to the elevation of the floodplain as established 
by Sec.  9.7(c).
    (3) The Regional Administrator shall notify FEMA Resilience of each 
instance where a floodplain location has been found to be the only 
practicable alternative for permanent installation of a temporary 
housing unit.
0
15. In Sec.  9.14, revise paragraphs (a), (b)(4), (5), (6), (b)(7)(ii) 
and (iii), and (b)(9) to read as follows:


Sec.  9.14  Disposal of Agency Property

    (a) This section sets forth the procedures whereby the Agency shall 
dispose of property.
    (b) * * *
    (4) Identify the potential impacts and support of floodplain and 
wetland development associated with the disposal of the property in 
accordance with Sec.  9.10;
    (5) Identify the steps necessary to minimize, restore, preserve and 
enhance in accordance with Sec.  9.11. For disposals, this analysis 
shall address all four of these components of mitigation where 
unimproved property is involved, but shall focus on minimization 
through elevation or floodproofing and restoration of natural values 
where improved property is involved;
    (6) Reevaluate the proposal to dispose of the property in light of 
its exposure to the flood hazard and its natural values-related 
impacts, in accordance with Sec.  9.9. This analysis shall focus on 
whether it is practicable in light of the findings from Sec. Sec.  9.10 
and 9.11 to dispose of the property, or whether it must be retained. If 
it is determined that it is practicable to dispose of the property, 
this analysis shall identify the practicable alternative that best 
achieves the Agency's mitigation responsibility.
    (7) * * *
    (ii) Properties located inside the floodplain but outside of the 
floodway and the coastal high hazard area; and
    (iii) Properties located in a floodway, regulatory floodway, or 
coastal high hazard area.
* * * * *
0
16. In Sec.  9.16, revise paragraph (b) introductory text, paragraphs 
(b)(2) through (b)(5), and paragraph (c) to read as follows:


Sec.  9.16  Guidance for applicants.

* * * * *
    (b) This shall be accomplished primarily through amendment of all 
Agency instructions to applicants, and also through contact made by 
agency staff during the normal course of their activities, to fully 
inform prospective applicants of:
* * * * *
    (2) The decision-making process to be used by the Agency in making 
the determination of whether to take an action in or affecting 
floodplains or wetlands as set out in Sec.  9.6;
    (3) The practicability analysis as set out in Sec.  9.9;
    (4) The mitigation responsibilities as set out in Sec.  9.11;
    (5) The public notice and involvement process as set out in 
Sec. Sec.  9.8 and 9.12; and
* * * * *
    (c) Guidance to applicants shall be provided, where possible, prior 
to the time of application in order to minimize potential delays in the 
Agency's processing of the application due to failure of applicants to 
follow the provisions in this part.
0
17. In Sec.  9.17, revise paragraph (a), paragraph (b) introductory 
text, paragraphs (b)(3) through (b)(5), and paragraphs (c) and (d) to 
read as follows:


Sec.  9.17  Instructions to applicants.

    (a) Purpose. In accordance with Executive Orders 11988, as amended, 
and 11990, the Federal executive agencies must respond to a number of 
floodplain management and wetland protection responsibilities before 
carrying out any of their activities, including the provision of 
Federal financial and technical assistance. This section provides 
notice to applicants for Agency assistance of both the criteria that 
FEMA is required to follow, and the applicants' responsibilities under 
this part.
    (b) Responsibilities of Applicants. Based upon the guidance 
provided by the Agency under Sec.  9.16, the guidance included in the 
U.S. Water Resources Council's Guidelines for Implementing Executive 
Order 11988, Floodplain Management, and Executive Oder 13690, 
Establishing a Federal Flood Risk Management Standard and a Process for 
Further Soliciting and Considering Stakeholder Input, and based upon 
the provisions of the Orders and this part, applicants for Agency 
assistance shall recognize and reflect in their application:
* * * * *
    (3) The practicability analysis as set out in Sec.  9.9;
    (4) The mitigation responsibilities as set out in Sec.  9.11;
    (5) The public notice and involvement process as set out in 
Sec. Sec.  9.8 and 9.12; and
* * * * *
    (c) Provision of supporting information. Applicants for Agency 
assistance may be required to provide supporting information relative 
to the various responsibilities set out in paragraph (b) of this 
section as a prerequisite to the approval of their applications.
    (d) Approval of applicants. Applications for Agency assistance 
shall be reviewed for compliance with the

[[Page 67928]]

provisions in this part in addition to the Agency's other approval 
criteria.
0
18. In Sec.  9.18, revise paragraph (a)(1), the second sentence of 
paragraph (b)(1), and the first sentence of (b)(2) to read as follows:


Sec.  9.18  Responsibilities.

    (a) * * *
    (1) Implement the requirements of the Orders and this part. Under 
Sec. Sec.  9.2, 9.6 through 9.13, and 9.15 where a direction is given 
to the Agency, it is the responsibility of the Regional Administrator.
* * * * *
    (b) * * *
    (1) * * * When a decision of a Regional Administrator relating to 
disaster assistance is appealed, FEMA Resilience may make 
determinations under this part on behalf of the Agency.
    (2) Prepare and submit to the Office of Chief Counsel reports to 
the Office of Management and Budget in accordance with section 2(b) of 
Executive Order 11988, as amended, and section 3 of Executive Order 
11990.* * *

Appendix A to Part 9 [Removed]

0
19. Remove appendix A to part 9.

Deanne B. Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2023-21101 Filed 9-29-23; 8:45 am]
BILLING CODE 9111-66-P

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